United States Second Circuit

The district court's denial of a writ of habeas corpus seeking to prevent petitioner's retrial for the murder of a prosecution witness in another case, is affirmed, where: 1) a certificate of appealability is a jurisdictional prerequisite to a state prisoner's appeal of the denial of the habeas petition; 2) because that has not previously been clear in this circuit, a certificate nunc pro tunc is granted; and 3) on the merits, jeopardy did attach at petitioner's first trial, but petitioner is not entitled to habeas relief because his sufficiency challenge is meritless, thereby rendering harmless any possible error in the state court's failure to address sufficiency when ordering retrial, and double jeopardy does not preclude his retrial.

Appellate Information

• Decided 08/08/2013
• Published 08/08/2013

Judges

• RAGGI

Court

• United States Second Circuit

Counsel