Habeas Corpus - Weekly Review 8/17-21/09

This week's decisions are not as noteworthy as last week's, which included two habeas grants and a really interesting discussion about the statute of limitations.  I guess this week's batch of cases is more representative of what we typically see and last week's was pretty unusual.

And the number of cases are back to pre-summer peak levels.  Only around eleven.

Alright, on to the cases . . .

1. Mayes v. Donnelly, 03-CV-417, 2009 WL 2601106 (WDNY Aug. 21, 2009) (RJA) (VEB)

• Habeas Denied and Motion to Amend Petition Denied
• Issues: (1) Brady violation; (2) prosecutorial misconduct; (3)
• Notes: Adopting R&R (which is attached to decision); guilty plea case; the question of when to allow an amendment to a petition seems to come up a lot, so keep an eye out for a separate post on that in the future

2. Daniels v. People of the State of New York, 07-CV-00448, 2009 WL 2602267 (EDNY Aug. 21, 2009) (SJF)

• Habeas Denied
• Issues: (1) unduly suggestive line-up; (2) suppression court utilized improper standard; (3) police lost photo array, suggesting it was unduly suggestive; (4) prosecutorial misconduct; (5) Fourth Amendment violations; (6) consecutive sentence was illegal
  

3. Wesley v. Ercole, 06-cv-1118, 2009 WL 2601242 (NDNY Aug. 20, 2009) (JKS)

• Habeas Denied
• Issues: (1) IAC; (2) IAAC; (3) insufficient evidence; (4) confession was coerced; (5) prosecutorial misconduct.
• Notes: Counseled; petition was originally filed pro se, but during pendency of proceeding, petitioner obtained counsel

More cases below the fold . . .

4. Gomez v. Brown, 07 Civ. 9464, 2009 WL 2575916 (SDNY Aug. 20, 2009) (HB) (THK)

• Habeas Denied
• Issues: (1) improper admission of hearsay; (2) IAC; (3) IAAC

5. Williams v. Greene, 04-CV-4507, 2009 WL 2579259 (EDNY Aug. 20, 2009) (RRM)

• Habeas Denied
• Issues: (1) improper restriction on cross-examination; (2) prosecutorial misconduct during questioning of witnesses
• Notes: court says that the first claim did represent a constitutional violation, but the state court did not unreasonably apply the Chapman harmless error standard; but that's not a correct harmless error analysis in habeasland; in Fry v. Pliler, the Supreme Court stated that the Brecht standard is to be used for all harmless error questions; here's what Fry says:  "We hold that in 2254 proceedings a court must assess the prejudicial impact of constitutional error in a state-court criminal trial under the “substantial and injurious effect” standard set forth in Brecht whether or not the state appellate court recognized the error and reviewed it for harmlessness under the “harmless beyond a reasonable doubt” standard set forth in Chapman . . . ."  I think that's a pretty clear statement that the Brecht standard is to be used no matter what.  Of course, the standard that the court used is most likely more favorable to petitioners, so I shouldn't really be pointing this out, I guess.

6. Kimble v. McGinnis, 03-CV-235A, 2009 WL 2568470 (WDNY Aug. 19, 2009) (RJA) (VEB)

• Habeas Denied
• Issue: deprivation of right to fair trial based on jury's viewing of autopsy video
• Notes: Adopting R&R (attached to decision); MJ is highly critical of prosecutor's actions in showing the videotape, but found that there was no prejudice to petitioner, particularly due to court's immediate curative instruction

7. Harvey v. Bennett, 98-CV-7814, 2009 WL 2568551 (EDNY Aug. 19, 2009) (CPS)

• Application to Re-Open Habeas Granted; Motion to Dismiss for Failure to Prosecute Denied
• Notes: court's decision is very generous to petitioner, who let the case sit idle for a long time; court weighs the relevant factors and concludes that dismissal is too harsh a result, particularly since habeas petitioners only get one habeas petition

8. Jenkins v. Greene, 06 Civ. 7171, 2009 WL 2523884 (SDNY Aug. 18, 2009) (RWS)

• Petition Dismissed as Untimely
• Issues: IAC
• Notes: Counseled

9. Banks v. McGinnis, 04-CV-0061, 2009 WL 2580325 (WDNY Aug. 18, 2009) (MAT)

• Habeas Denied
• Issues: (1) IAC; (2) Insufficient Evidence; (3) IAAC; (4) unconstitutional sentencing procedures
• Notes: Counseled

10. Samuels v. Bennett, 03 Civ. 2340, 2009 WL 2516850 (SDNY Aug. 17, 2009) (BSJ) (FM)

• Habeas Denied
• Issues: (1) prosecutorial misconduct/Brady; (2) IAC; (3) conflict of interest
• Notes: Adopting R&R (attached to the decision); Counseled

11. Bermudez v. Conway, 08-CV-0693F, 2009 WL 2567817 (WDNY Aug. 17, 2009) (LGF)

• Motion for a Stay Denied Without Prejudice
• Notes: Good review of Stay and Amendment standards; as mentioned earlier in this post, expect a separate post in the near future on these issues