U.S. District Court, Western District of New York Case Summaries:

Daily Record (Rochester, NY), Jun 25, 2008

U.S. District Court, Western District of New York

'Habeas Corpus'

Appointment of Counsel

Hall v. Conway

04-CV-6011L

Judge Payson

Background: The petitioner was convicted in New York State Court following a plea of guilty to murder in the first and second degrees. The petitioner filed an application for a writ of coram nobis, which was denied by the Fourth Department in June 2003. Leave to appeal to the New York State Court of Appeals was denied in October 2003. In 2004, he filed this petition seeking a writ of habeas corpus. The petitioner seeks a stay of the pending litigation so he may exhaust additional state claims, the appointment of counsel and an evidentiary hearing.

Ruling: The motion to stay is denied without prejudice as the petitioner must first seek leave to amend the petition. As to the appointment of counsel, the court finds nothing that indicates the interests of justice require appointment of counsel at this time. Since the petitioner does not identify a factual dispute for which a hearing is warranted, the request is denied.

Brandon Hall, pro se, and Arthur G. Weinstein, assistant Monroe County District Attorney, for the respondent

Equal Protection

NAFTA --Professional Licensing

Kirk v. New York State Department of Education

08-CV-6016

Judge Siragusa

Background: The plaintiff, who is a veterinarian and a citizen of Canada, alleges New York State Education Law [section]6704 violates the Equal Protection and Supremacy clauses since it restricts the granting of professional veterinarian licenses to U.S. citizens and aliens lawfully admitted for permanent residence. He obtained a TN Visa under NAFTA permitting him to live and work in the United States temporarily and he practices in the Town of Brighton; however, the waiver of the licensing requirement expires in July. Both parties moved for summary judgment.

Ruling: Finding that the proper analysis in an equal protection claim involving a non-citizen is one of strict scrutiny, the court rules that the licensing statute violates the Equal Protection Clause as it is not "narrowly targeted to serve compelling state interests." The licensing scheme also violates the Supremacy Clause as it conflicts with the provisions of NAFTA. The plaintiff's motion for summary judgment is granted.

Margaret A. Catillaz of Harter Secrest & Emery LLP for the plaintiff, and Gary M. Levine, New York State Office of the Attorney General, for the defendants.