The opinion of the court was delivered by: Thomas J. Mcavoy Senior United States District Judge
MEMORANDUM-DECISION AND ORDER
A. State Court Proceedings
On March 19, 2004, a Rensselaer County Grand Jury charged petitioner Michael Hoffler with two counts of Murder in the First Degree, contrary to New York Penal Law ("Penal Law") §§ 125.27(1)(a)(v)(b) and 125.27(1)(a)(vi)(b) (witness-elimination murder; contract killing); Murder in the Second Degree, in violation of Penal Law § 125.25(1); and Second Degree Conspiracy, contrary to Penal Law § 105.15, arising out of the December 30, 2003 fatal shooting of Christopher Drabik, who at the time had been acting as a confidential informant for the Albany Police Department. See Indictment No. 04-1024.*fn1 Hoffler's jury trial on those charges commenced in May, 2005 before Rensselaer County Court Judge Patrick J. McGrath. At the conclusion of that trial, Hoffler was convicted of murder in the first degree (witness-elimination murder). See Transcript of Trial of Michael Hoffler (5/2005) (Dkt. Nos. 2-1 through 2-8) ("Trial Tr.") at pp. 1672-76. However, on appeal, the New York State, Supreme Court, Appellate Division, Third Department reversed Hoffler's conviction and ordered a new trial because the oath of truthfulness had not been administered to the jurors before they were questioned during voir dire. See People v. Hoffler, 53 A.D.3d 116 (3d Dept. 2008). In arriving at that decision, the Appellate Division initially rejected Hoffler's claims alleging pretrial error on the part of the Trial Court, including his claims that the grand jury evidence was legally insufficient, and that the County Court erred in denying Hoffler's pretrial motion which sought the suppression of certain evidence. Id. at 118-19. However, the Appellate Division reversed Hoffler's conviction because that court found that "the complete failure to provide the oath of truthfulness to the prospective jurors constituted a clear violation of the statutory mandate of [Criminal Procedure Law ("CPL")] § 270.15(1)(a), dissolved an important safeguard to [Hoffler's] constitutional right to a fair trial by an impartial jury and invalidated the entire trial." Id. at 124 (citations omitted). After arriving at that determination, that court did not address various other appellate claims asserted by Hoffler, including his arguments challenging the sufficiency of the evidence adduced at trial, the weight of that evidence, and Hoffler's claim of prosecutorial misconduct. Id. at 124. The New York Court of Appeals subsequently denied Hoffler permission to appeal the Appellate Division's order to the Court of Appeals. People v. Hoffler, 11 N.Y.3d 832 (2008).
On May 15, 2009, Hoffler moved to dismiss the Indictment pursuant to New York's Criminal Procedure Law ("CPL") §§ 210.20, 40.20(1), and 40.30(1)(b). See Dkt. Nos. 7 & 7-1 at FA-1153-1373 ("May, 2009 Motion to Dismiss"). In that application, Hoffler argued, inter alia, that because the Appellate Division had ordered a re-trial of Hoffler without first evaluating the legal sufficiency of the evidence adduced at his trial, his re-trial would violate his Double Jeopardy rights. May, 2009 Motion to Dismiss at Points I, V, VIII-XII.
In his Decision and Order dated September 16, 2009, Rensselaer County Court Judge Robert M. Jacon denied Hoffler's May, 2009 Motion to Dismiss in its entirety. See Decision and Order of Judge Jacon (09/16/09) (Dkt. No. 9-1 at pp. 40-48) ("September, 2009 Decision"). In that ruling, the court initially noted that the Appellate Division order which reversed Hoffler's conviction and ordered a new trial served to nullify Hoffler's first trial, and that therefore a re-trial under the Indictment was permissible. September, 2009 Decision at p. 5. In addressing Hoffler's argument that the Appellate Division was legally required to address his challenges to the sufficiency of evidence prior to ordering a re-trial, and that its failure to do so constituted a fundamental defect barring his re-trial, the court found that the Appellate Division's decision reversing Hoffler's conviction was in full compliance with CPL § 470.25,*fn2 and because the Appellate Division's decision was in compliance with that provision of the CPL, such court was not legally required to address Hoffler's evidence sufficiency claims. September, 2009 Decision at pp. 5-6. The court also rejected Hoffler's argument that by not ruling on the evidence sufficiency claims, the Appellate Division subjected Hoffler to a second trial in violation of Double Jeopardy principles by concluding that an "intermediate appellate court is not required to address all issues raised in an appeal" because under CPL § 470.15(1), "an intermediate appellate court may consider and determine any question of law or fact involving error or defect in the criminal court proceedings. The language does not say must address all questions of law or fact." September, 2009 Decision at p. 6 (emphasis in original).
Hoffler thereafter filed an application pursuant to Article 78 of New York's Civil Practice Law and Rules in the Third Department for an order from the Appellate Division barring his re-trial. See Dkt. No. 8 at FA-1410-35 ("Article 78 Petition"). The District Attorney opposed that application (Dkt. No. 10 at FA-1765-1805), and on April 1, 2010, the Third Department dismissed the petition and found that Hoffler had not demonstrated a clear legal right to an order prohibiting the prosecutor from re-trying Hoffler. Hoffler v. Jacon, 72 A.D.3d 1183 (3d Dep't 2010). Specifically, that Court noted that "under New York's statutory double jeopardy scheme, a person is considered to have been 'prosecuted' on an offense after the action proceeds to trial and the jury has been impaneled and sworn." Hoffler, 72 A.D.3d at 1184 (citing CPL § 40.30(1)(b)). Since, in reversing Hoffler's conviction, the Appellate Division concluded that the jury had never been properly sworn pursuant to CPL § 270.15(1)(a), which failure in turn "invalidated the entire trial" (Hoffler, 53 A.D.3d at 124), the Appellate Division found that his prior trial "was a nullity and petitioner was never 'prosecuted' under the indictment." Hoffler, 72 A.D.3d at 1185 (citations omitted). That court therefore concluded that Hoffler "was never placed in jeopardy even though the trial proceeded to its conclusion." Hoffler, 72 A.D.3d at 1185 (citations omitted). The Third Department found Hoffler's argument that his re-trial was barred because the Appellate Division failed to address his legal sufficiency and weight of the evidence claims in the context of his direct appeal to be "unavailing," Hoffler, 72 A.D.3d at 1185, and found no impediment to his retrial "[w]here, as here, a fundamental defect rendered the entire trial invalid." Id. On July 1, 2010, the New York Court of Appeals denied Hoffler's leave application "upon the ground that no substantial constitutional question is directly involved."
Hoffler v. Jacon, 15 N.Y.3d 768 (2010), reconsideration denied, Hoffler v. Jacon, 15 N.Y.3d 872 (2010).
With the assistance of counsel, Hoffler commenced this action on April 11, 2011 through the filing of a habeas corpus petition brought pursuant to 28 U.S.C. § 2241. See Dkt. No. 1 ("Petition"). In his pleading, Hoffler argues that: (1) by failing to resolve Hoffler's challenge to the sufficiency of the evidence prior to ordering his re-trial, the Appellate Division violated Hoffler's constitutional rights; (2) the evidence presented by the prosecution at Hoffler's trial was legally insufficient to establish his guilt; and (3) CPL § 40.30(3), which allows the re-prosecution of an individual under the same indictment if an earlier prosecution has been nullified by court order, is unconstitutional. See Petition; see also Petitioner's Memorandum of Law in Support of Petition (Dkt. No. 1-1) ("Supporting Mem.") at pp. 6-15. Petitioner has also requested that this Court conduct an evidentiary hearing to consider: (1) Rensselaer County's alleged policy of not administering the oath of truthfulness to prospective jurors; (2) the "lack of manifest necessity for not issuing an oath of truthfulness to prospective jurors;" and (3) whether Hoffler "received an implicit acquittal" during the internal appellate process relating to his appeal. Petition at ¶ 16.
On May 27, 2011, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed a response in opposition to Hoffler's petition. See Dkt. No. 15. Respondent attached to his response a memorandum of law in opposition to Hoffler's petition. See Dkt. No. 15-1 ("Resp. Mem.").
On August 5, 2011, Hoffler filed a reply memorandum in further support of his application for habeas relief. See Dkt. No. 19 ("Reply").
A. Propriety of Bringing Action Under 28 U.S.C. § 2241
Initially, this Court notes that Hoffler has entitled this matter as a "Pretrial Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241." Petition at p. 1. Hoffler asserts that this action is properly brought by him pursuant to § 2241, rather than § 2254, while respondent argues that this Court should consider the present proceeding as one being asserted by Hoffler pursuant to 28 U.S.C. § 2254. Compare Supporting Mem., Point I with Resp. Mem., Point I.*fn3 This issue is significant because the standard of review federal courts are to utilize in considering petitions brought under § 2254 is substantively different than the standard of review courts are to employ when considering petitions brought under § 2241. As the Second Circuit explained in Messiah v. Duncan, 435 F.3d 186 (2d Cir. 2006), "[t]he Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat 1214, modified the standard under which we review § 2254 petitions." Messiah, 435 F.3d at 196. The AEDPA mandates that federal district courts defer to factual findings and legal conclusions of the state court in actions brought under § 2254. Messiah, 435 F.3d at 197 (citations omitted). However, no such deference is to be afforded state court findings and conclusions by federal courts reviewing petitions brought under § 2241. Martinez v. Caldwell, 644 F.3d 238, 242 (5th Cir. 2011) ("§ 2254 is textually distinct from § 2241: one explicitly mandates deference, the other does not") (collecting cases).
The issue of whether a petition for a pretrial writ of habeas corpus is properly brought pursuant to § 2241 or § 2254 has never been squarely addressed by the Second Circuit, and indeed the Second Circuit appears to have considered such petitions under both such statutes. For example, in United States ex rel. Scranton v. State of New York, 402 F.Supp. 1010 (S.D.N.Y. 1975), a pretrial detainee filed a habeas corpus petition seeking an order from the district court prohibiting her re-trial on a murder charge on speedy trial grounds. Id. at 1011. In affirming the district court's order denying such petition, the Second Circuit "treat[ed] the petition before us as an application under the broader habeas statute, 28 U.S.C., Section 2241," United States ex rel. Scranton v. State of New York, 532 F.2d 292, 293 (2d Cir. 1976), and ultimately affirmed the district court's order denying that petition because the petitioner therein had failed to fully exhaust with the state courts the claims she asserted in her petition. Id. at 294-96. More recently, in Kruelski v. Connecticut Superior Court For Judicial Dist. of Danbury, 316 F.3d 103 (2d Cir. 2003), the petitioner argued that the Double Jeopardy Clause of the United States Constitution prohibited his retrial on a misdemeanor charge that accused him of "offering to make home improvements without being registered" in the state of Connecticut. Id. at 104. The petitioner filed a habeas corpus petition pursuant to § 2254 in the district court challenging his retrial, which court denied that application after finding, inter alia, that the decision to retry the petitioner "was not an unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1)." See Kruelski, 316 F.3d at 105 (citation omitted). The Second Circuit affirmed, concluding that "the Connecticut ruling was neither contrary to nor an unreasonable application of clearly established federal law, as § 2254(d) requires for a grant of a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state." Kruelski, 316 F.3d at 111. However, in neither of the above cases does it appear as though either the petitioner or respondent argued that the petition could only be properly brought and considered under either § 2241 or § 2254.
In Marte v. Berkman, No. 11 CIV. 6082, 2011 WL 4946708 (S.D.N.Y. Oct. 18, 2011), United States District Judge John F. Keenan recently considered this very issue. That court noted that the federal circuit courts which have specifically addressed this issue have uniformly held that a pretrial petition seeking to preclude a re-trial is properly brought pursuant to § 2241. Marte, 2011 WL 4946708, at *5 (citing Walck v. Edmondson, 472 F.3d 1227, 1235 (10th Cir. 2007); Stow v. Murashige, 389 F.3d 880, 885 (9th Cir. 2004); Jacobs v. McCaughtry, 251 F.3d 596, 597 (7th Cir.2001) (per curiam); and Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998)); see also Martinez, 644 F.3d at 241-43; Palmer v. Clarke, 961 F.2d 771 (8th Cir. 1992). The Marte court then opined that even though the petitioner in that case brought his action pursuant to § 2254, such petition before was properly considered under § 2241 and thereby "outside the confines of AEDPA." Marte, 2011 WL 4946708, at *7.
This Court is persuaded by the above authority and therefore finds that this action was properly filed as a petition brought under 28 U.S.C. § 2241, and that the claims asserted herein must ...