Jeffrey Gibson v. Warden (2009)

Secondly, Count 3 alleges ineffective assistance of prior habeas counsel, Attorney McKay, and as we all know, in order to prove ineffective assistance of counsel-habeas counsel, you have to demonstrate deficient performance and prejudice.   The prejudice that needs to be shown is that but for the deficient performance of Attorney McKay, Judge White would have granted the habeas petition, finding ineffective assistance of Attorney Dakers.

So in essence, while the count can't stand in and of itself, it more or less remains in the case because it's a subset of Count 3.

So I note also that when I review the pleadings, I don't see that there's anything in the amended petition to indicate that there's any newly-discovered evidence;  consequently, as a result, Count 2 shall be dismissed.

Stanley T. Fuger, Jr, Superior Court Judge

Fuger, S.T., J.