(S.D.N.Y. Dec. 12, 2002) (failure to exhaust ineffective assistance claim does not create procedural bar in light of CPL § 440.10(3)(c)); Marchese v. Senkowski, No. 97 Civ.2055, 1999 WL 731011, at *6 n. 4 (E.D.N.Y. Sept. 15, 1999) (same)); accord Affser v. Murray, No. 04 CV 2715, 2008 WL 2909367, at *4 (E.D.N.Y. July 28, 2008) (“But those claims [of ineffective assistance of trial counsel] are not necessarily defaulted. Petitioner could raise them in yet another motion to vacate, and under § 440.10(3)(c) the state court could, in its discretion, review the claims on their merits despite petitioner’s failure to assert them in his previous motion to vacate.”); see also Reyes v. Phillips, 02 Civ. 7319, 2005 U.S. Dist. LEXIS 19488, *14-18, 2005 WL 2173812, *4-6 (S.D.N.Y. Sept. 6, 2005) (<HOLDING>); but see Caicedo v. Garvin, No. 95 CV
holding that the lower court was not required to hold a hearing on a motion to transfer holding that because section 440103b was discretionary the court was not prepared to hold that petitioner could not return to file a second section 44010 motion holding premagwood that where a first  2255 motion was granted so movant could file a direct appeal the second  2255 motion was not a successive motion under aedpa holding that substance of motion to extend time was a section 1301f motion rather than a section 1301g motion and that trial court did not abuse discretion in denying the section 1301f motion holding that a district court lacks jurisdiction to review a second or successive  2255 motion where the movant failed to obtain authorization to file the motion from this court