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Damon Blackman v. Robert Ercole

October 27, 2011

DAMON BLACKMAN, PETITIONER-APPELLANT,
v.
ROBERT ERCOLE, SUPERINTENDENT, RESPONDENT-APPELLEE.



Per curiam.

10-205-pr

Blackman v. Ercole

Submitted: October 18, 2011

Before: MINER, CABRANES, and LIVINGSTON, Circuit Judges.

Petitioner Damon Blackman, pro se, appeals from a December 21, 2009 judgment of the United States District Court for the Eastern District of New York denying his petition for a writ of habeas corpus. Although the district judge granted Blackman a Certificate of Appealability ("COA"), the COA did not specify the issue or issues for which it was granted. We remand the cause for specification of the issue or issues on which the COA was granted. See 28 U.S.C. § 2253(c)(2)-(3) (2006) (requiring that a COA indicate the "specific issue or issues" on which petitioner has made a "substantial showing of the denial of a constitutional right").

Petitioner-appellant Damon Blackman, pro se, a New York state prisoner serving a 10-year sentence for first-degree robbery, appeals from a December 21, 2009 judgment of the United States District Court for the Eastern District of New York denying his pro se petition for a writ of habeas corpus. Although the district judge granted Blackman a Certificate of Appealability ("COA"), the COA did not specify the issue or issues on which it was granted. Pursuant to 28 U.S.C. § 2253(c)(2)-(3),*fn1 we remand the cause to the District Court for specification of the issue or issues on which the COA was granted.

BACKGROUND

On July 21, 2003, after a jury trial in New York state court, Blackman was convicted of Robbery in the First Degree, N.Y. Penal Law § 160.15[4], and sentenced to a 10-year term of imprisonment on September 29, 2003. The Appellate Division, Second Department, affirmed his conviction on December 27, 2004, People v. Blackman, 789 N.Y.S.2d 57 (2d Dep't 2004), and the New York State Court of Appeals denied Blackman's application for leave to appeal on February 25, 2005, People v. Blackman, 4 N.Y.3d 796 (2005).

On February 16, 2006, Blackman, pro se, filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York, raising claims that were exhausted in the state court. The district judge issued a Memorandum & Order, dated December 14, 2009, denying all of Blackman's claims on the merits. Blackman v. Ercole, No. 06-cv- 855(SLT)(SMG), 2009 WL 4891767 (E.D.N.Y. Dec. 17, 2009).

Thereafter, on January 15, 2010, the Office of the Clerk of the United States District Court for the Eastern District of New York ("Clerk's Office") forwarded to the district judge a memorandum conveying Blackman's request for a COA. The memorandum consisted of a standard form that listed several possible motions or requests that a petitioner might have filed, with a blank line to the left of each, on which the Appeals Clerk in the Clerk's Office could mark manually the applicable motions or requests. The standard form provided two additional blank lines to the right of each motion or request, labeled "Granted" and "Denied," on which the addressee district judge manually could indicate his or her action on each relevant motion or request. The standard form memorandum on which the district judge granted the COA in this case included two markings: (1) at the leftmost column, a mark of the Appeals Clerk in the Clerk's Office recording Blackman's request for a COA, entered on or around January 15, 2010, the date on which the memorandum was sent from the Clerk's Office to the district judge; and (2) at a column to the right, a mark by the district judge designating Blackman's request for a COA as "Granted," entered on or around August 9, 2010, the date on the COA:

Attached please find Motion/Request for:

_____ Leave to appeal in forma pauperis _____

Granted Denied

√_ Certificate of ...


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