Habeas Corpus - Weekly Review 7/19-23/10

A very busy week in the district courts.*  And a lot of great habeas action.  In fact, a first around here:  TWO habeas grants in one week!  And then there was the Ramchair decision barring a retrial.

*Come to think of it, this was the week that I was on vacation.  I had originally said that it was a slow week.  I guess I couldn't have been more wrong, at least as far as what happened in the district courts.

Those three cases will be above the fold.  Below the fold, I noted that there are a bunch of cases with Musladin denials.  Three this week, two in Batson cases.  There are some other notable things, too, but not notable enough to bring them above the fold.

Here are the notable cases:

1. Whitley v. Ercole, 06-CV-10198, 2010 WL 2889124 (SDNY July 22, 2010) (AHK)

• Habeas Granted
• Issues: admission of witness's prior testimony deprived prisoner of his due process and Confrontation Clause rights
• Notes: To be published

I have previously discussed this case here.  The State has appealed the judgment granting habeas. 

2. Ramchair v. Conway, 04-CV-4241, 2010 WL 2869503 (EDNY July 20, 2010) (JG))

• DJ Orders Petitioner's Release From Custody
• Issues: IAAC
• Notes: To be published; counseled

I have previously discussed this case here.

3. Langston v. Smith, 2010 WL 2989992, E.D.N.Y., July 20, 2010 (NO. 07-CV-2630 ERK

• Habeas Granted in Part
• Issues: Insufficient Evidence of (i) weapon possession and (2) assault.
  
• Notes: To be published; counseled

ANALYSIS: DJ concludes that the evidence was insufficient to support the assault count.  The assault count was based on the theory that petitioner committed the assault "in furtherance of" the weapon possession.  First, DJ analyzes what "in furtherance of" means and finds that there must be "some 'logical nexus' between the physical harm created and the predicate felony."  DJ concludes that the assault was done in furtherance of a robbery, but petitioner was not charged with committing the assault in furtherance of the robbery.  Instead, it was in furtherance of the weapon possession.  I like how the DJ rejects the State's theory:

The District Attorney argues that the purpose of the assault was to further the goal of criminally possessing the guns-in other words, Langston's accomplices appeared and opened fire in order to prevent the detectives from taking the weapons with which they were committing the assault. (District Attorney's letter dated April 20, 2004, at 4-5.) Such a scenario strains the bounds of imagination and simply could not be inferred from the evidence presented at trial. Indeed, the District Attorney's argument gets it exactly backwards-the criminal possession was committed in furtherance of the assault and attempted robbery, the assault was not committed in furtherance of the criminal possession of the weapons.

An interesting side note is that a different DJ addressed the exact same claim in the habeas petition for one of petitioner's co-defendants.  In the co-defendant's case, the claim was procedurally defaulted.  Nevertheless, the other DJ went on to address the merits and said that the evidence was sufficient.  The DJ here says, "While [the other DJ] is a brilliant and thoughtful judge, I am unable to join in this interpretation of the evidence presented in this case."

In his relief section, the DJ said that he will grant the State a stay if they file a notice of appeal in 10 days and ask for expedited briefing.  The State did file their notice of appeal within 10 days.  Don't know about the expedited briefing, though.

Remaining cases below the fold . . .

4. Brooks v. Conway, 10-CV-3872, 2010 WL 2911778 (SDNY July 23, 2010) (RJH) (AJP)

• Habeas Dismissed without prejudice to allow for exhaustion
  
• Issues: IAC
  
• Notes: Adopting R&R (available at 2010 WL 2381048)
  

5. Robles v. Brandt, 08-CV-6115, 2010 WL 2925973 (WDNY July 23, 2010) (MAT)

• Habeas Denied
• Issues: (1) erroneous evidentiary rulings; (2) weight of the evidence; (3) right to present a defense violation
  

6. Webb v. Walsh, 07-CV-2655, 2010 WL 2985879 (EDNY July 23, 2010) (ENV)

• Habeas Denied
• Issues: (1) insufficient evidence; (2) Batson violation; (3) consecutive sentences violated his constitutional rights
• Notes: Musladin used to deny Batson claim -- petitioner argued that the prosecution used its peremptory challenges to exclude "polyglot, multi-cultured people of Caribbean origin"; DJ says that there is no clearly established law stating that this is a cognizable group under the 14th Amendment
  

7. Adrades v. Ercole, 06-CV-2573, 2010 WL 3021252 (SDNY July 23, 2010) (LBS)

• Habeas Denied
• Issues: (1) IAC; (2) right to counsel/due process violation
  

8. Balkman v. Poole, 06-CV-6120, 2010 WL 2867911 (WDNY July 22, 2010) (VEB)

• Habeas Denied
• Issues:(1) newly discovered evidence/actual innocence
• Notes: To be published; consented to proceed before MJ; I like the MJ's discussion of the law on actual innocence claims; however, he doesn't discuss the Troy Davis case.  I think that should be included in the discussion.  It strongly suggests that an actual innocence claim does exist as its own claim under the constitution

9. Cedeno v. Conway, 2010 WL 2867102, W.D.N.Y., July 21, 2010 (NO. 06-CV-6019 (VEB)

• Habeas Dismissed as Untimely
• Notes: To be published; consented to proceed before MJ

10. Pizzaro v. Artus, 2010 WL 2873218, S.D.N.Y., July 21, 2010 (NO. 07CIV.2755(CM)(RLE)

• Habeas Denied
• Issues: Juror misconduct
  
• Notes: Adopting R&R (attached)
  

11. Paul v. Ercole, 07-CV-9462, 2010 WL 2884720 (SDNY July 21, 2010) (CM) (HBP)

• Habeas Denied
• Issues: (1) Confrontation Clause violation; (2) excessive sentence; (3) illegal sentence; (4) imposition of fee was Ex Post Facto violation; (5) IAAC
  
• Notes: Adopting R&R (available at 2010 WL 2899645)
  

12. Nickens v. Moscicki, 09-CV-3097, 2010 WL 2899863 (SDNY July 21, 2010) (PGG)

• Habeas Denied
• Issues: (1) double jeopardy; (2) IAC
  

13. Sandy v. Donnelli, 05-CV -1994, 2010 WL 2985651 (EDNY July 21, 2010) (ENV)

• Habeas Denied
• Issues: (1) Batson violation; (2) jury selection issues; (3) improper reasonable doubt charge; (4) impermissible variance between indictment and evidence at trial
• Notes: Another Musladin decision on a Batson claim.  This time petitioner argued that the prosecution had impermissibly struck "Black women."  DJ says that the Supreme Court has never clearly established that the combination of those two prohibited categories is a protected class.
  

14. Pucci v. Smith, 08-CV-6092, 2010 WL 2869480 (WDNY July 20, 2010) (MAT)

• Habeas Denied
• Issues: (1) 4th Amendment violation; (2) IAC; (3) insufficient evidence; (4) judicial misconduct; (5) prosecutorial misconduct; (6) weight of evidence; (7) cumulative errors resulted in unjust trial

15. Council v. Connell, 08-CV-11357, 2010 WL 2884746 (SDNY July 20, 2010) (LTS) (KNF)

• Habeas Denied
• Issues: (1) insufficient evidence; (2) severance; (3) evidentiary issue; (4) improper response to jury note; (5) excessive sentence
• Notes: Adopting R&R (available at 2010 WL 1140879)

16. Mack v. Conway, 05-CV-6519, 2010 WL 2899876 (SDNY July 23, 2010) (LTS) (KNF)

• Habeas Denied
• Issues: (1) Miranda violation; (2) IAC; (3) Brady violation
• Notes: Adopting R&R (available at 2010 WL 1140877); Both MJ and DJ conclude that there was a Miranda violation and that state court acted unreasonably in finding otherwise; however, both conclude that the error was harmless
  

17. Purdie v. LaClaire, 2010 WL 2838405, E.D.N.Y., July 19, 2010 (NO. 08-CV-5108 (KAM) (VP)

• Habeas Denied
• Issues: (1) grand jury issues; (2) IAC; (3) Brady violation; (iv) insufficient evidence; (v) judicial and prosecutorial misconduct
• Notes: Adopting R&R (available at 2010 WL 2838523); Interesting R&R
  

18. Ollman v. New York, 04-CV-6584, 2010 WL 2854446 (WDNY July 19, 2010) (MAT)

• Habeas Denied
• Issues: (1) deprivation of right to counsel
  
• Notes: counseled; Another (partial) Musladin denial.  Petitioner argues that he was deprived of his right to counsel at a violation of probation hearing.  DJ's main conclusion is that petitioner's guilty plea waives the issue.  However, DJ also concludes that there is no clearly established law that a defendant is entitled to representation at a violation of probation hearing.
  

19. Hayes v. Conway,  08-CV-5280, 2010 WL 2921587 (EDNY July 19, 2010) (ARR)

• Habeas Denied
• Issues: (1) Batson violation; (2) illegal sentence; (3) evidentiary issue; (4) IAC