No doubt recognizing that obtaining such an affidavit may prove difficult, the New York courts have expressly stated that either an affidavit from counsel or an explanation of why such an affidavit is not available is acceptable. That is the specific holding of People v. Morales, 58 N.Y.2d 1008, 461 N.Y.S.2d 1011, 448 N.E.2d 796 (1983), the New York Court of Appeals decision that Jenkins maintains created the affidavit requirement: Because defendant failed to submit an affidavit from the attorney who represented him at plea and sentence or offer an explanation of his failure to do so, it cannot be said that as to defendant's failure to appeal the coram nobis Judge erred in denying the application without a hearing.

"New York courts have expressly stated that either an affidavit from counsel or an explanation of why such an affidavit is not available is acceptable." Id.; see People v. Morales, 58 N.Y.2d 1008, 1009 (1983) ("Because defendant failed to submit an affidavit from the attorney who represented him at plea and sentence or offer an explanation of his failure to do so, it cannot be said that as to defendant's failure to appeal the coram nobis Judge erred in denying the application without a hearing."). Some New York courts have even held that a defendant is not required to submit an affidavit from trial counsel or offer an explanation in circumstances where the defendant's claim is hostile to the trial attorney.

The prosecution further argued that, in light of Jackson's failure to present an affidavit from trial counsel explaining his defense of the case, the motion should be denied without a hearing. Id. at 2-3, ¶ 5 (citing, inter alia, People v. Morales, 58 N.Y.2d 1008, 1009 (N.Y. 1983)). Finally, the prosecution argued that, in any event, trial counsel's conduct, viewed either with respect to specific alleged errors or as a whole, did not rise to the level of egregious or prejudicial conduct necessary to prevail on an ineffective assistance of counsel claim. Id. at 3, ¶ 6 (citing People v. Flores, 84 N.Y.2d 184, 187-88 (N.Y. 1994)).

The prosecution further argued that, in light of Jackson's failure to present an affidavit from trial counsel explaining his defense of the case, the motion should be denied without a hearing. Id. at 2-3, ¶ 5 (citing, interalia, People v. Morales, 58 N.Y.2d 1008, 1009 (N.Y. 1983)). Finally, the prosecution argued that, in any event, trial counsel's conduct, viewed either with respect to specific alleged errors or as a whole, did not rise to the level of egregious or prejudicial conduct necessary to prevail on an ineffective assistance of counsel claim.

The prosecution further argued that, in light of Jackson's failure to present an affidavit from trial counsel explaining his defense of the case, the motion should be denied without a hearing. Id. at 2-3, ¶ 5 (citing, inter alia, People v. Morales, 58 N.Y.2d 1008, 1009 (N.Y. 1983)). Finally, the prosecution argued that, in any event, trial counsel's conduct, viewed either with respect to specific alleged errors or as a whole, did not rise to the level of egregious or prejudicial conduct necessary to prevail on an ineffective assistance of counsel claim. Id. at 3, ¶ 6 (citing People v. Flores, 84 N.Y.2d 184, 187-88 (N.Y. 1994)).

Furthermore, the state court's holding, requiring an affidavit of counsel to attest to his own inadequacy, is neither firmly established nor regularly followed by the New York courts. Although there are cases holding that a coram nobis court may dismiss a petitioner's claim of ineffective assistance of counsel because he failed to submit an affidavit by his counsel, see People v. Morales, 58 N.Y.2d 1008, 461 N.Y.S.2d 1011, 448 N.E.2d 796 (1983); People v. Scott, 10 N.Y.2d 380, 223 N.Y.S.2d 472, 179 N.E.2d 486, 486 (1961), the more recent cases hold the opposite. See People v. Radcliffe, 298 A.D.2d 533, 749 N.Y.S.2d 257, 258 (N.Y.App.Div. 2002); People v. Sherk, 269 A.D.2d 755, 704 N.Y.S.2d 401, 401 (N.Y.App.Div. 2000) (stating "[d]efendant's sworn statement raises a factual issue that requires a hearing" where "[defendant's submissions `tend to substantiate all the essential facts' necessary to support defendant's claim of ineffective assistance of counsel"); People v. Gonzalez, 160 A.D.2d 724, 554 N.Y.S.2d 48 (N.Y.App.Div. 1990) (holding that defendant was entitled to a hearing where his sworn allegations set out facts which, if proven, could entitle him to relief); see also Samper v. Greiner, No. 02-2375, 2003 WL 21938757 (2d Cir. Aug. 13, 2003) (summary order) (rejecting state's contention that state law clearly required petitioner to submit an affidavit from his trial counsel to the state court when claiming ineffective