Very, very slow week. I only found TWO cases (plus a couple of R&R's, but those no longer appear in these Weekly Reviews). Lowest total ever. But it was a post-holiday week after all.
Despite the low total, there was a COA! And yet, it's pretty tragic. Let's get right to it:
1. Saracina v. Artus, 04-CV-521, 2010 WL 3529339 (WDNY Sept. 08, 2010) (MAT) (JWF)
- Habeas Denied; COA granted
- Issues: (1) persistent sentence violated Apprendi; (2) persistent sentence is improper; (3) IAC; (4) IAAC
- Notes: Adopting R&R (available at 2010 WL 3529352)
ANALYSIS: COA was granted on the issue of whether petitioner's claim that he was
improperly adjudged a
PFO based on a non-qualifying, out-of-state conviction is cognizable on habeas review.
You may be asking, why this issue and not the Apprendi issue?
It's truly tragic. His state court challenges became final on June 23, 2004 -- one day before Blakely was decided! The original panel decision in Besser (which apparently came out the same day as the R&R) has made clear that Blakely is the cut off point. There is simply nothing petitioner could do about it. As the MJ stated here, "As unfair as it may seem, Saracina may have missed the benefit of today's Besser decision by one day."
Remaining case below the fold . . .
2. Moore v. Lape, 08-CV-0474, 2010 WL 3522227 (WDNY Sept. 08, 2010) (MAT)
- Habeas Denied
- Issues: (1)
involuntary plea because petitioner negated essential element of crime during colloquy; (2) due process violation; (3) excessive sentence