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

Page 119

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

William McKETHAN, Petitioner-Appellant,


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


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 his original counsel was ineffective at trial. In particular, he criticized his trial counsel's failure to investigate the case, call certain witnesses, or accede to McKethan's demands regarding trial strategy.

The trial court denied McKethan's motion, holding that he was procedurally barred from challenging the government's untimely provision of evidence and that his counsel had defended him effectively. Shortly thereafter, the Appellate Division affirmed his convictions. Specifically, it ruled that the police had sufficient probable cause when they arrested McKethan and that the issues raised in McKethan's pro se brief were either without merit or inappropriate for review on a direct appeal.

McKethan then sought permission from the Appellate Division to appeal the trial court's denial of his motion to vacate his convictions. He also moved to reargue his direct appeal before the Appellate Division. Both requests were rejected.

McKethan next submitted letters to the New York State Court of Appeals asking for review. Lastly, McKethan's counsel also sought permission from the Court of Appeals to appeal the Appellate Division's ruling concerning probable cause for McKethan's arrest. All of these requests were denied.

From this point forward, McKethan proceeded without counsel. He applied unsuccessfully to the Court of Appeals to appeal the denial of his motion to vacate his convictions. He also moved the trial court to renew his first motion to vacate his convictions and initiated yet a new motion to vacate his convictions, repeating issues that he had raised previously. The trial court consolidated McKethan's motions and rejected them.

McKethan thereafter continued to try, without success, to have his convictions vacated. He filed a writ of error coram nobis with the Appellate Division, contending that his counsel on direct appeal was ineffective....

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