I know, the title is too long. But it's been awhile since I checked in on the district courts. And this seems to be the peak season for habeas cases in the district courts. At least one of the two or three peak seasons (the summer time also seems like a busy time for habeas).
Rather than break this up into four posts, I'll just put them all here. Gives me an excuse to keep it short on each case. There was a habeas grant in a case where the MJ had recommended that habeas be denied. That is exceedingly rare. In a less rare 180, there were two habeas denials in cases where the MJ had recommended a habeas grant. In one of them, a COA was denied (which disappointed me greatly) and in the other a COA was granted. And there was a COA in an additional case. That one is a pretty remarkable one. Just to note, the latter three cases all involve the MJ who has granted habeas relief four times this year. Could have been five and six . . .
Let's get to the action:
1. Habeas Grant
Corby v. Artus, 06-CV-15291, 2011 WL 1118691 (SDNY Mar. 24, 2011) (LTS) (KNF)
- Habeas Granted
- Issue: Improper curtailment on cross-examination of sole inculpatory witness against petitioner
- Notes: Counseled; Rejecting R&R
ANALYSIS: As mentioned above, this is a rare habeas grant where the MJ recommended that the petition be denied. The DJ seems to focus on two factors that led it to reject the recommendation. First, there was petitioner's strong and clarifying objection to the MJ's conclusion:
Contrary to the Magistrate Judge's Report and Recommendation, the trial court's preclusion of petitioner's cross-examination of the sole witness to inculpate him regarding her belatedly developed hostility toward him that, after two years of silence for the first time gave her motive to falsely accuse him in particular and deflect blame from herself to petitioner for the crimes, violated petitioner's due process rights to confront the witness against him.
Second, after the MJ issued his R&R, the Second Circuit decided Brinson v. Walker 547 F.3d 387 (2d Cir. 2008), which was highly favorable to petitioner's position. I guess this means that the R&R has been pending for a long time.
On the merits, the DJ concluded that:
although the record was sufficient to enable to the jury to perceive several potential grounds for bias on the part of Burnett (the sole inculpatory witness), the exclusion of evidence regarding the alleged accusation (that Burnett was actually involved in the crime) eliminated a specific, prototypical ground for bias from the jury's consideration. This retaliation-based bias, and/or bias stemming from a desire to shift blame specifically to her alleged accuser, is distinct from other grounds suggested by the trial record, such as fear-based bias stemming from threats the defendant made against the life of Burnett's son, and greed-based bias rooted in the expectation that, if Corby were sent to jail, Burnett could keep the money she had stolen from him.
The DJ further concluded that the error was not harmless.
Just to note, this case also was unusual in that, while in the state courts, petitioner received a dissenting opinion in his favor in both the Appellate Division and the Court of Appeals.
2. Habeas Denial - Rejecting R&R Recommending Habeas Grant
Wallace v. Artus, 06–CV–464, 2011 WL 1302228 (NDNY Mar. 31, 2011) (FJS) (VEB)
- Habeas Denied
- Issues: IAAC based on counsel's failure to raise an IAC claim based on trial counsel's failure to make a for-cause challenge to an allegedly biased juror
- Notes: Counseled; Rejecting R&R; COA denied
ANALYSIS: Not too much to say. The issue itself pretty much says it all about the claim. I am just pointing it out since this seems like the quintessential situation where a COA should be granted: reasonable jurists disagreed about the outcome. Even if the DJ believed that the MJ got it way wrong, it would have, at the very least, been more respectful to grant a COA, unless the DJ believes that the MJ is not a reasonable jurist. Let's see what the Second Circuit does with a COA application.
3. COA Granted - Rejecting R&R Recommending Habeas Grant
Wright v. Duncan, 02–cv–508, 2011 WL 1239773 (NDNY Mar. 28, 2011) (GLS) (VEB)
- Habeas Denied; COA Granted
- Issues: Due process/right to present a defense violation based on the exclusion of exculpatory evidence on hearsay grounds
- Notes: Rejecting R&R
ANALYSIS: Once again, not much to say on the merits. Just pointing out that, in contrast to the DJ in the prior case, this DJ granted a COA, even though he had strong disagreements with the MJ. It really is the appropriate thing to do under these circumstances.
4. COA Granted - The Remarkable One
Seda v. Conway, 07–CV–6609, 2011 WL 1344240 (NDNY Apr. 8, 2011) (VEB)
- COA Granted on Reconsideration
- Issues: whether the NY persistent felony offender statute violates Apprendi
- Notes: counseled
ANALYSIS: As I have stated a couple of times already, this COA grant is remarkable. As everyone knows by now, the Second Circuit concluded in the en banc decision in Portalatin v. Graham that the state court decisions upholding the constitutionality of the persistent felony offender statute were not unreasonable under the AEDPA. The Supreme Court denied cert. That would seem to be the end of the story, right?
Well, there still is the pending cert. petition in People v. Battles in which the Chief Judge of the New York State Court of Appeals wrote a "blistering dissent." The dissent could have an effect on the Supreme Court's decision to review the case. And, if the Court reviews the case and finds the statute unconstitutional, the Second Circuit could choose to revisit Portalatin. Although the MJ does not put it this way, a decision from the Supreme Court in Battles could easily not state a new rule, but simply be a straightforward application of clearly established precedent. In that situation, Battles would apply on collateral review. Consequently, the MJ concludes, "In light of Judge Lippman's dissent in Battles and the pending petition for a writ of certiorari in that case, I conclude that Seda has met the "substantial showing" requirement with regard to his claim that his sentence under New York's persistent felony offender statute was unconstitutional."
So it appears that maybe the fight over this statute is not quite over on habeas review.