Opinion
9:18-CV-1436 (LEK/TWD)
05-19-2023
NORMAN WHITEHEAD, Petitioner, v. JAMIE LAMANNA, Respondent.
JUDGMENT IN A CIVIL CASE
[x] Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED, that this action is dismissed in accordance with the Amended Memorandum-Decision and Order dated May 19, 2023 of Judge Lawrence E. Kahn which ORDERED, that the Report-Recommendation, (Dkt. No. 13), is ADOPTED in part and REJECTED in part; ORDERED, that the Report-Recommendation, (Dkt. No. 13), is REJECTED to the extent it recommended denying federal habeas relief for Petitioner's Sixth Amendment claim concerning appellate counsel's failure to argue that trial counsel gave constitutionally deficient representation for not moving to dismiss the indictment's facially defective counts that include 225, 226, 227, 228, and 229 of the indictment; ORDERED, that the Report-Recommendation, (Dkt. No. 13), is otherwise APPROVED and ADOPTED; ORDERED, that the Petition, (Dkt. No. 1), is GRANTED in part and DENIED in part; ORDERED, that the Petition, (Dkt. No. 1), is GRANTED to the extent it seeks federal habeas relief pursuit to the Sixth Amendment's Right to Effective Assistance of Appellate Counsel for appellate counsel's failure to argue that trial counsel gave constitutionally deficient representation for not moving to dismiss the indictment's facially defective counts that include 225, 226, 227, 228, and 229 of the indictment; ORDERED, that Petitioner's convictions for (1) criminal possession of a controlled substance in the second degree (Count 225), (2) criminal possession of a controlled substance in the third degree (Counts 226 and 229), (3) criminal sale of a controlled substance in the first degree (Count 227), and criminal possession of a controlled substance in the first degree (Count 228) are VACATED; ORDERED, that the Petition (Dkt. No. 1) is otherwise DENIED. ORDERED, that no Certificate of Appealability be issued. See 28 U.S.C. §2253(c)(1); ORDERED, that this action is REMANDED to the Albany County Court for proceedings consistent with this Memorandum-Decision and Order; ORDERED, that the Clerk is respectfully directed to enter Judgment pursuant to Fed.R.Civ.P. 58(b)(2); and ORDERED, that the Clerk is directed to serve a copy of this Memorandum-Decision and Order on all parties, the Albany County Court, and the Third Department, in accordance with the Local Rules.