In the past couple of District Court Reviews, I had been lamenting the fact that district court judges have been overly stingy with the COA's this year.
Well, a district court judge finally granted one last month. It was in a case called Marte v. Berkman on a double jeopardy claim. It has an interesting procedural posture, as petitioner was seeking a stay in the state court criminal proceedings based on the double jeopardy claim. Since there was no criminal judgment, the DJ considered the petition as brought under 2241. There appears to be authority for doing that. What's interesting about that is that it is not clear what the standard of review would be in such a situation. Additionally, a federal petitioner does not typically need a COA to appeal the denial of a 2241 to the Second Circuit. It's an open question in the Second Circuit as to whether a state petitioner in a 2241 petition needs to get a COA. So those are interesting issues.
Without getting too much into the specifics of the underlying double jeopardy claim, the question was whether the trial court's declaration of a mistrial was a manifest necessity at the time the court ended the jury's deliberations and excused the jury. The state judges -- both in the Appellate Division and in the Court of Appeals -- were all over the place on whether or not there was a manifest necessity.
The DJ denies the petition, but granted a COA. Here's what the DJ said in granting the COA:
The petition[er]'s path through the state court system alone demonstrates that reasonable jurists could disagree with this Court's rejection of the double jeopardy argument; in fact, an Associate Justice of the New York Supreme Court, Appellate Division, an Associate Judge of the New York Court of Appeals, and the Chief Judge of the New York Court of Appeals already have. Additionally, the seemingly open question regarding the appropriate standard of review and the necessity of a certificate of appealability weigh in favor of appellate review.
Here are the details:
- Habeas Denied; COA granted
- Lower Ct. Info: 11-CV-6082, 2011 WL 4946708 (SDNY Oct. 18, 2011) (JFK)
- Issues: (1) double jeopary violation - whether the trial court's declaration of a mistrial was a manifest necessity at the time the court ended the jury's deliberations and excused the jury; (2) standard of review on a 2241 petition; (3) is a COA necessary when appealing a 2241 denial