Roman v. Abrams
| Decision Date | 09 May 1986 |
| Citation | 790 F.2d 244 |
| Parties | Michael ROMAN, Petitioner-Appellee-Cross-Appellant, v. Robert ABRAMS, Attorney General of the State of New York, Respondent-Appellant-Cross-Appellee. Dockets 85-2191, 85-2201. |
| Court | U.S. Court of Appeals — Second Circuit |
Lawrence Mark Stern, New York City, for petitioner-appellee-cross-appellant.
Mario Merola, Dist. Atty., Bronx County, Bronx, N.Y. (Peter D. Coddington, Allen H. Saperstein, Asst. Dist. Attys., of counsel), for respondent-appellant-cross-appellee.
Before OAKES, WINTER and PRATT, Circuit Judges.
Michael Roman obtained a writ of habeas corpus from Judge Brieant on the basis of alleged constitutional violations in the prosecutor's use of peremptory challenges, 608 F.Supp. 629. In Docket No. 85-2191, the state appeals from the issuance of the writ and the order of a new trial. Roman has moved for confirmation of the district court's appointment of counsel on appeal, and we grant that motion.
In Docket No. 85-2201, Roman seeks a certificate of probable cause in order to cross-appeal from the district court's rejection of two other claims he made in that court. Alternatively, he seeks to cross-appeal without such a certificate. We have examined the claims rejected by the district court--an alleged unconstitutional use of a challenge for cause and ineffective assistance of counsel--and have concluded they are meritless. Therefore, Roman is not entitled to a certificate of probable cause, and we must address the question whether he may cross-appeal without such a certificate.
We have previously held that we have the power to limit a certificate of probable cause to one or more specified issues when a state prisoner appeals from the denial of a writ of habeas corpus. Vicaretti v. Henderson, 645 F.2d 100 (2d Cir.1980), cert. denied, 454 U.S. 868, 102 S.Ct. 334, 70 L.Ed.2d 171 (1981). We have not previously addressed the issue posed in this case, namely, whether, after the state has appealed from a decision granting the writ on specified grounds, the prisoner may cross-appeal from the denial by the district court of other claims as a matter of right or whether a certificate of probable cause is required.
We believe the instant case is controlled by the rationale adopted in Vicaretti. Had Roman lost on all his claims, he would have had to have sought a certificate of probable cause to appeal any of them. Even if that were granted, moreover, it might...
To continue reading
Request your trial
- U.S. v. Tutino
-
Szuchon v. Lehman
...is pre AEDPA caselaw to the effect that a certificate of probable cause was necessary in such a circumstance. See Roman v. Abrams, 790 F.2d 244, 245 (2d Cir. 1986) (per curiam). Post-AEDPA caselaw and commentary similarly points in that direction. See Scott v. Mitchell, 209 F.3d 854, 862-63......
-
Grotto v. Herbert
...sought to have the granting of the writ upheld on the basis of one or more of his rejected claims. See Roman v. Abrams, 790 F.2d 244, 244-45 (2d Cir.1986) (per curiam). In ruling that even a victorious petitioner must obtain a certificate of probable cause in order to obtain review of his r......
-
State v. Jackson
...to examine the prosecutor. The defendant relies on Roman v. Abrams, 608 F.Supp. 629 (S.D.N.Y.1985), mod. on other grounds, 790 F.2d 244 (2nd Cir.1986). We do not believe this case is helpful to the defendant. In that case the defendant had petitioned the federal district court for a writ of......