New York State Court of Claims

New York State Court of Claims

McCULLOUGH v. THE STATE OF NEW YORK, #2006-009-014, Claim No. 110587, Motion No. M-70848


Synopsis


Defendant's motion seeking dismissal of the claim was granted, based upon the reversal of his habeas corpus relief.

Case Information

UID:
2006-009-014
Claimant(s):
DAVID McCULLOUGH
Claimant short name:
McCULLOUGH
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110587
Motion number(s):
M-70848
Cross-motion number(s):

Judge:
NICHOLAS V. MIDEY JR.
Claimant's attorney:
DAVID McCULLOUGH, Pro Se
Defendant's attorney:
HON. ELIOT SPITZER
Attorney General
BY: Timothy P. Mulvey, Esq.,
Assistant Attorney GeneralOf Counsel.
Third-party defendant's attorney:

Signature date:
March 7, 2006
City:
Syracuse
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

Defendant has brought this motion seeking an order dismissing the claim.

The following papers were considered by the Court in connection with this motion:
Notice of Motion, Affirmation, with Exhibits 1,2


Claimant's Answer 3

Filed Papers: Claim.

In his claim, claimant seeks damages for alleged violations of his State constitutional rights pursuant to a constitutional tort cause of action (see Brown v State of New York, 89 NY2d 172).

In 1995, following a jury trial, claimant was convicted of rape in the first degree and sodomy in the first degree and was sentenced to an indeterminate term of State imprisonment of 10 to 20 years. Claimant appealed this conviction, which was affirmed by the Appellate Division, Fourth Department in 1998 (People v McCullough, 254 AD2d 750). Leave to appeal to the New York State Court of Appeals was thereafter denied (People v McCullough, 92 NY2d 1035).

Claimant, however, sought habeas corpus relief in Federal District Court, and by a Memorandum-Decision and Order dated October 29, 2003, his petition for a writ of habeas corpus was granted, based upon ineffective assistance of counsel during jury selection (McCullough v Bennett, 317 F Supp 2d 112)

Based upon this decision, claimant filed this claim, alleging a violation of his State constitutional rights, asserting that he was deprived of his right to an impartial jury and to a fair trial, and that he was deprived of due process and equal protection of the law.

However, subsequent to the filing of his claim, as well as the institution of this motion, the United States Court of Appeals, Second Circuit, reversed the prior judgment of the Federal District Court, and remanded claimant's case with instructions to deny his petition seeking habeas corpus relief (McCullough v Bennett, 143 Fed Appx 379). Claimant's petition for a writ of certiorari was thereafter denied (McCullough v West, 126 S Ct 836).

Claimant's entire claim rested upon the determination made by the Federal District Court in granting him habeas corpus relief. Since that decision has now been reversed by the United States Court of Appeals, Second Circuit, claimant has no basis on which to allege or prove a violation of his State constitutional rights.

Accordingly based upon the foregoing, it is

ORDERED, that Motion No. M-70848 is hereby GRANTED; and it is further

ORDERED, that Claim No. 110587 is hereby DISMISSED.


March 7, 2006
Syracuse, New York

HON. NICHOLAS V. MIDEY JR.
Judge of the Court of Claims