McKethan v Mantello, 053102 FED2, 00-2217

Docket Nº:00-2217
Party Name:McKethan v Mantello
Case Date:October 22, 2001
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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WILLIAM MCKETHAN, PETITIONER-APPELLANT,

v.

DOMINIC MANTELLO, SUPERINTENDENT, COXSACKIE CORRECTIONAL FACILITY, RESPONDENT-APPELLEE.

Docket No. 00-2217

August Term, 2001

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: October 22, 2001

May 31, 2002

Appeal from a dismissal by the United States District Court for the Eastern District of New York (Jack B. Weinstein, Judge) of a petition for habeas corpus for failure to exhaust claims in state court. We hold that appellant has exhausted all available options for relief in the state courts. We also hold that appellant was not unconstitutionally denied counsel. We therefore reverse and remand.

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

Emil Bricker, Assistant District Attorney (Richard A. Brown, District Attorney, and John M. Castellano, Assistant District Attorney, of counsel), Kew Gardens, New York, 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 (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 § 440.10(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.

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...

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