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17-167 - Ortiz v. Semple


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17-167 - Ortiz v. Semple
June 22, 2017
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ORDER granting 9 Motion to Stay. Petitioner's exhausted claims for ineffective assistance of counsel regarding impeachment of the witness who provided photo identification of the co-defendant, as well as Petitioners actual innocence claim, are STAYED pending exhaustion of his other three ineffective assistance claims, which are DISMISSED for the reasons set forth in the Memorandum of Decision attached. As explained in the attached Decision, Petitioner is ordered to initiate state habeas proceedings for the three dismissed ineffective assistance claims within 90 days of the date of this Order. Petitioner is also ordered to return to federal court within 30 days of the resolution of state habeas proceedings on his unexhausted claims. Failure to do so may result in dismissal of Petitioner's stayed claims. In addition, Attorney Koch's Motion for Reconsideration 14 is DENIED. Attorney Koch has failed to satisfy the standard for reconsideration (see Virgin Atl. Airways Ltd. v. National Mediation Board, 956 F2d. 1245, 1255 (2d Cir. 1992)). In addition, counsel represents that he agreed to represent Petitioner pro bono but has repeatedly failed to research and adhere to the applicable law which clearly sets out the requisite factual showing of entitlement to pro bono compensation. Further, Attorney Koch filed this case in contravention of the law which requires an inmate to exhaust state remedies before appearing in federal court and has generally failed to demonstrate the requisite diligence or competence required to represent the petitioner before this Court. Signed by Judge Vanessa L. Bryant on 6/22/2017. (Hudson, C)