Very quiet week in the district courts -- only four cases.
But one of those cases deserves some attention. And I'll just say it flat out -- I think the DJ got it wrong. But let's just set that aside for a second. Even under the DJ's own analysis, there was more than enough here to justify a COA. Of course, no COA was granted. And this one seems like an obvious call to me. I remain bedeviled why DJ's are so stingy with COA's.
Let's get to the cases:
1. Rivera v. Cuomo, 05-CV-1699, 2009 WL 4929264 (EDNY Dec. 21, 2009) (SLT)
- Habeas Denied
- Issues: Insufficient Evidence to support conviction for Depraved indifference murder
ANALYSIS: Yes, another one of these depraved indifference murder cases. What are these cases? They concern the change in the meaning of depraved indifference murder. Prior to the change in the law, a reckless mental state was sufficient to be convicted of this crime. However, in a series of cases over the course of a few years, the NY Court of Appeals slowly began to alter the meaning of the definition of depraved indifference so that the crime required its own unique mental state. Eventually, in a case called Feingold, the court officially overruled the old law. But before Feingold in cases such as Hafeez and Gonzalez, the court made statements that ruled out certain kinds of conduct as representing depraved indifference murder. For example, a one-on-one shooting -- like the situation here.
The question in Rivera is what meaning of depraved indifference should apply to the case. Rivera was fully decided before Feingold. So that case did not apply. The real question was whether the cases that led up to Feingold should apply.
And I believe that the DJ gets this analysis completely wrong.
Rivera was convicted in 1997 -- before any of the cases that began to change the law -- but the direct appeal did not end until 2004, when the Court of Appeals denied leave. If the applicable law to apply to the case was based on this later date, it would have included two of the critical cases - Hafeez and Gonzalez. So in the DJ's mind, the question is do we look at the date of the actual conviction or when the direct appeal ended?
And here is where the DJ goes off the reservation. The DJ considers this an open question. The DJ starts by pointing out that the Second Circuit has stated that the date on which a conviction becomes final is the end of the direct appeal. But somehow this wasn't good enough for the DJ. Instead, the judge says that the law in the lower courts is "unsettled." She cites to one case -- called Archer -- that says that the applicable date is when the "conviction became final." The DJ apparently interprets this language as meaning that a court looks to the date on which the petitioner was convicted to decide what law to apply. However, even a cursory read of the Archer case shows that the court looked to the date on which the Court of Appeals denied leave to find the applicable law. The other case that the DJ cites uses the exact same analysis. So the law is not "unsettled." Everybody uses the same analysis.
Ignoring this, the DJ barrels ahead and says that the applicable law must be the one in place at the time of the actual conviction. It's not worthwhile to address the DJ's specific reasoning since it clearly is wrong at the most basic level.
As mentioned up above, the law here is settled. A case in the appellate pipeline gets the benefit of any change in the law (see, e.g., Griffith v. Kentucky). That's why you look at the end of the direct appeal as determining what law to apply. From a habeas perspective, the state is given its full opportunity to apply the law before the federal courts step in. So we look at the last available date for the state court to act. Does all this even need to be stated?
And habeas law has always looked at the date that an appeal becomes final in determining the applicable law (See, e.g., Teague v. Lane). The only difference here is that it has to do with the meaning of a state law as opposed to a constitutional principle. The DJ would only be correct if New York does not utilize the "pipeline doctrine" in its appellate procedure. But of course it does. So long as an issue is preserved, the defendant gets the benefit of the change in law on appeal. At least, that's always been my experience.
The DJ attempts to get around this by saying that "because the changes in the law relating to deliberate indifference murder are not retroactive, [People v.] Policano[,] 7 N.Y.3d [588,] 603-04, 825 N.Y.S.2d 678, 859 N.E.2d 484 , appellate courts would have to apply the law that existed at the time of conviction."
As Liz Lemon would say, "What the what?" That is a misstatement of retroactivity principles and also a misapplication of Policano. That case concerned retroactivity as it applied to cases in which the direct appeal became final before Feingold. It has no relevance as to what law to apply on direct appeal. Once again, the defendant would get the benefit of a change of law on direct appeal.
So the DJ gets all this wrong.
But that's not why this case is an obvious call for a COA. The DJ relied upon a novel analysis on a procedural rule that ended up being outcome determinative. The DJ herself said that the law was unsettled. That is precisely the situation where a COA is appropriate. The DJ should have granted a COA to allow the Second Circuit to settle the law and give the appellate court the opportunity to decide if her relatively novel approach was correct. This seems pretty basic to me.*
* I also think that the underlying merits of the claim also justified a COA, but I thought the procedural stuff was more interesting.
I really hope that the Second Circuit reaches out and grants a COA. I will keep an eye on this case.
Remaining cases below the fold . . .
2. Miller v. People of New York, 05-CV-5754, 2009 WL 5061746 (SDNY Dec. 23, 2009) (LTS) (DCF)
- Habeas Denied
- Issues: IAC
- Notes: Adopting R&R
3. Williams v. Donnelly, 99-CV-6051, 2009 U.S. Dist. LEXIS 119822 (WDNY Dec. 23, 2009) (MAT)
- Motion for Reconsideration Denied
- 2009 WL 5171830
4. Alston v. Giambruno, 06-CV-6339, 2009 U.S. Dist. LEXIS 119045 (WDNY Dec. 21, 2009) (MAT)
- Habeas Denied
- Issues: IAC
- 2009 WL 5171860