Slow week for the Weekly Review. But there was a COA! It's an unusual case.
Here it is:
1. Robles v. Dennison, 05-CV-428, 2010 WL 4026814 (WDNY Oct. 13, 2010) (VEB)
- Habeas Denied; COA granted
- Issues: issues related to denial of parole
- Notes: To be published; parties consented to proceed before MJ; counseled
ANALYSIS: I don't know much about this area, namely the issues that arise out of a parole hearing and which of those issues can be raised on habeas.
This is a really long and pretty remarkable opinion covering a lot of the different issues that pop up as a result of a denial of parole. In the end, MJ strongly criticizes the parole board for acting arbitrarily and irrationally for failing to grant parole to petitioner, but concludes that he simply does not have the power to correct the wrong. It's a fascinating analysis that I highly recommend checking out.
MJ grants a COA on the following five issues:
(1) whether Correction Law section 213 applies to petitioner's case; (2) did Correction Law section 213 create a liberty interest in parole; (3) whether, as some district courts and Circuit courts have held, inmates have a due process right not to be denied parole for arbitrary or impermissible reasons, and to be protected from flagrant and unauthorized action by the Parole Board; and if so, (4) was petitioner denied parole for arbitrary or impermissible reasons; and (5) is the available process in New York for reviewing parole denials ineffective to protect the rights of the habeas applicant and therefore futile for purposes of exhaustion
I am going to come back to all of this in a separate post someday. It deserves a detailed discussion.
Remaining cases below the fold . . .
- Habeas Dismissed Based on Failure to Prosecute under Rule 41(b)
- Notes: Adopting R&R (available at 2010 WL 3489574)
3. Swail v. Hunt, 06-CV-6242, 2010 WL 3965696 (WDNY Oct. 12, 2010) (VEB)
- Habeas Denied
- Issues: (1) the evidence supporting the conviction for burglary was legally insufficient and violated his right to due process (Grounds One and Three of the Petition); (2) the trial court erroneously responded to the jury's question regarding “intent” as an element of burglary; (3) he may have been convicted of “unindicted crimes” as a result of an erroneous jury instruction; and (4) his trial counsel provided ineffective assistance.
- Notes: To be published; parties consented to proceed before MJ
4. Spikes v. Graham, 07-CV-1129, 2010 WL 3999474 (NDNY Oct. 12, 2010) (DNH) (GHL)
- Habeas Denied
- Issues:(1) involuntary plea; (2) IAC; (3) excessive sentence
- Notes: Adopting R&R (available at 2010 WL 4005044)