Just finished a global update of the Pending Second Circuit Cases page.
Some things to note. First, the following case was removed since petitioner was resentenced in trial court, which I guess rendered the habeas petition moot.
McGuire v. Walsh, 10-3862-pr
- Lower Ct. Info: 09-CV-464, 2010 WL 3420629 (EDNY Aug. 26, 2010) (ARR)
- In Circuit: Dist. Ct. COA
- Issues: (1) the nine years the trial court took to decide his 440.10 motion violated due process; (2) IAC based on counsel's failure to conduct an adequate investigation
Second, I recently discussed a DJ's decision on a Rule 60(b) motion in which the DJ stated that if a COA was necessary for a decision on a Rule 60(b) motion, he would be inclined to grant one. As I pointed out in that prior post, a COA is necessary in that situation. So, if the DJ thought one was appropriate, he should grant one. As it stands, I don't think that what the DJ did is enough to actually say that a COA was issued.
Nevertheless, I liked what counsel did in that case. He filed a notice of appeal and, in the notice, he stated that the DJ held "that were a Certificate of Appealability required for a Rule 60(b) motion to be appealed it would be granted." The case was only docketed in the Second Circuit a few days ago. Let's see what the court does with the case. It could either agree that a COA was essentially issued and let the case go forward. Or it could put the brakes on the appeal and tell petitioner to get an official COA from the DJ (which I am sure the DJ will grant).
So, at this point, I think it's worthwhile to add it to the Pending Second Circuit Cases page. Here are the details:
Graves v. Phillips, 11-4023-pr
- Denying Rule 60(b) Motion
- Lower ct. Info: 02-CV-6550, 2011 WL 4347881 (EDNY Sept. 15, 2011) (JBW)
- In Circuit: Dist. Ct. COA (kind of)
- Issues: Brady violation based on prosecution's failure to disclose criminal history of witness
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