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UNITED STATES EX REL. JOHN v. NEW YORK

November 15, 1994

UNITED STATES OF AMERICA EX REL. NEIL JOHN, Petitioner,
v.
PEOPLE OF THE STATE OF NEW YORK, Respondent.


BRODERICK


The opinion of the court was delivered by: VINCENT L. BRODERICK

VINCENT L. BRODERICK, U.S.D.J.

 I

 Neil John for the third time invokes the Great Writ of habeas corpus under 28 USC 2254 to challenge his conviction for murder on May 6, 1992 on the ground that the evidence at his preliminary hearing was insufficient and prejudicially incomplete. Because this petition was sent by envelope referring to an earlier petition, 91 Civ 7634 (VLB), it is treated as a motion for reconsideration as well as being considered as a new petition.

 While under 28 USC 2254(b) such a petition cannot be granted if state remedies have not been exhausted, this question need not be considered if, as here, the interests of federalism in avoiding further litigation favor a denial on the merits. Washington v. James, 996 F.2d 1442, 1451 (2d Cir 1993).

 Treating petitioner's submission as a motion for reconsideration of the earlier ruling, reconsideration is granted and the former decision denying the petition in 91 Civ 7634 (VLB) reaffirmed. Treating the current petition as a new filing, it is denied because it repeats the same contentions previously rejected, and because it appears plainly from the face of the petition that petitioner is not entitled to relief.

 II

 In a petition filed more than three years ago and denied in John v. People, 91 Civ 2207 (SDNY April 1, 1991) (CLB), petitioner first contended that his conviction should be set aside because of alleged deficiencies in the conduct of his preliminary hearing.

 A second petition asserting the same ground for challenging petitioner's murder conviction was denied as repetitive and without merit in John v. People, 1992 U.S. Dist. LEXIS 15113, 1992 WL 261282 (SDNY September 29, 1992, 91 Civ. 7634) (VLB). I pointed out that "there is no federal constitutional requirement for a preliminary hearing as a prerequisite to a valid conviction at trial." Id. at 1. On November 19, 1992 petitioner filed a notice of appeal from the judgment resulting from this ruling; the appeal was dismissed by the Second Circuit on February 10, 1993 because of petitioner's failure to pursue the appeal as required by the Circuit's Civil Appeal Management Plan.

 The current (undated) petition - also treated here as a motion to reconsider the ruling in 91 Civ 7634 in 1992 - was postmarked November 7, 1994. The current submission makes the same contention as the two earlier ones: that petitioner's preliminary hearing was inadequate because of insufficiency and incompleteness of evidence.

 III

 Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Courts provides that a "second or successive petition may be dismissed if the judge finds that it fails to allege new or different grounds . . . or constituted an abuse of the writ." The current submission makes the same argument for the third time. It fails to allege new or different grounds, and by virtue of its repetitiousness abuses the safeguard for our liberties established by the Great Writ under our Constitution. *fn1"

 IV

 As pointed out in the order of September 29, 1992, preliminary hearings and similar proceedings are addressed solely to pretrial disposition of defendants and initiation of prosecution where called for; errors committed at those stages do not in normal course affect the validity of any subsequent conviction. See United States v. Mechanik, 475 U.S. 66, 106 S. Ct. 938, 89 L. Ed. 2d 50 (1986). Consequently any shortfall in the evidence at a preliminary hearing is ...


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