MEMORANDUM-DECISION AND ORDER
THOMAS J. McAVOY, Senior District Judge.
I. BACKGROUND
A. State Court Proceedings
On March 19, 2004, a Rensselaer County Grand Jury charged petitioner Michael Hoffler with two counts of Murder in the First Degree, contrary to New York Penal Law (“Penal Law”) §§ 125.27(1)(a)(v)(b) and 125.27(l)(a)(vi)(b) (witness-elimination murder; contract killing); Murder in the Second Degree, in violation of Penal Law § 125.25(1); and Second Degree Conspiracy, contrary to Penal Law § 105.15, arising out of the December 30, 2003 fatal shooting of Christopher Drabik, who at the time had been acting as a confidential informant for the Albany Police Department. See Indictment No. 04-1024.1 Hoffler’s jury trial on those charges commenced in May, [572]*5722005 before Rensselaer County Court Judge Patrick J. McGrath. At the conclusion of that trial, Hoffler was convicted of murder in the first degree (witness-elimination murder). See Transcript of Trial of Michael Hoffler (5/2005) (Dkt. Nos. 2-1 through 2-8) (“Trial Tr.”) at pp. 1672-76. However, on appeal, the New York State, Supreme Court, Appellate Division, Third Department reversed Hoffler’s conviction and ordered a new trial because the oath of truthfulness had not been administered to the jurors before they were questioned during voir dire. See People v. Hoffler, 53 A.D.3d 116, 860 N.Y.S.2d 266 (3d Dept. 2008). In arriving at that decision, the Appellate Division initially rejected Hoffler’s claims alleging pretrial error on the part of the Trial Court, including his claims that the grand jury evidence was legally insufficient, and that the County Court erred in denying Hoffler’s pretrial motion which sought the suppression of certain evidence. Id. at 118-19, 860 N.Y.S.2d 266. However, the Appellate Division reversed Hoffler’s conviction because that court found that “the complete failure to provide the oath of truthfulness to the prospective jurors constituted a clear violation of the statutory mandate of [Criminal Procedure Law (“CPL”) ] § 270.15(1)(a), dissolved an important safeguard to [Hoffler’s] constitutional right to a fair trial by an impartial jury and invalidated the entire trial.” Id. at 124, 860 N.Y.S.2d 266 (citations omitted). After arriving at that determination, that court did not address various other appellate claims asserted by Hoffler, including his arguments challenging the sufficiency of the evidence adduced at trial, the weight of that evidence, and Hoffler’s claim of prosecutorial misconduct. Id. at 124, 860 N.Y.S.2d 266. The New York Court of Appeals subsequently denied Hoffler permission to appeal the Appellate Division’s order to the Court of Appeals. People v. Hoffler, 11 N.Y.3d 832, 868 N.Y.S.2d 607, 897 N.E.2d 1091 (2008).
On May 15, 2009, Hoffler moved to dismiss the Indictment pursuant to New York’s Criminal Procedure Law (“CPL”) §§ 210.20, 40.20(1), and 40.30(l)(b). See Dkt. Nos. 7 & 7-1 at FA-1153-1373 (“May, 2009 Motion to Dismiss”). In that application, Hoffler argued, inter alia, that because the Appellate Division had ordered a re-trial of Hoffler without first evaluating the legal sufficiency of the evidence adduced at his trial, his re-trial would violate his Double Jeopardy rights. May, 2009 Motion to Dismiss at Points I, V, VIII-XII.
In his Decision and Order dated September 16, 2009, Rensselaer County Court Judge Robert M. Jacon denied Hoffler’s May, 2009 Motion to Dismiss in its entirety. See Decision and Order of Judge Jacon (09/16/09) (Dkt. No. 9-1 at pp. 40-48) (“September, 2009 Decision”). In that ruling, the court initially noted that the Appellate Division order which reversed Hoffler’s conviction and ordered a new trial served to nullify Hoffler’s first trial, and that therefore a re-trial under the Indictment was permissible. September, 2009 Decision at p. 5. In addressing Hoffler’s argument that the Appellate Division was legally required to address his challenges to the sufficiency of evidence prior to ordering a re-trial, and that its failure to do so constituted a fundamental defect barring his re-trial, the court found that the Appellate Division’s decision reversing Hoffler’s conviction was in full compliance with CPL § 470.25,2 and because the Ap[573] pellate Division’s decision was in compliance with that provision of the CPL, such court was not legally required to address Hoffler’s evidence sufficiency claims. September, 2009 Decision at pp. 5-6. The court also rejected Hoffler’s argument that by not ruling on the evidence sufficiency claims, the Appellate Division subjected Hoffler to a second trial in violation of Double Jeopardy principles by concluding that an “intermediate appellate court is not required to address all issues raised in an appeal” because under CPL § 470.15(1), “an intermediate appellate court may consider and determine any question of law or fact involving error or defect in the criminal court proceedings. The language does not say must address all questions of law or fact.” September, 2009 Decision at p. 6 (emphasis in original).
Hoffler thereafter filed an application pursuant to Article 78 of New York’s Civil Practice Law and Rules in the Third Department for an order from the Appellate Division barring his re-trial. See Dkt. No. 8 at FA-1410-35 (“Article 78 Petition”). The District Attorney opposed that application (Dkt. No. 10 at FA-1765-1805), and on April 1, 2010, the Third Department dismissed the petition and found that Hoffler had not demonstrated a clear legal right to an order prohibiting the prosecutor from re-trying Hoffler. Hoffler v. Jacon, 72 A.D.3d 1183, 897 N.Y.S.2d 755 (3d Dep’t 2010). Specifically, that Court noted that “under New York’s statutory double jeopardy scheme, a person is considered to have been ‘prosecuted’ on an offense after the action proceeds to trial and the jury has been impaneled and sworn.” Hoffler, 72 A.D.3d at 1184, 897 N.Y.S.2d 755 (citing CPL § 40.30(1)(b)). Since, in reversing Hoffler’s conviction, the Appellate Division concluded that the jury had never been properly sworn pursuant to CPL § 270.15(1)(a), which failure in turn “invalidated the entire trial” (Hoffler, 53 A.D.3d at 124, 860 N.Y.S.2d 266), the Appellate Division found that his prior trial “was a nullity and petitioner was never ‘prosecuted’ under the indictment.” Hoffler, 72 A.D.3d at 1185, 897 N.Y.S.2d 755 (citations omitted). That court therefore concluded that Hoffler “was never placed in jeopardy even though the trial proceeded to its conclusion.” Hoffler, 72 A.D.3d at 1185, 897 N.Y.S.2d 755 (citations omitted). The Third Department found Hoffler’s argument that his re-trial was barred because the Appellate Division failed to address his legal sufficiency and weight of the evidence claims in the context of his direct appeal to be “unavailing,” Hoffler, 72 A.D.3d at 1185, 897 N.Y.S.2d 755, and found no impediment to his retrial “[w]here, as here, a fundamental defect rendered the entire trial invalid.” Id. On July 1, 2010, the New York Court of Appeals denied Hoffler’s leave application “upon the ground that no substantial constitutional question is directly involved.” Hoffler v. Jacon, 15 N.Y.3d 768, 906 N.Y.S.2d 812, 933 N.E.2d 212 (2010), reconsideration denied, Hoffler v. Jacon, 15 [574] N.Y.3d 872, 912 N.Y.S.2d 561, 938 N.E.2d 994 (2010).
B. This Action
With the assistance of counsel, Hoffler commenced this action on April 11, 2011 through the filing of a habeas corpus petition brought pursuant to 28 U.S.C. § 2241. See Dkt. No. 1 (“Petition”). In his pleading, Hoffler argues that: (1) by failing to resolve Hoffler’s challenge to the sufficiency of the evidence prior to ordering his retrial, the Appellate Division violated Hoffler’s constitutional rights; (2) the evidence presented by the prosecution at Hoffler’s trial was legally insufficient to establish his guilt; and (3) CPL § 40.30(3), which allows the re-prosecution of an individual under the same indictment if an earlier prosecution has been nullified by court order, is unconstitutional. See Petition; see also Petitioner’s Memorandum of Law in Support of Petition (Dkt. No. 1-1) (“Supporting Mem.”) at pp. 6-15. Petitioner has also requested that this Court conduct an evidentiary hearing to consider: (1) Rensselaer County’s alleged policy of not administering the oath of truthfulness to prospective jurors; (2) the “lack of manifest necessity for not issuing an oath of truthfulness to prospective jurors;” and (3) whether Hoffler “received an implicit acquittal” during the internal appellate process relating to his appeal. Petition at ¶ 16.
On May 27, 2011, the Office of the Attorney General for the State of New York, acting on respondent’s behalf, filed a response in opposition to Hoffler’s petition. See Dkt. No. 15. Respondent attached to his response a memorandum of law in opposition to Hoffler’s petition. See Dkt. No. 15-1 (“Resp. Mem.”).
On August 5, 2011, Hoffler filed a reply memorandum in further support of his application for habeas relief. See Dkt. No. 19 (“Reply”).
II. DISCUSSION
A. Propriety of Bringing Action Under 28 U.S.C. § 2241
Initially, this Court notes that Hoffler has entitled this matter as a “Pretrial Petition for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241.” Petition at p. 1. Hoffler asserts that this action is properly brought by him pursuant to § 2241, rather than § 2254, while respondent argues that this Court should consider the present proceeding as one being asserted by Hoffler pursuant to 28 U.S.C. § 2254. Compare Supporting Mem., Point I with Resp. Mem., Point I.3 This issue is significant because the standard of review federal courts are to utilize in considering petitions brought under § 2254 is substantively different than the standard of review courts are to employ when considering petitions brought under § 2241. As the Second Circuit explained in Messiah v. Duncan, 435 F.3d 186 (2d Cir.2006), “[t]he Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat 1214, modified the standard under which we review § 2254 petitions.” Messiah, 435 F.3d at 196. The AEDPA mandates that federal district courts defer to factual findings and legal conclusions of the state court in actions brought under § 2254. Messiah, 435 F.3d at 197 (citations omitted). However, no such deference is to be afforded state court findings and conclusions by federal courts reviewing petitions brought under § 2241. Martinez v. Caldwell, 644 F.3d 238, 242 (5th [575] Cir.2011) (“§ 2254 is textually distinct from § 2241: one explicitly mandates deference, the other does not”) (collecting cases).
The issue of whether a petition for a pretrial -writ of habeas corpus is properly brought pursuant to § 2241 or § 2254 has never been squarely addressed by the Second Circuit, and indeed the Second Circuit appears to have considered such petitions under both such statutes. For example, in United States ex rel. Scranton v. State of New York, 402 F.Supp. 1010 (S.D.N.Y. 1975), a pretrial detainee filed a habeas corpus petition seeking an order from the district court prohibiting her re-trial on a murder charge on speedy trial grounds. Id. at 1011. In affirming the district court’s order denying such petition, the Second Circuit “treat[ed] the petition before us as an application under the broader habeas statute, 28 U.S.C., Section 2241,” United States ex rel. Scranton v. State of New York, 532 F.2d 292, 293 (2d Cir.1976), and ultimately affirmed the district court’s order denying that petition because the petitioner therein had failed to fully exhaust with the state courts the claims she asserted in her petition. Id. at 294-96. More recently, in Kruelski v. Connecticut Superior Court For Judicial Dist. of Danbury, 316 F.3d 103 (2d Cir.2003), the petitioner argued that the Double Jeopardy Clause of the United States Constitution prohibited his retrial on a misdemeanor charge that accused him of “offering to make home improvements without being registered” in the state of Connecticut. Id. at 104. The petitioner filed a habeas corpus petition pursuant to § 2254 in the district court challenging his retrial, which court denied that application after finding, inter alia, that the decision to retry the petitioner “was not an unreasonable application of clearly established federal law under 28 U.S.C. § 2254(d)(1).” See Kruelski 316 F.3d at 105 (citation omitted). The Second Circuit affirmed, concluding that “the Connecticut ruling was neither contrary to nor an unreasonable application of clearly established federal law, as § 2254(d) requires for a grant of a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state.” Kruelski 316 F.3d at 111. However, in neither of the above cases does it appear as though either the petitioner or respondent argued that the petition could only be properly brought and considered under either § 2241 or § 2254.
In Marte v. Berkman, No. 11 CIV. 6082, 2011 WL 4946708 (S.D.N.Y. Oct. 18, 2011), United States District Judge John F. Keenan recently considered this very issue. That court noted that the federal circuit courts which have specifically addressed this issue have uniformly held that a pretrial petition seeking to preclude a retrial is properly brought pursuant to § 2241. Marte, 2011 WL 4946708, at *5 (citing Walck v. Edmondson, 472 F.3d 1227, 1235 (10th Cir.2007); Stow v. Murashige, 389 F.3d 880, 885 (9th Cir.2004); Jacobs v. McCaughtry, 251 F.3d 596, 597 (7th Cir.2001) (per curiam); and Stringer v. Williams, 161 F.3d 259, 262 (5th Cir.1998)); see also Martinez, 644 F.3d at 241-43; Palmer v. Clarke, 961 F.2d 771 (8th Cir.1992). The Marte court then opined that even though the petitioner in that case brought his action pursuant to § 2254, such petition before was properly considered under § 2241 and thereby “outside the confines of AEDPA.” Marte, 2011 WL 4946708, at *7.
This Court is persuaded by the above authority and therefore finds that this action was properly filed as a petition brought under 28 U.S.C. § 2241, and that the claims asserted herein must therefore be reviewed de novo under that statute.4
[576] B. Substance ofHoffler’s Claims5 1. Appellate Division’s Failure to Address Hoffler’s Legal Sufficiency Claim
Petitioner claims that his federal constitutional rights were violated because the Appellate Division did not consider Hoffler’s claims that the evidence adduced at trial was insufficient to support the jury’s guilty verdict when it reversed his conviction. See Petition at ¶ 9. He contends that the prosecution’s case was “wholly circumstantial,” and lists a variety of reasons in support of his assertion that the prosecution’s “case-in-chief was legally insufficient as a matter of federal constitutional law.” Id.; see also Supporting Mem., Points III, IV.
CPL § 470.15 discusses the scope of review that appellate courts in New York are required to afford criminal appeals before the Appellate Division. That provision of the CPL provides, in relevant part:
Upon an appeal to an intermediate appellate court from a judgment, sentence or order of a criminal court, such intermediate appellate court may consider and determine any question of law or issue of fact involving error or defect in the criminal court proceedings which may have adversely affected the appellant.
CPL § 470.15(1) (emphasis added). Thus, where the Appellate Division has determined that a conviction must be set aside on the basis of an issue raised on appeal, it is not required to consider whether other grounds asserted by the appellant have merit. People v. Burke, 96 A.D.2d 971, 972, 466 N.Y.S.2d 867 (3d Dept.1983) (in light of the fact that the Third Department was “reversing the judgment on other grounds, [it] need not consider if the testimonial error would cause us to reverse in the interests of justice”) (citing CPL § 470.15).
In the criminal matter below, the Appellate Division initially rejected “a host of pretrial errors” asserted by Hoffler in support of his appeal. Hoffler, 53 A.D.3d at 118, 860 N.Y.S.2d 266. It then noted that the record established that, prior to the commencement of Hoffler’s jury trial, there was a “complete failure to swear any of the prospective jurors in accordance with” the CPL. Id. at 120, 860 N.Y.S.2d 266. In discussing this requirement, the Third Department noted that, under New York law:
CPL 270.15 requires the administration of two distinct and separate oaths prior to the inception of a jury trial. The first, contained in CPL 270.15(1)(a), mandates that, prior to any questioning, the names of not less than 12 members [577] of the panel shall be drawn and such persons “shall take their places in the jury box and shall be immediately sworn to answer truthfully questions asked them relative to their qualifications to serve as jurors in the action.” After examination of the prospective jurors’ qualifications and the exercise of peremptory challenges and challenges for cause (see CPL 270.15[2]), the remaining jurors must be given the second prescribed oath, in which they are “sworn to try the action in a just and impartial manner, to the best of their judgment, and to render a verdict according to the law and the evidence” (CPL 270.15[2]).
Hoffler, 53 A.D.3d at 120, 860 N.Y.S.2d 266. The Third Department concluded that none of the prospective jurors were ever administered the oath of truthfulness required by CPL § 270.15(1)(a) prior to being questioned during voir dire, Hoffler, 53 A.D.3d at 121, 860 N.Y.S.2d 266, and that the failure to comply with that “clear statutory directive,” which is “a fundamental part of a criminal jury trial,” required the reversal of Hoffler’s conviction without any proof of prejudice on the part of Hoffler. Id. at 122-23, 860 N.Y.S.2d 266. It concluded its decision by noting that the failure to administer that oath “invalidated the entire trial.” Id. at 124, 860 N.Y.S.2d 266. It therefore reversed Hoffler’s conviction and remitted the matter back to the County Court for a new trial. Id.
In denying Hoffler’s Article 78 Petition which sought to bar his re-trial on the Indictment, the Appellate Division noted that “the failure to administer [the required] oath to the jurors constituted a fundamental defect in the proceedings, rendering the trial a nullity.” Hoffler, 72 A.D.3d at 1184, 897 N.Y.S.2d 755. That Court further reasoned that because Hoffler’s trial was a nullity, he “was never ‘prosecuted’ under the indictment” and “never placed in jeopardy even though the trial proceeded to its conclusion.” Id. at 1185, 897 N.Y.S.2d 755.
Petitioner argues at some length that the Appellate Division’s failure to address his argument that the evidence adduced at trial was legally insufficient to support the jury’s verdict was improper and prohibits his re-trial on the charges in the Indictment. See Petition at pp. 3-14; Supporting Mem. at Point IV; Reply at pp. 12-16. However, these claims are meritless. In New York, for a criminal defendant to succeed on an appellate challenge to the sufficiency of evidence adduced at trial, he must establish that “ ‘after viewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could have found essential elements of the crime beyond a reasonable doubt.’ ” People v. Schulz, 4 N.Y.3d 521, 529, 797 N.Y.S.2d 24, 829 N.E.2d 1192 (2005) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). In the criminal matter below, the Third Department had already determined that the “trier of fact” at Hoffler’s trial had not been properly empaneled, and that therefore the “entire trial” was invalid. See Hoffler, 53 A.D.3d at 124, 860 N.Y.S.2d 266. Since the Appellate Division determined that no trier of fact could properly consider the evidence offered at Hoffler’s trial, any discussion regarding the evidence presented to that improperly empaneled body may well have been viewed by that court to be advisory in nature because the Third Department found Hoffler’s entire trial to be both “invalid,” Hoffler, 53 A.D.3d at 121, 860 N.Y.S.2d 266, and “a nullity.” Hoffler, 72 A.D.3d at 1185, 897 N.Y.S.2d 755. It is well-settled that “the giving of [advisory] opinions is not the exercise of the judicial function” of New York appellate courts. New York Public Interest Research Group, [578] Inc. v. Carey, 42 N.Y.2d 527, 529, 399 N.Y.S.2d 621, 369 N.E.2d 1155 (1977); see, e.g., Ostrover v. City of New York, 192 A.D.2d 115, 118-19, 600 N.Y.S.2d 243 (1st Dept.1993) (“it is well-established that courts are not empowered to render advisory opinions, or determine abstract, mood, hypothetical, remote or academic questions”) (internal quotation marks and citation omitted).
Petitioner has cited no authority, and this Court’s research has disclosed none, in which the United States Supreme Court, the Second Circuit Court of Appeals, or any district court within this circuit has declared that an appellate court must decide a challenge to the sufficiency of the evidence notwithstanding the fact that such appellate court already concluded that the jury that rendered the guilty verdict challenged by a party had never been properly sworn and that therefore the entire trial was invalid.6
Since the Appellate Division concluded that Hoffler’s trial was invalid because prospective jury members were never administered a required oath prior to jury selection, and nothing before this Court suggests that such determination was erroneous, this Court finds that the failure of the Third Department to consider Hoffler’s appellate argument challenging the sufficiency of the evidence adduced at trial was not erroneous in any way.7 Since [579] Hoffler has not demonstrated that any of his constitutional rights were violated by the Third Department’s failure to consider that appellate claim, he is not entitled to federal habeas relief on this theory.
2. Double Jeopardy Claim
Petitioner also appears to argue that a finding that he was never placed in jeopardy is inconsistent with the realities of his original trial. See Petition at pp. 11-12, 20. He specifically contends that the “extraordinary holding of the New York courts treats [his] lengthy trial that occurred after the administration of the oath by which jeopardy attached under the Constitution as a non-event for purposes of federal constitutional law.” Id. at p. 20. These claims are specious.
Initially, these arguments appear to ignore the fact that, in reversing Hoffler’s conviction, the Appellate Division specifically found that prospective jury members were not administered an oath which is required under New York’s CPL. Hoffler, 53 A.D.3d at 120-24, 860 N.Y.S.2d 266. Petitioner’s current claim that jeopardy attached “after the administration of the oath” at his criminal trial, see Petition at p. 20, is therefore flawed.
Next, it is plain that, in light of the Third Department’s decision which vacated Hoffler’s conviction, he was never placed in jeopardy at his initial trial. The Supreme Court has emphasized that “[j]eopardy denotes risk. In the constitutional sense, jeopardy describes the risk that is traditionally associated with criminal prosecution.” Breed v. Jones, 421 U.S. 519, 528, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975); see also United States v. Martin Linen Supply Co., 430 U.S. 564, 569, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977) (“The protections afforded by the [Double Jeopardy] Clause are implicated only when the accused has actually been placed in jeopardy”) (emphasis added). In light of the Appellate Division’s determination that reversed Hoffler’s first degree murder conviction and “invalidated the entire trial,” Hoffler, 53 A.D.3d at 124, 860 N.Y.S.2d 266, it is patent that petitioner was never placed in jeopardy at his original trial.
Even if, as Hoffler suggests, he was placed in jeopardy during the course of his original trial, his successful appeal necessitates a finding that such jeopardy never terminated and that his re-trial on the charges contained in the Indictment is therefore permissible. As the Supreme Court explained in Sattazahn v. Pennsylvania, 537 U.S. 101, 106, 123 S.Ct. 732, 154 L.Ed.2d 588 (2003), “[w]here ... a defendant is convicted of murder and sentenced ... but appeals the conviction and succeeds in having it set aside, we have held that jeopardy has not terminated;” see also United States v. McCourty, 562 F.3d 458, 473 (2d Cir.2009) (“The protection of the Double Jeopardy Clause ‘applies only if there has been some event, such as an acquittal, which terminates the original jeopardy’ ”) (quoting Richardson v. United [580] States, 468 U.S. 317, 325, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984)) (other citations omitted). Thus, even assuming, arguendo, that jeopardy attached during the course of Hoffler’s trial notwithstanding the fact that the jury was never properly sworn, his claim that his re-trial is prohibited by the Double Jeopardy Clause of the United States Constitution is meritless because his successful appeal did not terminate that original jeopardy. Sattazahn, 537 U.S. at 106, 123 S.Ct. 732.
3. Constitutionality of New York’s Nullified Proceedings Rule
In his final argument in support of the present application, petitioner contends that New York’s nullified proceedings rule, codified in CPL § 40.30(3), “circumvent[s], and essentially nullif[ies], the Double Jeopardy Clause of the Fifth Amendment.” Petition at pp. 22-23; see also Supporting Mem., Point VI; Reply at pp. 16-17.
This Court therefore briefly reviews the provision of the CPL upon which Hoffler bases this aspect of his habeas application.
CPL § 40.30 provides, in relevant part, that:
1. Except as otherwise provided in this section, a person “is prosecuted” for an offense, within the meaning of section 40.20, when he is charged therewith by an accusatory instrument filed in a court of this state or of any jurisdiction within the United States, and when the action either:
(a) Terminates in a conviction upon a plea of guilty; or
(b) Proceeds to the trial stage and a jury has been impaneled and sworn or, in the case of a trial by the court without a jury, a witness is sworn.
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3. Despite the occurrence of proceedings specified in subdivision one, if such proceedings are subsequently nullified by a court order which restores the action to its pre-pleading status or which directs a new trial of the same accusatory instrument, the nullified proceedings do not bar further prosecution of such offense under the same accusatory instrument.
CPL §§ 40.30(1), (3).
In support of his claim that CPL § 40.30(3) is unconstitutional, Hoffler argues that the nullified proceedings rule adopted by New York had its genesis in the Supreme Court ease of Ball v. United States, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896), and that subsequent to that decision, courts “permitted retrials following appellate reversals in a wide range of circumstances including insufficient evidence at prior trials.” Petition at p. 23. Hoffler notes that in 1978, the United States Supreme Court decided Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), which overruled prior Supreme Court precedent which permitted defendants to be re-tried following an appellate reversal for insufficient evidence. Petition at p. 23. Hoffler argues that “[t]he rationale of the Burks opinion and the decision in Crist v. Bretz, [437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978) ] . . . powerfully suggest that New York’s ‘nullified procedure rule,’ as applied to Mr. Hoffler, runs afoul of both the Fifth and Fourteenth Amendments.” Petition at p. 23.
In Burks, the Supreme Court reviewed prior Supreme Court cases that had discussed the scope of the Double Jeopardy Clause. Burks, 437 U.S. at 6-10, 98 S.Ct. 2141. The Burks Court noted that those prior decisions had culminated in “at least one proposition emerging]: a defendant who requests a new trial as one avenue of [appellate] relief may be required to stand trial again, even when his conviction was [581] reversed due to failure of proof at the first trial.” Burks, 437 U.S. at 10, 98 S.Ct. 2141. The Burks Court rejected that proposition and squarely held:
The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials.
Burks, 437 U.S. at 11, 98 S.Ct. 2141.8
In Crist, the Supreme Court addressed the issue of whether the federal rule that governed the time when jeopardy attached in a jury trial was binding on the state of Montana. Crist, 437 U.S. at 29, 98 S.Ct. 2156.9 In finding that the federal rules governed this issue, the Crist Court explicitly held that “[t]he federal rule that jeopardy attaches when the jury is empaneled and sworn is an integral part of the constitutional guarantee against double jeopardy.” Crist, 437 U.S. at 38, 98 S.Ct. 2156.
Hoffler’s reliance on Burks and Crist is plainly misplaced.
As is discussed more fully above, the Appellate Division declined to address the issue of whether the evidence adduced at Hoffler’s trial was legally sufficient. Therefore, Burks’ pronouncement that Double Jeopardy bars the re-prosecution of an individual where an appellate court reverses a criminal conviction on evidence sufficiency grounds, see Burks, 437 U.S. at 11, 98 S.Ct. 2141, does not provide Hoffler with legal support for his request for federal habeas intervention herein. Moreover, Hoffler’s claim that Crist supports his request for habeas relief appears to overlook the significant fact that his first degree murder conviction was reversed by the Appellate Division based upon that court’s finding that there was a “complete failure to provide the oath of truthfulness to the prospective jurors” at Hoffler’s trial. Since Crist stands for the proposition that, “jeopardy attaches when the jury is empaneled and sworn,” Crist, 437 U.S. at 38, 98 S.Ct. 2156, and the jury that convicted Hoffler was never properly sworn, Hoffler, 53 A.D.3d at 124, 860 N.Y.S.2d 266, petitioner’s current claim that Crist supports his request for federal habeas intervention is meritless.
New York’s nullified proceeding law, which permits the re-trial of an individual after an appellate court finds that a conviction must be reversed, is wholly consistent with both past and present Supreme Court authority. See Sattazahn, 537 U.S. at 115, 123 S.Ct. 732; Montana v. Hall, 481 U.S. 400, 402, 107 S.Ct. 1825, 95 L.Ed.2d 354 (1987) (“[i]t is a venerable principle] of double jeopardy jurisprudence that the successful appeal of a judgment of conviction, on any ground other than the insufficiency of the evidence to [582] support the verdict ... poses no bar to further prosecution on the same charge’ ”) (internal quotation marks and citations omitted). As in Sattazahn, the petition before this Court: “hardly presents the specter of ‘an all-powerful state relentlessly pursuing a defendant who had either been found not guilty or who had at least insisted on having the issue of guilt submitted to the first trier of fact.’” Sattazahn, 587 U.S. at 115, 123 S.Ct. 732 (quoting United States v. Scott, 437 U.S. 82, 96, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978)). “Instead, we see here a State which ... [seeks to] pursue its not-yet-vindicated interest in one complete opportunity to convict [one] who ha[s] violated its laws.” Sattazahn, 537 U.S. at 115, 123 S.Ct. 732 (other internal quotation marks and citation omitted). Because Hoffler has provided no persuasive argument that supports his claim that New York’s nullified proceeding law is unconstitutional, this final claim in his petition must be denied.
Finally, since all of the claims asserted by Hoffler may properly be denied by this Court without a hearing, the Court shall not conduct any evidentiary hearing in this matter as requested by petitioner. See Petition at p. 25.10
III. CERTIFICATE OF APPEALA-BILITY
Finally, the Court notes that 28 U.S.C. § 2253(c) provides, in relevant part, as follows:
Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from ... the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court .... 11
28 U.S.C. § 2253(c)(1)(A). A Certificate of Appealability may only be issued “if the applicant has made a substantial showing of the denial of a constitutional right.” See 28 U.S.C. § 2253(c)(2). Since petitioner has failed to make such a showing herein,12 the Court declines to issue any Certificate of Appealability in this matter.
ACCORDINGLY, it is
ORDERED that Hoffler’s petition (Dkt. No. 1) is DENIED and DISMISSED; and it is further
ORDERED that no Certificate of Appealability shall be issued in this case because petitioner has failed to make a “substantial showing of the denial of a constitutional right” pursuant to 28 U.S.C. § 2253(c); and it is further
ORDERED that the Clerk serve a copy of this Memorandum-Decision and Order on counsel for the parties to this action. IT IS SO ORDERED.