Habeas Corpus Blog

Habeas Corpus - Second Circuit Orders - Preview

First, I'd like to note that there were two COA grants from the Second Circuit in July.  Unfortunately, I have them saved on a different computer, so I can't write about them right now.

But I learned today from a reader about a COA grant from the Second Circuit in August.  So look at this as a preview of the future August 2011 Second Circuit Orders post.

The COA grant was in a case already pending before the Second Circuit as a result of a habeas grant and a COA grant from the district court.  So this is actually an order granting a request to expand the COA.  Safe to say, there is a lot going on in the case.

The case is Jackson v. Conway, 11-922-pr (L).  I have previously written about the case here.  If you look at the case on the Pending Second Circuit Cases page, you will see that the list of issues is now quite long.  I actually was missing one issue from the district court COA.  That's now been added.

Here are the new issues that have been added as a result of the Second Circuit's COA grant:

whether defense counsel had been ineffective due to (1) his incorrect assumption that the prosecution had to prove that penetration occurred in order to sustain a first-degree sodomy conviction, and (2) his failure to investigate or introduce a “plethora of exculpatory evidence” at trial

Habeas Corpus - District Court Review - Another COA!

In one of the district court reviews from yesterday (there were two of them), I mentioned the habeas grant in Johnson based on insufficient evidence to establish depraved indifference.  What I found important about Johnson was the DJ's analysis on the miscarriage of justice issue.

Today, I learned from a reader that another COA has been granted on this very issue.  The case is called Sanchez v. Lee.  It is such a recent COA that it has not made its way onto Westlaw yet.  I'll update the information when it becomes available.

So now we have three cases before the Second Circuit (Garbutt, Johnson, and Sanchez) with the miscarriage of justice issue.  That's going to be a big decision.

For now, here's the details:

Sanchez v. Lee, 10 Civ. 7719 (SDNY Aug. 8, 2011) (PKC) (AJP)

• Habeas Denied; COA granted
• Issues: whether whether petitioner had shown a miscarriage of justice in order to overcome a procedural default
• Notes: Adopting R&R (avaiable at 2011 WL 924859)

Habeas Corpus - Habeas Delay

A couple of months ago, I had read about a really interesting sounding academic article focusing on the "widespread and growing problem of delay in the resolution of habeas petitions in the federal courts."  The article itself is called, "The Hidden Costs of Habeas Delay" and it was written by Marc Falkoff, a professor at Northern Illinois University College of Law.  The author has informed me that a revised version of the article will be coming out in the University of Colorado Law Review later this year. 

I can say, from my office's experience, that we have definitely seen long delays in a good number of our habeas cases.  So this is a real issue in my mind.  The article should definitely be worth checking out.

Here's the full abstract:

Because habeas petitioners seek a court order for liberty rather than compensation, judges have a duty to decide habeas petitions promptly. Increasingly, however, the federal courts have failed to keep current with their heavy habeas dockets, with the result that many petitions – some proportion of which are meritorious – remain undecided for years. First, this Article makes the normative and historical argument that speed must be, and always has been, central to the function of habeas. Second, it analyzes newly compiled Administrative Office data on more than 200,000 habeas petitions and demonstrates empirically for the first time that there is a widespread and growing problem of delay in the resolution of habeas petitions in the federal courts. Third, the Article offers a specific and concrete remedy for the habeas delay problem, recommending that the Judicial Conference require judges to identify publicly all habeas petitions that have been pending in their chambers for more than six months, just as the Civil Justice Reform Act requires them to do for all other civil motions.

Habeas Corpus - District Court Review - COA's Granted!

During the week of July 25, 2011, there were two COA's issued in the district courts.*  I am only going to mention the details below without analysis.  It's more about the D/D associated with one of the cases that I am going to refrain from any analysis here.  I am just going to list them here and then add them to the Pending Second Circuit Cases page.

*Of course, other COA's may have been issued that week (or in prior weeks/months) in unpublished orders.  As I have complained about before, those represent a gap in my knowledge about what's pending before the Second Circuit.

Pagan v. Brown, 07-CV-0453, 2011 WL 3235769 (EDNY July 28, 2011) (JS) (WDW)

• Habeas Denied; COA Granted
• Issues: whether the trial court impermissibly allowed a police officer to testify about petitioner's silence in response to police questioning (known as a Doyle violation)
  
• Notes: Adopting R&R (available at 2011 WL 3235840)

Mason v. Duncan, 02-CV-5729, 2011 WL 3251535 (SDNY July 27, 2011) (KMW)

• COA Granted
• Issues: whether petitioner's sentence as a persistent felony offender is unconstitutional
• Notes: D/D - I represent petitioner in this case

 

Habeas Corpus - District Court Review - Habeas Granted!

In the comments to my post about the Second Circuit's habeas grant in Rivera, reader DB pointed out that there had been another recent habeas grant on a depraved indifference claim in a case called Johnson v. Bellnier. I have now read it and its a really important decision.

But first, let me note that, even though I tried to keep up to date with recent habeas developments over the summer, I had not heard about the decision.  Actually, I had not yet looked through the decisions from the week in which it was issued, and that week turned out to be a pretty busy one in the district courts - a habeas grants and two COA's.  There had not been a COA in the district courts in months.  I'll put those up in a separate post.

Here, I am going to quickly talk about Johnson.  First, the details:

Johnson v. Bellnier, 09-CV-381, 2011 WL 3235708 (EDNY July 27, 2011) (KAM) (RER)

• Habeas Granted in Part
• Issues: (1) whether petitioner had shown a miscarriage of justice in order to overcome a procedural default; (2) legal insufficiency on depraved indifference
• Notes: Adopting R&R in part (available at 2010 WL 7100915)

ANALYSIS: DJ grants habeas relief concluding that the evidence was legally insufficient to establish depraved indifference murder.

But that's not what makes this an important decision.  It is the procedural default ruling that really matters.  Both the MJ in his R&R and the DJ here conclude that petitioner can overcome the procedural default (i.e. failure to raise the claim at trial) because a fundamental miscarriage of justice would result if his case is not reached on the merits.  We have seen that result before (in Petronio and Fernandez v. Smith).  This issue is now currently before the Second Circuit in a case called Garbutt v. Conway (see Pending Second Circuit Cases page).  But the DJ ruled against the petitioner on this issue in Garbutt.  So now we have another DJ going in the other direction.  That's really helpful.

Hopefully, this case will be heard with Garbutt (assuming the State appeals).  At the very least, this decision is now out there and could have an influence on the court.

 

Habeas Corpus - HUGE Habeas Grant from Second Circuit [Updated]

Been extremely busy with stuff, so haven't had a chance to post around here.  But the blog is still on.  Hopefully, I will be able to start posting more regularly in the near future.

Today, the Second Circuit published an opinion granting habeas on a depraved indifference/legal insufficiency claim.  So it's not just a habeas win, but a habeas grant!  It's a case that I have had my eye on from the moment I read the district court's decision.  I wrote about that decision here.  I was upset about two things: (1) the DJ got the procedural question all wrong, way wrong; and (2) the DJ did not grant a COA.  But as I had hoped, the Second Circuit did grant a COA.  And now the court has reversed the DJ and granted the petition.  Makes me very happy.

First, here are the details:

Rivera v. Cuomo, 10-224-pr

• Argued: 5/13/11; Decided: August 9, 2011; published opinion by McLaughlin
• Panel: McLaughlin, Pooler, Parker
• Lower Ct. Info: 05-CV-1699, 2009 WL 4929264 (EDNT Dec. 21, 2009) (SLT)
• In Circuit: Circuit Court COA
• Issues: whether, under the law as it existed when Appellant’s conviction became final, the evidence was legally sufficient to support a conviction for depraved indifference murder in violation of New York Penal Law § 125.25(2)

ANALYSIS: I haven't had a chance to make it through all of the opinion.  I actually am not too familiar with the merits of the case.  But all that really needs to be quoted here is the opening paragraph of the opinion:

Petitioner-Appellant John Rivera (“Rivera”) was convicted of one count of depraved indifference murder in violation of New York Penal Law § 125.25(2).     He now appeals from a judgment   entered in the United States District Court for the Eastern District of New York (Townes, J.) denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.  On appeal,Rivera argues that the district court erred in holding that the applicable law of depraved indifference murder was the law in  effect when Rivera was convicted on September 19, 1997.    We agree, and hold that the district court should have applied the law as it existed at the time Rivera’s conviction became final, i.e., once the period in which Rivera’s time to file a writ of certiorari to the United States Supreme Court expired.    Rivera also argues that, in July 2004, the evidence adduced at trial was legally insufficient to support a conviction for depraved indifference murder.   Again, we agree, and hold that, at the time Rivera’s conviction became final in July 2004, no reasonable jury could have found Rivera guilty of depraved indifference murder.  Accordingly, the judgment of the district court is REVERSED and REMANDED with instructions to grant Rivera’s petition for a writ of habeas corpus.

Update: Reader JE just submitted a great comment which I thought should be moved up here so that nobody misses it:

Another big part of the decision is that Hafeez and Gonzalez were found to be substantive changes in the law rather than mere fact-specific applications of Register. Pretty much every district court to consider the issue thus far has ruled the other way. No more.