Come and get it! A generous helping of Weekly Review!
Two cases above the fold. Habeas grant that has been previously noted around here. And an interesting Miranda issue, but no COA. It is the lack of a COA that I am going to discuss.
And I do want to mention that there are a couple of below-the-fold cases with detailed notations.
On to the cases:
1. Petronio v. Walsh, 09-CV-341, 2010 WL 3564269 (EDNY Sept. 14, 2010) (ADS)
- Habeas Granted
- Issues: whether there was legally insufficient evidence to support petitioner's conviction for depraved indifference murder
- Notes: To be published
ANALYSIS: Prior post here. As noted in my prior post, there are some very interesing procedural issues raised in this case. It probably should be heard with at least one other case currently pending before the Second Circuit that raises similar issues.
- Habeas Denied
- Issues: (1) improper admission of evidence; (2) insufficient evidence; (3) improperly precluded from questioning prospective jurors; (4) Miranda and right to counsel violation; (5) IAC; (6) excessive sentence
ANALYSIS: Interesting Miranda issue. The allegations were that petitioner murdered his girlfriend, who had previously gone missing.
An officer responded to a fight outside petitioner's home. The officer learned that there was an outstanding warrant for petitioner and took him into custody. While petitioner was handcuffed in the back of a car, the officer questioned petitioner. First, he asked whether he had identification. He didn't, so the police officer asked to escort him inside to get ID. Petitioner said that he was not going to take him inside the home. The officer then asked petitioner when was the last time he had seen the victim, and he said that he had seen her the prior week when she had a doctor's appointment. The officer asked to go into the house, and petitioner said no and he would not give permission for it. The officer then asked for the doctor's name, and petitioner said he wouldn't answer any more questions.
The Supreme Court in a case called Quarles has stated that there is an "emergency exception" to Miranda when questions are necessary to secure the officer's safety or that of the public. Actually, it's kind of similar to the Davis v. Washington test back before the Supreme Court.
The New York Court of Appeals broadly interpreted Quarles in a case called Krom from 1984. It said that, so long as a victim is missing, officers can question a suspect, even if he asserts his Miranda rights. Did I say broad? I should have said read Miranda right out of existence.
The state court upheld the questioning under Krom.
Here, the DJ assumes, without deciding, that Krom is an unreasonable application of Quarles. But decides that the error was harmless. No COA.
This particular DJ is very stingy with COA's. He usually issues 3 to 4 habeas opinions a week, and over the last year and change, he has only granted one COA -- and that was when an MJ recommended it. Notably, according to my Pending Second Circuit Cases page, the Second Circuit has granted COA's in three of his cases this year. That's more than any other DJ. So it would not be unreasonable to say that this DJ should be granting more COA's than he is currently doing.*
*I won't even begin to say how much it bugs me that this DJ also certifies -- in every single one of his habeas denials -- that an appeal would not be brought in good faith. That is a complete misuse of that statute. Particularly when the petition is counseled. He is basically accusing the lawyer of misconduct. But this is a more involved post/complaint for another day.
Now, I am not saying that this is a great candidate for a COA. But it's a pretty good one. The DJ suggests that a long-standing New York Court of Appeals decision may be an unreasonable application of a Supreme Court decision. That's COA-worthy. And I have previously stated that if a court shifts to a harmless error analysis after finding a constitutional violation, that's another potential area for a COA.
And in looking at the court's harmless error analysis, I am not fully convinced. The DJ says that the statement was not completely inculpatory, was similar to what he had said to the victim's family members, and the evidence of guilt was "compelling."
These grounds are supported by the record, but they don't give the reader complete confidence that the error was 100% harmless (or let's say 95% harmless). I think the statement was inculpatory enough. And statements to a police officer -- admitted as official admissions -- are qualitatively different than similar statements made to civilians. And while compelling is a strong word, it is not the strongest that can be used when looking at the strength of the evidence. Here is the evidence that the court cites (WARNING, it's grisly):
Petitioner, who had allegedly been subject to physical abuse at the hands of his former girlfriend, admitted to dismembering the victim's body after her death. He actively concealed her death at the house that he shared with her, and attempted to dispose of her body parts by cooking them, freezing them, and flushing them down the toilet. While petitioner was incarcerated, he admitted that he killed the victim.
Strong, but mostly circumstantial. And I think it is always questionable to rely on jailhouse confessions. I think that it could be reasonably argued that even this not-completely-inculpatory statement could have had a real effect here.
It's not a bad candidate for a COA. Do I think the Second Circuit will grant one? No. But that's because they don't grant many. The DJ's grant the higher percentage of COA's and are tasked to do it in every case (sometimes the Second Circuit never gets to answer that question). So I think it is more appropriate to question when a DJ does not grant one.
Remaining cases below the fold . . .
3. Trapp v. Poole, 07-CV-893, 2010 WL 3724879 (NDNY Sept. 17, 2010) (GLS) (RFT)
- Habeas Denied
- Issues: (1) involuntary plea based on failure to advise of PRS; (2) involuntary plea on other grounds; (3) excessive sentence
- Notes: Adopting in part and rejecting in part R&R (available at 2010 WL 3724880)
Quick More Lengthy Note: The R&R recommended that habeas be granted
on the claim that the plea was involuntary based on the failure to
advise of PRS. However, in between the time of the R&R and the DJ's
decision, a state court struck the PRS from the sentence. Thus, this
claim became essentially moot, which is why the R&R on this ground
was rejected.
4. Williams v. Conway, 08-CV-0359, 2010 WL 3660049 (WDNY Sept. 14, 2010 (MAT)
- Habeas Denied
- Issues: (1) IAC; (2) prosecutorial misconduct
- Notes: Some pretty bad misconduct here, but it was isolated. Nevertheless, I wanted to quote it since it is extreme. Here are the questions that the prosecutor asked in cross-examination:
[T]he prosecutor questioned the witness's ability to tell the truth by asking her if she had "changed sides," commenting that God would have to sort out her conflicting statements, and asking her if she wished to apologize to the victim's wife "for not having the courage to stand up and tell this jury the truth."
5. Timmons v. Lee, 10-CV-2450, 2010 WL 3724772 (EDNY Sept. 17, 2010) (JG)
- Habeas Dismissed as Time-Barred
6. Hendrix v. Bradt, 08-CV-06275, 2010 WL 3724688 (WDNY Sept. 17, 2010) (MAT)
- Habeas Denied
- Issues: DOCS improperly calculated sentence
7. Hill v. Conway, 04-CV-524, 2010 WL 3718871 (NDNY Sept. 14, 2010) (FJS) (RFT)
- Habeas Denied
- Issues: (1) insufficient evidence; (2) IAC; (3) suppression motion should have been granted; (4) denied counsel of choice
- Notes: Adopting R&R (available at 2008 WL 8095710)
8. Garcia v. Graham, 09 CIV 6593, 2010 WL 3582609 (SDNY Sept. 13, 2010) (CM) (JCF)
- Habeas Denied
- Issues: (1) right to counsel violation; (2) 4th Amendment violations; (3) court did not properly charge the jury; (4) Allen charge; (5) improper response to jury notes; (6) excessive sentence
- Notes: Adopting R&R (available at 2010 WL 3564867)
9. Cooks v. Graham, 08-CV-3830, 2010 WL 3582637 (SDNY Sept. 13, 2010) (GBD) (RLE)
- Habeas Denied
- Issues: (1) denial of right to represent himself; (2) jury selection issues; (3) excessive sentence; 4) IAC; 5) identification issues
- Notes: Adopting R&R (available at 2010 WL 3582634)
10. Brewer v. Lape, 06-CV-10209, 2010 WL 3582888 (SDNY Sept. 13, 2010) (SHS) (MHD)
- Habeas Denied
- Issues: (1) 4th Amend. violation; (2) involuntary statement to police; (3) due process violation on appeal; (4) verdict against weight of the evidence; (5) IAC
- Notes: Adopting R&R (available at 2010 WL 3565176)
11. Davis v. Woods, 05-CV-03414, 2010 WL 3747669 (EDNY Sept. 17, 2010) (ENV)
- Habeas Denied
- Issues: (1) right to counsel and right to be present violation; (2) fair trial violation; (3) violation of right to jury of choice; (4) IAAC
12. Purdie v. Graham, 09-CV-8116, 2009 U.S. Dist. LEXIS 129806 (SDNY Sept. 15, 2009) (NRB)
- Habeas Denied
- Issues: (1) improper police procedures at crime scene; (2) identification issue; (3) improper admission of evidence; (4) IAAC; (5) IAC; (6) judicial misconduct; (7) defective indictment
13. Minucci v. Connell, 09-CV-6498, 2010 U.S. Dist. LEXIS 99581 (SDNY Sept. 16, 2010) (PKC)
- Habeas Denied
- Notes: Adopting R&R (available at 2010 U.S. Dist. LEXIS 95008)
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