In District Court Review Number Two, I am going to briefly discuss a recent R&R recommending a grant of habeas relief based on the ground of insufficient evidence to establish depraved indifference.
[EDIT - In the original post I never included the name of the case. It's Wells v. Perez, 10-CV-1107 (SDNY) (DC)(JCF)]
While the R&R was covered at length in the New York Law Journal (as I have said before, I will not provide a link to a subscription only site -- so here's one to the New York Post's brief article on the case), the R&R does not seem to be published anywhere. I had to print it off PACER. But it was worth the $2.40. It's a really fascinating decision.
The case itself is quite infamous. In fact, you can watch a Dateline NBC video about the case here. It concerns a drunk driver who struck and killed a mother of three. Petitioner, a popular party promoter, was, according to Dateline, one of the "worst kind of drunk drivers," namely someone who had been a repeat drunk driver.
I have previously talked at length about the changes to the depraved indifference laws. This was a case where all of the changes to the law applied to the case. Although the conviction occurred before Feingold, the case was still pending on appeal when Feingold (the case that actually altered the depraved indifference law) was decided. This meant that, for the appeals courts to uphold the conviction, it was necessary for the trial evidence to establish that petitioner had a depraved state of mind. Relying on a New York Court of Appeals decision that discussed the relationship between intoxication and a depraved state of mind, the MJ concluded that the facts did not rise to the level of depravity.
The more interesting part of the decision, though, is how the MJ navigates the habeas corpus procedural issues. At trial, counsel argued that the evidence was legally insufficient to established depraved indifference. It was about as preserved as it could have been under the law as it stood at the time. However, counsel did not make the Feingold argument -- that depraved indifference was its own culpable mental state that needed to be evaluated from the defendant's subjective perspective.
For this reason, the New York appellate court concluded that the claim was unpreserved. Seems illogical, right? How can a claim of law be unpreserved when it did not even exist at the time of the trial? The MJ acknowledges the illogic of this, but nevertheless concludes that New York law requires it. Thus, the appellate court's state procedural bar was independent and adequate.
However, the MJ says that there is cause for the procedural default. In fact, he flips around the illogic of New York's preservation rule. He says, "Because New York's law on depraved indifference changed markedly while Mr. Wells' case was on direct appeal, the legal bases for his sufficiency claim was not reasonably available to his attorney at the time of trial." R&R at 30-31. Due to the drastic change in law, he later adds, "It would therefore be unreasonable to hold the petitioner's counsel to a standard of performance that would have required him to make multiple legal sufficiency objections based on hypothetical future changes in the law." Id. at 31.
One problem: this sounds like a futility argument, which the Second Circuit rejected in an unpublished depraved indifference decision called Brown v. Ercole (discussed here). The MJ provides the following explanation as to why that case does not control:
New York courts prior to Feingold had never applied the standard subsequently adopted in that decision. Thus, it was not until after Feingold that defense attorneys generally started making objections based on the prosecution's failute to prove "culpability."
Unfortunately, that doesn't completely persuade me. It's what the MJ said plus this -- this case is distinguishable from Brown. In that case, the defense attorney did not raise any challenge to the sufficiency of the evidence. None at all. Here counsel made the one that was available to him at the time. It was only unpreserved because he did not make the hypothetical argument based on a change in law. To me, that's a big difference and completely distinguishes it from the previous futility case.
Before we get too excited about this, it still needs to go through the DJ. But even if the DJ disagrees with the R&R, let's hope that the DJ grants a COA.