Habeas Corpus - Weekly Review 8/10-14/09

The pace of decisions seems to be slowing down.  Only about ten this week.

As I mentioned earlier today, there was another habeas grant.  Let's lead off the Weekly Review with that decision:

1. Burch v. Millas, 03-CV-0387, 2009 WL 2507406 (WDNY Aug. 14, 2009) (VEB)

• Habeas Granted
• Issues: (1) IAC; (2) court improperly marshalled the evidence
• Notes: Counseled; Parties consented to proceed before MJ; in child sexual abuse case, trial counsel was prejudicially ineffective where he failed to consult a medical expert, failed to cross-examine the prosecution's psychological expert; and gratuitously introduced evidence of other alleged acts of sexual misconduct against the victim

2. Carrion v. Smith, 04 Civ. 1034, 2009 WL 2474059 (SDNY Aug. 12, 2009) (SAS) (FM)

• Habeas Granted
• Issues: IAC
• Notes: Counseled; discussed here.

Remaining cases below the fold . . .

3. Glover v. Filion, 04-CV-6329, 2009 WL 2512858 (WDNY Aug. 14, 2009) (VEB)

• Habeas Denied
• Issues: (1) Verdict against Weight of the Evidence; (2) Prosecutorial misconduct; (3) denial of state statutory right to make a statement at sentencing; (4) IAAC
• Notes: Does not say, but I assume that the parties consented to proceed before MJ

4. Mercado v. Lempke, 07 Civ. 9865, 2009 WL 2482127 (SDNY Aug. 13, 2009) (KMK) (PED)

• Motion to Dismiss as Untimely Denied
• Notes: Very interesting case; DJ adopts R&R, but does not adopt entire reasoning; the statute of limitations originally began to run in 2004 and petitioner did not file his petition until 2007; however, in 2008, he was resentenced; relying on Supreme Court's decision in Burton, DJ concludes, as did MJ, that the one year time period did not begin to run until amended sentence became final; nevertheless, the original petition was filed untimely; MJ recommended that the DJ conclude that the petition was retroactively timely; DJ disagrees, but concludes that petitioner's affirmation in opposition to motion to dismiss represented a request to amend petition, making the petition timely; R&R attached to decision

5. Heuer v. Murphy, 07 CV-0135, 2009 WL 2524780 (EDNY Aug. 14, 2009) (JS)

• Habeas Denied as Moot
• Issue: Guilty Plea was not voluntary
• Notes: Moot because state court already granted relief

6. Ptak v. Superintendent, 08-CV-0409, 2009 WL 2496607 (NDNY Aug. 13, 2009) (TJM)

• Habeas Denied
• Issues: (1) Defect in Indictment prevented petitioner from presenting a defense; (2) vague allegation of time frame for incident in indictment prevented him presenting a defense; (3) IAC
• Notes: court addresses the merits of IAC claim even though it was unexhausted and could still be raised in state court; 2254 allows a judge to do this; but Second Circuit has yet to clarify what standard of review to utilize when taking this step; nevertheless, DJ states that, no matter what standard is used, relief must be denied

7. Beals v. Farrell, 07 Civ. 4540, 2009 WL 2474049 (SDNY Aug. 12, 2009) (PAC) (RLE)

• Habeas Dismissed as Time-Barred
• Issues: Sentence was Illegal
• Notes: Adopting R&R, which was attached

8. Garbutt v. Conway, 05 Civ. 9898, 2009 WL 2474099 (SDNY Aug. 12, 2009) (SHS)

• Motion for Reconsideration Denied

9. Taylor v. Brown, 06 Civ. 7675, 2009 WL 2448587 (SDNY Aug. 11, 2009) (LTS) (KNF)

• Habeas Denied
• Issues: (1) court failed to give a missing witness charge; (2) sentence imposed penalized petitioner for exercising his right to a trial; (3) IAC
• Notes: Adopting R&R, available at 2009 WL 400365

10. Warren v. Napoli, 05 Civ. 8438, 2009 WL 2447757 (SDNY Aug. 10, 2009) (CM) (KN)

• R&R recommending Habeas Denial
• Issues: (1) prosecutorial misconduct; (2) improper admission of evidence; (3) trial court improperly marshalled evidence; (4) deprived or right to be present; (5) IAC; (6) IAAC
• Notes: multitude of claims; must give MJ a lot of credit for exhaustively discussing all of them