Opinion
No. 9:01-CV-1361 (GLS/DEP).
November 9, 2007
FOR THE PETITIONER: ROBERT N. ISSEKS, ESQ., OFFICE OF ROBERT N. ISSEKS, Middletown, New York.
FOR THE RESPONDENT: JODI A. DANZIG, Assistant Attorney General, HON. ANDREW CUOMO, Office of the Attorney General, New York, New York.
MEMORANDUM-DECISION AND ORDER
By Memorandum-Decision and Order filed August 21, 2007, the Report-Recommendation issued by Magistrate Judge David E. Peebles was accepted and adopted in its entirety, and Lucas Henry's petition for habeas corpus relief was denied and his petition dismissed. Dkt. 20. Henry has appealed that Order to the United States Court of Appeals for the Second Circuit. Dkt. 22. Presently before the Court is Henry's request for a certificate of appealability ("COA"). Dkt. 23. Respondent opposes the issuance of a COA. Dkt. 28.
Appeals to the Court of Appeals in habeas corpus proceedings are governed by 28 U.S.C. § 2253, which provides in relevant part that:
(c)(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from —
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.28 U.S.C. § 2253. A COA may only be issued "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). This standard is satisfied by "showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotations and citation omitted).
Henry claims that he is entitled to habeas corpus relief from his conviction and sentence for depraved indifference murder because, in light of the New York Court of Appeals' holdings in People v. Feingold, 7 N.Y.3d 288 (2006), People v. Suarez, 6 N.Y.3d 202 (2005), and People v. Payne, 3 N.Y.3d 266 (2004), the evidence adduced at Henry's trial was insufficient to support a finding that Henry acted with depraved indifference to human life. See Dkt. 24, ¶ 3; Dkt. 16, p. 7. In support of his application for a COA, Henry argues that although Feingold, Suarez, and Payne were decided after his conviction became final, the holdings of these cases must be applied retroactively. See Dkt. 24, ¶ 2. Alternatively, Henry argues that the Feingold-Suarez-Payne line of cases, rather than announcing a new rule of law, merely clarified the law in existence at the time of Henry's conviction. Thus, he argues, under the holdings of Dixon v. Miller, 293 F.3d 74 (2d Cir. 2002) and Fiore v. White, 531 U.S. 225 (2001), his conviction was unconstitutional. See Dkt. 24, ¶ 2.
Upon due consideration, the Court finds that Henry has made the showing required for issuance of a COA.
It is therefore
ORDERED that Henry's application for a COA ( Dkt. 23) is granted in full; and it is further
ORDERED that the Clerk serve a copy of this Order on the parties.