Habeas Corpus Blog

Habeas Corpus - The Rumors of Habeas's Demise Have Been Greatly Exaggerated (By Me)

By JK

Following up on Alan’s first post from the other day, I do want to make a little bit of noise around here about several good results in habeas cases in the circuit courts over the past six weeks (since around mid-September).

There have been habeas grants out of the:

Second Circuit: Young v. Conway (see Alan's post for details)

Third Circuit: Garrus v. Secretary of Dep't of Corr. - Apprendi violation

Seventh Circuit: Harris v. Thompson - right to present a defense and IAC

Ninth Circuit: Cudjo v. Ayers - violation of right to present a defense; Stankewitz v. Wong - IAC during sentencing phase of death penalty case

There may have been others; these are just those that I have seen.  And I am sure there will be more.  But I have expressed a lot of doom and gloom around here over the past two years (ever since Richter).  So I do think it’s worthwhile to acknowledge when the good things happen.  And if you have time please read the Seventh Circuit’s decision.  It’s looong, but it's pretty great.  It kind of feels like the court was convinced of petitioner's innocence, and this belief ends up being the motivating force behind the analysis. 

And the Third Circuit’s decision is pretty cool, too.  It’s an en banc decision on an Apprendi issue – the scope of the “prior conviction” exception to the Apprendi rule.  Two things of note (at least related to the blog): the majority has a great footnote (#8) that criticizes the dissent for reading the unreasonable application/clearly established law part of the 2254(d) standard in such a narrow way that it basically turns it into the “contrary to” clause.  I have been yelling about court’s doing that since nearly the inception of this blog (that post was written in July 2009; I started the blog in April 2009).  So glad to see a court say it.

At the other end, the dissent points out that the majority did not give enough deference under the standard of review and gives lists of all of the times that the Supreme Court (i) granted cert. on the issue; and (ii) reversed on this ground (both summary reversals and after merits briefing).  These lists are long.  The lack of deference summary reversal was the subject of my most recent article (part of my recent doomistry* and gloomery*).  And it does serve as a reminder that, even with the good stuff, there are still reasons to be concerned about the future of habeas.  

*Not actual words.

Habeas Corpus - Alan's First Post

By Alan Lewis (posted by JK)

Last week, in Young v. Conway, the Second Circuit affirmed the grant of  a writ of habeas corpus by a WDNY Magistrate (Bianchini) based upon a 4^th amendment claim!  Successful 4^thamendment habeas claims are extremely rare because, so long as the petitioner was permitted an opportunity to fully and fairly litigate the claim in state court, the Supreme Court’s Stone v. Powell  holding is that “a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.”

So how did Young win a 4^th amendment claim in spite of Stone?   In short, the State waived theStone argument by failing to make it in District Court.  The Second Circuit could have exercised discretion to nevertheless apply Stone on appeal, but declined to do so.  The Court was seemingly exasperated by the State’s failure below, describing the record as “bereft of any reason as to why it failed” to make the Stone argument in District Court.

Yet, this may be a rare case where, even if the State had argued the Stone bar, the Petitioner might nevertheless have had a chance.  Let me try to explain.

The nature of the 4^th Amendment claim here was that the Petitioner’s conviction was the result of an in-court identification by the victim that should not have been allowed to occur.  It should not have been allowed, as Young argued and the Court agreed, because the pre-trial identification procedures were suppressed and the victim did not have a source, truly independent of the suppressed pre-trial identification procedures, for her ability to make the in-court ID.

Whether an in-court identification truly rests on an independent source must be assessed under a six factor test, first laid out by the Supreme Court in United States v. Wade.  But when Young raised his independent source argument in the New York Court of Appeals, that court failed to apply the test.  Instead, it treated the independent source question as an “issue of fact” subject to highly deferential review, which asked only if there is “support in the record” for the lower court finding.   Because the N.Y. Court of Appeals failed to apply the Wade test mandated by the Supreme Court to assess independent source issues, its decision was “contrary to” clearly established law, and therefore not entitled to habeas deference.

Had the State not waived the Stone argument in District Court, the Petitioner would likely have argued that Stone did not apply.  That is, how could the state court review be deemed a “full and fair” adjudication of the Wade claim, given the state court’s refusal, based on state law, to apply the Wadestandard to the claim?  In pointing out that this case lacked the “typical indicia of reliability that ordinarily weigh against re-litigating a Fourth Amendment claim on collateral review,” the Second Circuit hinted it might have well been sympathetic to such an argument.  But we’ll never know.

In granting the writ, the District Court had also barred a retrial on the ground that, with the victim’s identification of the defendant now precluded, the prosecution did not have other evidence sufficient to obtain a conviction.  The Second Circuit vacated this aspect of the remedy, but only because it concluded that its “grave doubts” about the sufficiency of the remaining evidence should be resolved in the first instance by the state courts.

One final point – this Petitioner isn’t going anywhere, as he is currently serving a term of 25 to life on an unrelated charge. 

 

Habeas Corpus - The Good

I had mentioned that there was both good and bad during my break from blogging.  I already talked about the really, really bad.

Let's shift to the good.  The Second Circuit granted a habeas petition back on December 1 in Cornell v. Kirkpatrick.

The issue actually is pretty simple.  IAC based on counsel's failure to object based on venue grounds.  Petitioner was charged with two rapes.  Only one of the rapes occurred in the county in which he was tried.  The prosecutor acknowledged this in his opening and closing, and, according to the Second Circuit, the evidence established that one of the rapes did indeed occur in a different county.  The prosecutor had proceeded under the "automobile exception" to the venue statute.  But the Court of Appeals had strictly limited that exception to situations where it was literally "impossible" to determine the actual county.  It is pretty clear (or at least clear enough) that this happened in the county that housed Rochester and its environs -- not the county in which the case was prosecuted.

One other note: the court only granted relief on the conviction for the rape that took place in the other county.  The court determined that this error had no spill over effect on the rape case that was prosecuted in the appropriate county.

Honestly, this seems like a pretty easy case to me.  It really is an issue that should have been resolved back in state court.  But when faced with a situation like this -- a winning, purely legal issue, where relief should be granted even though the evidence of guilt in a highly inflammatory case is strong -- state courts are often hesitant to do what's right.  One reason why federal habeas relief remains so vital to the system.  Such a shame that the Supreme Court seems so dead set on rendering it powerless.

I read a nice discussion of the Cornell decision here.

Here are the details:

 Cornell v. Kirkpatrick, 10-561-pr 

• Reversing Denial of Habeas; Habeas Granted on
• Argued: 8/23/11; Decided 12/1/11; Published Opinion by Straub
• Panel: Newman, Cabranes, Straub
• Lower Ct. Info: 06-CV-0734, 2010 WL 161429 (WDNY Jan. 13, 2010) (MAT)
• In Circuit: Circuit Ct. COA
• Issue: (1) whether appellant was prejudiced by counsel's failure to object to venue in Ontario County; (2) whether counsel was ineffective for failing to request that a venue charge be delivered to the jury

 

Habeas Corpus - District Court Review - Habeas Grant!

Another habeas grant in the district courts!  The case is called Cross v. Perez.  There's a lot going on in the case: Can a defendant waive his right to file a habeas petition when he pleads guilty?  Does IAC invalidate such a waiver?  IAC during plea negotiations.  Whether out-of-state convictions can be used as predicate felony convictions in New York.  The defendant knowing more about the law than the trial attorney.

The facts are actually pretty simple: during plea negotiations, the prosecution wanted to use three different New Jersey convictions to enhance petitioner's sentence.  Defense counsel did not put up a fight.  Petitioner stood up and said, wait, none of the New Jersey convictions qualify as predicate felony convictions under New York law.  He handed up to the court case law to support his position.  The prosecutor, defense counsel and the court were willing to accept that two of them did not, but believed that one of them did -- aggravated assault against a police officer.  Petitioner disagreed but let the issue go.  He was offered a plea with a sentence for a second violent felony offender.  As part of the plea, he agreed to waive his right to bring a federal habeas petition.

He brought one anyways.  In his petition, he argued that he received IAC during plea negotiations because the NJ conviction did not qualify as a felony in New York and his attorney's deficient performance rendered involuntary the waiver of his rights.

The DJ agreed.  First, the DJ concluded, in what appears to be a relatively novel conclusion, that a petitioner could waive his rights to bring a federal habeas petition but that IAC could render such a waiver involuntary.  There is a lenghty discussion on this issue in the opinion.  The DJ then found that the NJ conviction did not qualify as a New York felony because it criminalized conduct as a felony that would not be a felony in New York. 

And here's where the case runs into Lafler v. Cooper: the DJ also concluded that petitioner would have been offered and would have accepted a lower offer as a first time violent felony offender.  The DJ orders specific performance of a plea offer that was not actually ever made.  So that's a little controversial.  Let's see if the State appeals.  Despite the opinion being dated October 4th, an amended judgment was entered on October 20, so the time to appeal has not yet run out.

Here are the details:

Cross v. Perez  

• Habeas Granted
• 11-CV-1186, 2011WL 4711466 (EDNY Oct. 4, 2011) (BMC)
• Issues: IAC in plea negotiations based on counsel's failure to challenge use of out-of-state conviction to enhance petitioner's sentence

 

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 - District Court Review - Habeas Grant!

There's been a habeas grant out of EDNY!  The name of the case is Evans v. Fischer and habeas was granted on a due process violation based on the admission of a vast amount of hearsay evidence at the trial.   

The DJ does a great summary right at the beginning of the opinion, so I'll just quote it:

The focus of the petition is the admission at petitioner's trial of an unsworn, highly detailed seven-page hearsay narrative, penned by the state's key trial witness, containing the most damaging evidence and nearly the entirety of the state's case. Admitted for its substance without a limiting instruction, the document was touted by the prosecutor during summation and furnished to the jurors, upon their request, at the outset of deliberations. Petitioner claims that the document's effect, as well as the state's objective in offering it, was essentially to supplant the witness's poor performance on the stand, and to nullify his primary defense, which consisted of a compelling impeachment of that testimony. He argues that he was denied due process because his conviction rests principally on this hearsay rather than the trial testimony.

The state appellate court held that the trial court's decision to admit the hearsay document was error in three distinct ways and not reconcilable with any extant evidentiary theory, but the appellate court nonetheless rejected petitioner's claim that the ensuing unfairness was of constitutional magnitude. Under the unique circumstances and considerations addressed below, however, I conclude that the state appellate court unreasonably applied controlling Supreme Court holdings, which have long embodied the principle that the fundamental fairness guarantee of the Due Process Clause prohibits the state from obtaining a criminal conviction in the manner in which the State secured petitioner's. As this Memorandum explains, the record reveals manifest trial error of enormously prejudicial consequences, indeed a very thwarting of the trial as a trial. Mindful of the strict limits of my jurisdiction under AEDPA, I am compelled to conclude that the state appellate court's rejection of the due process claim on these facts was not merely error but objectively unreasonable, and I accordingly grant the petition.

Really interesting stuff.  Here are the specific details:

Evans v. Fischer

• Habeas Granted
• Lower Ct. Info: 06-CV-5919, 2011 WL 4434058 (EDNY Sept. 22, 2011) (RJD)
• Issues: Due process violation based on the admission of hearsay evidence

It's been added to the Pending Second Circuit Cases page.  I am assuming that the State will appeal (they haven't yet, though).  I'll just remove it if they don't.

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.

Habeas Corpus - District Court Review - Pinholster Must Cut Both Ways

Blood beginning to boil again . . .

In the last District Court Review, I discussed a recent habeas grant in Harrison v. Cunningham.  Unfortunately, upon reconsideration, the DJ has withdrawn the habeas grant.  And I believe that the withdrawal was completely inappropriate.

Here's what happened: in the original decision, the DJ granted habeas on IAC grounds.  The judge relied upon statements that the attorney made about his actions that were a part of the state court record.

In their reconsideration motion, the State argued that the DJ acted prematurely as it is the typical practice in the Second Circuit to hold what's known as a Sparman hearing to give an attorney a chance to explain his actions before holding the attorney ineffective.  The DJ agreed with the State, withdrew the habeas grant, and ordered the trial attorney to submit an affidavit within 10 days of the order, if the attorney so desired. 

That just cannot be right.  As the Second Circuit acknowledged the other day in a summary order, federal courts hands are tied here.  Under the restrictive decision of Pinholster, the court can only look to the factual record in the state court.  A court cannot consider new evidence presented in the habeas proceeding.

As I have vociferously complained about, that rule is unfair.  However, the ruling in Pinholster is broad and obviously must cut both ways.  The State should not be allowed to rely on new facts to show that the state court decision was not unreasonable.  If Pinholster is going to be unfair to one side, it simply has to be unfair to both. 

I mean, I know the deck is stacked against habeas petitioners, but if Pinholster is read as only a restriction on petitioners, then it would be as if the State is also allowed to deal from the bottom of that stacked deck.  This just cannot be right.

 

Habeas Corpus - District Court Review - Habeas Grant/COA Grants/Habeas Denied

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.