Mercado v. Lempke
Filing
30
OPINION AND ORDER: For the foregoing reasons, the Petition is denied. The remaining issue is whether to grant a certificate of appealability ("COA"). For a COA to issue, a petitioner must make a "substantial showing of the denial of a constitutional right." A "substantial showing" does not require a petitioner to show that he would prevail on the merits, but merely that reasonable jurists could disagree as to whether "the petition should have been resolved in a different manner or [whether] the issues presented were 'adequate to deserve encouragement to proceed further."' Petitioner has made no showing. Thus, I decline to grant a COA. The Clerk of the Court is directed to close this Petition and this case. SO ORDERED. (Signed by Judge Shira A. Scheindlin on 6/16/2015) (ajs)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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OSCAR MERCADO,
Petitioner,
OPINION AND ORDER
- against 11 Civ. 6529 (SAS)
JOHN LEMPKE, Superintendent, Five
Points Correctional Facility,
Respondent.
-------------------------------------------------------- )(
SHIRA A. SCHEINDLIN, U.S.D.J.:
I.
BACKGROUND
Oscar Mercado brings this pro se petition for habeas corpus under
section 2254, challenging his state court conviction following a jury trial in New
York County Court, Westchester County. 1 In 2002, petitioner was found guilty of
See Petition for a Writ of Habeas Corpus ("Pet."). This is petitioner's
second such petition - the first was filed in 2007, and subsequently denied in
2011. See Mercado v. Lempke, No. 11 Civ. 6529, 2012 WL 4465580, at *3-4
(Aug. 6, 2012). The rationale for permitting ostensibly successive petitions is
addressed below. For now, the Court simply notes that the background related to
petitioner's underlying state conviction, as well as the convoluted presentation of
his habeas claims in federal court since then, has already been memorialized in
detail. See id. at *1-5. In the interest of efficiency, it is summarized only briefly
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i
two brutal incidents of sexual assault, and he was sentenced to an aggregate
sentence of thirty years in prison. After unsuccessfully appealing his conviction in
state court, petitioner timely filed a habeas petition (the “2007 Petition”) in the
Southern District of New York, which was eventually denied by Judge Vincent
Briccetti on December 7, 2011.2
In the interim between petitioner’s filing of the 2007 Petition and its
denial in 2011, he was resentenced on July 24, 2008 — per the Second Circuit’s
decision in Earley v. Murray3 — to add terms of post-release supervision to his
sentence.4 After a series of appeals, petitioner’s renewed sentence became final on
February 22, 2011, when his petition for a writ of certiorari from the Supreme
Court of the United States was denied.5
here.
2
See Mercado v. Lempke, No. 07 Civ. 9865, 2011 WL 6122290
(S.D.N.Y. Dec. 7, 2011).
3
451 F.3d 71 (2d Cir. 2006) (holding that it was a violation of Due
Process for the New York Department of Corrections to impose, of its own accord,
terms of post-release supervision not authorized by the sentencing judge).
4
For background on the Earley case, and the remedies it has generated,
see Betances v. Fisher, 304 F.R.D. 416, 421 (S.D.N.Y. 2015) (explaining that
Earley requires, inter alia, that convicted persons be “resentenc[ed] before a
judge”).
5
See Mercado v. Lempke, 2012 WL 4465580, at *2. See also Mercado
v. New York, 131 S.Ct. 1485 (2011).
-2-
On September 13, 2011, petitioner filed the instant petition (the “2011
Petition”), which the Government moved to dismiss as successive, insofar as it
“attacks the same judgment” challenged in the 2007 Petition.6 On September 27,
2012, Judge Edgardo Ramos — adopting the Report and Recommendation of
Magistrate Judge Lisa Smith — denied the Government’s motion.7 Relying on the
Supreme Court’s holding in Magwood v. Patterson,8 Judge Smith reasoned that
petitioner’s re-sentencing in 2008 qualified as a new judgment for the purposes of
section 2254, effectively resetting the habeas clock.9
This Opinion addresses the merits of the 2011 Petition, in which
petitioner raises six constitutional claims. First, the imposition of post-release
supervision (per Earley) violated the Ex Post Facto Clause.10 Second, the trial
court’s “determination of facts” violated a number of constitutional provisions.11
Third, petitioner’s sentence is disproportionate to the crime committed, in violation
6
Mercado v. Lempke, 2012 WL 4465580, at *4.
7
See Mercado v. Lempke, No. 11 Civ. 6529, 2012 WL 4465860
(S.D.N.Y. Sept. 27, 2012).
8
See 561 U.S. 320 (2010).
9
See Mercado v. Lempke, 2012 WL 4465580, at *6-8.
10
See Pet. at 4.
11
Id.
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of the Eighth Amendment.12 Fourth, the New York statute governing petitioner’s
sentence — Penal Law § 70.85 — deprives convicted persons (including
petitioner) of equal protection of the laws.13 Fifth, petitioner received ineffective
assistance of appellate counsel, in abrogation of his Sixth Amendment rights.14
Sixth, the state court’s “abuse of discretion” violated petitioner’s rights.15
In response, the Government makes two arguments. First, the
Government argues that all of petitioner’s federal constitutional claims are either
procedurally barred or lacking in merit, or both.16 Second, the Government asks
the Court to reconsider its previous ruling as to the “successive” nature of the 2011
Petition.17 In its opposition brief, the Government spends a considerable amount of
space arguing, in effect, that under the standard set forth in Magwood, and clarified
by the Second Circuit in Johnson v. United States,18 only petitions that “challenge
12
See id.
13
See id.
14
See id.
15
Id.
16
See Respondent’s Memorandum of Law in Opposition to the Petition
for Writ of Habeas Corpus (“Opp. Mem.”).
17
See id. at 2-12.
18
See 623 F.3d 41 (2d Cir. 2010).
-4-
new judgments” are exempt from the prohibition on successive petitions19 — and
that petitioner’s 2008 resentencing does not qualify as a new judgment, because it
served only to rectify a ministerial error.
II.
APPLICABLE LAW
A.
Deferential Standard for Federal Habeas Review
This petition is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (the “AEDPA”). The AEDPA provides that a federal court
may not grant a writ of habeas corpus to a prisoner in custody pursuant to the
judgment of a state court with respect to any claim, unless the state court’s
adjudication on the merits of the claim: “(1) was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States;”20 or (2) “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.”21
A state-court decision is contrary to clearly established federal law, as
determined by the Supreme Court, in the following two instances:
19
Opp. Mem. at 4 (internal citations omitted).
20
28 U.S.C. § 2254(d)(1).
21
Id. § 2254(d)(2).
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First, a state-court decision is contrary to this Court’s precedent if
the state court arrives at a conclusion opposite to that reached by
this Court on a question of law. Second, a state-court decision is
also contrary to this Court’s precedent if the state court confronts
facts that are materially indistinguishable from a relevant Supreme
Court precedent and arrives at a result opposite to ours.22
With regard to the “unreasonable application” prong, the Supreme
Court has stated:
[A] state-court decision can involve an “unreasonable application”
of this Court’s clearly established precedent in two ways. First,
a state-court decision involves an unreasonable application of this
Court’s precedent if the state court identifies the correct governing
legal rule from this Court’s cases but unreasonably applies it to
the facts of the particular state prisoner’s case. Second, a statecourt decision also involves an unreasonable application of this
Court’s precedent if the state court either unreasonably extends a
legal principle from our precedent to a new context where it
should not apply or unreasonably refuses to extend that principle
to a new context where it should apply.23
In order for a federal court to find a state court’s application of
Supreme Court precedent to be unreasonable, the state court’s decision must have
been more than incorrect or erroneous. Rather, “[t]he state court’s application of
clearly established law must be objectively unreasonable.”24 This standard “‘falls
22
Williams v. Taylor, 529 U.S. 362, 405 (2000).
23
Id. at 407.
24
Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (emphasis added).
Accord Renico v. Lett, 559 U.S. 766, 773 (2010) (stating that “[t]his distinction
creates ‘a substantially higher threshold’ for obtaining relief than de novo review”)
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somewhere between merely erroneous and unreasonable to all reasonable
jurists.’”25 While the test requires “‘[s]ome increment of incorrectness beyond
error, . . . the increment need not be great; otherwise habeas relief would be limited
to state court decisions so far off the mark as to suggest judicial incompetence.’”26
Furthermore, section 2254(d) applies to a defendant’s habeas petition even where
the state court order does not include an explanation of its reasoning.27
Where a state court’s decision is unaccompanied by an explanation,
the habeas petitioner’s burden still must be met by showing there was no
reasonable basis for the state court to deny relief. This is so whether or not the
state court reveals which of the elements in a multipart claim it found insufficient,
for [section] 2254(d) applies when a “claim,” not a component of one, has been
adjudicated.28
(quoting Schriro v. Landrigan, 550 U.S. 465, 473 (2007)); Williams, 529 U.S. at
409; Harris v. Kuhlman, 346 F.3d 330, 344 (2d Cir. 2003).
25
Overton v. Newton, 295 F.3d 270, 276 (2d Cir. 2002) (quoting Jones
v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000)).
26
Francis v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (quoting Matteo v.
Superintendent, SCI Albion, 171 F.3d 877, 889 (3d Cir. 1999)).
27
See Harrington v. Richter, 562 U.S. 86, 98 (2011).
28
Id. (citing, inter alia, Sellan v. Kuhlman, 261 F.3d 303, 311–12 (2d
Cir. 2001) (“[W]hen a state court fails to articulate the rationale underlying its
rejection of a petitioner’s claim, and when that rejection is on the merits, the
federal court will focus its review on whether the state court’s ultimate decision
-7-
Section 2254(d) also applies where a state court does not explicitly
state in its opinion that it is adjudicating a claim on the merits.29 “When a federal
claim has been presented to a state court and the state court has denied relief, it
may be presumed that the state court adjudicated the claim on the merits in the
absence of any indication or state-law procedural principles to the contrary.”30
The deferential standard of review created by the AEDPA also
extends to state-court factual determinations. Such determinations are presumed to
be correct, and the petitioner must rebut them by clear and convincing evidence.31
B.
Ineffective Assistance of Counsel
To establish a claim of ineffective assistance of counsel, a petitioner
must show that: (1) his attorney’s performance fell below “an objective standard of
reasonableness” under “prevailing professional norms” and (2) that he suffered
prejudice as a result of that representation.32 Both elements must be proven by the
petitioner to assert a valid claim. When considering the first factor, a court must
was an unreasonable application of clearly established Supreme Court precedent.”
(quotation marks and citation omitted))).
29
See id.
30
Id. at 99.
31
See 28 U.S.C. § 2254(e)(1).
32
Strickland v. Washington, 466 U.S. 668, 687-88, 693-94 (1984).
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apply a “strong presumption” that counsel’s representation fell within the “wide
range” of reasonable professional assistance.33 “[S]trategic choices made after
thorough investigation of law and facts relevant to plausible options are virtually
unchallengeable.”34
“Even if a defendant shows that particular errors of counsel were
unreasonable, . . . the defendant must show that they actually had an adverse effect
on the defense.”35 Thus, to establish prejudice
[t]he [petitioner] must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.36
In other words, “[i]t is not enough ‘to show that the errors had some conceivable
effect on the outcome of the proceeding.’”37
33
Id. at 689. Accord Bell v. Cone, 535 U.S. 685, 697-98 (2002).
34
Strickland, 466 U.S. at 690. Accord Mayo v. Henderson, 13 F.3d 528,
533 (2d Cir. 1994) (“In assessing the attorney’s performance, a reviewing court
must judge his conduct on the basis of the facts of the particular case, ‘viewed as of
the time of counsel’s conduct,’ and may not use hindsight to second-guess his
strategy choices.”) (quoting Strickland, 466 U.S. at 690).
35
Strickland, 466 U.S. at 693.
36
Id. at 694.
37
Harrington v. Richter, 582 U.S. 86, 131 S. Ct. 770, 787 (2011)
(quoting Strickland, 466 U.S. at 693).
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Finally, the order of analysis of the two Strickland prongs –
performance and prejudice – is at the discretion of the court. As explained by the
Supreme Court:
[T]here is no reason for a court deciding an ineffective assistance
claim to approach the inquiry in the same order or even to address
both components of the inquiry if the defendant makes an
insufficient showing on one. In particular, a court need not
determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of
the alleged deficiencies. The object of an ineffectiveness claim is
not to grade counsel’s performance. If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice,
which we expect will often be so, that course should be
followed.38
Accordingly, if a court finds that there is no prejudice, it need not reach the
performance prong.
IV.
DISCUSSION
All issues presented in the 2011 Petition, save for one, have been
resolved by previous decisions. Those decisions are law of the case. Accordingly,
they will be briefly summarized here — but not revisited.
A.
Issues Already Resolved
To begin, I will not reexamine Judge Ramos’s September 27, 2012
opinion, declining to bar the 2011 Petition as successive. Although the
38
Strickland, 466 U.S. at 697.
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Government marshals some powerful arguments in support of its construction of
Magwood and Johnson,39 its papers also contain a glaring omission — nowhere
does the Government explain why it failed to object to Magistrate Judge Smith’s
Report and Recommendation, or to timely move for reconsideration of Judge
Ramos’s decision to adopt that Report and Recommendation. These procedural
lapses cannot be ignored. There was a proper time for the Government to raise the
arguments included in its opposition papers — but that time has passed.
39
Magwood held — and Johnson confirmed — that “the existence of a
new judgment is dispositive” when determining if a subsequent habeas petition is
“successive” of the first. Magwood, 561 U.S. at 323 (emphasis added). Accord
Johnson, 623 F.3d at 45-46. According to the government, that condition is not
satisfied here, because petitioner’s resentencing was only meant — in the words of
the New York Court of Appeals — to rectify “a procedural error, akin to a
misstatement or clerical error.” People v. Sparber, 10 N.Y.3d 457, 472 (2008).
Indeed, the Court of Appeals made it explicitly clear that during the kind of
resentencing to which petitioner was subject — “Sparber resentencing” — a
“sentencing judge is [not] supposed to do anything . . . other than correct the
discrete error prompting the resentencing in the first place.” People v. Lingle, 16
N.Y.3d 621, 634 (2011). Indeed, it went on to explain that at a Sparber
resentencing, the “trial court lacks discretion to reconsider the incarceratory
component of a defendant’s sentence,” and that its review must be limited to the
sole question of whether “a Sparber error [occurred].” Id. at 635 (emphasis added).
The Government interprets this admonition from the Court of Appeals to mean that
a Sparber resentencing does not qualify as a new judgment within the meaning of
Magwood and Johnson. Were the question presented de novo, I would be inclined
to agree with the Government. A Sparber resentencing only yields a “new
judgment” in the barest sense of the term. This anomalous creature of state law,
designed to cure a specific constitutional problem brought on by the New York
Department of Corrections, is hardly the sort of proceeding with which the
Magwood Court was concerned. Nonetheless, Magistrate Judge Smith and Judge
Ramos both saw the matter differently. I accept their decisions as law of the case.
-11-
Accordingly, the 2011 Petition is not successive. It will be entertained on the
merits.
Secondly, five of petitioner’s six federal constitutional claims were
already address in the 2007 Petition, when he moved for leave to amend in 2010.40
In the opinion denying that motion, Magistrate Judge Paul E. Davison determined,
inter alia, that it would be futile to amend the petition because petitioner’s
proposed claims — related to his 2008 resentencing — were uniformly meritless.41
Specifically, Magistrate Judge Davison held that the state statutory scheme under
which petitioner was sentenced raised no constitutional concerns,42 and that
petitioner’s specific sentence was not “excessive.”43 Together, these two holdings
40
See Motion for Leave to Amend, No. 07 Civ. 9865 (Dkt. No. 44).
41
See Memorandum Opinion and Order (“Davison Opinion”), No. 07
Civ. 9865 (Dkt. No. 47).
42
Id. at 6. Accord United States v. McLean, 287 F.3d 127, 136 (2d Cir.
2002) (“[T]here is no constitutionally cognizable right to concurrent, rather than
consecutive, sentences.”) (internal citations omitted). Included in this general
category is Magistrate Judge Davison’s conclusion that the scheme under which
petitioner was sentenced did not violate the Ex Post Facto Clause, because the
resentencing procedures enacted in 2008 to cure the constitutional problem
identified in Earley did not alter the content of available penalties, which were
codified in 1998, and thus “already in effect at the time of [petitioner’s] crime.”
Davison Opinion at 10.
43
Davison Opinion at 6 (explaining that “[i]t is well-settled that no
federal constitutional issue is presented where . . . [a] sentence is within the range
prescribed by state law,” and that as a matter of course, the claim that a “sentencing
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dispose of the first, second, third, fourth, and sixth claims set forth in the 2011
Petition. Accordingly, even assuming, arguendo, that all five claims were properly
exhausted and are not procedurally barred, they have already been foreclosed on
the merits.
B.
Ineffective Assistance of Appellate Counsel
The final claim presented in the 2011 Petition — and the only novel
claim before the Court now — is ineffective assistance of appellate counsel in
connection with the appeal of petitioner’s resentencing in 2009.44 This claim was
exhausted at the state level when, in 2012, petitioner applied to the Appellate
Department, Second Department, for a writ of error coram nobis.45 On May 8,
2012, the Appellate Division denied that application,46 and the New York Court of
Appeals subsequently affirmed that result.47 Because petitioner’s application for a
writ of error coram nobis was rejected on the merits — not on independent state
court, in the interest of justice, should have reduced [a petitioner’s] sentence . . . is
not cognizable upon federal habeas review”).
44
To the extent that petitioner seeks to challenge his representation
during the original merits appeal in 2003 — which is unclear from the face of his
petition and his papers — that claim is deemed exhausted and procedurally barred.
45
See Notice of Motion for Writ of Error Coram Nobis, Exhibit (“Ex.”)
13 to Opp. Mem.
46
See People v. Mercado, 95 A.D.3d 1038 (2d Dep’t 2012).
47
See People v. Mercado, 19 N.Y.3d 999 (2012).
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law grounds — his ineffective assistance of counsel claim is not procedurally
barred.48 Accordingly, I proceed to merits review. Under the deferential standard
set forth in section 2254, the state court’s determination shall be affirmed unless it
“was contrary to, or involved an unreasonable application of, clearly established
Federal law.”49
Here, that hurdle is easily cleared. In essence, petitioner contends
that his counsel should have raised a number of constitutional arguments — many
of which overlap with the claims set out in the 2011 Petition — during state
appellate proceedings. Needless to say, however, a lawyer is not obliged to raise
every conceivable argument that supports her client’s position. This is especially
so in the context of frivolous arguments, but it also holds true in the context of
nonfrivolous arguments — even nonfrivolous arguments that are explicitly
requested by defendant.50 Put simply, lawyers must be given latitude to exercise
48
See, e.g., Garcia v. Lewis, 188 F.3d 71, 76 (2d Cir. 1999) (explaining
that an issue of federal law is “procedurally barred” if it was “decided by a state
court . . . on a state law ground that is independent of the federal question and
adequate to support the judgment”) (internal citations omitted). The Government
does not dispute that petitioner’s ineffective assistance claim was disposed of on
the merits of the federal question below — and may be addressed on the merits of
the federal question here.
49
28 U.S.C. § 2254(d)(1).
50
See Jones v. Barnes, 463 U.S. 745 (1983).
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professional judgment. For judges to “second-guess [that] judgment[] and impose
on appointed counsel a duty to raise every colorable claim suggested by a client
would disserve the very goal of vigorous and effective advocacy” that the Sixth
Amendment safeguards.51 That is why “[s]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable” on constitutional grounds.52
The question, then, is whether any strategic decision made by
petitioner’s appellate counsel was so egregious as to flout “objective standard[s] of
reasonableness,” given “prevailing professional norms.”53 The answer is plainly
no. Even assuming, arguendo, that petitioner’s appellate counsel should have
raised the arguments invoked in the 2011 Petition — a proposition that petitioner
has failed to establish — it is unclear that his appellate counsel could have done so.
After a Sparber resentencing, New York law limits appeals to issues concerning
51
Id. at 754.
52
Strickland, 466 U.S. at 690. Accord Henderson, 13 F.3d at 533 (“In
assessing the attorney’s performance, a reviewing court must judge his conduct on
the basis of the facts of the particular case, viewed as of the time of counsel’s
conduct, and may not use hindsight to second-guess his strategy choices.”)
(internal citations omitted).
53
Strickland, 466 U.S. at 687-88, 693-94.
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the resentence, not the underlying conviction.54 Petitioner repeatedly argues that
his appellate counsel should have challenged petitioner’s underlying conviction,
not just his resentencing. But it was the New York legislature and the Court of
Appeals that made that decision — not petitioner’s appellate counsel. The court
ordered petitioner’s appellate counsel to direct his arguments exclusively to issues
related to the resentencing.55 By adhering to that order, petitioner’s lawyer did not
violate his duty as counsel. He vindicated that duty. Accordingly, petitioner’s
ineffective assistance claim is without merit, and there is no basis to contravene the
state court’s decision to that effect.
V.
CONCLUSION
For the foregoing reasons, the Petition is denied. The remaining issue
is whether to grant a certificate of appealability (“COA”). For a COA to issue, a
petitioner must make a “substantial showing of the denial of a constitutional
54
See New York Criminal Procedure Law § 450.30(3) (“[W]hen a
resentence occurs more than thirty days after the original sentence, a defendant
who has not previously filed a notice of appeal from the judgment may not appeal
from the judgment, but only from the resentence.”). This provision was held by
the state court to apply to petitioner’s post-resentence appeal. See Affirmation of
Thomas T. Keating in Response to Petitioner’s Application for Writ of Coram
Nobis (“Keating Aff.”), Ex. 15 to Opp. Mem. See also Lingle, 16 N.Y.3d at 635
(limiting a defendant’s right of appeal after a Sparber resentencing “to the
correction of errors or abuse of discretion at the resentencing proceeding”).
55
See Keating Aff.
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right. " 56 A "substantial showing" does not require a petitioner to show that he
would prevail on the merits, but merely that reasonable jurists could disagree as to
whether "the petition should have been resolved in a different manner or [whether]
the issues presented were 'adequate to deserve encouragement to proceed
further. "'57 Petitioner has made no showing. Thus, I decline to grant a COA. The
Clerk of the Court is directed to close this Petition and this case.
SO ORDERED:
Dated:
56
New York, New York
June 16, 2015
28 U.S.C. § 2253(c)(2).
57
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 n.4 (1983) (quotation marks and citation omitted)).
Accord Middleton v. Attorneys Gen. of the States ofNew York and Pennsylvania,
396 F.3d 207, 209 (2d Cir. 2005) (denying COA where reasonable jurists could not
debate whether the district court's dismissal of the petition was correct).
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- Appearances Petitioner (Pro Se):
Oscar Mercado
02-A-6109
Five Points Correctional Facility
State Route 96
P.O. Box 119
Romulus, NY 14541
For Respondent:
John M. Collins, Esq.
Camacho Mauro Mulholland, LLP
350 Fifth Avenue
Suite 5101
New York, NY 10118
(914) 522-7929
John J. Sergi
Assistant District Attorney
Westchester County
111 Dr. Martin Luther King, Jr. Blvd.
White Plains, NY 10601
(914) 995-4457
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