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Judge Stein http://nycourts.law.com/CourtDocumentViewer.asp?view=Document&docID=119915 A state court in 2000 convicted petitioner of robbery, attempted murder, assault and resisting arrest. His 2005 habeas corpus petition was stayed in 2007, so that the state court could review “newly discovered evidence”—another man’s confession to the crimes, recanting his trial testimony—purportedly establishing petitioner’s innocence. In 2008, the state court found the confession incredible and not warranting grant of post-conviction relief. Adopting a magistrate judge’s report finding none of petitioner’s five objections sufficient to warrant habeas relief, the district court denied habeas. As to petitioner’s “newly discovered evidence” claim—which it viewed as “relat[ing] back” to his initial, timely habeas petition—the court concluded the claim was insufficient to warrant habeas relief. Petitioner failed to rebut the presumption of correctness of the state court’s determination—based on an evidentiary hearing at which the recanting witness testified and was subject to cross examination—that the recantation was incredible. Further, other evidence available to the state and district courts bolstered the finding that the witness testified truthfully at petitioner’s trial in that he averred he was not involved in the attack underlying petitioner’s convictions.

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