292 F.3d 119 (2nd Cir. 2002), 00-2217, McKethan v. Mantello

Docket Nº:00-2217
Citation:292 F.3d 119
Party Name:McKethan v. Mantello
Case Date:May 31, 2002
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 119

292 F.3d 119 (2nd Cir. 2002)

William McKETHAN, Petitioner-Appellant,

v.

Dominic MANTELLO, Superintendent, Coxsackie Correctional Facility, Respondent-Appellee.

No. 00-2217.

United States Court of Appeals, Second Circuit

May 31, 2002

Argued: Oct. 22, 2001.

Page 120

Julia Pamela Heit, New York, NY, for Petitioner-Appellant.

Emil Bricker, Assistant District Attorney (Richard A. Brown, District Attorney, and John M. Castellano, Assistant District Attorney, of counsel), Kew Gardens, NY, for Respondent-Appellee.

Before CARDAMONE, WINTER, and SACK, Circuit Judges.

WINTER, Circuit Judge.

William McKethan, a New York state prisoner, appeals from Judge Weinstein's dismissal of his petition for habeas corpus. The dismissal was based on the ground that McKethan had not exhausted his remedies in the state courts with regard to some of his claims. See Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). However, the district court's inquiry was limited to whether each of the claims in McKethan's petition had earlier been presented to the New York courts. The court did not make the further inquiry as to whether the unpresented claims were now procedurally barred under New York law, see N.Y.Crim. Proc. Law § 4äx2>0(2)(c), and therefore deemed exhausted for federal habeas purposes. See Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (holding that even if a federal claim has not been presented to the highest state court, it will be deemed exhausted if it is, as a result, then procedurally barred under state law); see also Ramirez v. Attorney Gen. of New York, 280 F.3d 87, 94 (2d Cir. 2001). We conclude that appellant's claims are all fully exhausted and must be either addressed on the merits or treated for cause and prejudice analysis by the district court upon remand.

McKethan also argues that he should have been provided with appointed counsel during his state collateral proceedings and the proceeding in the district court. We disagree.

Page 121

BACKGROUND

McKethan was convicted by a jury in the Supreme Court of New York of second degree murder and several other crimes following a shooting in the course of a robbery. Represented by new counsel, McKethan appealed his convictions to the Appellate Division, Second Department. On that appeal, McKethan's counsel advanced only one argument--that evidence found on McKethan when he was arrested should have been suppressed because the police lacked probable cause for the arrest. McKethan also filed a pro se supplemental brief. In that brief, he argued, among other things, that he had received ineffective representation at trial because his trial counsel had failed to challenge the admissibility of a blood-stained coat that McKethan had taken from his victim.

While McKethan's appeal was pending, he filed a pro se motion in the trial court, pursuant to N.Y.Crim. Proc. Law § 440.10, to vacate his convictions. In this motion, McKethan contended that the state did not promptly provide him with certain evidentiary materials and that...

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