Hoffler v. Bezio, No. 11-5281 (2d Cir. 2013)
Annotate this CasePetitioner was found guilty of murder but his conviction was reversed on direct appeal and remanded for a new trial because of a mistake in swearing the venire panel from which the trial was selected. Petitioner appealed the district court's denial of his petition for a writ of habeas corpus to prevent New York State from retrying him for murder. The court concluded that, because 28 U.S.C. 2253(c)(1)(A) required a certificate of appealability (COA) to appeal the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court, without regard to the statutory section under which the habeas proceeding was filed, a state prisoner must secure such a certificate in order to appeal from the denial of habeas relief sought pursuant to 28 U.S.C. 2241, 28 U.S.C. 2254, or any other provision of law. In this instance, the court excused petitioner's failure to seek a COA and granted his belated COA request nunc pro tunc. The court also concluded that petitioner was placed in jeopardy at the initial murder trial and no different conclusion was warranted by the fact that the venire panel was not sworn in accordance with New York law. Further, the evidence at petitioner's first trial was sufficient to permit a rational jury to find him guilty beyond a reasonable doubt and thus the Double Jeopardy Clause did not bar his retrial following reversal of his initial conviction based on the error in swearing in the venire panel. Accordingly, the court affirmed the judgment of the district court.
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