Con Law Case

Defendant pled guilty to trafficking in cocaine, possession of
marijuana with intent to distribute, and tampering with evidence. The
habeas court subsequently denied relief. With respect to all of
defendant's claims besides his ineffective assistance of appellate
counsel claim, the habeas court properly determined from the face of
the petition that these claims were procedurally barred or defaulted,
as they were all previously adjudicated in his direct appeal to the
Court of Appeals or have been raised in that initial appeal.
Accordingly, the habeas court was not required to hold a hearing to
resolve these claims and defendant's argument that he was entitled to
a hearing on these claims was without merit. The court held, however,
that the ineffective assistance of appellate counsel claim required a
hearing to resolve. While the habeas court was authorized to either
deny the claim on the merits following a hearing or dismiss it without
prejudice based on defendant's failure to prosecute it, it was not
authorized to deny defendant's claim on the merits based on his
failure to prosecute it. Accordingly, the court reversed the decision
of the habeas court to the extent that it denied defendant's
ineffective assistance of appellate counsel claim on the merits.

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Victor Cuvo, Attorney at Law