Now is a good time for a Weekly Review.
A lot of stuff above the fold. First, there was the recent habeas grant in Graham.
The other two above the fold cases focus on a question from a recent Weekly Review: how to handle a mixed petition. Once again, maybe I wasn't paying close enough attention, but the DJ's seem to be a little confused on this one. One of the cases this week gets it almost right, so it's encouraging. But there are still lingering issues.
Let's get to the cases:
1. Graham v. Portuondo, 01-CV-6911, 2010 WL 3210691 (EDNY Aug. 12, 2010) (JBW)
- Habeas Granted
- Issues: IAC based on counsel's failure to adequately investigate petitioner's mental health issues prior to trial
- Notes: To be published; counseled
2. Ortiz v. Artuz, 06-CV-644, 2010 WL 3238994 (SDNY Aug. 11, 2010) (DAB) (JCF)
- Habeas Denied
- Issues:(1) IAAC; (2) insufficient evidence
- Notes: Adopting R&R (available at 2008 WL 2369218)
ANALYSIS: Another improper analysis on an unexhausted claim. The exact same improper analysis that popped up a couple of weeks ago. Maybe this is happening more often than I realize, but I am not catching it.
This one is just a tad more confusing. The IAAC was based, in part, on counsel's failure to raise an IAC claim on appeal. DJ points out that the underlying IAC claim was based on facts outside the record and should be presented in a 440.10 motion. In my mind, that means that the IAAC claim has no merit since I don't think it is clearly established law that an appellate attorney can be ineffective for failing to bring a claim in a collateral proceeding.
But the DJ doesn't go that route. Instead, the DJ says that the underlying IAC claim is unexhausted so the IAC claim must be dismissed with prejudice. That's just a weird analysis. Essentially, the DJ converted the IAAC claim into an IAC claim and dismissed it because the IAC claim was unexhausted. But the whole point is that it was unexhausted precisely because appellate counsel didn't raise it. So that's just illogical.
Setting that aside, a DJ should not dismiss a claim with prejudice solely on the ground that it is unexhausted. As I stated last time, there are three options when a claim is unexhausted:
- Dismiss the entire petition without prejudice to allow for exhaustion. Actually, this is the default position. A mixed petition is supposed to be dismissed.
- Dismiss the entire petition with prejudice where the court concludes that the unexhausted claim has no merit.
- The final option is the "stay and abeyance." A court can stay the petition and allow petitioner to go back to state court to exhaust the unexhausted claim.
As the prior DJ did, this DJ considered number 3, but said no. That's fine. But the DJ then just dismisses the claim with prejudice solely based on the fact that it was unexhausted without considering the merits. That is simply not an available option. As shown above, it's either a dismissal without prejudice or a dismissal with prejudice on the merits.
Once again, I am not advocating a COA. I don't think the actual IAAC claim is a good one. But once again, I think it's a good idea that the Second Circuit provide some clarification here.
3. Owens v. Conway, 2010 WL 3290980, S.D.N.Y., August 11, 2010 (NO. 10 CIV 3183 NRB)
- Habeas Denied
- Issues: (1) excessive sentence; (2) involuntary guilty plea; (3) IAC
ANALYSIS: On the other hand, the same DJ who I criticized on the exhaustion analysis last time, gets it right here. Well, almost right. That's just weird. Here's what the DJ says:
We close by explaining why we deny the petition outright rather than staying the petition and holding it in abeyance-a procedure provided by the Supreme Court in Rhines v. Weber, 544 U.S. 269 (2005). Although generally, unexhausted, non-procedurally defaulted claims should be dismissed, see Rose v. Lundy, 455 U.S. 509, 510 (1982), the Court in Rhines recognized an exception where, as here, dismissal of such a claim (or claims) in the context of a mixed petition would effectively bar the future claim(s) because the one-year statute of limitations on federal petitions will have expired by the time the petitioner has exhausted any unexhausted claims and returned to federal court, Rhines, 277-78. In such cases, a federal court may stay the pending petition and hold it in abeyance to provide the petitioner with the opportunity to exhaust his claim-but only so long as (1) there was “good cause for the petitioner's failure to exhaust his claims first in state court” and (2) the claims are not “plainly meritless.” Id. at 277. Here, we decline to stay the petition because we find both that there was not good cause for the failure to exhaust and because the unexhausted claims are meritless.
I say mostly right because there are two things the DJ should have made clear. First, the DJ should have clarified that, in general, a dismissal of a mixed petition should be "without prejudice". Second, the DJ should have said that, because the unexhausted claims are meritless, she can not only deny the stay, but she can also dismiss those claims on the merits with prejudice despite the lack of exhaustion (as now allowed by the AEDPA).
In any event, it's a step forward. I should note that this same DJ used this almost correct analysis in another case this week (Carter v. McCoy).
Remaining cases below the fold . . .