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Johnson v. Conway

March 18, 2010

JERRY L. JOHNSON, PETITIONER,
v.
JAMES T. CONWAY, RESPONDENT.



The opinion of the court was delivered by: VICTOR E. Bianchini United States Magistrate Judge

DECISION AND ORDER

I. Introduction

By means of a habeas corpus petition brought under 28 U.S.C. § 2254, pro se petitioner Jerry L. Johnson challenges his state-custody pursuant to a judgment of conviction for second degree (intentional) murder (N.Y. Penal Law § 125.25(2)).*fn1 This Court previously had denied, without prejudice, Johnson's earlier Motion to Amend/Correct (Docket No. 5) and Motion for Abeyance a Stay (Docket No. 6), with leave to re-file. Presently before the Court is Johnson's renewed Motion to Amend/Motion for a Stay. (Docket No. 13). For the reasons that follow, Johnson's Motion to Amend is granted and his Motion for a Stay is denied without prejudice as it is unclear whether the stay-and-abeyance procedure is necessary at this time.

II. Background

A. Petitioner's Habeas Petition

Johnson asserted the following grounds for habeas relief in the Petition:

(1) the "proof was insufficient as a matter of law to sustain [petitioner's] conviction of murder in the second degree, or, in the alternative, the conviction was against the weight of the credible evidence (Ground One, Attachment #2);

(2) the trial court "violated [petitioner's] constitutional right to Equal protection under the Fourteenth Amendment . . . when it denied [his] Batson challenge" (Ground Two, Attachment #3);

(3) "the evidence should have been suppressed because petitioner's consent was both the result of unconstitutional police conduct [and] involuntary" (Ground Three, Attachment #4); and

(4) he was denied the constitutional right to the effective of assistance of counsel because trial counsel filed an inadequate motion to dismiss for legal insufficiency; failed to request a jury charge on lesser included offenses; failed to "fully articulate [a] Batson challenge;" failed to adequately litigate the "plain view" issue at the pre-trial suppression hearing; and failed "to object or adequately cross-examine [Officer] Morlock on the inconsistencies [in his testimony]" (Ground Four, Attachment #5)

See Petition and Attachments to Petition (Docket No. 1).

B. Petitioner's Correspondence with the Court

On March 17, 2009, the Court received an undated letter from petitioner asking for an extension of time of 60 days in which to amend his petition add claims that he was pursuing via a motion to vacate the judgment under New York Criminal Procedure Law ("C.P.L.") § 440.10 and an application for a writ of error coram nobis. This letter was docketed as a "Motion to Amend/Correct Petition for Writ of Habeas Corpus." (Docket No. 5). Johnson indicated that he was having "tremendous difficulty in getting to the [sic] access to the law library here, more than ususal," and that his law assistant had his "cell ransacked and both [their] legal work was destroyed." Id. (Docket No. 5). Johnson stated that it was "going to take [him] at least 60 days to perfect these documents again" and "include this information when to [sic] amend [his] petition." Id. (Docket No. 5).

On March 30, 2009, the Court received from Johnson another undated letter referring to his previous letter. (Docket No. 6). The letter was docketed as a "Motion to Hold in Abeyance." Id. (Docket No. 6). In the March 30th letter, Johnson stated an intention to "pursue evidence which should have been analyzed . . ." and asserted that there was "inefficiency, malfeasance, and lack of any resemblance of diligence or strategy in pursuit of [his] innocence both by [his] trial attorneys and [his] appellate attorneys." Id. (Docket No. 6). He ...


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