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A federal appeals court has clarified the law governing habeas petitions under the Antiterrorism and Effective Death Penalty Act of 1996. In a case of first impression, a unanimous panel of the 2nd U.S. Circuit Court of Appeals ruled that habeas petitions dismissed pursuant to the U.S. Supreme Court’s ruling in Stone v. Powell, 428 U.S. 465 (1976), constitute a denial on the merits. Stone generally prohibits federal habeas corpus relief based on Fourth Amendment violations where the state has provided an opportunity to litigate fully an illegal search and seizure claim. Under the Antiterrorism and Effective Death Penalty Act of 1996, petitioners who lose a federal habeas claim and seek to file a subsequent one in district court must obtain permission from the relevant appellate court. Though the act does not explicitly define a “second” or “successive” petition, the 2nd Circuit has ruled that a petition will be classified as successive if a prior petition has been decided on the merits ( Corrao v. United States, 152 F.3d 188, 1998). In the case before the 2nd Circuit, Marcus Graham pleaded guilty in the Eastern District of New York in 1996 to multiple counts of drug and weapons possession. He was sentenced to six years to life in prison. A year later Graham filed his first habeas petition, claiming that his Fourth Amendment rights had been violated by the use of a defective search warrant. An Eastern District court denied Graham’s petition, and the 2nd Circuit refused to hear an appeal. Graham has since pursued another habeas petition, claiming that evidentiary rulings by the district court violated his rights under the Fifth, Sixth and 14th amendments. The second petition presented the 2nd Circuit with an opportunity to consider the gate-keeping provisions of the 1996 act, as written in 28 U.S.C. � 2244. Chief Judge John M. Walker, writing for the court in Graham v. Costello, 02-3548, said that when district courts deny Fourth Amendment petitions pursuant to Stone, those decisions will be deemed to have been decided on the merits, unless the petitioner has been denied a chance to litigate. “Because the bar to federal habeas review of Fourth Amendment claims is permanent and incurable absent a showing that the state failed to provide a full and fair opportunity to litigate the claim, we conclude that the denial of a habeas petition pursuant to Stone v. Powell has the same effect as the denial of a petition presenting procedurally defaulted claims where there is no showing of cause and prejudice,” Walker wrote. The judge said that Graham’s recent motion did not warrant consideration and denied his request to file another habeas petition. Judges Roger J. Miner and Jos� A. Cabranes concurred with Walker’s opinion. Graham represented himself. Brooklyn Assistant District Attorney Ann Bordley represented the prosecution.

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