Fulton v. Superintendent

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK K FULTON, NO.: 20-CV-0021 (GBD) (SLC) PETITIONER, NOTICE OF MOTION VS. .

RESPONDENT, eee nen K Honorable Sarah L. Cave, United States Magistrate Judge Fulton, Petitioner pro-se Notice is hereby given that Jeremy Fulton, Petitioner in the above named case, hereby

the Court to change the standard of review the Court is seeking to decide on petitioner’s

of Habeas Corpus, as soon as the Court sees fit to hear the stated arguments of this

. Court acknowledges receipt of Petitioner Jeremy Fulton's motion to the standard of review used to decide his Petition for Writ of Habeas (the "Motion"). (ECF No. 30). The Court terminates the motion and it in abeyance pending receipt of Respondent's answer to the Petition, October 20, 2020, and Petitioner's reply, due November 10, 2020. (See Jefemy Fulton, pro-se No. 29). Respondent's answer should respond to the Petition and Motion. Court will address the Motion as part of its Report and Recommendation [4 ad referred by the Honorable George B. Daniels. (See ECF No. 10). Clerk of Court is respectfully directed to close ECF No. 30 and mail a copy this order to Mr. Fulton at the address below. Fulton No. 12-A-0053 Correctional Facility Box 2001 NY 12929 □ NAAN 7 (ee 8/19/2020 f att ate Jonea Stafes Magistrate Judge

Fulton 12A0053 Clinton C.F. Box 2001 N.Y. 12929 7, 2020 Sarah L Cave States District Court Courthouse — 500 Pearl Street York, New York 10007 . . Copy of E-mailed Motion Index #20-CV-0021(GBD)(SLC) In Fulton v. Superintendent, 2020 WL3250594, the court’s decision stated that Fulton’s

claim was adjudicated on the merit while the First Department ruled on the substance labeling the Court’s standard for review to be under section 2254(d). The petitioner is now requesting that the Court change its review of the case to de novo due to the reasons stated below: Although, adjudication was on the merit on appeal in all post appellate motions the pro-

se petitioner adjudicated based on the courts appellate decision in People v. Fulton, 125 A.D.3c

511, where they labeled the substance of the evidence “unreliable” and “dubious”. For example in the petitioner’s initial motion to vacate shown in the appendix pgs. 66-192, the evidence

presented illuminated the previously submitted evidence on the appeal. Further proving the

reliability and trustworthiness of all the evidence submitted writ de novo. (Note: All post appea motion were submitted to continue to illuminate the substance of the exculpatory evidence

the appeal, see Appendix). Chief Justice John Roberts in Lee v. U.S., 137 S.Ct. 1958 stated, “wlien a defendant

alleges his counsel’s deficient performance led him to accept a guilty plea rather than go to trial we do not ask whether had he gone to trial, the result of that trial would be different from the

plea bargain.” “Instead consider whether the defendant was prejudiced by the denial of the

proceeding to which he had a right”. Such a mark can be missed under section 2254(d) as

in Sellan v. Kuhlman, 261 F.3d. 303, where the Court wrote how they might have granted writ if it was reviewed de novo. Justice Robert’s explains the importance of review being on the consideration of whether prejudice and denial of rights surrounding cases ending a plea entered a case. In the case, the court is placing a limited review process over the

with a plea component that can overlook prejudice being shown to the Court by a pro-se

A teview de novo would allow the court to review the writ and the case without the under the deferential standards being that both merit and the substance of the evidence

adjudicated throughout the entire case. Therefore, it is for these reasons that petitioner

that this court changes its standard of review of the writ of Habeas Corpus to de novo.

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*This motion was originally e-mailed to the pro-se intake unit. If the unit has not received thi: motion prior to this submission the petitioner ask that the motion be received now.

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