Not much going on in this one. I am going to lift two cases above the fold, but there won't be any analysis. Just some notes.
1. Manor v. State of New York, 08-CV-6056, 2010 WL 2683135 (WDNY July 02, 2010) (MAT)
Issues: (1) evidence was not properly
authenticated; (2) improper admission of evidence; (3) denial of right to present a
defense; (4) illegal sentence; (5) insufficient evidence; (6) IAC; (7) fair
Notes: While counsel is named at top of opinion, DJ says that petitioner appeared pro se. The mention of pro se status in the opinion appears to be a mistake since the docket sheet says that petitioner is represented by counsel; IAC claim is pretty interesting: whether counsel was ineffective in a murder case for failing to request lesser included charge of manslaughter; DJ concludes that counsel's decision to pursue a fully exculpatory alibi defense was a strategic decision that was not objectively unreasonable.
2. Smith v. Perez, 2010 WL 2640543,
W.D.N.Y., June 29, 2010 (NO. 05-CV-0167 (VEB)
Issues: (1) right to present a
defense violation; (2) improper denial of request for EED charge; (3)
IAC; (4) confession was coerced; (5) improper preclusion of defense
evidence; (6) prosecutorial misconduct; (7) insufficient evidence
Notes: To be published; parties
consented to proceed before MJ; MJ concludes that there was a right to
present a defense violation based on the preclusion of evidence to
support an EED defense, but that the error was harmless
Looks like a couple significant Supreme Court matters popped up while I was gone.
Of course, the big news was that the Judiciary Committee sent Kagan's nomination to the full Senate by a 13 to 6 vote. Nothing surprising about that. Also not surprising was some pretty silly grandstanding by Republicans throughout the vote. Why does anybody take those clowns seriously?
The other big news for the week was the release of the calendar for the October sitting. Here are the cases and argument dates for cases relevant to habeas:
Tuesday, October 5
Michigan v. Bryant (front-end case): whether the use of injured victim’s
out-of-court statement made to police at crime scene violates the Sixth Amendment under Crawford v. Washington
Tuesday October 12
Harrington v. Richter: whether counsel was ineffective for failing to call
expert witness to counter prosecution’s physical evidence and whether lower court's properly deferred to state court's under AEDPA
Premo v. Moore: standard of review for federal habeas courts when assessing ineffective claim based on the failure of counsel to obtain suppression of a confession (note the change in name for Warden/Respondent; used to be called Belleque v. Moore)
Wednesday October 13
Skinner v. Switzer (1983 case with habeas implications): whether defendant can obtain DNA testing through a 1983 action.
As mentioned yesterday, the New York Law Journal reports today that a SDNY DJ has granted habeas in the case of Whitley v. Ercole, 06 Civ. 10198. Here's the provocative headline: "Conviction Upset Ruling Reveals Complications for D.A. in Retrial." The article, for once, is available online here.
And here are some of the opening paragraphs:
A federal judge's decision to overturn an eight-year-old conviction
for the high-profile murder of a Manhattan doctor that occurred 29 years
ago has presented Manhattan District Attorney Cyrus Vance, Jr. with a
* * *
On Thursday, Southern District Judge Alvin K. Hellerstein granted Mr.
Whitley's petition for a writ of habeas corpus, finding that the trial
court had made an error of constitutional dimension when it allowed the
recanted testimony of the chief witness against Mr. Whitley to be read,
without cross examination, to the jury that convicted him of the Wood
murder in 2002.
The article then describes what makes a retrial so difficult for the prosecution:
[A] retrial would require the rehabilitation of an unreliable cooperating
witness who was promised leniency on a long prison sentence, testified
against Mr. Whitley at his first trial in 1998 that ended in a mistrial,
and later claimed he could not remember a key statement he had made to
the lead detective in the case and took the Fifth Amendment.
Of course, the prosecution also has the option of going to the Second Circuit, which I assume they will.
Petitioner was represented by pro bono counsel Barry R. Ostrager of Simpson Thacher & Bartlett, along with
associates Juan Arteaga and Chantale Fiebig.
Here's what Mr. Ostrager had to say about the case:
"I always believed in the case and I think the factual recital and the
marshalling of the law in Judge Hellerstein's opinion makes it
abundantly clear that Darryl Whitley didn't get a fair trial," Mr.
Ostrager said Friday. "It frankly always disturbed me that the
prosecution in this case proceeded as it did. I felt it was an honor to
effectively represent Mr. Whitley."
Issue: whether appellant was denied
his Sixth Amendment right to an
ANALYSIS: Not much to say about it. The issue was whether petitioner's Sixth Amendment right to a fair trial was violated when the trial judge failed to ask jurors individually about discord among the jury during deliberations. Court engages in basically no analysis and just concludes that the "state court’s decision not to question each juror individually, after having received confirmation from the jury that it was ready to continue its deliberations calmly and rationally and after asking the jurors collectively whether they each felt comfortable doing so, was not contrary to, or an unreasonable application of, Smith v. Phillips, 455 U.S. 209 (1982) or Remmer v. United States, 347 U.S. 227 (1954)."
I will note that it appears that the lower court relied on more of a Musladin-type analysis, saying that there was no Supreme Court decision that requires a trial court to engage in this type of inquiry. So I am pretty happy to see that the Second Circuit looked at it more as an "unreasonable application"-type situation.
Looks like it was a pretty slow week in habeasland. Not much happened in the Second Circuit, just a single summary order which I will post about separately.
The Second Circuit will not resume hearing cases until August 2. And even during that week there won't be any habeas cases. In fact, the next habeas case to be argued before the Second Circuit won't be until August 23. Worth nothing that the court won't be hearing any cases during the weeks of August 9 and 16.
There's been no news on any of the pending Second Circuit nominations. There hasn't even been any new end-of-civilization articles about the Chatigny nomination. I have to admit, I was a little disappointed about that. The only thing I could find about any of the nominations was this new biographical page on Susan Carney posted on Harvard Law School's website. Nice picture of her, if you are curious about what she looks like.
Haven't had a chance to look over the Law Journals from the past week to see whether there were any relevant articles. I'll check those out as soon as I get the chance.
As for the Weekly Reviews, I hope to start revving those up soon. Pretty far behind with those.
Coming up tomorrow: Habeas grant in the Southern District! Actually the grant was last Thursday, but the Law Journal is not writing about it until tomorrow. I am not going to count it as happening last week since I wouldn't have learned about it until I read the Law Journal's article. That makes 5 for the year in the district courts. That puts us on almost the exact same pace as last year. Weird.
UPDATE: Oops. Just reviewed the Law Journals from last week and the habeas grant was mentioned on Friday in the "News In Brief" section. So I guess it should count as a last week item. That changes last week from a slow week to a pretty big week. Otherwise, nothing else of note in last week's Law Journals.
Nothing really spectacular this week. But I am going to move one up case above the fold since it mentioned Musladin, and I haven't seen a Musladin issue in awhile. I figured it would give me a good opportunity to remind of the danger that is the Musladin/clearly established law principle.
But before I get to that, one quick note. There will be no Weekly Review next week as I will be on vacation (separate post about that). I am going to combine the next two weeks into a single Weekly Review once I return. At least that's the plan.
For now, on to the Musladin case:
1. Hearns v. Artus and Crosby v. Artus, O8-CV-192, 2010 WL 2653380 (EDNY June 23,
ANALYSIS: Tucked in amongst a large number of divergent claims lies a pretty interesting Brady claim. The petitioners were the subject of a joint state/federal investigation. At the time of trial, the state prosecutors turned over whatever Brady material they had in their possession. However, they made no effort to find out whether the federal investigators had any other exculpatory information.
So, setting aside the speculative nature of the claim, the interesting question is whether the prosecutor's Brady obligation stretches to information contained by a separate law enforcement agency that was working on a joint investigation with the prosecutors. The court's main holding is that, even though the prosecutor described it as a joint investigation, the prosecutors stated that the federal law enforcement agency did not collaborate with the prosecutors in developing the case. "[A]ll of the testifying investigators worked for the NYPD and the prosecutor
explained that he had only limited knowledge of the federal investigation." That legal conclusion is what it is - skimpy - but the claim itself is highly speculative anyways.
But the DJ offers an additional holding. It states that "the Supreme Court has never held that a prosecutor must obtain and disclose
exculpatory information in the possession of another sovereign." On the other hand, the DJ does acknowledge that the Supreme Court broadly described the prosecutor's disclosure obligation in Kyles v. Whitley. And under the language it could apply to this situation. Nevertheless, DJ concludes that, under Musladin, "the court cannot extend Kyles in this manner" and the principle is not clearly established.
I will express my usual complaint: this feels more like a question of unreasonable application as opposed to a question of clearly established law. The broader principle is clearly established and there is no doubt what principle should be applied to this situation. But I will say that it's a close call on that one.
Yesterday, the Second Circuit issued its opinion in Gueits v. Kirkpatrick (available here). The court reversed the grant of habeas and remanded for the district court to dismiss the writ. Judge Walker wrote the opinion and he was joined by Raggi and McLaughlin.
It's a pretty disappointing opinion. The court basically finds that the district court was not deferential enough to the state court's conclusion that counsel was not ineffective.
What's most disappointing about it is the what I will call "creative" analysis that the Second Circuit engages in to find that petitioner was not prejudiced by deficient performance. There were three main cateogires of deficient performance. I won't go into the court's analysis on all three categories. The analysis on the first two were questionable, but not as bad as the third. So I'll just focus on the third.
I won't go too deep into the facts about the case. You can read about those in my prior post about the case when the district court granted habeas relief. But let me just quote, again, the following provocative paragraph from the MJ's R&R:
Gueits may well have committed or been complicit in the assault with
was charged; at best, he was by his own account unwilling to help the
that assault when she was in desperate need of his aid. Whatever the
is clear that he was convicted of the crime and is now imprisoned as the
of the denial of his constitutional right to counsel. The prosecution in
case was marred by a cynical approach that produced an unreliable
that ignored strong evidence that another man may have committed both
assault for which Gueits is now in prison as well as the rape that has
unpunished. The result is not only unfair to Gueits, but also to the
victim whose rapist apparently remains at large and to the public. The
[prosecution's] indifference to this obvious injustice is nothing short of
One of the main failings of defense counsel was that he unreasonably failed to introduce DNA evidence showing that the semen found in the victim matched someone in Maryland who had been accused of committing a separate rape.
The Second Circuit concludes that this allegedly deficient performance did not prejudice the defendant. Yes, you have read that correctly. The failure to admit evidence to show that an identified person had actually sexually assaulted the victim did not prejudice the defendant.
Want to know why? It's actually quite creative. The Second Circuit hypothesizes that, had defense counsel pursued the issue at trial, the trial court would have exercised its discretion to keep this exonerating evidence out of the case.* Safe to say, I have never seen an analysis like this before. The court does not say that, as a matter of law, this type of evidence would not have been admissible. It says that a court would have issued a discretionary decision against petitioner here. Just incredible in my mind.
* It's also important to point out that the Appellate Division did not reject the IAC claim on this ground. The Second Circuit simply suggests that this is one of the ways that the state court could have denied it. It's creativity on top of creativity with this argument.
The court gives various reasons why: it was sort of covered by other evidence in the case, it would have somehow confused the jury. I guess those are possible reasons a hypothetical court may have hypothetically exercised its discretion here and keep the evidence out.
Or, more likely, a hypothetical court faced with DNA evidence showing that someone else had committed the sexual assault would have hypothetically gone out of its way to allow the defendant to present that evidence. I mean, how many times do we hear courts saying how seriously they take claims of actual innocence? I have certainly heard the Second Circuit say that before. Is this just lip service? Here we have a court faced with DNA evidence pointing to actual innocence, and the court not only rejects the claim, but does so in a particularly creative way. Disappointing is a good word for it.
Yes, I understand that the actual innocence claims are not so simple as "it was somebody's else's DNA so petitioner was automatically innocent." I previously stated that it was tough to know exactly what to think about the facts. But it must also be remembered that, as the MJ pointed out, the prosecution's theory on this case shifted when the evidence began to undermine the original theory. The more that the prosecution had to change the theory, the more it begins to suggest that petitioner may not have been involved in the crime.
There is some coverage of the case today in this article (subscription only) today in the New York Law Journal. The headline says a lot: "Prisoner Loses Habeas Bid Over DNA Evidence."
Last Friday, the Second Circuit sitting en banc heard the constitutional challenge to New York's persistent felony offender statute. It was quite the event.
Unfortunately, I haven't been able to find too much (really any) media coverage of the big event, other than the subscription-only New York Law Journal article. Which is annoying.
As is my usual policy around here, I won't talk about the substance of the case. But one non-substantive question that I am often asked is: when to expect a decision? The answer: can't say. The original panel decision took a long time (almost two years). But I am hoping that this decision does not take as long. I did a lot of research into Second Circuit en banc decisions and the pattern I saw was for the decision to be issued around 3 to 6 months after the argument. Which would mean around the end of the year. But that is not a rule, or even a custom, just something that I noticed. There is nothing stopping the decision from coming out as early as tomorrow or as late as next summer.
Of course, once the decision comes down, I will post the news.