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Clarke v. Smith

United States District Court, S.D. New York
Dec 22, 2006
04 Civ. 2240 (TPG) (S.D.N.Y. Dec. 22, 2006)

Opinion

04 Civ. 2240 (TPG).

December 22, 2006


OPINION


This is a petition for habeas corpus filed under 28 U.S.C. § 2254. Pursuant to Rule 4 of the Rules Governing Section 2254 Cases, the court has examined the petition and has determined that it must be dismissed.

In response to the original petition filed in this case, the then Chief Judge Mukasey issued an order directing that, if the matter was to proceed, an amended petition should be filed. For the amended petition to be legally sufficient, it needed to allege (1) facts showing how his constitutional rights have been violated, and (2) facts demonstrating petitioner's efforts to exhaust each of the grounds for habeas corpus relief through available state remedies.

An amended petition has been filed. The principal alleged ground is ineffective assistance of counsel. However, petitioner specifically alleges that he has not presented the claim of ineffective assistance of trial counsel in any state court. Petitioner also alleges that the trial court "failed to suppress a statement obtained by police," in violation of his Fifth Amendment rights. For the same reasons enunciated by Judge Mukasey in his order, petitioner has failed to conform the amended petition to the requirements of Rule 2(c) of the Rules Governing Section 2254 Cases in the United States District Courts.

For this reason, the petition is denied and dismissed.

As petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253; see Lozada v. United States, 107 F.3d 1011, 1016-17 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997).

In respect to the in forma pauperis statute relating to appeal ( 28 U.S.C. § 1915(a)), it is certified that an appeal from this order would not be taken in good faith, because it would be frivolous.


Summaries of

Clarke v. Smith

United States District Court, S.D. New York
Dec 22, 2006
04 Civ. 2240 (TPG) (S.D.N.Y. Dec. 22, 2006)
Case details for

Clarke v. Smith

Case Details

Full title:MICHAEL A. CLARKE, Petitioner, v. JAMES T. SMITH, Superintendent…

Court:United States District Court, S.D. New York

Date published: Dec 22, 2006

Citations

04 Civ. 2240 (TPG) (S.D.N.Y. Dec. 22, 2006)