Saturday, July 9th, 2005

Even If It Existed, Right to Counsel at Second-Tier State Appeal, after Grant of Leave to Appeal, Would Be Non-Retroactive New Rule under Teague

Hernandez v. Greiner, Docket No. 04-1517-pr (2d Cir. July 1, 2005) (Newman, Leval, Cabranes) (Op. by Newman): This case presents the very narrow question of whether a defendant has a Sixth Amendment right to counsel at a discretionary second-tier appeal (specifically, an appeal to the New York Court of Appeals) after leave-to-appeal has been granted. Actually, the question is even narrower than that, since it arises on habeas review: If such a right existed, would its recognition constitute a new rule within the meaning of Teague, and, if so, can it be retroactively applied on collateral review? We will spare you the details, but the Court holds that even if such a right exists — which the Court highly (and rightly) doubts in light of the relevant Supreme Court cases — its would constitute a new rule that does not fall under either of the Teague exception. Therefore, since the right, even if existent, cannot be applied retroactively to the petitioner, the habeas is denied.

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