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GUTIERREZ v. SMITH

Docket No. 10-4478-pr.

692 F.3d 256 (2012)

Omar GUTIERREZ, Petitioner-Appellant, v. Joseph SMITH, Respondent-Appellee.

United States Court of Appeals, Second Circuit.

Decided: August 31, 2012.

Attorney(s) appearing for the Case

Jacqueline P. Rubin ( Janna Berke , on the brief), Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, N.Y., for Petitioner-Appellant.

Glenn Green , Assistant District Attorney, for Thomas J. Spota, District Attorney, Suffolk County, Riverhead, N.Y., for Respondent-Appellee.

Chief Judge JACOBS concurs in a separate opinion.

CALABRESI, Circuit Judge:

During a bar brawl, Petitioner-Appellant Omar Gutierrez chased John Villaplana and fatally stabbed him in the chest. Gutierrez was convicted of depraved indifference murder under New York Penal Law § 125.25(2), and sentenced to twenty-five years to life in prison. After the Appellate Division affirmed Gutierrez's conviction and his application for leave to appeal to the New York Court of Appeals was denied, Gutierrez filed a timely petition...

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