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
- 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
- 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.