Danielson v. Lape

Filing 39

ORDER ADOPTING REPORT AND RECOMMENDATION IN PART for 36 Report and Recommendations. For the foregoing reasons, the Report [dkt. no. 36] is ADOPTED insofar as it (1) DENIES the Amended Petition [dkt. no. 17] and (2) GRANTS a certificate of appeal ability to the Court of Appeals. However, this Court certifies a slightly different question, "whether: (1) an intervening change in the law constitutes "new evidence" for purposes of Schlup's actual innocence exception and (2) i f yes, whether a habeas petitioner may avail himself of the actual innocence gateway under Schlup where he has been acquitted by a jury of intentional murder and where the evidence at trial is not legally sufficient to support a conviction for deprav ed indifference murder under Feingold." With respect to Respondent's objections [dkt. no. 37], the COURT (1) OVERRULES Respondent's objection to a certificate of appealability and (2) GRANTS Respondent's objection to hold that the Appellate Division denied Petitioner's appeal on independent and adequate state grounds. The Clerk of Court is directed to terminate the Amended Petition [dkt. no. 17] and issue a certificate of appealability to the Court of Appeals with respect to the question above. (As further set forth in this Order) (Signed by Judge Loretta A. Preska on 8/13/2015) (kl)