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Rodriguez v. Griffin

United States District Court, N.D. New York

April 5, 2017

JOSE A. RODRIGUEZ, Petitioner,
v.
THOMAS GRIFFIN, Respondent.

         APPEARANCES:

          JOSE A. RODRIGUEZ, Petitioner pro se Green Haven Correctional Facility

          HON. ERIC T. SCHNEIDERMAN Attorney for Respondent Office of the Attorney General

         OF COUNSEL:

          DENNIS A RAMBAUD, ESQ. Ass't Attorney General

          DECISION AND ORDER

          DAVID N. HURD, United States District Judge

         I. INTRODUCTION

         In August of 2016, petitioner Jose A. Rodriguez ("Rodriguez" or "petitioner") filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of New York. Dkt. No. 2, Petition ("Pet."). The petition was subsequently transferred to the Northern District. Dkt. No. 6.

         In his petition, Rodriguez challenges the constitutionality of his 2011 conviction, after a jury trial in the Otsego County Court, of the crimes of operating as a major trafficker and criminal sale of a controlled substance in the third degree (four counts). Pet. at 1. According to petitioner, he was sentenced to forty years in prison. Id.

         In papers dated February 28, 2017, Rodriguez moves to amend his habeas petition to include an additional claim of ineffective assistance of appellate counsel, and a renewed motion to stay the amended petition while he exhausts this claim in state court. See Dkt. No. 26, Motion to Amend; Dkt. No. 26-1, Proposed Amended Pleading; Dkt. No. 27, Renewed Motion to Stay; Dkt. No. 27-1, Exhibits.

         Respondent has filed a response to the motions. Dkt. No. 28, Respondent's Response ("Resp. Resp.").

         II. BACKGROUND

         In his motion to amend, Rodriguez explains that he seeks to add one additional ground for habeas relief: petitioner received ineffective assistance of appellate counsel "when [counsel] omitted issues that have a reasonable probability of success." Dkt. No. 27-1, Proposed Amended Pleading, at 32.

         Rodriguez raised this claim in a second coram nobis petition before the Appellate Division, Third Department, which, according to petitioner, is still pending before that court. Dkt. No. 27, Mot. to Amend, at 3. For a complete statement of petitioner's ...


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