Tucker v. Heath

Filing 19

MEMORANDUM & ORDER: The Court construes Tucker's 18 recent submissions as amending his habeas petition to include only his exhausted claims and directs respondent to respond according to the schedule set forth below. Accordingly, th e Court allows Tucker's habeas petition to proceed on two grounds: (1) that evidence was admitted during his trial in violation of the Confrontation Clause, and (2) that his appellate counsel did not provide effective assistance because she f ailed to appeal the trial court's denial of trial counsel's request for a mistrial. Within 30 days of this Order, respondent shall show cause before this Court by the filing of a return to the petition, why a writ of habeas corpus should not be issued and serve a copy of the return on Tucker. Tucker, within 30 days of receipt of a copy of the return, shall file his reply, if any, with the Clerk of Court. SO ORDERED by Chief Judge Carol Bagley Amon, on 1/23/2013. C/mailed to pro se Petitioner. (Latka-Mucha, Wieslawa)

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F~lLgD
IN C!..ERK'S OFFICE.
U.S. [:"C:;';':IC-r ~OURT e.O.N.Y.

* JAN 2 3 2013 *

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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BROOKLYN OFFICE

MARC TUCKER,
Petitioner,

NOT FOR PUBLICAnON
MEMORANDUM & ORDER
10-CV-02126 (CBA)

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P. HEATH, Superintendent,
Respondent.

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AMON, Chief United States District Judge.
Petitioner Marc Tucker, proceeding pro se, petitions this Court for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, seeking to vacate his New York state convictions of assault
and criminal possession ofa weapon. By letter dated December 3, 2012, Tucker informed this
Court that he was abandoning his remaining unexhausted claims and requested that the Court
"make inclusive" with his habeas petition the one claim exhausted while this action was stayed
for further state court proceedings. (DE #18.) As discussed in greater detail below, the Court
construes Tucker's recent submissions as amending his habeas petition to include only his
exhausted claims and directs respondent to respond according to the schedule set forth below.

DISCUSSION
In his initial habeas petition, filed May 5, 2010, Tucker challenged his conviction
claiming (1) that evidence was admitted in violation ofthe Confrontation Clause, and (2) that he
was denied access to the full record of his criminal proceedings on appeal in violation of due
process. Tucker subsequently clarified that the latter claim was in fact one aspect of a broader
complaint that his appellate counsel did not provide effective assistance. Appellate counsel,
Tucker explained, was ineffective because she failed to: (1) obtain necessary documents on his

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behalf, (2) appeal the trial court's denial of trial counsel's request for a mistrial, and (3) appeal
the trial court's decisions made at a suppression hearing. Recognizing that he had not exhausted
these claims, Tucker requested a stay to return to state court, a request this Court granted on
September 19,2011. (DE #11; DE #12.)
On December 5,2011, Tucker filed a writ of error coram nobis in the Appellate Division,
Second Department, claiming that his appellate counsel provided ineffective assistance. In his
submission, he asserted that his appellate counsel failed to appeal the trial court's refusal to grant
a mistrial based on the improper admission of the detective's hearsay testimony often witnesses,
an admission that ultimately denied Tucker a full and fair opportunity to present an adequate
defense. He did not, however, argue that his appellate counsel was ineffective in either failing to
obtain trial records on his behalf or failing to appeal the trial court's suppression hearing
decisions. (DE #15.) On May 15,2012, the Appellate Division denied Tucker's application for
a writ of error coram nobis. People v. Tucker, 943 N.Y.S.2d 897 (2d Dep't 2012). On August
24,2012, the New York Court of Appeals denied his application for leave to appeal. People v.
Tucker, 951 N.Y.S.2d 897 (2012).
In a letter dated September 21, 2012, Tucker wrote to the Court seeking to re-open this
habeas proceeding. (DE #17.) Noting that Tucker had exhausted in the recent state proceedings
only his claim that his appellate counsel was ineffective because she failed to appeal the trial
court's denial of trial counsel's request for a mistrial, the Court directed Tucker to file an
amended habeas petition that included only properly exhausted claims. (DE #17.) In a letter
dated December 3, 2012, Tucker affirmed that he was withdrawing the two ineffective assistance
of appellate counsel claims that he did not exhaust and requested that the Court "make inclusive"
with his habeas petition the one claim that he did exhaust.

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CONCLUSION

Accordingly, the Court allows Tucker's habeas petition to proceed on two grounds:
(1) that evidence was admitted during his trial in violation of the Confrontation Clause, and (2)

that his appellate counsel did not provide effective assistance because she failed to appeal the
trial court's denial of trial counsel's request for a mistrial. Within thirty (30) days of this Order,
respondent shall show cause before this Court by the filing of a return to the petition, why a writ
of habeas corpus should not be issued and serve a copy of the return on Tucker. Tucker, within
thirty (30) days of receipt of a copy of the return, shall file his reply, if any, with the Clerk of
Court.

SO ORDERED.
Dated: Brooklyn, New York
January
,2013

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/S/ Chief Judge Carol B. Amon
-------Carol Bagle'ilAm~-l
Chief United

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State::~ict Judge

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