11-5281-pr
Hoffler v. Bezio


                           UNITED STATES COURT OF APPEALS

                                   FOR THE SECOND CIRCUIT


                                      August Term, 2012

                    (Argued: December 5, 2012       Decided: August 8, 2013)

                                     Docket No. 11-5281-pr


                                      MICHAEL HOFFLER,

                                                          Petitioner-Appellant,
                                             —v.—

     NORMAN R. BEZIO, Superintendent of Great Meadow Correctional Facility, ERIC T.
             SCHNEIDERMAN, Attorney General of the State of New York,

                                                          Respondents-Appellees.

Before:
                        CABRANES, RAGGI, and CARNEY, Circuit Judges


           On this appeal from a judgment entered in the United States District Court for the

Northern District of New York (McAvoy, J.) denying a writ of habeas corpus sought

pursuant to 28 U.S.C. § 2241, petitioner maintains that the State of New York cannot retry

him for the murder of a prosecution witness in another case because (1) the evidence at his

first trial was insufficient as a matter of law to support the jury’s guilty verdict; (2) the

Double Jeopardy Clause bars retrial in the face of such insufficiency; and (3) the failure of


                                                1
the New York Appellate Division, Third Department, to address his sufficiency challenge

before ordering retrial cannot be excused by its subsequent ruling that the error warranting

retrial—a failure properly to swear the venire panel—meant that petitioner had never been

placed in jeopardy at the initial trial. We conclude that a certificate of appealability is a

jurisdictional prerequisite to a state prisoner’s appeal of the denial of a § 2241 petition.

Because that has not previously been clear in this circuit, we hereby grant petitioner such a

certificate nunc pro tunc. On the merits of petitioner’s appeal, we conclude that jeopardy did

attach at petitioner’s first trial, but that petitioner is not entitled to habeas relief because his

sufficiency challenge is meritless, thereby rendering harmless any possible error in the state

court’s failure to address sufficiency when ordering retrial.

       AFFIRMED.


               RAY KELLY, ESQ., Albany, New York, for Petitioner-Appellant.

               LISA ELLEN FLEISCHMANN, Assistant Attorney General, of Counsel (Barbara
                     D. Underwood, Solicitor General, Roseann B. MacKechnie, Deputy
                     Solicitor General for Criminal Matters, on the brief), for Eric T.
                     Schneiderman, Attorney General of the State of New York, New York,
                     New York, for Respondents-Appellees.


REENA RAGGI, Circuit Judge:

       Petitioner Michael Hoffler appeals from a judgment entered on November 17, 2011,

in the United States District Court for the Northern District of New York (Thomas J.

McAvoy, Judge), denying him a writ of habeas corpus. See Hoffler v. Bezio, 831 F. Supp.


                                                 2
2d 570 (N.D.N.Y. 2011). Hoffler sought the writ pursuant to 28 U.S.C. § 2241 to prevent

New York State from retrying him on murder charges arising out of the December 30, 2003

killing of Christopher Drabik, a prosecution witness scheduled to testify against Hoffler a

few days later at a trial on drug charges.

       Although a jury found Hoffler guilty of first-degree witness-elimination murder in

violation of N.Y. Penal Law §§ 20.00 and 125.27(1)(a)(v), the New York Appellate Division,

Third Department, reversed the conviction on direct appeal and remanded the case for a new

trial because of a mistake in swearing the venire panel from which the trial jury was selected.

Specifically, the oath administered to the venire panel was that prescribed by New York law

for empaneled jurors rather than the oath prescribed for prospective jurors. See People v.

Hoffler, 53 A.D.3d 116, 120–21, 860 N.Y.S.2d 266, 269–70 (3d Dep’t 2008) (citing N.Y.

Crim. Proc. Law § 270.15(1)(a)). Hoffler here asserts that New York cannot retry him for

the Drabik murder because (1) the evidence at his first trial was insufficient as a matter of

law to support the jury’s guilty verdict; (2) the Double Jeopardy Clause bars retrial where the

evidence at a first trial was legally insufficient to support conviction, see U.S. Const.

amend. V; and (3) the Appellate Division’s failure to rule on his sufficiency challenge before

ordering retrial cannot be excused by its subsequent determination that the error in swearing

the venire panel meant that petitioner had never been placed in jeopardy at his first trial, see

Hoffler v. Jacon, 72 A.D.3d 1183, 897 N.Y.S.2d 755 (3d Dep’t 2010).




                                               3
       At the outset, we conclude that our jurisdiction to hear an appeal brought by a state

prisoner from the denial of a § 2241 petition requires the issuance of a certificate of

appealability. Because our case law has not previously made that requirement clear, we

excuse Hoffler’s failure to seek a certificate within the time prescribed by our Local Rules,

entertain his belated application, and grant him a certificate nunc pro tunc.

       With our jurisdiction thus established, we conclude that Hoffler was placed in

jeopardy at the initial Drabik murder trial because the empaneled jury was properly sworn

to return a verdict based on impartial consideration of the evidence and the applicable law.

No different conclusion is warranted by the fact that the venire panel was not sworn in

accordance with New York law, because that error rendered the judgment of conviction

voidable but not void.

       Insofar as Hoffler faults the Appellate Division for not ruling on his sufficiency

challenge before ordering retrial, we need not here decide whether such a ruling is

constitutionally required by the Double Jeopardy Clause because, even if it is, any error in

this case would be harmless beyond a reasonable doubt in light of record evidence sufficient

to support a guilty verdict against Hoffler for first-degree witness-elimination murder.

       Accordingly, we affirm the judgment of the district court denying Hoffler’s § 2241

petition for a writ of habeas corpus to prevent New York State from retrying him for murder.




                                              4
I.     Background

       A.     The Murder of Christopher Drabik

       After his own arrest on drug charges in April 2003, Christopher Drabik agreed to

cooperate with Albany police in making controlled drug purchases from identified

traffickers, including an individual known to Drabik by the street name, “Murder.” Police

subsequently identified “Murder” as petitioner Michael Hoffler who, based on a license he

produced in the course of a traffic stop, also used the name “Ernest Hoffler.” On May 1,

2003, and again on May 6, 2003, Drabik made controlled purchases of cocaine from Hoffler.

Police recorded the men’s initial telephone conversation leading to these transactions, and

they videotaped their face-to-face drug transactions. On May 14, 2003, in the course of a

third controlled drug purchase by a different cooperator, police arrested Hoffler.

       At Hoffler’s July 1, 2003 arraignment—at which he was released on bail—the

prosecution revealed the dates, times, and locations of the charged drug sales. Subsequently,

the prosecutor provided defense counsel with police reports detailing the transactions, and

at a November 2003 pretrial hearing, a police detective testified as to the surrounding

circumstances. On none of these occasions did authorities identify Drabik as an informant

or explicitly reveal that he would be called as a prosecution witness at the trial scheduled to

begin on January 5, 2004. Nor were Hoffler’s recorded conversation and videotaped

meetings with Drabik provided to defense counsel before Drabik’s murder.




                                              5
          The week prior to trial, on December 30, 2003, Drabik was found shot dead in front

of 478 Sixth Avenue in Troy, New York. Even without Drabik’s testimony, a jury found

Hoffler guilty on the pending drug charges, and the trial court sentenced him to an aggregate

prison term of 17 to 34 years. See People v. Hoffler, 41 A.D.3d 891, 892, 837 N.Y.S.2d 750,

752 (3d Dep’t 2007).

          B.    Hoffler’s Initial Conviction for Drabik’s Murder

          On March 19, 2004, a grand jury indicted Hoffler on homicide charges stemming from

the Drabik murder. On May 19, 2005, the trial jury found Hoffler guilty of the most serious

charge, first-degree witness-elimination murder, see N.Y. Penal Law §§ 20.00,

125.27(1)(a)(v), for which crime the court sentenced him to life imprisonment without

parole.

          The prosecution theory at trial, which it supported largely through circumstantial

evidence, was that Hoffler murdered Drabik—with the assistance of Albany confederate

Lance Booker and Brooklyn gunman Gregory Heckstall—by luring Drabik to 478 Sixth

Avenue in Troy, New York where, early on the morning of December 30, 2003, Heckstall

shot Drabik dead.1 To facilitate our discussion of Hoffler’s sufficiency claim, we summarize

some of the pertinent evidence.


          1
         Booker and Heckstall were tried separately and apart from Hoffler, with each
convicted of two counts of first-degree murder and one count of conspiracy in the second
degree. See People v. Booker, 53 A.D.3d 697, 698, 862 N.Y.S.2d 139, 140 (3d Dep’t 2008)
(affirming conviction); People v. Heckstall, 45 A.D.3d 907, 908, 845 N.Y.S.2d 488, 489 (3d
Dep’t 2007) (same).

                                               6
       Several witnesses placed Hoffler and an armed Heckstall together in Albany during

the last week of December 2003. One such witness, who stated that Hoffler introduced

Heckstall to her as his “cousin,”2 reported seeing the two men on December 28, 2003, parked

near her house in a gray SUV. That same day, an individual who identified himself as

“Ernest Hoffler” had rented a gray Ford Escape SUV from Budget in Albany.

       Another woman testified that she too had met Heckstall and Hoffler sometime during

the last week in December when the two men were sitting with her neighbor, Booker, in a

dark-colored SUV parked on her street. Heckstall spent the night with the woman and, when

he undressed, she saw that he was carrying a firearm, which he indicated to her was loaded.

Early the next morning, Hoffler arrived at the woman’s home and spoke quietly with

Heckstall, after which Heckstall quickly dressed, collected his gun, and left with Hoffler.

       Telephone records showed that at 7:48 p.m. on December 29, 2003, a call was placed

to Drabik’s cell phone from a cell phone registered to Hoffler’s residence and used by him

on a regular basis. While it is not clear that this particular call connected, Drabik’s parents

recalled overhearing their son speaking on his cell phone sometime between 7:45 and 8:00

p.m. on December 29 to someone whom he agreed to meet the following day to discuss a

possible construction job.




       2
           Other evidence showed that the two men had been neighbors in Brooklyn some years
earlier.

                                              7
       Telephone records showed that over the next several hours and into the early morning

of December 30, there were frequent calls between Hoffler’s cell phone and a phone number

assigned to the residence of Pamela White, Booker’s then girlfriend. In the early morning

on December 30, Hoffler arrived at White’s residence and waited while Booker dressed, after

which the men left in a dark-colored SUV.

       At about this same time, Drabik received a 6:09 a.m. call on his cell phone from an

unidentified incoming number. His mother overheard Drabik agree to meet the caller in 20

minutes at 478 Sixth Avenue in Troy, New York, an address he wrote down on a piece of

paper received into evidence at trial. A subsequent forensic examination of computers seized

from Hoffler’s home would show that, on the night of December 29, 2003, one computer

accessed an online real estate listing for 478 Sixth Avenue in Troy.

       At 6:37, 6:45, and 6:54 a.m. on December 30, Drabik called a number assigned to a

“Trac Fone”—a prepaid phone with no named subscriber—that had been activated only the

day before. Soon thereafter, at approximately 7:00 a.m., Drabik was fatally shot once in the

chest in front of 478 Sixth Avenue in Troy, which is near the intersection of 112th Street and

Sixth Avenue.

       Andrew Bridgers testified that early on the morning of December 30, while delivering

newspapers in Troy, he was slowing his car to a stop on Sixth Avenue near 112th Street

when he spotted two men and heard a gunshot. Bridgers then saw one of the men fall to the

ground while the other walked in the direction of Bridgers’ vehicle, affording Bridgers a


                                              8
view of the man’s face. Bridgers testified that the man who fell to the ground was Drabik;

the one who walked away was Heckstall.3

       Mary Ann Fath, who lived on the corner of 113th Street and Sixth Avenue, a short

distance from the murder scene, testified that, early on the same morning, through the

window of her home, she saw an unfamiliar tan or “taupey”-colored SUV parked on 113th

       3
        Because no hearsay objection was raised as to how Bridgers learned Heckstall’s
name, we view this evidence, like the rest of the record, in the light most favorable to the
prosecution in assessing a sufficiency challenge.

        Booker’s role in the Drabik murder was less clearly established at Hoffler’s trial than
at his own. As summarized by the Appellate Division in affirming Booker’s conviction,

       [I]n early December 2003, Hoffler showed [Booker Drabik’s] driver’s license,
       drove [Booker] to [Drabik’s] house to show him where [Drabik] lived, and
       offered to pay [Booker] to kill [Drabik]. . . . When [Booker] failed to commit
       the crime, Hoffler enlisted Heckstall to kill [Drabik]. The day before the
       murder, Hoffler, after informing [Booker] that he needed a cellular “TRAC
       phone” to call [Drabik] without calls being traced back to him, was provided
       one by [Booker]. The evidence revealed that the TRAC phone was used to call
       [Drabik] and lure him to the site of the murder. . . . Later that evening,
       [Booker] received a phone call from Hoffler, who informed him that he had
       found a location to which he could lure [Drabik].

       Between 5:30 and 6:00 a.m. the following morning, [Booker] received two
       telephone calls from Hoffler, who, accompanied by Heckstall, picked him up
       shortly thereafter in a rental car. . . . Hoffler, Heckstall and [Booker] then
       drove to [478 Sixth Avenue]. [Booker] recounted that, shortly after Heckstall
       got out of the car, he heard a gunshot and Heckstall ran back to the car and got
       in. Hoffler immediately asked Heckstall if [Drabik] was dead and, after
       Heckstall responded that he had shot [Drabik] in the chest, Hoffler complained
       that Heckstall had not shot the victim in the head.

People v. Booker, 53 A.D.3d at 702–03, 862 N.Y.S.2d at 143–44. To the extent this
evidence was not received at Hoffler’s trial, however, it plays no role in our resolution of this
appeal.

                                               9
Street with its headlights on. Soon after, she saw someone enter the SUV from a passenger

side door, whereupon the vehicle pulled away.

       Telephone records showed that between 7:19 and 7:45 on the morning of December

30, six telephone calls were placed between Hoffler’s cell phone and a landline registered

to his residence. Approximately three hours later, at 10:58 a.m., a New York City police

officer wrote a ticket for a vehicle illegally parked in Brooklyn: the gray SUV rented from

Budget under the name “Ernest Hoffler.” Later that same day, the vehicle was back in

Albany, where it was returned to Budget at 6:17 p.m., having been driven a total of 640 miles

during “Ernest Hoffler’s” three-day rental. On December 30, Budget debited $432.11 from

Michael Hoffler’s bank account to cover the cost of the rental, and subsequent forensic

analysis would locate Hoffler’s DNA in the rented SUV.

       Meanwhile, when Heckstall arrived at his sister-in-law’s Brooklyn home between

1:00 and 1:30 p.m. on December 30, he had several hundred dollars in cash.

       C.     Post-Conviction State Court Proceedings

              1.     Direct Appeal

       In challenging his murder conviction on direct appeal, Hoffler argued that the trial

evidence was insufficient to support his conviction and that the venire panel had not been

sworn in accordance with New York law.

       As to the latter point, New York law requires that two oaths be administered during

the jury selection process. The first, administered to the venire panel before voir dire, is


                                             10
intended to ensure that prospective jurors provide truthful answers to questions about their

qualifications to serve. See N.Y. Crim. Proc. Law § 270.15(1)(a) (providing that venire

panel “shall be immediately sworn to answer truthfully questions asked them relative to their

qualifications to serve as jurors in the action”). The second oath, administered to persons

selected to serve as trial jurors, is intended to ensure that these jurors will be impartial and

that they will return a verdict based on the law and the evidence. See id. § 270.15(2) (stating

that selected jurors “must be immediately 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”).

       In Hoffler’s case, the venire panel was mistakenly sworn in accordance with

§ 270.15(2), i.e. the trial oath, rather than § 270.15(1)(a), i.e. the voir dire oath. Thereafter,

the trial jurors were again sworn in accordance with § 270.15(2). The Appellate Division

concluded that the failure to administer the § 270.15(1)(a) oath to the venire panel was a

fundamental error that “invalidated the entire trial,” requiring reversal of Hoffler’s conviction

without regard to prejudice. People v. Hoffler, 53 A.D.3d at 124, 860 N.Y.S.2d at 272. In

remanding the case for a new trial, the appeals court did not address Hoffler’s sufficiency

claim. See id.

               2.     State Proceedings Challenging Retrial

       On remand, Hoffler moved the trial court to dismiss the indictment against him,

arguing that, in the absence of an appellate determination that the evidence at the first trial


                                               11
was sufficient to support conviction, he could not be retried without violating the Double

Jeopardy Clause. The trial court denied the motion, concluding that the Appellate Division

was not obliged by either state or federal law to review the sufficiency of the evidence in

ordering retrial based on a trial error that did not implicate guilt or innocence. The trial court

also declined to conduct its own assessment of sufficiency in the absence of any authority

for it to do so on remand where the Appellate Division had not. The trial court nevertheless

observed that it had already rejected Hoffler’s sufficiency challenge when raised prior to the

entry of the now reversed judgment of conviction.

       Hoffler next attempted to prevent his retrial by pursuing his double

jeopardy/sufficiency challenge in an Article 78 petition to the Third Department. See N.Y.

C.P.L.R. 7801 et seq.4 In denying relief, the Appellate Division concluded that, as a result

of the failure to administer the proper oath to the jury, Hoffler was never placed in jeopardy

at the Drabik murder trial. See Hoffler v. Jacon, 72 A.D.3d at 1185, 897 N.Y.S.2d at 757–58.

The court explained its conclusion as follows:

       [U]nder 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 ([N.Y. Crim. Proc. Law
       § 40.30(1)(b)]). Thus, in a trial on an indictment, the constitutional protection
       against double jeopardy is not implicated—and jeopardy does not attach—in
       the absence of a duly impaneled and sworn jury. . . . [B]ecause it has been


       4
        “In an Article 78 proceeding, New York state courts are empowered to issue
common law writs of certiorari to review, mandamus, and prohibition.” New York State
Nat’l Org. for Women v. Pataki, 261 F.3d 156, 168 (2d Cir.2001) (internal quotation marks
omitted).

                                               12
       established [in this case] that the jury was never properly sworn pursuant to
       [N.Y. Crim. Proc. Law §] 270.15(1)(a) and that such failure “invalidated the
       entire trial,” the trial was a nullity and petitioner was never “prosecuted” under
       the indictment.

Id. at 1184–85, 897 N.Y.S.2d at 757–58 (citations omitted). In these circumstances, the state

court concluded that it was not required to address Hoffler’s sufficiency claim on direct

appeal before ordering his retrial. See id. at 1185–86, 897 N.Y.S.2d at 758.

       The New York Court of Appeals denied both Hoffler’s application for leave to appeal,

see Hoffler v. Jacon, 15 N.Y.3d 768, 906 N.Y.S.2d 812 (2010), and his subsequent motion

for reconsideration, see Hoffler v. Jacon, 15 N.Y.3d 872, 912 N.Y.S.2d 561 (2010).

       D.      Federal Habeas Petition

       On April 11, 2011, Hoffler petitioned the district court pursuant to 28 U.S.C. § 2241

for a writ of habeas corpus. The district court denied the petition on November 17, 2011,

observing that, in light of the Appellate Division’s identification of an error that “invalidated

the entire trial, it is patent that petitioner was never placed in jeopardy at his original trial,”

eliminating any double jeopardy concern with respect to retrial. Hoffler v. Bezio, 831 F.

Supp. 2d at 579 (citation and internal quotation marks omitted).

       Even if Hoffler had been placed in jeopardy at the Drabik murder trial, however, the

district court identified a “sound reason” for the Appellate Division not to reach his

sufficiency challenge. See id. at 578 n.6 (internal quotation marks omitted) (construing

United States v. Bruno, 661 F.3d 733, 743 (2d Cir. 2011), to permit court ordering retrial not

to consider sufficiency of the evidence where sound reason warranted). “Since the Appellate

                                                13
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,” and it is

“well-settled that the giving of [advisory] opinions is not the exercise of the judicial function

of New York appellate courts.” Id. at 577 (alteration and emphasis in original; internal

quotation marks omitted).

       In any event, the district court concluded that any error in the Appellate Division’s

failure to rule on Hoffler’s sufficiency challenge before ordering retrial was necessarily

harmless because the record evidence was sufficient to establish the elements of first-degree

witness-elimination murder. See id. at 578 n.7.

       This timely appeal followed.

II.    Discussion

       We review de novo a district court’s denial of a habeas petition brought pursuant to

§ 2241. See Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996).5 Insofar as it is unsettled

in this circuit whether, on a § 2241 petition, a challenged state court decision is subject to de

novo review or is afforded deference under the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), Pub. L. No. 104–132, 110 Stat. 1214 (1996) (codified at 28 U.S.C.



       5
         Respondents do not challenge the district court’s ruling that Hoffler’s pretrial habeas
petition is properly considered under 28 U.S.C. § 2241 rather than 28 U.S.C. § 2254. See
Hoffler v. Bezio, 831 F. Supp. 2d at 574–75. Accordingly, we do not here decide whether
pretrial habeas petitions can only be brought pursuant to § 2241.

                                               14
§ 2254(d)), see Marte v. Vance, 480 F. App’x 83, 84 (2d Cir. 2012) (noting that question is

unsettled), we need not conclusively answer that question in this case because respondents

do not challenge the application of de novo review, and Hoffler’s claims fail even under that

more rigorous standard, see generally Perkins v. Herbert, 596 F.3d 161, 176 (2d Cir. 2010)

(citing precedent that court need not decide which review standard applies where result is

same under either test).6

       Hoffler submits that the district court erred in concluding both that the Double

Jeopardy Clause did not require the Appellate Division to resolve his sufficiency challenge

before ordering retrial, and that, in any event, the evidence at Hoffler’s first murder trial was

sufficient to support a guilty verdict for first-degree murder. Respondents defend the district

court’s rulings and further assert that this court lacks jurisdiction over Hoffler’s appeal

because Hoffler failed to obtain a certificate of appealability (“COA”) as required by

28 U.S.C. § 2253(c)(1)(A). Hoffler responds that no COA is required where habeas relief

is sought pursuant to § 2241. Nevertheless, at oral argument, Hoffler moved for a COA to

be granted nunc pro tunc should this court determine that a certificate is necessary to reach

the merits of his appeal.




       6
         Several of our sister courts of appeals have concluded that AEDPA deference does
not apply “to habeas petitions brought by pretrial detainees under § 2241.” Martinez v.
Caldwell, 644 F.3d 238, 242 (5th Cir. 2011) (citing decisions by First, Ninth, and Tenth
Circuits in reaching that conclusion).

                                               15
       We proceed to consider these arguments in turn, starting with the question of

jurisdiction.

       A.       A Certificate of Appealability Is a Jurisdictional Prerequisite to Appellate
                Review of the Denial of a § 2241 Petition Brought by a State Prisoner

       While the “Privilege of the Writ of Habeas Corpus” is constitutionally protected from

suspension except in limited circumstances, U.S. Const. art. I, § 9, cl. 2, once a final ruling

has been made, the jurisdiction of appellate courts to review a habeas decision is delineated

by statute, specifically 28 U.S.C. § 2253. That jurisdictional grant is cabined by certain

conditions, including the COA requirement detailed in § 2253(c)(1):

        Unless a circuit justice or judge issues a certificate of appealability, an appeal
        may not be taken to the court of appeals from--
        (A) the final order in a habeas corpus proceeding in which the detention
        complained of arises out of process issued by a State court; or
        (B) the final order in a proceeding under section 2255.

In circumstances where § 2253(c)(1) applies, “until a COA has been issued[,] federal courts

of appeals lack jurisdiction to rule on the merits of appeals from habeas petitioners.”

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); accord Gonzalez v. Thaler, 132 S. Ct. 641,

649 (2012).

       There is no doubt that a state prisoner challenging his sentence under 28 U.S.C.

§ 2254(a), which permits a federal judge to grant a writ of habeas corpus to a prisoner who

is “in custody pursuant to the judgment of a State court,” must obtain a COA to appeal a

district court judgment, since such a prisoner is challenging detention arising out of process

issued by a state court. See Richardson v. Greene, 497 F.3d 212, 217 (2d Cir. 2007). We

                                               16
have also held that a federal prisoner seeking habeas relief under 28 U.S.C. § 2241 is not

required to obtain a certificate of appealability to take an appeal, inasmuch as he is neither

challenging detention arising out of process issued by a state court, nor proceeding under

§ 2255. See Murphy v. United States, 199 F.3d 599, 601 n.2 (2d Cir. 1999). The question

here is whether a state prisoner proceeding under 28 U.S.C. § 2241(c)(3), which permits a

federal judge to grant a writ of habeas corpus to a prisoner who “is in custody in violation

of the Constitution or laws or treaties of the United States,” must obtain a COA to appeal.

In other words, we are asked whether a state petitioner seeking to prevent retrial under

§ 2241 is challenging detention “aris[ing] out of process issued by a State court,” 28 U.S.C.

§ 2253(c)(1)(A), thereby triggering the COA requirement.

       This court has not yet specifically ruled on whether a state prisoner must procure a

COA to appeal a denial of habeas relief sought pursuant to 28 U.S.C. § 2241. Every other

court of appeals to have considered the issue, however, has concluded that § 2253(c)(1)(A)

requires a COA in such circumstances. See Evans v. Circuit Court, 569 F.3d 665, 666–67

(7th Cir. 2009); Wilson v. Belleque, 554 F.3d 816, 824–25 (9th Cir. 2009); Greene v. Tenn.

Dep’t of Corr., 265 F.3d 369, 372 (6th Cir. 2001); United States v. Cepero, 224 F.3d 256,

264 (3d Cir. 2000), abrogated on other grounds by Gonzalez v. Thaler, 132 S. Ct. at 647 n.1;

Montez v. McKinna, 208 F.3d 862, 869 (10th Cir. 2000); Stringer v. Williams, 161 F.3d 259,

262 (5th Cir. 1998). We now join our sister courts of appeals in reaching that same

conclusion based on the statutory text and structure.


                                             17
       In § 2253(c)(1), Congress established a COA requirement in two distinct

circumstances, the first applying to state prisoners, the second applying to federal prisoners.

Section 2253(c)(1)(B) imposes a COA requirement on federal prisoners only with respect to

appeals from final orders in proceedings arising under a single federal statute: 28 U.S.C.

§ 2255. By contrast, § 2253(c)(1)(A) does not limit the COA requirement for state prisoners

to proceedings under any particular statute but, rather, imposes a COA requirement on final

orders “in a habeas corpus proceeding” in which the challenged detention “arises out of

process issued by a State court.” The phrase “habeas corpus proceeding” speaks generally

and, thus, cannot reasonably be construed to reference only habeas proceedings arising under

28 U.S.C. § 2254, while excluding habeas proceedings arising under § 2241. As the Ninth

Circuit has observed, “had Congress intended to restrict the COA requirement for state

detainees to petitions brought pursuant to § 2254, it would have simply employed the same

straightforward language that it used in § 2253(c)(1)(B)” to limit the COA requirement to

§ 2255 proceedings. Wilson v. Belleque, 554 F.3d at 825. Thus, we conclude that, even if

federal prisoners need obtain a COA only when appealing the denial of § 2255—and not

§ 2241—relief, a state prisoner is statutorily required to procure a COA to appeal from a final

order in any habeas proceeding, without regard to whether that proceeding arose under

§ 2254, § 2241, or some other provision of law.7


       7
          Cases cited by Hoffler addressing the COA requirements for federal prisoners,
see, e.g., Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001); Sugarman v. Pitzer, 170
F.3d 1145, 1146 (D.C. Cir. 1999), are simply inapposite and, therefore, warrant no
discussion.

                                              18
       Here, Hoffler awaits retrial by order of New York’s Appellate Division, Third

Department, the same court that also rejected Hoffler’s Article 78 argument that retrial

violates double jeopardy. In these circumstances, a § 2241 petition complaining that Hoffler

is “in custody in violation of the Constitution,” 28 U.S.C. § 2241(c)(3), necessarily initiates

“a habeas corpus proceeding in which the detention complained of arises out of process

issued by a State court,” id. at § 2253(c)(1)(A).8 Accordingly, for Hoffler to appeal the

district court’s denial of habeas relief pursuant to § 2241, he was required to obtain a COA.

See Wilson v. Belleque, 554 F.3d at 825 (holding COA required where petitioner appealed

denial of § 2241 petition seeking to bar state retrial on double jeopardy grounds).

       To secure a COA, a petitioner must make “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Construing this requirement, the Supreme

Court has instructed that a federal court should not deny a COA “merely because it believes

the applicant will not demonstrate an entitlement to relief.” Miller-El v. Cockrell, 537 U.S.



       8
         Respondents do not dispute that Hoffler is in “custody” for purposes of § 2241, and
Hoffler does not contend that his § 2241 claim is anything but a challenge to “detention” for
purposes of § 2253(c)(1)(A). Thus, we need not here delineate the precise boundaries of
those requirements. We note only that the Supreme Court has broadly construed “custody”
for purposes of habeas corpus, so as to reach restraints on liberty even when a defendant is
not in “actual, physical custody,” Jones v. Cunningham, 371 U.S. 236, 239 (1963), as for
example when he is subject to the court’s criminal jurisdiction though released on bail, see
Lefkowitz v. Newsome, 420 U.S. 283, 286 n.2, 291 n.8 (1975), or on his own recognizance,
see Hensley v. Mun. Court, 411 U.S. 345, 351 (1973). Moreover, as the Ninth Circuit
observed in Wilson v. Belleque, “[t]here is no analytically sound way to conclude that
petitioners” incarcerated for one crime while fighting retrial on another are “‘in custody’ for
purposes of § 2241(c)(3) but not challenging a ‘detention’ under § 2253(c)(1)(A).” 554 F.3d
at 825.

                                              19
at 337. Rather, a COA should issue if “jurists of reason would find it debatable whether the

petition states a valid claim of the denial of a constitutional right.” Slack v. McDaniel, 529

U.S. 473, 478 (2000). For the reasons set forth in section II.B. infra, we conclude that

Hoffler has made the requisite “substantial showing” with respect to his claim that the

Appellate Division could not, consistent with the constitutional prohibition on double

jeopardy, order his retrial for the Drabik murder without first deciding whether the evidence

at his initial trial was sufficient to support the jury verdict of guilty for first-degree

witness-elimination murder. At the same time, we conclude that he has not made such a

showing with respect to the other habeas claims he seeks to pursue on appeal.9 Accordingly,

we need consider only the former claim in deciding whether to grant Hoffler a COA.

       In making that determination, we recognize that Hoffler’s request for a COA at oral

argument was untimely under Second Circuit Local Rule 22.1, which requires that COA

motions be made within 28 days of the later of the district court’s denial of a COA or the



       9
         Hoffler purports to identify error in the district court’s conclusions that (1) jeopardy
did not terminate when he was first convicted for Drabik’s murder; and (2) New York’s
nullified proceeding law, see N.Y. Crim. Proc. Law § 40.30(3), does not violate the Double
Jeopardy Clause. These arguments admit no reasoned debate as to their merits. The
Supreme Court has held that a conviction does not terminate jeopardy if appealed. See
Sattazahn v. Pennsylvania, 537 U.S. 101, 106 (2003). Moreover, New York’s nullified
proceeding law, which permits retrial of a defendant where jeopardy has not terminated, see
N.Y. Crim. Proc. Law § 40.30(3); Peter Preiser, Practice Commentaries, N.Y. Crim. Proc.
Law § 40.30 (McKinney 2013), is consistent with the Double Jeopardy Clause, see Sattazahn
v. Pennsylvania, 537 U.S. at 106.
        Insofar as Hoffler does not appeal the district court’s denial of an evidentiary hearing,
we deem that claim abandoned. See Jackler v. Byrne, 658 F.3d 225, 233 (2d Cir. 2011).

                                               20
filing of a notice of appeal. That rule, however, is not jurisdictional. See 28 U.S.C.

§ 2253(c) (prescribing no time limitation for issuance of COA); see also Gonzalez v. Thaler,

132 S. Ct. at 648–49 (holding that § 2253(c)(1)’s requirement that COA must issue before

appeal may be taken is jurisdictional, but that remaining § 2253(c) requirements as to when

COA may issue are non-jurisdictional); see generally Henderson ex rel. Henderson v.

Shinseki, 131 S. Ct. 1197, 1203 (2011) (identifying claim-processing rules, such as filing

deadlines, as non-jurisdictional in absence of clear congressional intent to contrary). Thus,

we can, and here do, exercise our discretion to excuse Hoffler’s failure to make a timely

COA application. See Fed. R. App. P. 26(b) (stating that, for good cause, courts may grant

extension of time prescribed under rules or permit an act to be done after that time expires).

Not only has our precedent failed previously to make clear that a state prisoner must obtain

a COA to appeal from the denial of a § 2241 petition, but also court actions may have

confused the issue in this case.10 Insofar, however, as this opinion now makes clear that a

state petitioner appealing from the denial of § 2241 relief must first secure a COA, we will

not be inclined to grant future untimely applications for COAs in § 2241 cases.




       10
          It appears that the court originally docketed Hoffler’s case as an appeal from a
§ 2254 petition and thus issued an order directing Hoffler to move for a COA. See Dkt. No.
23. Upon notice that the appeal was, in fact, from the denial of a § 2241 petition, the court
vacated its order requiring Hoffler to move for a COA. See Dkt. No. 25. Hoffler’s counsel
also represents that he was advised orally by a court staff member that no COA motion was
necessary when a habeas petitioner sought relief under § 2241. See March 8, 2012 Decl. of
Ray Kelly, Dkt. No. 35, ¶ 2.

                                             21
       Accordingly, we grant Hoffler a COA nunc pro tunc with respect only to his double

jeopardy/sufficiency challenge to retrial, and we proceed to discuss the merits of that

argument.

       B.     Hoffler’s Retrial Will Not Violate Double Jeopardy

       The Constitution states that no person shall “be subject for the same offence to be

twice put in jeopardy of life or limb.” U.S. Const. amend. V. “Under this Clause, once a

defendant is placed in jeopardy for an offense, and jeopardy terminates with respect to that

offense, the defendant may neither be tried nor punished a second time for the same offense.”

Sattazahn v. Pennsylvania, 537 U.S. 101, 106 (2003).

       Hoffler contends that if he is retried for the Drabik murder after having already been

tried once for that crime on a record that he maintains was legally insufficient to support

conviction, he will be placed in double jeopardy. See Burks v. United States, 437 U.S. 1, 18

(1978) (holding that Double Jeopardy Clause bars retrial where appellate court finds

evidence at first trial insufficient to support conviction). He submits that the New York State

courts violated his right not to be placed in double jeopardy by mistakenly concluding that

he was never in jeopardy at his first trial and by failing to rule on his sufficiency challenge

to the evidence supporting his first conviction. We conclude that Hoffler was placed in

jeopardy when he was first tried for the Drabik murder, but that his double jeopardy claim

fails nonetheless because jeopardy never terminated with respect to that offense, and the trial




                                              22
evidence was not insufficient as a matter of law to support a conviction for first-degree

witness-elimination murder.

              1.      Attachment of Jeopardy

       In rejecting Hoffler’s double jeopardy challenge to retrial, the Appellate Division

concluded that Hoffler had not been placed in jeopardy at his first trial because the petit jury

that returned a guilty verdict had not been properly sworn to participate in voir dire, a

fundamental error that invalidated the entire trial. See Hoffler v. Jacon, 72 A.D.3d at 1185,

897 N.Y.S.2d at 757–58. On de novo review of whether jeopardy attached at an initial state

criminal proceeding, neither the state court’s decision, nor the state law on which it relies,

binds this court. As we stated in Boyd v. Meachum, 77 F.3d 60 (2d Cir. 1996), “[t]he

contours of the Fifth Amendment’s guarantee against double jeopardy are indisputably

federal,” and “a federal constitutional right, to have any constant and discernible substance,

cannot turn on the vagaries of state procedural definitions,” id. at 65 (internal quotation

marks omitted). Here, two strands of federal law prompt us to conclude that Hoffler was

placed in jeopardy at his initial state trial for first-degree witness-elimination murder.

       The first strand derives from the Supreme Court’s decision in Serfass v. United States,

420 U.S. 377 (1975), and this court’s decision in United States v. Wedalowski, 572 F.2d 69

(2d Cir. 1978). In Serfass, the Supreme Court observed that, for purposes of reviewing

double jeopardy challenges, “courts have found it useful to define a point in criminal

proceedings at which the constitutional purposes and policies are implicated by resort to the


                                              23
concept of attachment of jeopardy.” 420 U.S. at 388 (internal quotation marks omitted). In

the case of a jury trial, that point is when a jury is “empaneled and sworn.” Id.; accord

United States v. Razmilovic, 507 F.3d 130, 136 (2d Cir. 2007).

        In Wedalowski, this court held that Serfass’s use of “the word ‘sworn’ refers, of

course, to the trial jury oath and not to the voir dire oath.” 572 F.2d at 74. We reached that

conclusion in rejecting a defendant’s claim that he was already in jeopardy when a trial court

granted a motion to dismiss after jurors had been selected from a venire but before they had

sworn the trial jury oath. See id. at 74–75. What is significant for our review of Hoffler’s

claim is that Wedalowski construed the word “sworn” to refer only to the trial jury oath and

“not to the voir dire oath.” Id. at 74 (emphasis added). It notably did not hold that “the word

‘sworn’ refers, of course, to the trial jury oath [as well as] the voir dire oath.” Id.

        Here, there is no question that the jurors empaneled to hear the evidence and return

a verdict in Hoffler’s case swore to the required trial jury oath. Thus, whatever state law

error may have occurred in the administration of a voir dire oath to the venire panel from

which trial jurors were selected does not alter the fact that Hoffler was tried before a jury

“empaneled and sworn” to the trial jury oath. That was sufficient to place Hoffler once in

jeopardy and to afford him the constitutional protection against being so placed a second

time.

        A second strand of precedent distinguishing between void and voidable judgments in

the double jeopardy context reinforces that conclusion. Generally, a judgment is “void”


                                               24
where a court “usurp[s] a power without jurisdiction,” while a judgment is “voidable” where

a court commits error while properly exercising jurisdiction. Dennison v. Payne, 293 F. 333,

341 (2d Cir. 1923). In Ball v. United States, 163 U.S. 662 (1896), the Supreme Court held

that only in the former, narrowly confined circumstance does jeopardy fail to attach, see id.

at 669–70. The government there argued that double jeopardy did not bar it from retrying

a defendant acquitted of murder because a defect in the indictment had deprived the trial

court of jurisdiction ab initio, thereby precluding jeopardy from attaching. See id. at 664–67.

Rejecting the government’s broad view of jurisdictional error, the Supreme Court stated:

       An acquittal before a court having no jurisdiction is, of course, like all the
       proceedings in the case, absolutely void, and therefore no bar to subsequent
       indictment and trial in a court which has jurisdiction of the offense. But,
       although the indictment was fatally defective, yet, if the court had jurisdiction
       of the cause and of the party, its judgment is not void, but only voidable by
       writ of error.

Id. at 669–70 (emphasis added; citations omitted); see 6 Wayne R. LaFave et al., Criminal

Procedure § 25.1(d) (3d ed. 2012) (noting that Ball rejected broad view of jurisdictional

error, instead holding that court needs only “authority . . . to render judgment” for jeopardy

to attach). Having concluded that the defective indictment rendered the judgment voidable,

but not void, the Court held that jeopardy attached at trial and that the government could not

retry the defendant for murder. See Ball v. United States, 163 U.S. at 670; accord Kepner

v. United States, 195 U.S. 100, 130 (1904) (“It is, then, the settled law of this court that

former jeopardy includes one who has been acquitted by a verdict duly rendered, although

no judgment be entered on the verdict, and it was found upon a defective indictment.”);

                                              25
Illinois v. Somerville, 410 U.S. 458, 467–69 (1973) (concluding jeopardy attached in state

trial on defective indictment).

       Significantly, for purposes of our review here, when in Benton v. Maryland, 395 U.S.

784 (1960), the Supreme Court held that the Double Jeopardy Clause applied fully to the

states, it reiterated the distinction between void and voidable judgments in the context of a

jury selection error, see id. at 795–97. In Benton, a defendant convicted of burglary but

acquitted of larceny was granted a new trial by the state because a constitutionally

impermissible oath had been administered to both the grand jury that returned the original

indictment and the petit jury that rendered the trial verdict. See id. at 785–86. The state

retried the defendant, however, on both the burglary and larceny counts, maintaining that the

jury error rendered the initial indictment “absolutely void,” and that a defendant “cannot be

placed in jeopardy by a void indictment.” Id. at 796 (internal quotation marks omitted). The

Supreme Court rejected that argument in holding that the defendant could not be retried for

larceny. It concluded that “at worst the indictment would seem only voidable at the

defendant’s option, not absolutely void.” Id. at 797; see also id. at 796 (characterizing state’s

voidness argument as “a bit strange . . . since petitioner could quietly have served out his

sentence under this ‘void’ indictment had he not appealed his burglary conviction”). In so

stating, the Court reiterated Ball’s holding that “‘if the court had jurisdiction of the cause and

of the party, its judgment is not void, but only voidable by writ of error.’” Id. at 797 (quoting

Ball v. United States, 163 U.S. at 669–70). The Court grounded this conclusion in the


                                               26
common law roots of the Double Jeopardy Clause, specifically Blackstone’s reference to a

“plea of autrefoits acquit” or former acquittal. Id. at 795 (internal quotation marks omitted).

In short, it is the law’s longstanding opposition to retrying an acquitted defendant that

demands that only a narrow category of judgments be recognized as void rather than

voidable. See id. at 795–97.11

       We think the same conclusion that the Supreme Court reached in Benton with respect

to a constitutional error in the oath administered to grand and trial juries necessarily applies

to a state law error in the oath administered to a venire panel. As long as the trial court has

jurisdiction of the cause and the party, such jury oath errors render ensuing judgments

voidable but not void. Indeed, the conclusion is particularly apt here, where there is no

question that the petit jurors empaneled from a mistakenly sworn venire were nevertheless

properly sworn according to the trial jury oath. See United States v. Wedalowski, 572 F.2d

at 74.12


       11
          The distinction between void and voidable judgments is of less significance to a
defendant initially found guilty because a reversal on either ground will generally result in
his retrial, either because jeopardy never attached, in the rare case of a void judgment, or
because it never terminated, in the more common case of a voidable judgment. See infra at
[31–32]. Thus, the question of whether Hoffler’s reversed judgment of conviction was void
or voidable is pertinent only insofar as it bears on the issue of whether a reviewing court was
obliged to rule on his sufficiency challenge before ordering retrial.
       12
          Batson jurisprudence also supports the conclusion that jury selection errors
generally render trial judgments voidable but not void. See Batson v. Kentucky, 476 U.S.
79 (1986). Insofar as lack of jurisdiction is what renders a judgment void, see Ball v. United
States, 163 U.S. at 669–70, such a defect cannot be waived and may be raised at any time
while a case is pending, see Fed. R. Crim. P. 12(b)(3)(B). But courts, including this one,

                                              27
       The conclusion that few errors will render a judgment void is bolstered by United

States v. Sabella, 272 F.2d 206 (2d Cir. 1959). There, the government defended against a

double jeopardy challenge to a conviction secured on retrial by arguing that a defect in the

statute supporting defendants’ original conviction—specifically, the absence of any

sentencing authority—deprived the trial court of jurisdiction to enter the original judgment.

See id. at 207, 209. In rejecting this argument, Judge Friendly, writing for the court,

explained that Ball referenced “jurisdiction” in the “basic sense,” asking only whether a

“cause of action under our law was asserted,” and whether “the court had power to determine

whether it was or was not well founded in law and effect.” Id. at 209 (internal quotation

marks omitted); see LaFave § 25.1(d) (stating that “concept of judicial competency or

jurisdiction acting as a prerequisite for double jeopardy protection” is “quite narrow”

(internal quotation marks omitted)). These “basic” jurisdiction questions required affirmative

answers in Sabella because the district court, in addition to having personal jurisdiction over

defendants and territorial jurisdiction over their alleged actions, had jurisdiction to try the

charged conduct and “to render a judgment convicting the defendants, despite the fact that


require that Batson equal protection challenges be raised during jury selection and deem them
waived once the jury is sworn. See McCrory v. Henderson, 82 F.3d 1243, 1248–49 (2d Cir.
1996) (collecting cases); see also United States v. Sammaripa, 55 F.3d 433, 434–35 (9th Cir.
1995) (holding that prosecution’s failure to raise Batson challenge during jury selection
precluded court from declaring mistrial based on defendant’s Batson error in exercising
peremptory challenge). Thus, a Batson jury selection error, which if preserved will warrant
reversal even without a showing of prejudice, see Tankleff v. Senkowski, 135 F.3d 235, 248
(2d Cir. 1998), nevertheless does not deprive a court of its “fundamental power” to hear a
case, Boyd v. Meachum, 77 F.3d at 65, so as to render the judgment void.

                                              28
it could not lawfully impose a penalty.” 272 F.2d at 209. Thus, despite the statutory lack of

authority to impose sentence, the original vacated judgment was voidable rather than void,

and the defendants were indeed placed in jeopardy.

       More recently, this court clarified that, in making a double jeopardy assessment of a

state court’s initial exercise of jurisdiction, a federal court may consider, but is not bound by,

state law. See Boyd v. Meachum, 77 F.3d at 65 (stating that question whether “state court

had sufficient jurisdiction for jeopardy to attach . . . is necessarily one of federal law”).

Moreover, Boyd emphasized that a party claiming lack of jurisdiction to defeat a double

jeopardy claim carries a particularly heavy burden. Thus, a party asserting that a state court

judgment is void for lack of personal jurisdiction “must show that, in a larger sense, the state

court was without fundamental power to exercise jurisdiction over his person.” Id. (emphasis

added). In other words, it must demonstrate “not merely that the criminal court did not

properly exercise jurisdiction over [defendant’s] person as a matter of state law, but rather

that the court could not exercise personal jurisdiction over him without violating the

Constitution, or perhaps other federal law depriving the state court of personal jurisdiction.”

Id. Absent such a showing, a judgment may be voidable, but it is not void so as to preclude

jeopardy from attaching. See id. at 66 (rejecting defendant’s argument that jeopardy did not

attach, because there was “no claim that he was tried in the wrong court, or was tried in

absentia, or was otherwise denied due process,” or that trial court exercised jurisdiction over

him in violation of Constitution or federal law).


                                               29
       Consistent with these precedents, we here conclude that the state trial court did not

lack the fundamental power or basic jurisdiction to try Hoffler for Drabik’s murder. See

Boyd v. Meachum, 77 F.3d at 65; United States v. Sabella, 272 F.2d at 209. Rensselaer

County Court undoubtedly had jurisdiction to try the charged offense of first-degree murder,

as well as lesser homicide crimes. See N.Y. Crim. Proc. Law §§ 10.10(2)(b), 10.20(1)(a)

(stating that county courts have jurisdiction to try felonies). That court also had territorial

jurisdiction over Drabik’s homicide, see id. § 20.40(1) (stating that criminal court of

particular county has jurisdiction if conduct constituting an element of the offense occurred

within county), and personal jurisdiction over Hoffler, see People v. Stirrup, 91 N.Y.2d 434,

439, 671 N.Y.S.2d 433, 437 (1998) (citing N.Y. Crim. Proc. Law § 1.20(9)) (stating that

criminal court obtains personal jurisdiction over defendant upon filing of accusatory

instrument and defendant’s appearance in court).13 Moreover, the state court’s exercise of

jurisdiction at Hoffler’s first trial does not raise any constitutional or federal law concerns.

       In these circumstances, even if New York, in applying its own law, treats the failure

to administer the proper voir dire oath to the venire as an error that “invalidate[s] the entire

trial,” People v. Hoffler, 53 A.D.3d at 124, 860 N.Y.S.2d at 272, for purposes of the Fifth

Amendment protection against double jeopardy, this is the sort of non-jurisdictional trial


       13
          We need not here decide whether, for purposes of double jeopardy, it is New York
State rather than particular New York courts that must have jurisdiction over the cause and
person. See generally N.Y. Crim. Proc. Law § 40.30(2)(a) (stating that New York’s double
jeopardy statute does not bar retrial where first prosecution “occurred in a court which lacked
jurisdiction over the defendant or the offense”).

                                              30
error that rendered the initial judgment voidable, but not void. Thus, consistent with Ball,

Benton, Sabella, and Boyd, we conclude that, even though the first judgment of conviction

was voidable, Hoffler was placed in jeopardy at the initial Drabik murder trial.

              2.     Review of Insufficiency Claims on Direct Appeal

       Where a defendant placed in jeopardy at trial is acquitted, jeopardy terminates with

the judgment of acquittal, and the Double Jeopardy Clause bars retrial. See, e.g., Boyd v.

Meachum, 77 F.3d at 63. But where jeopardy has attached and a defendant is convicted,

retrial on the same charges is not constitutionally barred where it results from a reversal of

conviction based on the defendant’s own successful demonstration of trial error on appeal.

See id. In such circumstances, the law does not view jeopardy as terminating or the retrial

as putting a defendant in jeopardy a second time. See id. Rather, it views the retrial as “a

facet of the original jeopardy.” Id. (observing that “first jeopardy does not end with

conviction, but rather continues through the appeal, and if successful, the remand and retrial

are part of the original jeopardy”).

       This conclusion does not apply, however, where an appellate court finds the evidence

at the first trial insufficient to support conviction. In such circumstances, “[t]he 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.” Burks v.

United States, 437 U.S. at 11. As Burks explained, a reversal for insufficient evidence

“means that the government’s case was so lacking that it should not have even been


                                             31
submitted to the jury” a first time. Id. at 16 (emphasis in original). Hoffler argues that the

Double Jeopardy Clause not only bars retrial when a conviction is reversed for insufficient

evidence, but also compels a reviewing court to resolve any insufficiency claim before

ordering retrial based on trial error. In support, he relies on Justice Brennan’s concurring

opinion in Justices of Boston Municipal Court v. Lydon, 466 U.S. 294 (1984). There, Justice

Brennan, joined by Justice Marshall, stated as follows:

       [W]hen a defendant challenging his conviction on appeal contends both that
       the trial was infected by error and that the evidence was constitutionally
       insufficient, the court may not, consistent with the rule of Burks v. United
       States, 437 U.S. 1 (1978), ignore the sufficiency claim, reverse on grounds of
       trial error, and remand for trial. . . . [I]f retrial is to be had, the evidence must
       be found to be legally sufficient, as a matter of federal law, to sustain the jury
       verdict.

Id. at 321–22 (Brennan, J., concurring in part and concurring in the judgment) (internal

quotation marks omitted). Hoffler submits that this court adopted Justice Brennan’s view as

its own in United States v. Wallach, 979 F.2d 912 (2d Cir. 1992), when it stated: “A reversal

on the basis of insufficiency of evidence, like an acquittal, bars a retrial, see Burks v. United

States, 437 U.S. at 16–17, and a reversal of a conviction on grounds other than sufficiency

does not avoid the need to determine the sufficiency of the evidence before a retrial may

occur.” Id. at 917 (emphasis added; citation omitted).

       Wallach made the highlighted point in reviewing a federal conviction. Nowhere in

the opinion, however, did we indicate whether we were identifying a prudential rule for the

courts of this circuit or a generally applicable constitutional requirement. Insofar as Hoffler


                                                32
urges the latter, he confronts a hurdle: the Supreme Court’s decision in Richardson v. United

States, 468 U.S. 317 (1984), decided only two months after Justices of Boston Municipal

Court v. Lydon. In there ruling that jeopardy does not terminate when a court declares a

mistrial based on a hung jury, the Supreme Court specifically held that an appellate court was

not required to rule on the sufficiency of the evidence before ordering retrial. See 468 U.S.

at 323 (“Where, as here, there has been only a mistrial resulting from a hung jury, Burks

simply does not require that an appellate court rule on the sufficiency of the evidence because

retrial might be barred by the Double Jeopardy Clause.”).

       Hoffler submits that Richardson’s rejection of a sufficiency-ruling requirement for

retrial does not apply outside the mistrial context. Our sister courts of appeals have divided

on that question, as well as on the issue of whether sufficiency review before retrial is

prudentially sound or constitutionally required. See LaFave § 25.4(c) (noting circuit split);

compare United States v. Wiles, 106 F.3d 1516, 1518 (10th Cir. 1997) (identifying double

jeopardy requirement to review preserved sufficiency claim before ordering retrial based on

trial error); Palmer v. Grammer, 863 F.2d 588, 592 (8th Cir. 1988) (same); Vogel v.

Pennsylvania, 790 F.2d 368, 376 (3d Cir. 1986) (same), with Foxworth v. Maloney, 515 F.3d

1, 4 (1st Cir. 2008) (adopting prudential rather than constitutional rule requiring review of

preserved sufficiency challenges before ordering retrial); Patterson v. Haskins, 470 F.3d 645,

655–60 (6th Cir. 2006) (concluding, in case where appeals court erroneously failed to follow

its own prudential rule to review sufficiency challenges before ordering retrial, that error did


                                              33
not subject defendant to unconstitutional retrial; “what activates the Burks [double jeopardy]

rule is not the abstract possibility that the evidence was insufficient, but the appellate court’s

declaration to that effect. Absent such a declaration, jeopardy continues, and the defendant

can be tried once again on the same charges.” (emphasis in original)); United States v. Bobo,

419 F.3d 1264, 1268 (11th Cir. 2005) (citing circuit precedent that prudential rule requiring

sufficiency review even when conviction reversed on other ground is not mandated by

Double Jeopardy Clause); United States v. Recio, 371 F.3d 1093, 1104 (9th Cir. 2004)

(referencing court’s “policy” to consider sufficiency claims on appeal from final judgment);

United States v. Miller, 952 F.2d 866, 871–74 (5th Cir. 1992) (concluding that Richardson

is not limited to mistrials but, rather, generally “refuses to extend Burks beyond instances in

which the appellate court in fact reversed for insufficient evidence”; observing nevertheless

that “[a]lthough not mandated by the double jeopardy clause, it is . . . clearly the better

practice” for appellate court to dispose of preserved sufficiency challenge before ordering

retrial (emphasis in original)); United States v. Douglas, 874 F.2d 1145, 1149–51 (7th Cir.

1989) (stating “we are not convinced, in light of Richardson, that the Double Jeopardy

Clause compels an appellate court to review the sufficiency of the evidence offered at trial

anytime a defendant raises the question,” but “to accomplish the same purpose, [we are]

prepared to adopt a policy in this circuit of routinely addressing evidentiary sufficiency in

criminal cases when a defendant presents the issue on appeal”), abrogated on other grounds

by United States v. Durrive, 902 F.2d 1221, 1226 (7th Cir. 1990).


                                               34
       In sum, while only a few courts of appeals have concluded that the Double Jeopardy

Clause, as construed by the Supreme Court in Burks, compels sufficiency review before

ordering retrial based on trial error, the courts of appeals, our own included, are unanimous

in concluding that such review is warranted, at a minimum, as a matter of prudent policy.

See United States v. Bruno, 661 F.3d at 743 (stating that court should review sufficiency

challenge absent “sound reason” for not doing so); United States v. Wallach, 979 F.2d at 917.

In this respect the Seventh Circuit has explained that such a policy “need not” be

“anchor[ed] . . . in the Double Jeopardy Clause” because a sufficient rationale lies in a proper

“concern for the preservation of scarce and costly resources.” United States v. Douglas, 874

F.2d at 1150. This comports with our own practical observation that if a reviewing court

were to order a new trial without addressing a sufficiency challenge, it “could result in the

futility of a second conviction that would have to be reversed in a second appeal.” United

States v. Allen, 127 F.3d 260, 264 (2d Cir. 1997).

       Thus, we easily identify in our own precedent at least a prudential rule generally

requiring reviewing courts to consider preserved sufficiency challenges before ordering

retrials based on identified trial error. We see no reason here to decide the more difficult

question of whether such a rule is also constitutionally compelled by the Double Jeopardy

Clause because, even if it were, any Appellate Division error in failing to review Hoffler’s

sufficiency challenge would necessarily be harmless given that the challenge is meritless.




                                              35
              3.     Because Hoffler’s Sufficiency Challenge Is Meritless, Any Appellate
                     Division Error in Failing To Review Sufficiency on Direct Appeal Was
                     Necessarily Harmless Beyond a Reasonable Doubt

                     a.      Harmless Error Standard

       The test for harmless constitutional error on direct appeal is whether the error at issue

“was harmless beyond a reasonable doubt.” Corby v. Artus, 699 F.3d 159, 169 (2d Cir.

2012) (citing Chapman v. California, 386 U.S. 18, 24 (1967)). On review of a habeas claim

by a state prisoner, however, “because of the deference we afford to state courts, we ‘find an

error harmless unless it had substantial and injurious effect or influence in determining the

jury’s verdict.’” Id. (quoting Fry v. Pliler, 551 U.S. 112, 116 (2007)). To the extent it is

unsettled in this circuit what deference is owed a state court decision on § 2241 review,

see supra at [15], it is also unclear which harmless error standard should apply in that

context. We need not resolve this question here, however, because Hoffler’s sufficiency

claim is meritless. Thus, any Appellate Division error in failing to conduct sufficiency

review on direct appeal before ordering retrial is necessarily harmless even under the more

rigorous reasonable doubt standard. See generally Perkins v. Herbert, 596 F.3d at 176.

                     b.      The Evidence at Hoffler’s First Trial Was Sufficient To Support
                             His Conviction for First-Degree Murder

       A defendant challenging the sufficiency of the evidence bears a heavy burden

because, even when we consider the question de novo, we must view the evidence in the light

most favorable to the prosecution, and doing so, must uphold the jury verdict as long as “any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

                                              36
doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original); accord United

States v. Rojas, 617 F.3d 669, 674 (2d Cir. 2010).

       Under New York law, “[w]itness elimination murder is committed when a defendant

intentionally kills a victim who ‘was a witness to a crime committed on a prior occasion and

the death was caused for the purpose of preventing the intended victim’s testimony in any

criminal action.’” People v. Cahill, 2 N.Y.3d 14, 56, 777 N.Y.S.2d 332, 353–54 (2003)

(emphasis omitted) (quoting N.Y. Penal Law § 125.27(1)(a)(v)). A defendant is liable for

witness-elimination murder committed by another person when, acting with the intent to kill,

the defendant “solicits, requests, commands, importunes, or intentionally aids such person

to engage in such conduct.” N.Y. Penal Law § 20.00; see People v. Glanda, 5 A.D.3d 945,

949, 774 N.Y.S.2d 576, 580 (3d Dep’t 2004) (“[A]ccomplice liability pursuant to [N.Y.

Penal Law § 20.00], except as limited by Penal Law § 125.27(1)(a)(vii), applies to all other

provisions of murder in the first degree”) (alteration and internal quotation marks omitted)).

When we view the evidence at Hoffler’s first murder trial in the light most favorable to the

prosecution, we easily conclude that a rational trier of fact could have found him guilty

beyond a reasonable doubt of the charged first-degree witness-elimination murder.

       First, the evidence established that Hoffler had a strong motive to commit the charged

murder. Drabik was, after all, an eyewitness to and participant in the drug transactions with

which Hoffler was charged. Thus, he was in a position to provide powerful, direct evidence

of Hoffler’s culpability. Moreover, Drabik was not a coincidental witness to Hoffler’s


                                             37
criminal conduct. He had specifically identified Hoffler—or, as he knew him, “Murder”—as

a drug dealer and was cooperating with authorities when he participated in the charged drug

transactions.

       Second, the evidence established that Hoffler had the means to effect Drabik’s murder

in the person of Brooklyn gunman Heckstall. An eyewitness account of Drabik’s murder

indicated that Heckstall was the actual shooter. Not only had Heckstall and Hoffler been

neighbors years before in Brooklyn, but several eyewitnesses also testified to seeing the two

men together in Albany at and about the time of the Drabik murder. One eyewitness testified

that Heckstall was in possession of a loaded firearm while in Albany, and that Heckstall

brought this gun with him when Hoffler picked him up early one morning around the time

of the Drabik killing. A number of witnesses testified that during this same time they saw

Hoffler and Heckstall traveling together in a gray or dark SUV. Such a vehicle was spotted

parked with its lights on at the time and near the site of the Drabik murder, and departing

when a man entered the passenger side at about the same time as the shooter was seen fleeing

the scene. Business, bank, and police records indicated that Hoffler rented such an SUV in

Albany a few days before the Drabik murder and returned the vehicle, also in Albany, on the

night of the murder—but only after driving the SUV to Brooklyn. These circumstances

supported an inference that Hoffler drove Heckstall back to Brooklyn almost immediately

after the Drabik murder. Moreover, when Heckstall appeared at a family member’s home




                                             38
in Brooklyn later on the day of Drabik’s murder, he was in possession of a significant amount

of money, which a rational jury could infer was his payment for the killing.

       Third, telephone and computer records strongly supported an inference that Hoffler

lured Drabik to his death. Specifically, a cell phone registered to Hoffler’s residence called

Drabik’s home the night before his death, at a time when Drabik’s mother recalled that her

son received a telephone call from someone professing an interest in meeting Drabik the

following morning to discuss a construction job. That same night, a computer in Hoffler’s

home was used to access a realty site providing information on 478 Sixth Avenue in Troy,

New York, the very location to which a caller would direct Drabik early the next

morning—purportedly for a construction-job meeting, but actually for his death.

       From the totality of these circumstances, a reasonable jury could certainly draw the

inferences necessary to find beyond a reasonable doubt not only that Hoffler and Heckstall

agreed to kill Drabik, but also that Hoffler solicited Heckstall to commit the murder and then

aided him in carrying it out.

       Hoffler nevertheless submits that the evidence was insufficient to find him guilty of

first-degree witness-elimination murder because the prosecution failed to show how he would

have learned that Drabik was a confidential informant. The point merits little discussion.

Witness-elimination murder does not require proof that a defendant knew the victim was an

informant. It requires only that the victim have been a witness to a crime and that a

defendant murder the victim with the intent to prevent him from testifying in a criminal


                                             39
proceeding. Here, although the authorities were careful not to disclose Drabik’s identity or

his cooperator status, a rational jury could infer that, once Hoffler was provided with

particulars as to the drug transactions with which he was being charged, he knew from his

own participation in these transactions that he had provided the drugs at issue to Drabik and

recognized the possibility that Drabik could provide inculpatory evidence against him at trial.

Moreover, given the timing of Drabik’s murder—only days before Hoffler’s drug trial was

to commence—and the strong circumstantial evidence of Hoffler’s involvement therein, a

rational jury could conclude that Hoffler’s purpose in arranging for Drabik’s murder was to

prevent Drabik from testifying against him at the forthcoming trial.

       Hoffler further asserts that the prosecution failed to adduce evidence sufficient to

prove that the Gregory Heckstall who shot Drabik was the same Gregory Heckstall with

whom Hoffler had a relationship. To the extent the prosecution evidence identified Heckstall

by name rather than by photographic or other physical evidence, New York law requires

something more to show identity of person. See People v. Reese, 258 N.Y. 89, 96, 179 N.E.

305, 306 (1932) (“Identity of name is not always sufficient in a criminal prosecution to show

identity of person, but it may be accepted as sufficient if fortified by circumstances . . . .”

(citation omitted)); People v. Rattelade, 226 A.D.2d 1107, 1108, 642 N.Y.S.2d 1, 1 (4th

Dep’t 1996) (holding identity of name sufficient when supported by “further, connecting

evidence” (internal quotation marks omitted)). Here, the requisite connecting evidence was

varied and included, (1) the possession of a loaded firearm by the Heckstall seen with Hoffler


                                              40
at and about the time of the Drabik murder and the use of a firearm by the Heckstall who shot

Drabik, (2) the similarity between the SUV seen leaving the scene of the Drabik shooting and

the SUV in which Hoffler and Heckstall were seen together in Albany at and about the same

time, and (3) telephone and computer records indicating Hoffler’s involvement in luring

Drabik to his death, making Hoffler himself the link between the Heckstall who shot Drabik

dead at the site to which he was lured and the armed Heckstall with whom Hoffler was seen

by various persons in Albany at and about the time of the murder.

       Insofar as Hoffler further argues that the evidence could not be sufficient to convict

him in the absence of evidence excluding Michael Pearson, another drug confederate of

Drabik, as the shooter, that argument is meritless. See United States v. Ogando, 547 F.3d

102, 107 (2d Cir. 2008) (stating that government is not “required to preclude every

reasonable hypothesis which is consistent with innocence” (internal quotation marks

omitted)).

       In sum, because the evidence at Hoffler’s first murder trial was sufficient as a matter

of law to permit a rational jury to find him guilty beyond a reasonable doubt of first-degree

witness-elimination murder, double jeopardy does not preclude his retrial. Thus, even if the

Appellate Division erred in failing to rule on sufficiency before ordering retrial, the error was

necessarily harmless beyond a reasonable doubt.




                                               41
III.   Conclusion

       To summarize, we conclude as follows:

       1. Because 28 U.S.C. § 2253(c)(1)(A) requires a COA to appeal “the final order in

a habeas corpus proceeding in which the detention complained of arises out of process issued

by a State court,” without regard to the statutory section under which the habeas proceeding

was filed, a state prisoner must secure such a certificate in order to appeal from the denial of

habeas relief sought pursuant to 28 U.S.C. § 2241, 28 U.S.C. § 2254, or any other provision

of law. Insofar as Hoffler’s habeas petition was brought pursuant to § 2241 and our

precedent had not previously made the COA requirement plain with respect to such petitions,

we excuse Hoffler’s failure to seek a COA within the time prescribed by our local rules and

grant his belated COA request nunc pro tunc, limiting the grant to his double

jeopardy/sufficiency challenge.

       2. Hoffler was placed in jeopardy at his first murder trial because the empaneled jury

that returned a verdict of guilty was duly sworn in accordance with the jury trial oath. To the

extent the Appellate Division reversed Hoffler’s conviction because of a failure to administer

the correct voir dire oath to the venire panel from which the petit jury was selected, the error

made the judgment voidable but not void, and thus did not prevent jeopardy from attaching.

       3. The evidence at Hoffler’s first trial was sufficient to permit a rational jury to find

him guilty beyond a reasonable doubt of first-degree murder in violation of N.Y. Penal Law

§§ 20.00, 125.27(1)(a)(v), and thus the Double Jeopardy Clause does not bar his retrial


                                              42
following reversal of his initial conviction based on the error in swearing the venire panel.

In light of this determination, we need not here decide whether the Constitution, in addition

to prudent policy, requires a reviewing court to address a sufficiency challenge before

ordering retrial because any possible error by the Appellate Division in that regard was

necessarily harmless beyond a reasonable doubt.

       The judgment of the district court denying Hoffler’s § 2241 petition to prevent New

York State from retrying him for murder is AFFIRMED.




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