The opinion of the court was delivered by: GLASSER
GLASSER, United States District Judge:
The petitioner has moved this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 claiming that he was twice put in jeopardy for the same offense which the Fifth Amendment to the United States Constitution expressly forbids. His petition was dismissed as being an abuse of the writ in a Memorandum and Order dated September 22, 1992. The petitioner then applied to this court for a certificate of probable cause to appeal to the United States Court of Appeals for the Second Circuit. In a Memorandum and Order dated October 10, 1992 his application was denied. An application for such a certificate was then made to the Court of Appeals. That court, by order dated September 14, 1993, granted his application "for the limited purpose of vacating the order of dismissal and remanding to the district court to allow the government to respond." By Memorandum and Order dated September 21, 1993, the respondent was directed to respond and he did.
The Memorandum and Order dated September 22, 1992 begins thus: "Petitioner is a prodigious litigator who has brought at least five successive petitions for habeas corpus relief: one in the Southern District of New York and four before this Court." A detailed account of the evolution of these proceedings will be useful in guiding the disposition of this petition.
On March 2, 1973, the petitioner and two others entered the apartment of Gwendolyn Butler, and after assaulting her boyfriend, took her to another place where the petitioner questioned her as to where he can find his estranged wife and then released her. For that event, he was indicted in Kings County and charged with burglary in the first degree; kidnaping in the second degree and assault in the second and third degrees. Upon being released on bail he attempted to induce Ms. Butler to withdraw her complaint. Being unsuccessful in that regard he arranged to have her murdered. On April 11, 1973, Ms. Butler and her apartment were doused with gasoline which was then ignited. On April 17, 1993 Ms. Butler died from the injuries she sustained in the resulting fire.
The petitioner was indicted again and charged with two counts of murder in the second degree. The two indictments were then consolidated.
On January 15, 1975, a trial commenced and on January 24th, after a juror became ill during deliberations, the court accepted a partial verdict with the consent of the parties. The petitioner was found guilty of burglary in the second degree and unlawful imprisonment in the first degree and acquitted of the other charges in the first indictment. The jury did not reach a verdict on the murder charges as to which the court declared a mistrial because the illness of a juror prevented deliberations from continuing.
The petitioner was retried on the murder charges in March, 1975 and was found guilty of both counts of murder in the second degree. On April 16, 1975, he was sentenced to concurrent terms of twenty years to life and to lesser concurrent terms on the burglary and unlawful imprisonment convictions.
In the twenty-one years since his convictions, he has challenged them on direct appeal; in eight motions pursuant to New York Criminal Procedure Law § 440.10; in two petitions for a writ of habeas corpus filed in the state court; in one motion for a writ of error coram nobis and in five petitions in federal courts for a writ of habeas corpus.
The bases for his challenges to his convictions, on appeal were: (1) the trial court's defective jury charge; (2) the insufficiency of the evidence; (3) improper identification and (4) ineffective assistance of counsel. His conviction was affirmed by the Appellate Division and he was denied permission to appeal.
In 1980, proceeding pro se, Moates moved pursuant to N.Y. Cr. Pr. L. § 440.10 in the Supreme Court, Kings County, to vacate his conviction alleging the following errors: (1) the inability of the jury to reach a verdict on the murder charges was tantamount to an acquittal and his second trial placed him twice in jeopardy; (2) the accomplice testimony was incompetent; (3) insufficiency of the evidence; (4) improper identification procedure; (5) prosecutorial misconduct; (6) police misconduct; (7) erroneous jury instructions. His motion was denied and he was denied permission to appeal that denial.
Two years later he moved once again, pursuant to N.Y. Cr. Pr. L. § 440.10, to vacate his conviction claiming, (1) ineffective assistance of trial and appellate counsel, and (2) double jeopardy. This motion was denied as was his request for permission to appeal that denial.
In 1985, Moates moved for the third time to vacate his conviction claiming: (1) the inconsistent testimony of the witnesses denied him his right to a fair trial, and (2) pressed yet again his double jeopardy claim. Once again, this motion was denied as were his prior motions ...