Dearstyne v. Mazzuca

Filing 133

ORDER: In conformance with the Second Circuit's mandate, the Court hereby ORDERS that Petitioner's amended petition for a writ of habeas corpus is conditionally GRANTED and Petitioner is released from parole unless a New York court adjud icates the voluntariness of Petitioner's confession within ninety (90) days of the date on which the Second Circuit issued its mandate; and the Court further ORDERS that Respondent shall file with the Court and serve on opposing counsel a cop y of the New York court's decision, if any, regarding the voluntariness of Petitioner's confession within five (5) days of the date of that decision and, in no event, later than ninety-five (95) days after the date on which the Second Cir cuit issued its mandate; and the Court further ORDERS that, if the New York court's adjudication of the voluntariness of Petitioner's confession results in a determination that Petitioner is entitled to a new trial, a new trial must be hel d within 180 days of the date on which the Second Circuit issued its mandate; and the Court further ORDERS that Respondent shall file with the Court and serve on opposing counsel a status report, indicating the date scheduled for any such trial; and , at the conclusion of any such trial, shall file with the Court and serve on opposing counsel a letter brief setting forth the results of said trial; and the Court further ORDERS that the Clerk of the Court shall enter an AMENDED JUDGMENT consistent with this Order and the Second Circuit's mandate. Signed by Senior Judge Frederick J. Scullin, Jr. on 3/8/17. (served as directed)(alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
FRANK W. DEARSTYNE,
Petitioner,
v.

9:04-CV-741
(FJS/VEB)

WILLIAM MAZZUCA, Superintendent,
Fishkill Correctional Facility,
Respondent.
________________________________________________
APPEARANCES

OF COUNSEL

KELLEY, DRYE & WARREN LLP
101 Park Avenue
New York, New York 10178
Attorneys for Petitioner

JAMES V. O'GARA, ESQ.

OFFICE OF THE FEDERAL
PUBLIC DEFENDER
The Clinton Exchange, 3rd Floor
4 Clinton Street
Syracuse, New York 13202
Attorneys for Petitioner

LISA A. PEEBLES, FPD

OFFICE OF THE NEW YORK
STATE ATTORNEY GENERAL
120 Broadway
New York, New York 10271
Attorneys for Respondent

PAUL B. LYONS, AAG
ALYSON J. GILL, AAG

SCULLIN, Senior Judge
ORDER
On August 21, 2015, this Court entered judgment, denying and dismissing Petitioner's
amended petition in its entirety. See Dkt. No. 128. Petitioner appealed that judgment and, on
March 7, 2017, the Second Circuit issued its mandate, affirming in part and reversing in part this

Court's judgment. See Dkt. No. 132.
In conformance with the Second Circuit's mandate, the Court hereby
ORDERS that Petitioner's amended petition for a writ of habeas corpus is conditionally
GRANTED and Petitioner is released from parole unless a New York court adjudicates the
voluntariness of Petitioner's confession within ninety (90) days of the date on which the Second
Circuit issued its mandate; and the Court further
ORDERS that Respondent shall file with the Court and serve on opposing counsel a copy of
the New York court's decision, if any, regarding the voluntariness of Petitioner's confession within
five (5) days of the date of that decision and, in no event, later than ninety-five (95) days after the
date on which the Second Circuit issued its mandate; and the Court further
ORDERS that, if the New York court's adjudication of the voluntariness of Petitioner's
confession results in a determination that Petitioner is entitled to a new trial, a new trial must be
held within 180 days of the date on which the Second Circuit issued its mandate; and the Court
further
ORDERS that Respondent shall file with the Court and serve on opposing counsel a status
report, indicating the date scheduled for any such trial; and, at the conclusion of any such trial, shall
file with the Court and serve on opposing counsel a letter brief setting forth the results of said trial;
and the Court further
ORDERS that the Clerk of the Court shall enter an AMENDED JUDGMENT consistent
with this Order and the Second Circuit's mandate; and the Court further

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ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.

IT IS SO ORDERED.

Dated: March 8, 2017
Syracuse, New York

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