Habeas Corpus Blog

Weekly Review - 7/20-24/09

What is the Weekly Review?  Answers here, here and a little more here.

One thing I wanted to mention.  I just realized that you can access all opinions for free on PACER.  So, if you don't have access to Westlaw, you can use the docket number to get the decision through the court's PACER link.  Of course, you still have to pay to access the docket sheet, but that's only .08 cents a page and the docket sheets are usually less than 4 pages.

Let's get to the cases.  Some really interesting ones this week.

1. McBee v. Burge, 05 CV 4752, 2009 WL 2196768 (EDNY July 24, 2009) (DLI) (LB)

• Habeas Denied
• Issues: Confrontation Clause violation and whether it was harmless
• Notes: Adopting R&R; to be published; counseled case, attorney was the habeas clinic at Brooklyn Law School (disclosure: I teach a clinic at Brooklyn, but not this clinic; I have no connection to this case); court agrees that there was a confrontation clause violation, but finds that it was harmless; COA granted to petitioner on this issue

2. Kotsopoulos v. Superintendent, 07 CV 4531, 2009 WL 2226220 (EDNY July 24, 2009) (ADS)

• Habeas Denied
• Issues: Ineffective Assistance of Counsel based on a conflict of interest
• Notes: Exceedingly interesting counseled case; in fact there were TWO sets of attorneys for the petitioner; the issue was whether defense counsel had created an impermissible contingency arrangement with petitioner in which he would have been paid an extra fee if there had been acquittal; DJ held a hearing on the issue at which many different witnesses testified; DJ did not completely credit trial counsel, but concluded that there had not been a contingency arrangement; in addition court concluded that even if there was a conflict, it did not adversely effect the petitioner
• Additional Note: there is also an interesting issue in here about the filing date; there were inadequacies in the petition -- such as no signature -- so clerk's office did not accept it for filing and sent it back to counsel; however, under the newly amended Rule 3(b), the clerk's office should have accepted the petition for filing when it was originally sent to the court (which would have been the final day of the 1-year statute of limitations) and then, after docketing it, should have asked counsel to correct the defects

3. Potter v. Green, 04 CV 1343, 2009 WL 2242342 (EDNY July 24, 2009) (JS)

• Habeas Denied
• Issues: (1) Involuntary Plea based on failure to advise defendant of post-release supervision at time of plea; (2) denial of right of self-representation; (3) right to be present; (4) IAC; (5) IAAC
• Notes: Guilty Plea; Musladin rears its ugly head again; As I feared earlier this  week when I discussed the Second Circuit's decision in Bonner, Musladin is being read way too broadly and it is really swallowing up the "unreasonable application" part of the standard of review; this case presents the same issue as in Bonner, and just as in that case, the court relies upon Musladin to find that whether or not post-release supervision is a direct consequence of a guilty plea is not clearly established law since the Supreme Court has never addressed the issue. Even scarier, the court stated the following, which was a quote from an earlier district court decision:  "The Supreme Court has also held that if it has never addressed a specific claim, it cannot be said that the state court unreasonably applied clearly established Federal law on that particular issue."  The citations are omitted and the emphasis is mine.  "Specific Claim"?  One word: Wow.  That is not what Musladin said and that is basically equating clearly established law with the "contrary to" portion of the standard of review.  If this is where habeas law is going, it's pretty scary.

More cases after the jump . . .

Habeas Corpus - A Troubling Trend

I wanted to follow-up on the Second Circuit's summary order in Bonner v. Ercole from last week (original post here).

The decision represents a really troubling direction in how the standard of review is applied.  I will warn you that this will be a pretty abstract discussion about how different sections of the standard of review run against one another, but it has real world consequences in habeasland, so it needs to be put out there. 

The Supreme Court's decision in Carey v. Musladin, 549 US 70 (2006), started a tug of war between the “clearly established law” and “unreasonable application” part of the standard of review (see FAQ 3).  What Musladin did was greatly restrict the meaning of clearly established law, which has greatly expanded its use in denying habeas.  Courts have interpreted Musladin broadly.  Some of these courts have concluded that, in many situations, a habeas court is no longer allowed to ask whether a state court unreasonably applied a broad legal principle to a new set of facts.  If the Supreme Court has not addressed that specific application of the broad principle, then the law cannot be considered clearly established.

As Justice Souter stated in his concurring opinion in Musladin, there is a murky area between clearly established law and an unreasonable application of that law.  But that murky area is beginning to become more "clearly established" (sorry for the pun).  Musladin has been cited 950 times since it was decided less than 3 years ago, and, according to WL, nearly every time it was followed approvingly.  As such, it certainly appears that the expansion (or restriction, it's basically both) of the clearly established law portion of the statute is swallowing up the unreasonable application portion of the statute.

But here's the real problem.  This broad application of Musladin has nearly equated clearly established law with the “contrary to” standard, essentially writing the unreasonable application part out of the statute.

Bonner is an excellent example of this.  Below the fold, I'll explain how Bonner represents a troubling trend in habeas law.  Fortunately, it is just a summary order . . .

Habeas Corpus - Weekly Review 7/13-17/09

What is the Weekly Review? Answers here, here and a little more here.

Many cases this week.  There seems to be an uptick in the number of cases during July.  If I had to guess, I would say that this is due to the summer interns.  In my experience, summer interns typically are assigned habeas cases to work on, which would increase the number of habeas decisions.  Just a guess though.

Anyways, on to the cases:

(1) Ayala v. Conway, 03-CV-3424, 2009 WL 2151391 (EDNY July 17, 2009) (JS)

• Habeas Denied
• Issues: (1) Improper Admission of Evidence of Gang Membership; (2) Improper admission of out-of-court statements identifying petitioner as perpetrator
• Notes: counseled case; on remand from the Second Circuit which ordered district court to address these issues; court rejects the claims in short order

(2) Egan v. Spitzer, 04-CV-6544, 2009 WL 2151310 (WDNY July 16, 2009) (MAT)

• Habeas Denied
• Issues: (1) conviction obtained perjured testimony; (2) denied right to confront witnesses; (3) defense witness improperly excluded; (4) chain of custody violation; (5) 4th Amendment violation; (6) speedy trial; (7) other various grounds

More cases below the fold, after the jump, whatever it's called these days . . .

Habeas Corpus - Summary Order

Layton v. Phillips, July 24, 2009, Miner, Livingston, Trager, DJ, link

• Denial of Habeas Affirmed
• Issues: (1) Unduly Suggestive Lineup Procedure; (2) Brady Violation based on failure to disclose existence of victim's civil lawsuit

Habeas Corpus - Summary Order

Summary order today from the Second Circuit.

Bonner v. Ercole, July 21, 2009, Calabresi, Hall, Sessions, DJ, link

• Vacated and Remanded
• Issue: voluntariness of plea based on court's failure to inform defendant of mandatory post-release supervision term
• Notes: Court concluded that the state court's had not unreasonably applied clearly established federal law because the Supreme Court had not specifically addressed this issue, noting that the Court had specifically left open a similar issue concerning a court's failure to advise a defendant about a term of mandatory parole

I'll try and post more about this when I am back from vacation.

Habeas Corpus - On Vacation

Taking a vacation this week, so there probably won't be any posts. 

Except I will be checking decisions from the Second Circuit each day, so if there are any opinions or summary orders in Second Circuit cases, I'll post something about those.

Have a nice week!

Habeas Corpus - Supreme Court's October Sitting

In my post last week about the Supreme Court's October sitting, I described McDaniel v. Brown as the only state habeas case. 

Well, that's not exactly accurate.  There is another state habeas case, but it's a capital case - Smith v. Spisak.  The issue in that case is whether the Circuit court contravened the AEDPA in its application of Mills v. Maryland, which concerns mitigating evidence at a capital sentencing proceeding.

Since New York State does not have a death penalty and Smith will probably only focus on capital sentencing issues, it means that I could have accurately described McDaniel as the only habeas case that will have any importance for New York State prisoners. 

I guess Smith could potentially raise issues as to the proper analysis under the AEDPA standard of review.  I'll keep an eye on that aspect of the case.

Habeas Corpus- At the Movies

This week, I watched what may be the only movie that uses habeas corpus as its climax:  The Hurricane.



I usually am hesitant to watch legal movies.  As a lawyer, I can't help but get annoyed when movies get the legal aspects of a story wrong.  There are only a few that really do a good job of getting it right. 

The Hurricane does mostly a bad job of presenting the habeas stuff.  First, let me say that I appreciated that the movie made his attorneys out to be admirable people.  It's rare for movies to make defense attorneys, even ones that are acting pro bono, look like decent people.  So that was nice.

With regard to the habeas stuff, I also liked that they made the habeas stuff try to seem exciting.  It can be exciting.  But not in the way that it was shown in the movie. 

This is true both procedurally and substantively.  As for procedurally, I would venture to guess that the habeas grant did not occur in the way depicted in the movie.  Most likely, there was not a huge court proceeding with a packed courtroom.  Oral argument -- maybe.  The petitioner given a chance to speak in court -- what's shown in the above screen grab (making it more than a fair use) -- never.  The issuing of a decision from the bench -- not likely, particularly where the actual written decision is pretty long.  The petitioner would most likely not even be brought to the courtroom for the proceeding.  And when the court ruled in petitioner's favor, the courtroom would not explode in chaos like what occurred in the movie.  An actual federal judge would have gone ballistic at how the audience behaved.  I understand that the movie wanted to make this dramatic.  But it was not even close to looking like reality.

As for substantively, I didn't understand all the weirdness about "should we risk bypassing the state courts and just going straight to federal court with all of the newly discovered evidence."  It added only a modicum of drama.  It was thoroughly unrealistic, in that he would have been completely barred from habeas relief.  The judge had no discretion to review the claim based on newly discovered evidence.  It would have been over before it even started.  And in real life -- it was first presented to the state courts.  I don't understand why they couldn't have built the tension by showing how difficult it was for him to win in state court, which adds to the glory of the habeas victory.  That's a little more intellectually and emotionally satisfying in my mind.

On the other hand, I liked that they actually quoted from the habeas decision, which has some really incredible language.  And, really, that's how they totally dropped the ball as to how exciting they could have made the substance of the habeas case.  In reality, that is one exciting habeas opinion.  It was granted on the ground that the State relied upon racism to obtain a conviction.  I mean, that's about the biggest breakdown in the orderly administration of justice as can be imagined.  Why wasn't THAT the focus of the movie?  It's odd.

I guess, in the end, I am going to overlook all of these problems and just appreciate that habeas corpus got its day in the sun on the big screen.

Habeas Corpus - Weekly Review 7/6-10/09

What is the Weekly Review?  Answers here, here and a little more here.

First, I have now created an abbreviations page.  It's on the right.  So, if you see an abbreviation and you don't know what it is, it should be over on that page.

Second, I have some good news.  I had recently noted in my post about the problems with Lexis that two substantive habeas denials appeared on Lexis that did not appear on Westlaw.  But to my delight, they are now on Westlaw.  Turns out that they were decided during the week of 7/6 to 7/10 and not the previous week, as noted by Lexis.  I just let out a disapproving "sigh."

On to the cases, and, once again, there are a lot of them, including a grant of a certificate of appealability (in King v. Greiner):

(1) Walker v. Brown, 08-CV-1254, 2009 WL 2030618 (EDNY July 10, 2009) (BMC)

• Habeas Denied
• Issues: (1) Legally Insufficient Evidence; (2) Improper Identification Procedure at Trial; (3) Prosecutorial misconduct; (4) IAC; (5) Denial of Right to Fair trial; (6) sentence was punitive; (7) IAAC

(2) Bowers v. Miller, 05-CV-6023, 2009 WL 2045680 (WDNY July 10, 2009) (MAT)

• Habeas Denied
• Issues: (1) speedy trial; (2) legally insufficient evidence; (3) weight of the evidence; (4) IAC; (5) Brady; (6) jury charge was improper; (7) newly discovered evidence; and (8) enhanced sentence was improper

Many more cases below the fold . . .

Habeas Corpus - October Calendar

As noted in this post over at SCOTUSblog, the Supreme Court announced its calendar for the October 2009 sitting.

On Tuesday, October 13, 2009, the Court will hear McDaniel v. Brown.  While there are several criminal law cases during the October sitting, this appears to be the only state habeas case.

The issue in the case, as stated in the cert. petition, is:

What is the standard of review for a federal habeas court for analyzing a sufficiency-of-the-evidence claim under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA)?

I'll try and talk more about it as the argument approaches.  My initial take after reading the Ninth Circuit decision is that cert. may have been granted here pursuant to the Court's yearly practice of slapping down the Ninth Circuit.