Habeas Corpus Blog

Habeas Corpus - Second Circuit Preview - Week of October 24, 2011

One habeas case this week.  It's a submission.

Wednesday, October 26

Burchard v. Cuomo, 10-1045-pr 

• Status: To be submitted on 10/26/11
• Panel: Walker, Katzmann, Wesley
• Lower Ct. Info: 07-CV-0124, 2010 WL 681258 (WDNY Feb. 24, 2010) (MAT)
• In Circuit: Circuit Ct. COA
• Issue: IAC based on his trial counsel's alleged conflict of interest

Habeas Corpus - Good Lawyers, Bad Judges - Updated

Seen some stuff recently about lawyers who have done work on habeas cases.  I have also seen a post about a judge who hasn't really done any work on habeas cases.

On the lawyer side, a few weeks ago, the St. Louis Beacon had a profile of an attorney who has worked on habeas matters: "Lawyer Sean O'Brien champions the wrongly convicted."  The article says that Mr. O'Brien is a "criminal defense lawyer with a national reputation, O'Brien could have no shortage of clients. For more than 20 years, he has worked to get innocent people out of prison. And he has successfully argued to reduce the sentences of some on death row."  One recent victory was in the case of Dale Helmig.  According to the article:

Helmig had been convicted in 1996 of murdering his mother, Norma Dean Helmig. Beginning in 1998, after he agreed to take Helmig's case, O'Brien argued post-conviction appeals and habeas corpus claims in state and federal courts in Hermann, Jefferson City, Kansas City, Maysville and St. Louis. Finally a judge ruled last year that Helmig was innocent, had not received a fair trial and should be set free.

Yesterday, I read about the passing of a Philadelphia lawyer, Maureen Rowley, who was a long-time public defender and created the capital habeas unit at the federal defenders' office in Philadelphia.  The obituary in the Philadelphia Inquirer/Daily News was called: Maureen Rowley, 57, defender of justice.  It's a really nice article.  UPDATE: Another article about her can be found here.

On the judge side, I have written about Judge Percy Anderson before (he is the judge who has sat for years on R&R's that recommend a grant of habeas), but his name came up again in a post at a website called allgov.com entitled, "Most Unpopular Judges in the United States."  Apparently, he has received the most negative ratings on the site The Robing Room, where attorneys can post anonymous complaints about judges.  Personally, I try to stay away from that site.  There's something about it that just doesn't feel right to me.

Habeas Corpus - Quick Items

Just a few quick items today.

First, I read a really interesting discussion from earlier this week over at Prawfsblag called "Bifurcating Habeas" about how "habeas corpus" has become splintered, at least for teaching purposes, into two separate areas: (i) review of executive detention, which would be taught in constitutional law or federalism-type courses; and (ii) review of criminal convictions, which would be taught in criminal procedure type courses.  Obviously, that split is seen in full effect on this blog, as I have only written a single post about executive detention (I believe it was during the first week of the blog).  That's because the day to day experience of review of executive detention is not relevant to 2254.  In fact, this blog slices up habeas even more by excluding 2255 -- federal review of federal criminal judgments.  As I have stated before, in most ways, 2255 is not really even "habeas corpus" review and much of it is not relevant to 2254 cases.  In any event, it's an interesting discussion and that refers to the comments as well.

Second, as a result of the Supreme Court denying cert. to a habeas petitioner who lost his petition before the Ninth Circuit, Idaho has set a date for the first execution to be carried out in that State since 1994.

Finally, on Tuesday, the New York Court of Appeals affirmed the conviction of Christopher Porco, who was convicted of killing his father and dismembering his mother with an ax.  At the time of his murder, his father was the law clerk for the presiding justice of the Third Department.  Porco had argued that there was a Crawford violation when the prosecution was allowed to submit evidence that his mother nodded affirmatively to an officer when asked at "her bedside" whether her son was responsible.  The court concluded that, even if there was a constitutional violation, the error was harmless.  Mr. Porco's attorney has stated that, if the Supreme Court denies cert., he will be filing a habeas corpus petition in federal court.  So I guess I could be writing more about this case someday.  A news report about the case is available here.

Habeas Corpus - Maxwell Relist - Updated

While I usually put up a relist post that reviews the SCOTUSblog post on the matter, I decided to be slightly more proactive this week.  But it's left me a little confused.

For the last conference on October 14, there were five relisted habeas cases: Cavazos, Maxwell, Dixon, Cross, and Buck.  The Court took no action on any of them, except for ordering the record in Maxwell.  But none of them were relisted for another conference.  That can still happen and I am guessing it probably will for all five.  The next conference is not until next Friday.  But as it stands they are all just in a holding pattern.

In the meantime, I read this really interesting article about the Maxwell case called "The Case You Go to Law School For."  That's a reference to a quote from Maxwell's attorney Verna Wefald.  Actually, in the full quote, the lawyer was trying to be funny, not simply poignant.  She said that, when she first started working on the case back in the late '80's, "I was young and thought this was the kind of case you went to law school for. About 10 years into it, I wished I had never gone."

Maxwell is a relatively well-known petitioner.  He was convicted of committing the "Skid Row" murders that occurred in Los Angeles in the 70's.  However, as the article states, the problem is that "in all likelihood, he’s innocent."  The main evidence against him was a jailhouse confession, which is a notoriously unreliable type of evidence.  The other evidence presented was really weak - a palm print on a public bench and some muddy footprints.  Maxwell was acquitted of several of the murders and only eventually convicted of three of the ten of which he was charged.  He was sentenced to life imprisonment.

Turns out that the prosecution failed to turn over that the jailhouse informant was given a deal for his testimony against Maxwell.  Pretty big deal, no?  Well, Maxwell had trouble obtaining relief on this significant Brady violation until he reached the Ninth Circuit.  The Ninth Circuit granted habeas, holding that (1) state court’s finding that jailhouse informant testified truthfully at petitioner’s trial was unreasonable determination of facts in light of evidence presented;  (2) perjury by informant deprived petitioner of his right to trial by jury; (3) details of informant’s deal were material for Brady purposes; (4) information regarding informant’s prior informant activities were material for Brady purposes; and (5) state court’s determination that prosecution’s failure to disclose impeachment evidence did not undermine confidence in petitioner’s trial was unreasonable application of Brady. 

Without seeing it, I am guessing that the state court decision here would rank pretty high on the "uncommon sense" meter.

And this obvious Brady violation does not just appear in a vacuum.  As alluded to above, there are significant reasons to believe that petitioner is innocent. To some academics, innocence is all that should matter.  So this really should be viewed as a case where the federal courts were getting it right.

But, of course, innocence is not what's important to the Court.  It's the AEDPA.  Here are the issues before the Court (from the SCOTUSblog page for Maxwell):

(1) Whether, under 28 U.S.C. § 2254, a federal court may grant habeas relief on a claim that the state-court conviction rested on perjured testimony absent proof that the prosecution knew that the challenged testimony was false and when the state post-conviction court deemed the testimony truthful; (2) whether, under 28 U.S.C. § 2254, a federal court may grant habeas corpus relief on a claim alleging suppression of exculpatory evidence when that evidence was unknown to law enforcement officials working on the case and without considering whether the state court might have rejected this claim.

Now that the Court has ordered the lower court record, we are looking at one of two probable outcomes: either a summary reversal or a dissent from a cert. denial.  Let's hope it's the latter.

It's always interesting for me to get a look behind the papers once awhile and learn more about some of these cases.  I felt the same way when Skinner was before the Court last term.  And Connick v. Thompson.  I know it can't be done for every case.  But I appreciate it when I do get the chance to get a bigger picture.

UPDATE: Actually, I neglected to mention Maples as one of those cases where we have learned more about the background of the case.  Of course, that was the case that inspired the "uncommon sense" meter, so I am disappointed in myself for leaving it out.

Habeas Corpus - District Court Review - Habeas Grant and COA!

I feel like there have been more habeas grants than COA's this calendar year in the district courts.  I guess I probably should have kept better track.  Nonetheless, assuming that feeling is correct, it just surprises me.  There should be more COA's than grants.  Kind of obvious, right?  A COA is a lower standard than a habeas grant.  But the DJ's have been pretty stingy this year with the COA's.

Setting that aside for a moment, for the second time this year, a DJ granted habeas and a COA in the same case!  That's pretty remarkable.  I guess it won't do anything to close the gap between COA's and grants this past year.  Still pretty exciting though.

The name of the case is Cardoza v. Rock and the issue is IAC on the habeas grant and IAC/conflict of interest on the COA.  More specifically, the court concluded that counsel was ineffective for failing to convey a plea offer to petitioner, who had been charged with participating in a drug conspiracy.  Petitioner was found guilty after a trial and was sentenced to a longer sentence than the one that was available in the plea offer.  The DJ ordered that the state court impose the sentence offered in the plea (since petitioner has sworn that he would have taken it had he known about it).  As for the conflict of interest issue, petitioner argued that his counsel had a conflict for two reasons: (1) he represented two co-conspirators; and (2) the attorney himself may have been involved in the drug conspiracy.  Crazy stuff.

One thing to note: as I discussed in my Supreme Court preview, the Court is going to hear two cases that raise these IAC issues - Lafler v. Cooper and Missouri v. Frye (to be argued on 10/31).  The Court could potentially conclude that this is not even a viable IAC claim or that the relief that the DJ ordered here is not an appropriate remedy.  So those cases could have a huge impact here.  Maybe I should have ranked those cases higher on the list of most interesting cases this term (they came in as number 4).

In any event, here are the details:

Cardoza v. Rock

• Habeas Granted; COA Granted
• 08-CV-8210, 2011 WL 4472030 (SDNY Sept. 27, 2011) (PAC) (RLE)
• Issues: Habeas Grant: IAC based on counsel's failure to advise petitioner of plea offer; COA: IAC/conflict of interest based on allegations that attorney had participated in same drug conspiracy and had represented two co-conspirators
• Notes: Adopting R&R (available at 2010 WL 7597717)

Habeas Corpus - Summary Order from Friday

The Second Circuit issued a summary order on Friday in Munoz v. Burge.  It's a relatively short summary order that goes directly to the merits of the IAAC issue.  It's pretty fact-intensive, so there's not much to say about it.

But I will point out this: the Second Circuit says, without citation, "we consider the law as it existed at the time of the appeal for the purpose of Munoz’s ineffective assistance claim." In Munoz, the issue was whether appellate counsel should have raised a particular claim, even though it wasn't fully preserved.  Apparently, at the time of the appeal, the relevant Appellate Division had concluded that preservation was necessary (even though it wasn't necessary in the original Court of Appeals decision establishing the particular legal claim).  After the appeal, the Court of Appeals held (again, in my mind) that preservation was not necessary.  In the Second Circuit's mind, the state of the law at the time of the appeal was that preservation was necessary, so no IAAC.*

*As an aside, I am not saying I necessarily agree or disagree with that logic.  I am just accepting it on its face for the purpose of this post.

If only that concept was applied consistently.  In a post I am currently drafting about depraved indifference cases (obviously no link yet), one argument that the federal courts rejected in order to overcome a procedural default was a "futility" claim.  It goes something like this: based on the law at the time, defense counsel had no ground to raise an insufficiency argument, so the failure to raise it was justified.  To the federal courts, that was not good enough. 

But that is absolutely no different than what the Second Circuit just stated in Munoz.  Once again, here's the quote from Munoz; I'll just exchange "trial" for "appeal" and "futility" for "IAC": "we consider the law as it existed at the time of the [trial] for the purpose of Munoz’s [futility] claim."  See?  Consistency is a lot of fun and it sounds great here.  But as is often the case in habeasland, consistency does not matter.

In any event, here are the details:

Munoz v. Burge, 10-3834-pr 

• Argued 9/20/11; Decided 10/14/11; Summary Order
• Panel: Pooler, Parker, Chin
• Lower Ct. Info: 02-CV-6198, 2010 WL 3394696 (EDNY Aug. 20, 2010) (NGG) (LB)
• In Circuit: Dist. Ct. COA
• Issues: IAAC based on counsel's failure to raise claims that the trial court impermissibly delegated judicial responsibility and did not disclose jury notes to the defense.

Habeas Corpus - Second Circuit Preview - Week of October 17, 2011

Two habeas cases this week.  One argued.  One submitted.  Both on the same day.  But two different panels.

Tuesday, April 18

Blackman v. Ercole, 10-205-pr 

• Status: Calendared for 10/18/11, A Panel [to be submitted]
• Panel: Miner, Cabranes, Livingston
• Lower Ct. Info: 06-cv-855, 2009 WL 4891767 (EDNY Dec. 17, 2009) (SLT)
• In Circuit: Dist. Ct. COA
• Issues: Improper comments on petitioner's post-arrest silence

Vega v. Walsh, 10-2540-pr 

• Status: Calendared for 10/18/11, B Panel
• Panel: Kearse, Leval, Chin
• Lower Ct. Info: 06-CV-6492, 2010 WL 2265043, E.D.N.Y., May 28, 2010 (ARR) (JO)
• In Circuit: District Court COA
• Issues: (1) confrontation clause violation based on petitioner's inability to cross-examine medical examiner whose autopsy report was admitted into evidence; (2) due process violation based upon the admission into evidence of petitioner's prior drug activity

 

Habeas Corpus - SDNY Confirmations

Yesterday, the Senate confirmed two SDNY nominees: Alison Nathan and Katherine Forrest.  The former was actually a close vote of 48-44.  Republicans on the committee had raised questions about the nominees lack of relevant experience and her position on hot button issues.  The latter sailed through on a voice vote.

I missed that, back on October 6, the Judiciary Committee sent to the full Senate Margo Brodie's nomination for a seat in the EDNY.

Senator Schumer also recommended State Acting Supreme Court Justice Juan Merchan to fill the remaining vacancy in EDNY.  If nominated and confirmed, Justice Merchan would be the first Colombian-born federal judge.

Here's the updated chart:

SDNY (6 openings; 4 pending nominees)

• Edgardo Ramos (5/4/11) - Sent to Full Senate
• MJ Andrew L. Carter (5/19/11) - Sent to Full Senate
• Jesse M. Furman (6/8/11) - Sent to Full Senate
• Ronnie Abrams (7/29/11) - Confirmation Hearing Held

EDNY (2 openings; 1 pending nominee; 1 recommendee)

• Margo Brodie (6/8/11) - Sent to Full Senate
• Justice Juan Merchan (10/13/11 recommended by Schumer)

WDNY (1 opening; 1 pending nominee)

• Mike Green (1/27/11)

NDNY (0 openings)

• No pending nominations

Habeas Corpus - Relists and Denials

SCOTUSblog has its new relist post up.  Many of the cases from the prior relist post were relisted again.  These were: Cavazos, Maxwell (for which the Court ordered the lower court record), Dixon, Cross, and Buck.

But not all cases were relisted again.  The petitions in Rocha and Adams, the cases that concerned questions about the independent and adequate state law ground, were denied. 

The Court also denied cert in Doody.  That's pretty significant.  Doody is a habeas grant out of the Ninth Circuit.  The Supreme Court previously had GVR'd that case after a prior Ninth Circuit grant.  On remand, the Ninth Circuit reaffirmed the habeas grant.  I guess the Court decided to give up on that one.

There were also two petitions that SCOTUSblog was watching for that conference: Harrison and Abu-Jamal.  According to SCOTUSblog, the Court appears to be holding Harrison in light of the cert grant in Blueford.

And the Court denied cert in Abu-Jamal.  That's also significant for two reasons.  First, it's a habeas grant out of the Third Circuit.  And, similar to Doody, a prior habeas grant in that case had been GVR'd.  Second, it's a well-known petitioner, Mumia Abu-Jamal.  So Mumia will get a new sentencing hearing.  There was a bunch of media coverage of the denial, for example here and here, with CNN speculating that a new death sentence was unlikely.

There will be a conference tomorrow (Oct. 14) at which the Court will consider the relisted cases.  I'll try and post something soon after the order list gets issued.

Habeas Corpus - Summary Order

The Second Circuit issued a summary order today in Conner v. Poole.  Pretty straightforward order as the court goes right to the merits of the claim, a due process claim based on a suggestive identification.  It's fact-intensive and the court concludes that, even if there was a suggestive identification procedure, there was an independent basis for the identification.

The details:

Conner v. Poole, 10-1369-pr, 10-2060-pr, 11-1865-pr 

• Affirming Denial of Habeas
• Argued: 10/3/11; Decided 10/12/11; Summary Order
• Panel: Sack, Raggi, Eaton, USCIT
• Lower Ct. Info: 07-CV-6230, 2010 WL 1404671 (WDNY Mar. 30, 2010) (MAT)
• In Circuit: Circuit Ct. COA
• Issues: whether petitioner was deprived of due process when an eyewitness was allowed to identify petitioner in court despite a pre-trial suggestive identification procedure