Habeas Corpus Blog

Habeas Corpus - Legally Sufficient Depraved Indifference

Following up on the future of legal insufficiency claims, I also want to talk about the present state of legal insufficiency claims in depraved indifference cases.  I wrote a global post about depraved indifference cases last year after the Second Circuit had granted habeas relief on a legal insufficiency claim in a depraved indifference case in Rivera v. Cuomo.  For this post, I'll assume a basic familiarity with that law.  If not, go read that global post for background.

I had such high hopes for these, but the Second Circuit took it all away.  First, they reversed themselves in Rivera mostly on the basis of the decision in Cavazos v. Smith (but I have a theory that it was more due to panel's fear of the decision getting summarily reversed by the Supreme Court).  Then the court rejected legal insufficiency claims in Parker v. Ercole and Garbutt v. Conway. 

And then there was the decision last week in Epps v. Poole.  The Second Circuit once again rejected a legal insufficiency claim in a depraved indifference case.*

*I would be remiss if I didn't mention my frustration with a sentence in the court's opening paragraph in Epps.  Here's what the court said:  "the petitioner advanced the somewhat perverse argument that he should be released from state custody because the evidence suggests he is in fact more culpable than the jury had found him to be."  This is unfair.  Completely.  The defendant was only put in the position to make the "perverse" argument because the prosecution overcharged them.  They were not depraved indifference cases, plain and simple, and the prosecution should not have sought the dual indictment.  And, particularly in a case like Rivera, the prosecution did not even prosecute the case, at all, as a depraved indifference case.

All of these cases were pre-Feingold when the New York State Court of Appeals officially changed the definition of depraved indifference.  And the Second Circuit has now made pretty clear that habeas petitioners are going to have a really tough time winning on these claims.  In these cases (except maybe in Rivera where the court did not really explain in detail why it was reversing itself), the Second Circuit basically combed through the factual record to find some shred of evidence that the killing was not completely and unambiguously an intentional act. 

But some of the reasoning is kind of a stretch.  For example in Parker there was this:

We find particularly relevant the fact that Parker fired a single shot from inside a house, at some distance across the street, into a crowd of people, and did not pursue Johnson, the victim, even when it initially appeared that Johnson was not mortally wounded by the shot.

So?  Sounds like the petitioner intentionally shot a person who he intended to shoot with a shotgun.  Pretty intentional to me.  Do shooters often pursue their victims after shooting them?  Is that rational?

And then there is Garbutt.  The facts were: "Garbutt approached Blanchard, with whom he had had a turbulent romantic relationship, in anger, carrying a large knife, and in the presence of Blanchard's daughter, Tolbert. He grabbed Blanchard away her from her daughter as he demanded her attention. During the resulting physical struggle, he pulled out the knife and began slashing, hitting both Blanchard and Tolbert."

Once again, sounds pretty intentional to me.  But here is the Second Circuit's reasoning:

[A] reasonable jury could equally have found that Garbutt had struck out in blind anger, without specifically intending to cause death, but with an awareness that his conduct could have deadly consequences for either Blanchard or Tolbert or both. The jury could further have inferred from the fact that Garbutt ran away before verifying that Blanchard had died that he had not intended to kill her. Moreover, a reasonable jury could also have found that Garbutt's violent and callous response to Blanchard's refusal to follow his orders, which endangered not only her but also Tolbert, manifested exactly the sort of depraved indifference to human life that New York case law continues to treat as a mental state sufficient for a murder conviction.

That's a head scratcher.  Once again, there's that "not checking that the job was done" logic.  That is not rational to me.  But, overall, the premise is off.  The guy pulled out a large knife and intentionally stabbed the victim who he was angry at.  He didn't wave the knife around in some reckless way knowing that it could kill somebody.  He was angry at someone and deliberately struck the person with a large knife multiple times.  How is that "exactly the sort of depraved indifference to human life" that New York looks to?  I don't think that's a particularly rational position.

But that's where we are at with depraved indifference cases.  Rationality="tiniest shred of evidence that can be found" or "some kind of tenuous basis for saying that it was not exactly intentional".  I guess under the "double deference" standard there's legal support for how the Second Circuit has been analyzing these.  It's going to be a tough hill to climb for pre-Feingold depraved indifference petitioners. 

Habeas Corpus - Legal Insufficiency No More?

In one of my more recent posts (meaning one of the few that have appeared this calendar year), I mentioned that it was a pretty good term for habeas in the Supreme Court.

But that's not entirely true.  There was the early opinion in Greene that was pretty horrible. 

And then there was the Court's treatment of legal insufficiency claims.  Based on how hard the Court came down on some circuit courts that had granted habeas on legal insufficiency claims, it is a legitimate question to consider whether this type of claim really is no longer viable on habeas review.

It started with the first opinion of the Term back in October 2011, Cavazos v. Smith.  The Court summarily reversed a Ninth Circuit opinion which had granted habeas on legal insufficiency grounds.  The Court spent most of the opinion detailing the ways in which the Ninth Circuit messed up the legal insufficiency analysis.  But the Court stated something that ended up being something new.  It stated: "When the deference to state court decisions required by § 2254(d) is applied to the state court's already deferential review, there can be no doubt of the Ninth Circuit's error below." 

In later cases, this became the "double deference" standard for legal insufficiency claims.  We have seen the "double deference" standard before, notably in IAC claims.  Essentially, it means that deference must rise to the level of near preclusion.  In the real word, I am not sure how this type of double deference actually works.  A reader has mentioned this to me before, but no matter what it is, it's not technically double deference, i.e. deference layered upon deference.  That's kind of silly and not really possible.  It is really heightened deference.  But even that is hard to quantify (or would it be qualify? I guess it could be either, or maybe it's both? see what I mean?).

In any event, there is now a great, great deal of deference when a federal court is reviewing legal insufficiency claims on habeas review.  And the Court followed up Cavazos with two recent summary reversals that emphasized this double deference standard.  Those were Parker v. Matthews and Coleman v. Johnson.  In the former, the Supreme Court went to town on the Sixth Circuit.  In the later, the Court upset a Third Circuit habeas grant.

Reading through all three, I can't say that there is a consistent theme as to how to apply a double deference standard.  Most of the Court's complaints in all three cases really focused on the lower court's misapplication of the regular old legal insufficiency standard, not an insufficiently deferential application of the legal insufficiency standard (whatever that may be). 

For example, here's the main complaint in Johnson:

Under the deferential federal standard, the approach taken by the Court of Appeals was flawed because it unduly impinged on the jury’s role as factfinder. Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors “draw reasonable inferences from basic facts to ultimate facts.” This deferential standard does not permit the type of fine-grained factual parsing in which the Court of Appeals engaged.

One can find examples of this type of garden-variety problem with the insufficiency analysis in each of the summary reversals.  And while the analysis in those cases obviously looked at other factors, none of them really focused on a problem of double deference.

Nevertheless, double deference is now the rule.  And, on legal insufficiency, this means deference to both the juries and the state courts.  It's a pretty heavy burden on a habeas petitioner to succeed on this type of claim.  I am worried that it will be the exceedingly rare case where that burden can be met.

Habeas Corpus - The Really, Really Bad

As I mentioned in my return post, there was some good and bad during my absence.  And I'd register one recent Second Circuit decision as really, really bad.  I thought I'd start with that since a reader asked about it in a comment to my return post.

Last Friday, in an opinion that left me absolutely speechless, the Second Circuit reversed itself on the habeas grant in Rivera v. Cuomo. The original opinion in Rivera granted habeas based on insufficient evidence of depraved indifference.  It really was one of those situations where the lack of evidence to establish that crime was clear.  While a habeas grant, the court wasn't really going out on a limb in making that conclusion.  I have just re-read it.  It was a point-blank shooting!  There is no way, particularly under the facts of Rivera, that such an act can constitute depraved indifference.  It was just one of those cases where the state courts refused to do what was right legally, probably because of the disproportionately favorable consequences of such a decision for the criminal defendant.

But now the Second Circuit has reversed itself.  And the court did it in a really troubling fashion.  In an exceedingly brief opinion, the court does not even acknowledge it got anything wrong about the analysis. No, here's the entire reasoning why they are reversing itself:

Respondents filed a petition for panel rehearing or rehearing en banc, and the United States Supreme Court decided Cavazos v. Smith, which strongly reasserted "the necessity of deference to state courts in § 2254(d) habeas cases." 132 S. Ct. 2, 5 (2011). In light of Respondents' petition and the Supreme Court's guidance in Cavazos, we have revisited our original decision to ensure that we had afforded the state courts and the jury the full extent of the deference they are owed under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 112 Stat. 1214. See Cavazos, 132 S. Ct. at 3 (emphasizing the double deference owed in § 2254(d) habeas cases). After much reflection, we now reverse course. Applying the law as it existed after Rivera's conviction became final in July 2004, we find that although evidence of "significantly heightened recklessness," People v. Sanchez, 98 N.Y.2d 373, 380 (2002), was slim, at best, giving the state courts and the jury the utmost deference, we cannot find that the evidence was so completely lacking that no rational jury could have found Rivera guilty of depraved indifference murder. See Cavazos, 132 S. Ct. at 1-5; Renico v. Lett, 130 S. Ct. 1855, 1862 (2010).

I have absolutely no connection to this case, but even I felt that proverbial punch to the stomach.

Sorry, but this just doesn't smell right.  There is nothing in Cavazos that has an impact on this case.  Sure, Cavazos was a legal insufficiency case.  But the facts of that case were completely different.  That had to do with a federal court wrongly evaluating the impact of expert testimony.  The stuff about deference for a legal insufficiency claim was well established before that case.  I just re-read the Second Circuit's opinion (again) and I think the court made perfectly clear that the facts in Rivera's case, no matter how they could possibly be interpreted, cannot support a depraved indifference conviction.  It was legally impossible.  That was the court's point.

So there is something weird going on here.  But I really don't know what it is.  Clearly, the panel lost the confidence of their conviction that appeared in the original opinion.  But the reasons they give don't explain it.  Not even close.  Were they worried that the decision in Rivera would open the floodgates in other depraved indifference cases? (I am guessing no).  Were there whispers among the judges that an en banc was going to happen, and these judges did not want to be embarrassed by a reversal? (Slightly more likely). Has the Supreme Court's philosophical change on habeas that began last term and has continued into this term with a string of condescending summary reversals that directly insults the lower court panel scared the circuit courts? (Also, slightly more likely).

No matter what the explanation, this is a real nadir for habeas in the Second Circuit.

Habeas Corpus - Tragic Summary Reversal from Supreme Court - Edited X 2

After being re-listed a dozen times (I have to assume that's a record), the Supreme Court finally issued a summary reversal in Cavazos v. Smith.  It was a per curiam opinion with Ginsburg writing a dissent, which Breyer and Sotomayor joined.

Cavazos Smith was convicted of killing a 7-week old baby under a "shaken baby syndrome" theory.*  Cavazos Smith was the baby's grandmother.  That alone is pretty tragic, but it is quite clear from the opinion that pretty much every federal judge who reviewed the case had serious problems with the conviction.  The main evidence against Cavazos Smith, outside of an ambiguous statement to a caseworker, was expert medical testimony, much of it focusing on "shaken baby syndrome."  The defense presented experts to contest the shaken baby theory. 

*Update: I mistakenly referred to petitioner as Cavazos, instead of Smith, throughout the post.  A little embarrassing.

Right there, this case makes me uncomfortable.  I will quote a 2008 court case from Wisconsin called Wisconsin v. Edmunds: "a significant and legitimate debate in the medical community has developed in the past ten years over whether infants can be fatally injured through shaking alone, whether an infant may suffer head trauma and yet experience a significant lucid interval prior to death, and whether other causes may mimic the symptoms traditionally viewed as indicating shaken baby or shaken impact syndrome."  Since the conviction here was from 1997, that applies to Cavazos Smith.  In fact, Justice Ginsburg mentions this in her dissent.

 

The Ninth Circuit had granted habeas relief to Cavazos Smith two prior times, but each was vacated by the Supreme Court.  So this was number 3.  And now the Supreme Court has summarily reversed the habeas grant.  This time, the Court concluded that the Ninth Circuit misapplied the sufficiency of the evidence standard set forth in Jackson v. Virginia.  Here are the first two paragraphs:

The opinion of the Court in Jackson v. Virginia, 443 U. S. 307 (1979), makes clear that it is the responsibility of the jury—not the court—to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury’s verdict on the ground ofinsufficient evidence only if no rational trier of fact couldhave agreed with the jury. What is more, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decisionwas “objectively unreasonable.” Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 5) (internal quotation marksomitted).

Because rational people can sometimes disagree, theinevitable consequence of this settled law is that judgeswill sometimes encounter convictions that they believe tobe mistaken, but that they must nonetheless uphold.  The Court of Appeals in this case substituted its judgment for that of a California jury on the question whether theprosecution’s or the defense’s expert witnesses more persuasively explained the cause of a death. For this reason, certiorari is granted and the judgment of the Court of Appeals is reversed.

Skipping the rest of the majority opinion, what's remarkable to me is the core theory of Justice Ginsburg's dissent.  She says that this was not the type of case for the Court to exercise its discretionary authority to review.  She pointed out that the Court typically limits cert. to questions of law, and should not simply reach out to correct a misapplication of law, especially where the interest of justice do not support it.  Here's what she says:

Beyond question, the Court today reviews a case as tragic as it is extraordinary and fact intensive. By takingup the case, one may ask, what does the Court achieve other than to prolong Smith’s suffering and her separationfrom her family. Is this Court’s intervention really necessary? Our routine practice counsels no.

This seems pretty novel to me.  I don't remember a Justice ever framing the decision to grant cert. as a weighing of the different equitable interests.  Certainly, they play a role.  But I have never read it argued so explicitly by a Justice.  Should litigants now be asserting these types of interest of justice factors in seeking cert. or asking that cert. be denied?  Maybe.

But there is a lot more to say about this per curiam.  And now I am going to pass the mic to reader Alexandr Satanovsky who provides the following analysis (from three separate e-mails -- I only edited a couple of typos):

[T]here is something about the candor in the opinion's introduction that I find enjoyable:

“[A] federal court may not overturn a state court decision rejecting a suf­ficiency of the evidence challenge simply because the fed­eral court disagrees with the state court. . . .[Under AEDPA] judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold.”

Cavazos v. Smith 565 US __ (Oct 31 2011) (slip op at 1) (per curiam).

[T]his is especially telling candor, I think, because of the issue: Jackson sufficiency of evidence.   It is not like other garden-variety constitutional errors (e.g. IAC, miranda, voluntariness, Brady, various procedural due process claims), which already have a second layer of prejudice analyis (or "harmless error") built in on direct review.   Or even better, like constitutional claims that do not even conduct prejudice analysis --(e.g., Batson, Double Jeopardiy (Renico v. Lett, 2010)).  These can better be characterized as "technicalities," or at least attenuated from the important issue of guilt/innocence.   But not so with sufficiency of evidence claims, which in a very real sense involve "judges [who] will sometimes encounter convictions that they believe to be mistaken".

Consider also Cavazos, slip op. at 7, where the Court expressly admits that "[d]oubts about whether Smith is in fact guilty are understandable."  Honestly, I've read a lot of AEDPA decisions where the state prevails in the Supreme Court.   But I don't recall a single majority opinion making this kind of gesture toward costs of AEDPA.   See also slip op at 8 (an unusual gesture to the clemency process).  (Compare with, e.g. Renico v. Lett (2010), which is cited frequently in this opinion, but makes no reservations about an innocent person being wrongly jailed; see also Renico (Stevens, J. dissenting) (protesting that an innocent person was in jail due to the extra-deferential AEDPA interpreatation)).

Another thing worth noting, not sure if others have commented (haven't read much commentary), is Kagan's absence from the dissent.   An optimistic view would be that, perhaps, knowing the fate of the disposition, Kagan joined the PC opinion, perhaps even wrote it, so as to make this acknowledgment of the bitter costs of AEDPA.  The cynical view, of course, is that Kagan is simply not Justice Stevens when it comes to AEDPA, etc. 

I should also note that, putting all biases aside, I think any rational reader of the Cavazos majority and dissent can only conclude that Smith is probably wrongly imprisoned.  I think this is largely due to the fact that Ginsburg marshalls a lot of facts, which the majority expressly refuses to do.  The majority opinion's unusual equivolence toward a possibility of actual innocence, discussed earlier, is also a sure factor.   

[Finally] Dissenting opinion's hint at IAC-type issues.  It's really a phenomenal tangent, as it is totally irrelevant from the issue at hand. (See Ginsburg, J., dissenting op. at 8)  Again, making this opinion quite unique:  I've never encountered SCOTUS citing an attorney by name, and noting their bar discipline (maybe I havne't read some of the seminal IAC cases very closely) -- but this is anomolous, especially since Cavazos is not an even an IAC case.  Coupling this problem with the evolving science on shaking baby syndrome, it seems to me, would make for an interesting argument in a "second or successive" petition which is justified due to actual innocence.

Thanks, Alex. UPDATE: Alex's section was edited for clarity.  Alex also points out that petitioner Smith has already been released from prison, which could explain the majority's "equivolence" towards her plight.

[T]his is especially telling candor, I think, because of the issue: Jackson sufficiency of evidence.   It is not like other garden-variety constitutional errors (e.g. IAC, miranda, voluntariness, Brady, various procedural due process claims), which already have a second layer of prejudice analyis (or "harmless error") built in on direct review.   Or even better, like constitutional claims that do not even conduct prejudice analysis --(e.g., Batson, Double Jeopardiy (Renico v. Lett, 2010)).  These can better be characterized as "technicalities," or at least attenuated from the important issue of guilt/innocence.   But not so with sufficiency of evidence claims, which in a very real sense involve "judges [who] will sometimes encounter convictions that they believe to be mistaken".

Consider also Cavazos, slip op. at 7, where the Court expressly admits that "[d]oubts about whether Smith is in fact guilty are understandable."  Honestly, I've read a lot of AEDPA decisions where the state prevails in the Supreme Court.   But I don't recall a single majority opinion making this kind of gesture toward costs of AEDPA.   See also slip op at 8 (an unusual gesture to the clemency process).  (Compare with, e.g. Renico v. Lett (2010), which is cited frequently in this opinion, but makes no reservations about an innocent person being wrongly jailed; see also Renico (Stevens, J. dissenting) (protesting that an innocent person was in jail due to the extra-deferential AEDPA interpreatation)).

Another thing worth noting, not sure if others have commented (haven't read much commentary), is Kagan's absence from the dissent.   An optimistic view would be that, perhaps, knowing the fate of the disposition, Kagan joined the PC opinion, perhaps even wrote it, so as to make this acknowledgment of the bitter costs of AEDPA.  The cynical view, of course, is that Kagan is simply not Justice Stevens when it comes to AEDPA, etc. 

I should also note that, putting all biases aside, I think any rational reader of the Cavazos majority and dissent can only conclude that Smith is probably wrongly imprisoned.  I think this is largely due to the fact that Ginsburg marshalls a lot of facts, which the majority expressly refuses to do.  The majority opinion's unusual equivolence toward a possibility of actual innocence, discussed earlier, is also a sure factor.   

[Finally] Dissenting opinion's hint at IAC-type issues.  It's really a phenomenal tangent, as it is totally irrelevant from the issue at hand. (See Ginsburg, J., dissenting op. at 8)  Again, making this opinion quite unique:  I've never encountered SCOTUS citing an attorney by name, and noting their bar discipline (maybe I havne't read some of the seminal IAC cases very closely) -- but this is anomolous, especially since Cavazos is not an even an IAC case.  Coupling this problem with the evolving science on shaking baby syndrome, it seems to me, would make for an interesting argument in a "second or successive" petition which is justified due to actual innocence.

Habeas Corpus - Depraved Indifference Overview - Updated

Recently, some readers have reached out to me with inquiries about depraved indifference cases.

There is no doubt that depraved indifference cases have popped up a lot around here.  In fact, the first substantive post on the blog had to do with a habeas grant in a depraved indifference case (it was later overturned by the Second Circuit).  A search of the blog shows that there have been dozens of posts that have mentioned this category of cases. 

So I thought it might be helpful to give an overview of what's happened and is happening in those type of cases.*

*For some reason, I felt uncomfortable trying to find a pithy title for a post about depraved indifference cases.  I have previously lamented the fact that pithy titles are not really my forte.  Only rarely do I find that right combination of brevity, cleverness, metaphors and/ or puns, that all come together in a perfectly pithy blog post title.  I am always amazed when someone can do it.  UPDATE: From the comments, this clever proposed title made me laugh: "I'm deprived on account of I'm depraved."  It's kind of perfect.

I am going to cover the following areas:

A. Background (discussing the change in law)

B. Relief

C. Habeas Review of the Merits

D. Procedural Default

E. Retroactivity

This is going to be a long post.  So, for the first time in a long time, I am going to put stuff below the fold . . .

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 - Petition of the Day from Last Week

Last week, SCOTUSblog featured, as its petition of the day, the cert. petition in a case I covered around here, Langston v. Conway (back then it was called Langston v. Smith).  That was a notable case around here because it was a habeas grant and the opinion itself had some great logical analysis.  The case concerned the whether the evidence was sufficient to establish that petitioner used guns in furtherance of his possession of those guns.

According to SCOTUSblog, here is how the State has framed the issue:

Whether a court of appeals violates the sufficiency-of-the-evidence test laid out in Jackson v. Virginia (1979) when it judges the sufficiency of the evidence by reference to the arguments made in the prosecutor's summation, rather than in light of the evidence presented at trial; and 2) whether the decision below failed to accord the proper deference mandated by 28 U.S.C. § 2254(d)(1) to a state appellate court which held that the evidence was sufficient.

Issue two is pretty garden-variety and I don't think that's applicable to the Second  Circuit's decision.

Issue one, on the other hand, is pretty interesting.  Do you judge sufficiency on the State's theory presented at trial or can you judge sufficiency on any old theory that the State throws at the court on habeas review (because that's what happened)?  That is an extension of the principle the Supreme Court established in Richter, namely that the Supreme Court can conceivably consider almost any ground in determining whether the state court's decision was reasonable.  But does that concept apply when the State attempts to change their whole theory of the case in federal court?  That seems particularly nuts to me, but it could be the direction in which habeas is going.  Of course, the State's argument would be more compelling if there actually was a theory on which to support the conviction in that case.  But I don't think that there was.

Habeas Corpus - Pending Second Circuit Cases

Just did a global update to the Pending Second Circuit Cases page.

Two notes.  First, in the recent COA grant in Reily v. Ercole, petitioner has yet to file a notice of appeal.  It's now gone beyond the 30 days.  Docket sheet says that the decision and judgment were sent to petitioner and petitioner appears to be held in same facility as the one listed on docket sheet. 

But this is not the first time in the history of this blog where a COA was granted in a pro se case, the decision was sent to the right facility, but no notice of appeal was filed.  It suggests a couple of possibilities: (1) pro se inmate never received decision even though it was sent to right place; (2) pro se inmate received decision and did not know that, after a COA grant, he was required to file a notice of appeal; or (3) pro se inmate didn't care to go further in the litigation.  Obviously, I think (3) is not what's happening.  I think (1) is most likely.  But it could be (2). 

In any event, I think the best way to handle these situations would be for the DJ to assign counsel before granting a COA. Notice won't be an issue, counsel should know what the next step would be after a COA grant, and, if petitioner doesn't want to continue, counsel would be in the best position to learn that.

Second note: petitioner's counsel in Garbutt v. Conway has filed a motion to expand the COA.  I am keeping a close eye on this case since it is a depraved indifference case raising one of the procedural questions that comes up in many of those types of cases.  The previous COA grant was on the issue of whether a habeas court can address a procedurally defaulted depraved indifference claim on the ground that a manifest injustice would occur if the claim was not addressed.

In the motion to expand the COA, petitioner is seeking to include the issue of whether the state court's finding the claim was unpreserved represented an "adequate" state law ground for affirming the conviction. 

I hope that the motion is granted.  This pops up in many of these depraved indifference cases.  It's usually pretty fact specfic, but it would be nice to see the Second Circuit provide some guidance on this issue.

 

Habeas Corpus - Habeas Granted!

On Friday, the Second Circuit issued a published opinion affirming the district court's habeas grant in Langston v. Smith.  First, the details of the case:

Langston v. Smith, 10-3045-pr

• Affirming Grant of Habeas (Published Opinion by Lynch)
• Argued: 10/18/10; Decided: 1/7/11
• Panel: Feinberg, Newman, Lynch
• Lower Ct. Info: 07-CV-2630, 2010 WL 2989992 (EDNY July 20, 2010) (ERK)
• Issues: Insufficient evidence that petitioner committed an assault in furtherance of the crime of weapon possession

Let me just say that it is a wonderfully written opinion by Lynch.  And I am not just saying that because it is a habeas grant.  When Lynch was nominated to the bench, I reviewed his district court work.  One thing was clear: he was a great thinker and a great writer.  And the abstract issue in this case was right in his wheelhouse.

I talked a little bit about the facts of the case at the time of the district court habeas grant.  It was case three in this weekly review.*  Here's a quick review of the facts: petitioner arranged to sell some guns to undercover officers.  When petitioner brought the officers to the place where the same was going to occur, three men pulled out guns and opened fire on the officers.  One of the officers was hit and permanently injured.  Petitioner was charged with, and convicted of, committing an assault "in furtherance of" gun possession.

*I'd just like to point out that, in his opinion, Judge Lynch block quoted the same paragraph from the district court decision that I blocked quoted in my prior post.  Says a lot about how strong that paragraph was.

Judge Lynch concluded that no trier of fact could rationally conclude that the facts of the case support such a conclusion.  As did the district court, Judge Lynch concluded that there had to be a "nexis" between the assault and the underlying crime.  While the assault may have been in furtherance of robbery, there was no rational reading of the evidence to show that the assault was in furtherance of the perpetrator's desire to possess the guns.  Lynch further concluded that the state court's rejection of this claim was unreasonable.

That is a highly simplified version of the analysis.  The legal analysis is actually pretty abstract and a great intellectual exercise, if you want to give a work out to the logical pistons in your brain.  Let me give you one teaser from the opinion.  It's from a footnote:

At times, the State appears to argue that, because both the assault and the possession were in furtherance of the attempted robbery, they must have been in furtherance of each other as well. This claim rests on the logical fallacy that one of two independent efforts to bring about the same end necessarily aids the other. In furtherance of preparing for a successful vacation one might both stop the mail and pack a suitcase. Although both of these actions further the success of the planned vacation, it cannot be inferred that the packing was done in furtherance of stopping the mail. Neither can it be logically inferred that, because both the possession and the assault were committed in furtherance of an attempted robbery, the assault was committed in furtherance of the possession.

Pretty abstract, huh?  I am still trying to process the analogy to see whether I agree.  A lot of the opinion offers these logical jewels.  It's a great opinion.

As I mentioned in the prior post, one interesting side note here is that a different district judge rejected the claim on both procedural and substantive grounds in Cherry v. Walsh.  Lynch notes this in his opinion.  Lynch states, "We find the dsitrict court's analayis in Cherry, which cited no caselaw to support its interpretation of the 'in furtherance of' element, unpersuasive, and for the reasons set forth below agree with Judge Korman's contrary analysis in the instant case."  After reading that sentence, I became very curious as to who the judge was in Cherry.  I have to admit that I was very surprised to see who it was based on my admiration of his work in several other cases (such as this one, which I have previously described as probably my favorite habeas case of all time).