Opinion
97 CV 2233, 00 CV 3997 (JBW)
March 7, 2002
MEMORANDUM, ORDER AND JUDGMENT
Petitioner moves pursuant to 28 U.S.C. § 2254 for a writ of habeas corpus, it is
ORDERED for the reasons stated orally on the record that the petition is denied. A certificate of appealability is granted on the issues as follows:
(1) The issue which should be resolved is whether the District Attorney can waive the application of the federal statute requiring an initial petition to be brought in this court but a second petition to be brought in the Court of Appeals and whether because of the timing of the various petitions, that requirement applies here. Can the state waive? Can it waive finality, and other matters in order to expedite the case?
(2) The second issue, which is substantive, is should the counsel have objected to the delegation to a court officer the power to communicate orally to the jury on an important question. That is treated under the claim of ineffective assistance of counsel as well as independently.
(3) The third issue which is being certified is: Was the conference respecting exclusion of a juror without the presence of the defendant a violation of his constitutional rights?
The case is dismissed.
The pro-se clerk shall file a notice of appeal on behalf of the petitioner.
SO ORDERED.