Opinion
No. 01 Civ. 5520 (KMW) (DF)
September 30, 2002
Mr. Waymon Mitchell, pro se, 97-R-1548, Arthur Kill Correctional Facility, Staten Island, New York.
Jo W. Faber, Esq., Assistant Attorney General, New York, NY.
AMENDED ORDER
On August 30, 2002, this Court issued a Report and Recommendation to the Honorable Kimba M. Wood, United States District Judge, recommending that Petitioner's petition for a writ of habeas corpus be dismissed in its entirety. With respect to three of Petitioner's claims, the Court's rationale for recommending dismissal was that, based on the record before this Court, it appeared that those three claims had not been raised before the New York State Court of Appeals, and that the claims were therefore unexhausted and procedurally barred.
The three claims that the Court found to be unexhausted were Petitioner's claims that (1) the trial court's evidentiary ruling regarding the calling of a witness was erroneous; (2) the prosecution abused its discretion by knowingly using perjured testimony and by making improper remarks to the jury about Petitioner, and (3) the trial court erred by not suppressing Petitioner's prior statements.
In objecting to the Report and Recommendation, however, Petitioner has now submitted documentation showing that the record presented to this Court was incomplete, and that Petitioner did raise those three claims before the New York Court of Appeals, in a pro se submission that supplemented his counsel's initial submission to that court. Under the circumstances, this Court hereby withdraws its Report and Recommendation, so as to give further consideration to the question of whether those three claims were, in fact, properly exhausted, and, if so, whether they have merit.
As Respondent was also apparently unaware of the information that Petitioner has now put forward, it is hereby ORDERED that, no later than October 21, 2002, Respondent may submit a supplemental opposition to the petition, to address whether the three claims at issue were properly exhausted. Petitioner may submit a supplemental reply, no later than November 8, 2002. After this matter has been fully briefed, the Court will issue a revised Report and Recommendation.
SO ORDERED