Brown v. Ercole, 09-1683-pr, Nov. 16, 2009, Newman, Calabresi, Katzmann, order here
- Reversing Grant of Habeas
- Issues: Sufficiency of Evidence of Depraved Indifference
DISCLOSURE: Someone in my office worked on this appeal. So I'll stick closely to the decision itself.
ANALYSIS: I had previously discussed this case in my first substantive post on the blog.* The Second Circuit reversed the grant of habeas on a procedural ground. The DJ had concluded that cause had been shown for a procedural default under the doctrine of "futility." However, the Second Circuit rejected that ground for cause relying upon its prior decision in DeSimone v. Phillips, 461 F.3d 181 (2d Cir. 2006), in which the court concluded that the New York appellate courts had not consistently rejected the particular argument advanced in the habeas petition. The DJ had attempted to distinguish DeSimone on the ground that DeSimone concerned a failure by appellate counsel while this case concerned an omission by trial counsel. The Second Circuit rejected the distinction "[g]iven that New York appellate courts are equally bound by New York Court of Appeals precedent."
The court concluded the summary order by stating that petitioner may still have redress for claims that the Second Circuit decided not to address.
* I probably should have included the official disclosure in my earlier post. The post did mention that someone in my office worked on it. And I stuck predominantly to the DJ's decision in discussing the case.