Amendments to 440.10

1. Murden v. Artuz

   497 F.3d 178 (2d Cir. 2007)   Cited 281 times

   • Motion to dismiss
   2 more...

   Murden argues that C.P.L. § 440.10(3) cannot constitute an independent and adequate state procedural bar because it is a discretionary and not mandatory rule. Subsection (3) provides that a court "may" deny a motion to vacate in each of the circumstances it identifies, and also provides that "in the interest of justice and for good cause shown" a court may exercise its discretion and grant a meritorious motion. C.P.L. § 440.10(3); see also, e.g., People v. Bryce, 287 A.D.2d 799, 731 N.Y.S.2d 263, 268 (App.Div. 2001) (citing C.P.L. § 440.10(3) and vacating conviction in interests of justice where post-trial exhumation of victim's skull showed that trial evidence of skull fracture was grossly erroneous). The statutory grant of discretion does not prevent Section 440.10(3) from operating as a procedural bar' to federal habeas review under the circumstances presented in this case.

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2. Clark v. Perez

   510 F.3d 382 (2d Cir. 2008)   Cited 289 times   1 Legal Analyses

   3 more...

   The district court also relied on New York Criminal Procedure Law, reasoning that, because section 440.10 was designed to incorporate the common law writ of coram nobis, and because section 440.10(3)(a) and coram nobis case law make particular exceptions to procedural default where a claim is based on a deprivation of the right to counsel, the link between coram nobis and section 440.10 "could also be relevant" to the requirement that a timely appeal be taken where a claim appears on the face of the record. Clark, 450 F.Supp.2d at 427-28 n. 218. Section 440.10(3)(a) says what happens when the reason a ground for appeal does not appear on the face of the trial record is the defendant's failure to make the record, and provides that denial of the writ on that basis is impermissible where the claim is based on a deprivation of the right to counsel. This provision is categorically irrelevant here: Clark's claim is based on matters that appear all over the face of the trial record.

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3. Reyes v. Keane

   118 F.3d 136 (2d Cir. 1997)   Cited 407 times   1 Legal Analyses

   • Motion to dismiss
   2 more...

   "For exhaustion purposes, `a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred.'" Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) (quoting Harris v. Reed, 489 U.S. 255, 263 n.9 (1989)). While New York provides a mechanism for collaterally attacking a judgment that is in violation of constitutional rights, see N.Y. Crim. Proc. Law Section(s) 440.10( 1)(h) (McKinney 1994), any attempt by Reyes to bring such a motion would be futile. Section 440.10( 2)(c) of New York's Criminal Procedure Law mandates that the state court deny any 440.10 motion where the defendant unjustifiably failed to argue such constitutional violation on direct appeal despite a sufficient record. See Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 126 (2d Cir. 1995) (refusing to conduct federal habeas review where New York's appellate court found claim to be procedurally barred under Section(s) 440.10( 2)(c)); People v. Santillana, 547 N.Y.S.2d 981, 982 (Sup. Ct. 1989) (barring claims pursuant to Section(s) 440.10( 2)(c) that were not raised…

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4. People v. Cooks

   67 N.Y.2d 100 (N.Y. 1986)   Cited 304 times

   The purpose of those provisions is to prevent CPL 440.10 from being employed as a substitute for direct appeal when defendant was in a position to raise an issue on appeal (CPL 440.10 [b]) or could readily have raised it on appeal but failed to do so (CPL 440.10 [c]; see, People ex rel. Gibbs v Vincent, 39 N.Y.2d 918; Bellacosa, Practice Commentaries, McKinney's Cons Laws of NY, Book 11A, CPL 440.10, p 320).

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5. Sweet v. Bennett

   353 F.3d 135 (2d Cir. 2003)   Cited 414 times

   2 more...

   New York law requires a state court to deny a motion to vacate a judgment based on a constitutional violation where the defendant unjustifiably failed to argue the constitutional violation on direct appeal despite a sufficient record. N.Y.Crim. Proc. Law § 440.10(2)(c). The purpose of this rule "is to prevent [Section] 440.10 from being employed as a substitute for direct appeal when [the] defendant was in a position to raise an issue on appeal . . . or could readily have raised it on appeal but failed to do so." People v. Cooks, 67 N.Y.2d 100, 103, 491 N.E.2d 676, 678, 500 N.Y.S.2d 503, 505 (1986). New York courts have held that some ineffective assistance claims are "not demonstrable on the main record" and are more appropriate for collateral or post-conviction attack, which can develop the necessary evidentiary record. People v. Harris, 109 A.D.2d 351, 360, 491 N.Y.S.2d 678, 687 (2d Dep't 1985) (collecting cases); see also People v. Brown, 45 N.Y.2d 852, 382 N.E.2d 1149, 410 N.Y.S.2d 287 (1978).

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6. Saunders v. Senkowski

   587 F.3d 543 (2d Cir. 2009)   Cited 190 times   1 Legal Analyses

   • Motion to dismiss
   1 more...

   On February 13, 2001, almost a year and three months after the New York Court of Appeals's denial of leave to appeal, Saunders filed with the Albany County Court a motion to vacate his conviction pursuant to New York Criminal Procedure Law § 440.10. On May 30, 2001, the County Court denied the § 440.10 motion, but granted permission to appeal that denial to the Appellate Division. On January 23, 2003, the Appellate Division affirmed the County Court's denial of Saunders's § 440.10 motion. Saunders sought permission to appeal the denial of his § 440.10 motion to the New York Court of Appeals, but permission was denied by order dated May 20, 2003. People v. Saunders, 100 N.Y.2d 542, 542, 763 N.Y.S.2d 8, 793 N.E.2d 422 (2003). Notice of the order was sent to Saunders by mail, and he contends that he did not receive the notice until May 27, 2003.

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7. Klein v. Harris

   667 F.2d 274 (2d Cir. 1981)   Cited 365 times

   • Motion to dismiss
   3 more...

   Alternatively, the State argues that Klein's conceded failure to make this particular constitutional argument on appeal constituted a procedural default on which the state trial court could have relied to deny this claim when presented in Klein's section 440.10 motion. See N.Y.Crim.Proc.Law § 440.10(2)(c). The fact is, however, that the state trial judge, in passing on the section 440.10 motion, did not rely on any procedural ground, but reached the merits of Klein's claim, denying it on the ground that "the Court was obliged to advise [Rabinowitz] of his rights before he further incriminated himself." Our conclusion that the judge did not rely on any procedural ground to deny Klein's claim is bolstered by his comment that "all of the grounds upon which this application is made [save Klein's ineffectiveness of counsel claim] have been reviewed thoroughly on appeal." Plainly, since the trial judge thought that Klein had raised the constitutional claim now before us during the course of his direct appeal, he could not possibly have based his denial of that claim on the ground that Klein failed to raise it during his direct appeal.

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8. Pesina v. Johnson

   913 F.2d 53 (2d Cir. 1990)   Cited 228 times

   Pesina argues that because the statutory time limit for such an appeal has passed, see N.Y.Crim.P.L. § 460.10(4)(a), he has exhausted his claim. We disagree. While that statutory limit may ultimately be held by state courts to preclude them from reaching the merits of Pesina's ineffective assistance claim, he must still present that claim to the highest state court. We have no authority to declare as a matter of state law that an appeal from the denial of his original Section 440.10 motion is unavailable or that he cannot raise the ineffective assistance claim in a new Section 440.10 action. Until Pesina presents his claim to the highest state court — whether or not it seems likely that he will be held to be procedurally barred — he has not exhausted available state procedures. See 28 U.S.C. § 2254(c).
9. People v. Love

   57 N.Y.2d 998 (N.Y. 1982)   Cited 616 times

   Nor can we conclude on the present record that the assistance of counsel received by defendant was constitutionally ineffective. Reviewing the trial minutes only, one could conclude that the trial attorney failed properly to interview his expert witness before putting him on the stand, with the result that the expert's response to questions from the court established that defendant knew his conduct was wrong and understood the nature and consequences of his act in committing the burglary for which he was being tried. Yet unlike the situation in People v Bennett ( 29 N.Y.2d 462), the record shows that trial counsel in the instant case had read the medical records, had contacted a doctor who, as the August 28, 1975 laboratory report in Exhibit A shows, had had previous contact with defendant and who reviewed the hospital records prior to testifying, and phrased his inquiry to the doctor in proper, though somewhat inartful, terms. That the doctor testified as he did in answer to questions from the court could evidence ineffective assistance of counsel only if it were shown either that on the available medical evidence another doctor would have testified to the contrary (cf. People v…

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10. Ramos v. Walker

    88 F. Supp. 2d 233 (S.D.N.Y. 2000)   Cited 63 times

    • Motion to dismiss

    As noted above, review of the denial of a Section 440.10 motion is available only in the Appellate Division and only by leave of a judge thereof. Indeed, petitioner's effort to obtain review in the New York Court of Appeals of the denial of his Section 440.10 motion was dismissed because that court has no jurisdiction to review orders denying leave to appeal from orders denying Section 440.10 motions to the Appellate Division.

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