Posting this a little late this week. But it's worth it since there are some really interesting cases.
I have stated it previously, but I don't understand why DJ's are so stingy with the COA grants. If a judge has to go deep into the analysis to explain why she is denying the claim, then that says to me that the petitioner has made a substantial showing. I think that COA's could have been granted in at least two of the cases. That does not mean that I think that the petitions should be granted, it just means that I thought there was some real substance to the claim. To me, a good test is reading an opinion in which a DJ really seems to be stretching herself to figure out a way to deny the claim. It's sort of a "I know it when I read it" type thing. And it popped up a couple times this week.
On to the cases:
1. Ridgeway v. Zon, 05-CV-363, 2009 WL 3464140 (WDNY Oct. 21, 2009) (MAT)
- Habeas Denied
- Issues: (1) Insufficient Evidence; (2) Improper Admission of Certain Testimony; (3) Excessive Sentence; (4) GJ issues; (5) IAC - failure to consult a medical expert; (6) IAAC
ANALYSIS: The first "I know it when I read it" case. This case concerned the sexual abuse of a minor. There is some favorable case law in the Second Circuit finding that an attorney can be ineffective when he fails to consult an expert in a child sex abuse case. That is particularly true when the indicia of sex abuse is vague.
In this case, the People's expert pointed to some physical evidence consistent with a sexual assault. However, the expert also admitted on cross that it did not necessarily show sexual assault. DJ rejected petitioner's claim that his attorney was ineffective for failing to consult an expert because the People's expert had made those admissions on cross, so a defense expert's testimony would have basically been redundant. DJ cites to a district court case from California for that reasoning. Additionally, DJ says that in the Second Circuit cases the failure to call an expert witness was one of several deficiencies in counsel's performance while here it was the only alleged deficiency, so qualitatively, the cases are different.
I am having a hard time with these conclusions. It's what I mentioned in the intro - this feels like a stretch. First, there is a huge quantitative and qualitative difference between having a defense expert testify in support of the defense theory and simply getting the People's expert to admit something on cross. And I don't think anybody would really quibble with that assertion. The defense gets infinitely more stronger if they can affirmatively present a witness to support their position. But taking a step back from that, the DJ also confuses calling an expert and consulting one. The Second Circuit cases refer to consulting an expert, which is petitioner's claim here. That court has also discussed how critical it is for an attorney to consult an expert in these types of cases, which suggests that this type of deficiency standing alone may be enough for ineffectiveness. If the physical evidence was so vague that the expert was willing to admit that it may not have been a sexual assault, then counsel most certainly SHOULD have consulted an expert. It is exactly when it should happen. If counsel didn't do it here, that is deficient.
The hole in the claim, really, is whether consulting an expert would have made a difference. That is something that really can't be analyzed in the abstract. If not a COA, then I think what should have happened here was for the DJ to assign counsel for counsel to dig a little deeper into this claim. This looked like a substantial claim.
2. Doran v. Fischer, 06-CV-3638, 2009 WL 3381537 (EDNY Oct. 20, 2009) (RJD)
- Habeas denied
- Issues: (1) prosecutorial misconduct; (2) introduction of perjured testimony; (3) IAC; (4) IAAC
ANALYSIS: The other one that seemed substantial to me. It's an interesting case factually. It concerned a shooting where petitioner claimed self-defense. There was some history to the story as petitioner was connected to a family (the Bakers) that had a Hatfield and McCoy type relationship with the victim's family (the Laramores). The victim had a wound to his chest and another wound to his back. One of the major questions at trial -- other than who's version to believe -- was whether the back wound was an entry wound or an exit wound.
Two claims were interesting. First, DJ believed that some summation comments were inappropriate -- misstatements of the evidence and some comments that denigrated petitioner. DJ did not believe, though, that these comments (which were largely unpreserved) deprived petitioner of a fair trial.
The other interesting claim was the ineffective claim, which I think was substantial. There were several parts to it, but two stuck out. One, the victim testified in the GJ that the back wound was an exit wound, even though at trial he said that he was shot in the back. Counsel did not impeach the victim with the GJ testimony and, according to petitioner, did not even read the GJ testimony. Second, defense counsel allegedly did not speak with any other eyewitnesses, including petitioner's side of the feud.
The DJ assumes that these two things were deficient but finds that there was no prejudice. DJ says that these things could have had an effect on the jury, but that these errors did not undermine the DJ's confidence in the verdict. DJ's reasoning as to why in my mind is a stretch and really calls out for a COA. Here's what the DJ says:
While the deficiencies of counsel assumed here arguably could have had “some conceivable effect” in a case such as this, which turned on competing claims of credibility, they do not undermine our confidence in the verdict. In all likelihood, the impeachment of Laramore [the victim] that petitioner envisions would have only helped the prosecution by prolonging the victim's sympathy-inducing account of his traumatic experience and injuries and by affording him an opportunity to explain away the inconsistency as a product of that trauma. It would have also shifted the focus away from the medical testimony on the question, which was, despite the prosecution's arguments, consistent with petitioner's claim that he shot his victim only once.
I read that paragraph and went, huh? First, the jury is not supposed to consider sympathy in reaching its verdict. Second, why would impeaching the central part of the victim's testimony be something that would have hurtful to the defense? At the very least, it undermines the victim's credibility on the stand. I don't see how this would have distracted from the medical testimony issue. Juries are capable of handling separate attacks on the prosecution's case. This is a stretch.
The reasoning on the family members is a little more sound. But still not overly persuasive:
The testimony from Baker family members that petitioner envisions would like have been as assailable (on the grounds of bias) as that of the Laramores and thus, while theoretically corroborative, would not likely have given petitioner's facially suspect account of fortuity a materially greater jury appeal. It would also have stripped defense counsel of that bias-based attack on the credibility of the Laramores. (Had petitioner, by contrast, accused his lawyer of failing to interview the “friend” to whom he claims he was about to return the gun, the analysis here might be different).
This just doesn't seem particularly persuasive to me. As with presenting a medical expert in the prior case listed above, the family members could have corroborated petitioner's version, which would have been helpful to the defense, even if bias had been shown. Who knows, some of the family could have presented themselves as very credible witnesses. If defense counsel had talked to them, he would have learned that. But as it stands, there were witnesses who corroborated the People's version and no one to corroborate the defense. I don't think that presenting witnesses would have stripped the defense of the bias argument. It still would have worked. The witnesses remained bias. But by presenting their own witnesses, it just would have evened the quantity of evidence on both sides. And that would seem pretty important in a credibility duel.
The reasoning just feels like a stretch. I think this case was a really good candidate for a COA. Or maybe, like the prior case, assignment of counsel and a hearing.
3. Rodriguez v. Conway, 07-CV-125, 2009 WL 3418117 (NDNY Oct. 20, 2009) (JKS)
- Habeas Denied
- Issues: State court deprived him of a retrial
ANALYSIS: This is an odd little case. And it's basically a Musladin* case. Petitioner's conviction was reversed on appeal based on the trial court's failure to give the defense time to pursue a mental disease or defect defense. After remand, petitioner withdrew his request to pursue such a defense. The prosecution moved to bar a retrial and the trial court agreed. Back up on appeal, the Appellate Division stated that the trial court did not have the power to preclude a retrial as the Appellate Division's decision basically ordered it. However, the Appellate Division construed the prosecution's motion in the trial court to preclude a retrial as a request before the Appellate Division for reconsideration. Upon reconsideration, the Appellate Division affirmed the original conviction.
So, procedurally its a bit wacky. Potentially, this could be a violation of some state laws or rules. But it does not appear to be a candidate for habeas relief. Potentially a due process claim could be worked in here, but DJ points out that there really isn't any clearly established law that says that this odd procedural quirk violated due process.
* Musladin = perpetually shrinking defintion of what constitutes clearly established law
4. Washington v. Cuomo, 06-CV-6477, 2009 WL 3379076 (EDNY Oct. 19, 2009) (CBA)
- Habeas Denied
- Issues: (1) IAC; (2) prosecutorial misconduct; (3) newly discovered evidence; (4) request for DNA testing; (5) IAAC
ANALYSIS: This is the case of the judge who skipped the opinions from last year's Supreme Court term.
Relying upon a Second Circuit case from 1983, DJ held that C.P.L. 440.10(2)(a) is not an independent and adequate state law ground. That section states that a claim must be denied in a 440.10 that was previously decided on the merits. Well, that's what Cone v. Bell was all about last April. Shouldn't the cite be to that case?
As to the DNA testing, DJ states that it was a state law claim and any constitutional claim was procedurally barred. It then states, "Even if it were not barred, this Court is aware of no case establishing a federal constitutional right to DNA testing." This sentence really does not capture the state of law on this issue. Prior to last year's Supreme Court's decision in District Attorney's Office for the Third Judicial District v. Osborne, some courts had indeed held that there was such a constitutional right. It's one of the reasons why the Court reviewed the issue. Of course, the Supreme Court -- in a much publicized decision -- held last term that there is no constitutional right to testing. Based on Osborne, the court really should have said: And the Supreme Court has just recently held that there is no constitutional right to DNA testing. The way the DJ phrased the sentence in the decision strongly suggests that the DJ had no idea about Osborne and the history of DNA testing.
On the other hand, the DJ did point out that there is a split in authority in the lower federal courts in New York as to whether C.P.L. 440.30(4)(b) - which grants courts the authority to dismiss a 440 motion if there is no supporting affidavit - represents an independent and adequate state law ground. DJ concludes sides with those courts that concluded that it did not, believing that "the better reasoned authority has recognized that because 'section 440.30(4) applies, by its own terms, only when a trial court denies a motion to vacate "[u]pon considering the merits."'" So some credit is due to the DJ for that positive conclusion.
Remaining cases below the fold . . .
5. Alston v. Sears, 07-CV-0188, 2009 WL 3488058 (WDNY Oct. 22, 2009) (MJM)
- Habeas Denied
- (1) Darden issue; (2) improper admission of uncharged crime evidence; (3) Sandoval; (4) sentence was excessive
- Notes: Parties consented to proceed before MJ
6. Jackson v. Poole, 06-CV-188, 2009 WL 3398274 (SDNY Oct. 21, 2009) (KPC) (DF)
- Motion for More Definite Statement of Claims Denied
- Notes: I liked how the MJ handled this motion. MJ issued an order telling Respondent what she believed the issues were and to file an answer. Very efficient.
7. Keating v. People, 03-CV-1286, 2009 WL 3401756 (EDNY Oct. 21, 2009) (FB)
- Request for Attorney's Fees Granted
- Notes: Adopting R&R. Odd little decision. Attorneys who were assigned to the case made a request for attorney fees that was about 7 times the statutory maximum. MJ agrees that some fees above the statutory max were appropriate, but not the amount that counsel requested, particularly because counsel's papers were vague. In the end, the request got halved.
8. Hyatt v. Bellnier, 09-CV-6594, 2009 WL 3423359 (SDNY Oct. 23, 2009) (CM) (AJP)
- R&R recommending denial of habeas
- Issues: (1) weight of the evidence; (2) prosecutorial misconduct; (3) improper admission of certain testimony; (4) excessive sentence
- Habeas Denied
- Issues: (1) statement should have been suppressed based on right to counsel violation; (2) improper jury instruction
- Notes: Adopting R&R
- Habeas Denied
- Issues: (1) Denial of fair trial; (2) failure to reduce plea agreement to writing; (3) IAC; (4) false arrest
11. Robinson v. Phillips, 04-CV-3446, 2009 WL 3459479 (EDNY Oct. 23, 2009) (FB)
- Habeas Denied
- Issues: (1) evidence against petitioner was forged; (2) IAC; (3) unduly suggestive ID; (4) late notice of witness's testimony; (5) IAAC; (6) prosecutorial misconduct
- Notes: Petitioner was sentenced as a persistent felony offender, but no Apprendi issue was presented. Some research shows that his conviction became final before Blakely. So unlike the case from last week (see case number 3), this case actually would be controlled by prior Second Circuit caselaw.
- Habeas Denied
- Issues: (1) statement was taken in violation of his right against self-incrimination; (2) IAC; (3) erroneous admission of uncharged crime evidence; (4) weight of the evidence; (5) statutory provision upon which conviction rests is unconstitutionally vague; (6) sentence violated petitioner's right to demand a jury trial; (7) failure to memorialize pre-trial plea negotiations; (8) IAAC.
- Notes: counseled
13. Brown v. Brown, 08-CV-10844, 2009 WL 3353022 (SDNY Oct. 19, 2009) (RJS) (KN)
- R&R recommending denial of habeas
- Issues: IAAC
14. Rodriguez v. McCray, 07 CIV.10655, 2009 WL 3364033 (SDNY Oct. 19, 2009) (SHS) (THK)
- Habeas Denied
- Issues: IAC
- Notes: Adopting R&R; counseled; DISCLAIMER: an atty in my office represented petitioner on the petition
15. Hill v. West, 04-CV-6601, 2009 WL 3491274 (WDNY Oct. 23, 2009) (CJS)
- Motion for Reconsideration Denied
- Habeas Denied
- Issues: (1) Brady/prosecutorial misconduct; (2) Darden hearing violated the Confrontation Clause; (3) improper limitation on cross and improper supplemental jury charge; (4) IAC; (5) improper denial of post-verdict motion without a hearing; (6) sentence was excessive; and (7) the integrity of the Grand Jury was compromised.
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