the motion regards the nature of the remedy designed by the Court in its June 2 Opinion. Specifically, this Court exercised its discretion in remanding the case to the trial court for explicit findings in compliance with the guidelines set by the Supreme Court and the Court of Appeals for the Second Circuit. See Opinion at pp. 10-14, 17.
Conditional writs or remands to state courts for findings is a practice supported by considerable authority. See e.g. Senna v. Patrissi, 5 F.3d 18, 20 n. 1. (2d Cir. 1993) (per curiam) Howard v. Senkowski, 986 F.2d 24 (2d Cir. 1993); Suggs v. LaValle, 570 F.2d 1092, 1114 (2d Cir. 1978); cf. Waller, 467 U.S. at 49-50; Jackson v. Denno, 378 U.S. 368, 391-396, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964).
Petitioner attempts to distinguish the cases the Opinion relies upon. See Brief of Petitioner at pp. 5-7; Opinion at p. 17. However, although those cases obviously have certain legal and factual distinctions from this case, the principle remains the same -- District Courts have wide discretion in addressing errors brought before them and fashioning judgments on petitions for habeas corpus. See e.g. Hilton v. Braunskill, 481 U.S. 770, 775, 95 L. Ed. 2d 724, 107 S. Ct. 2113 (1987). Such discretion unquestionably includes the power to hold hearings in the District Court, itself, Pagan v. Keane, 984 F.2d 61, 64 (2d Cir. 1993), but the issue in this case is more appropriately addressed by the state court.
General notions of comity counsel that where, as here, an error was committed by a state court, it should be given an opportunity to correct its own error. Cf. Coleman v. Thompson, 501 U.S. 722, 731, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1990) (in a federal system, the States should have the first opportunity to address and correct alleged violations of state prisoner's federal rights); Darr v. Burford, 339 U.S. 200, 204, 94 L. Ed. 761, 70 S. Ct. 587 (1950) ("it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation"). The state court in this case should be given an opportunity to correct its own error, and the state court's findings are critical to the creation of a record for review.
In sum, the Supreme Court's articulation of the importance of remands to state courts strongly supports this Court's Order. In a case that controls and parallels this case in more ways than one, the Court remanded:
if, after a new [state court] hearing, essentially the same [result is reached], a new trial presumably would be a windfall for the defendant, and not in the public interest.