PENDING SECOND CIRCUIT CASES

List of Cases Now Pending Before Second Circuit

 

[IN PROCESS OF BEING UPDATED]

 

ARGUED


CALENDARED

 

NOT YET CALENDARED

McClary v. Conway, 10-4424-pr  [updated 9/17/11]

  • Status: Appellant's Brief due 11/17/11
  • Lower Ct. Info.: 06-CV-2064, 2010 WL 3928563 (EDNY Oct. 04, 2010) (ENV)
  • In Circuit: Dist Ct. COA
  • Issues: whether counsel was ineffective for failing to move to suppress petitioner's confession, which was the only evidence admitted against him at trial

Reily v. Ercole, 11-1279-pr [updated 9/17/11]

  • Status: Appellant's Brief due 11/15/11
  • Lower ct. Info: 06-CV-5402, 2010 WL 4941469 (EDNY Nov. 30, 2010) (ENV)
  • In Circuit: Dist Ct COA
  • Issues: (1) due process violation based on court's refusal to allow defense counsel to testify at suppression hearing and trial concerning what occurred at lineup; (2) IAC as a result of a conflict of interest arising from counsel's position as a necessary witness

Alston v. Phillips, 10-1639-pr [updated 8/12/11]

  • Status: Appellee's Brief filed 7/13/11
  • Lower Ct. Info: 05-CV-593, 2010 WL 1371028 (EDNY Mar. 31, 2010) (SLT)
  • In Circuit: Dist Ct COA
  • Issue: IAC based on counsel's failure to object to testimony from an arresting detective that may have violated petitioner's rights under the Confrontation Clause

Jackson v. Conway, 11-922-pr, 11-972-pr [updated 8/12/11]

  • Status: Conway brief filed 9/29; Jackson brief due 12/27/11
  • Lower Ct. Info: 05-CV-0571, 2011 WL 657422 (WDNY Feb. 22, 2011) (VEB)
  • In Circuit: Habeas Grant/Dist. Ct. COA
  • Issues: Habeas Grant: (1) IAC based on counsel's failure to consult medical expert in sexual abuse case; (2) Miranda violation based on un-Mirandized statements given to a child protective services caseworker made while petitioner was in custody; (3) Prosecutorial misconduct; COA: (1) whether the Miranda error was harmless as to three of the complainants; (2) IAC based on (a) counsel's failure to introduce favorable laboratory and DNA reports; (b) his incorrect assumption that the prosecution had to prove that penetration occurred in order to sustain a first-degree sodomy conviction, and (c) his failure to investigate or introduce a “plethora of exculpatory evidence” at trial.

Munford v. Graham, 10-3094-pr [updated 8/12/11]

  • Status: Appellee's Brief filed 7/13/11; Reply Brief filed 7/28/11
  • Lower Ct. Info: 09-CV-7899, 2010 WL 2720395 (SDNY June 29, 2010) (DC) (AJP)
  • In Circuit: Circuit Ct. COA
  • Issues: (1) whether petitioner was deprived of a full and fair opportunity to litigate his Fourth Amendment claim in state court; (2) whether the deprivation of petitioner's Sixth Amendment right to confront witnesses against him was harmless error

Gainey v. Conway, 10-3017-pr [updated: 9/17/11]

  • Status: Appellee's Brief filed 8/18/11
  • Lower Ct. Info: 08-CV-83, 2010 WL 2541760 (WDNY June 21, 2010) (MAT)
  • In Circuit: Circuit Ct. COA
  • Issue: whether prosecutorial misconduct during summation deprived petitioner of a fair trial

Young v. Conway, 11-830-pr [updated: 11/05/11]

  • Status: Resp.-Appellant Brief filed 10/24/11; Pet-Appellee Brief due 1/23/12
  • Lower Ct. Info: 07-CV-6047, 2011 WL 240578 (WDNY Jan. 27, 2011)
  • In Circuit: Habeas Grant
  • Issue: Improper admission of tainted identification evidence
  • Notes: Docket Number 11-830 also connected to case

Mack v. Conway, 10-3414-pr  [updated: 9/17/11]

  • Status: Appellee's Brief filed 8/26/11
  • Lower Ct. Info: 05-CV-6519, 2010 WL 2899876 (SDNY July 27, 2010) (LTS) (KNF)
  • In Circuit: Circuit Ct. COA [Updated: 3/6/11]
  • Issues: (1) whether the admission of Appellant’s first confession violated Miranda; (2) whether the prosecutor’s failure to disclose exculpatory information regarding prior bad acts of a prosecution witness violated Brady; and (3) whether Appellant received IAC based on counsel’s failure to request a jury instruction permitting the jury to disregard appellant’s first confession if they found that it was involuntarily made

Somerville v. Hunt, 11-1211-pr [updated 11/05/11]

  • Status: Appellee-Pet. Brief filed 10/10/11; Reply Brief filed 10/24/11
  • Lower Ct. Info: 08-CV-1307, 2011WL 795073 (EDNY Feb. 28, 2011) (NGG)
  • In Circuit: Habeas Grant
  • Issue: whether petitioner's increase in sentence after his original sentence was vacated as illegal was presumptively vindictive
Blalock v. Fisher, 10-3866 [updated 10/08/11]
  • Status: Appellee's Brief due 11/28/11
  • Lower Ct. Info: 04-CV-2252, 2010 WL 2891185 (SDNY July 12, 2010) (LAP) (RLE)
  • In Circuit: District Court COA
  • Issues:  IAAC based on counsel's failure to raise a Batson claim

Williams v. Ercole, 10-4601-pr [updated 11/05/11]

  • Status: Appellant's Brief filed 10/6/11; Appellee's Brief due 1/04/12
  • Lower Ct. Info: 09-CV-5169, 2010 WL 3785523 (SDNY Sept. 28, 2010) (DAB) (RLE)
  • In Circuit: Circuit Ct. COA
  • Issue: Whether the district court erred in dismissing petitioner's 2254 petition as untimely

Rock v. Conway, 10-3934-pr [updated 9/17/11]

  • Status:Appellee's Brief filed 8/30/11
  • Lower Ct. Info: 09-CV- 3883, 2010 WL 3528871 (Aug. 30, 2010 SDNY ) (RMB) (DCF)
  • In Circuit: Circuit Ct. COA
  • Issues:(1) whether petitioner's due process rights were violated by the admission of in-court identifications; and (2) whether the state court's determination on that claim involved an unreasonable application of federal law or an unreasonable determination of the facts

Gutierrez v. Smith, 10-4478-pr [updated 8/12/11]

  • Status:Appellant's Brief filed 6/28/11; Appellee's Brief filed 7/22/11; Reply Brief filed 8/5/11
  • Lower Ct. Info: 06-CV-4939, 2010 WL 3855225 (EDNY Sept. 27, 2010) (SJF)
  • In Circuit: Circuit Ct. COA
  • Issues: whether the evidence was legally insufficient to establish depraved indifference murder

Corby v. Artus, 11-1650-pr [updated 9/17/11]

  • Status: Appellee-Pet Brief due 11/7/11
  • Lower Ct. Info: 06-CV-15291, 2011 WL 1118691 (SDNY Mar. 24, 2011) (LTS) (KNF)
  • In Circuit: Habeas Grant
  • Issue: Improper curtailment on cross-examination of sole inculpatory witness against petitioner

Wright v. Duncan, 11-1463-pr [updated 11/05/11]

  • Status: Motion to expand COA granted; counsel assigned
  • Lower Ct. Info: 02–CV–508, 2011 WL 1239773 (NDNY Mar. 28, 2011) (GLS) (VEB)
  • In Circuit: Dist. Ct. COA
  • Issues: Due process/right to present a defense violation based on the exclusion of exculpatory evidence on hearsay grounds

Seda v. Conway, [updated 8/12/11]

  • Status: Motion to Open Time to File Notice of Appeal Pending
  • Lower Ct. Info: 07–CV–6609, 2011 WL 1344240 (WDNY Apr. 8, 2011) (VEB)
  • In Circuit: Dist. Ct. COA
  • Issues: whether the NY persistent felony offender statute violates Apprendi

Epps v. Poole, 10-2206-pr [updated 11/05/11]

  • Status: Appellee's Brief filed 11/1/11
  • Lower Ct. Info: 07-CV-3432, 2010 WL 1991517 (EDNY May 14, 2010) (RJD)
  • In Circuit: Circuit Ct. COA
  • Issues: whether the evidence was sufficient to establish depraved indifference murder

Nickels v. Conway, 10-4228-pr  [updated 11/05/11]

  • Status: Appellee's Brief filed 10/21/11
  • Lower Ct. Info: 10-CV-413 (WDNY Sept. 2, 2010) (JJM) (unpublished order)
  • In Circuit: Circuit Ct. COA
  • Issues: whether petitioner was entitled to equitable tolling of the statute of limitations

Moore v. Conway, 10-4648-pr [updated 11/05/11]

  • Status: Appellee's Brief filed 10/27/11
  • Lower Ct. Info: 08-cv-6390, 2010 WL 4117411(WDNY Oct. 20, 2010) (MAT)
  • In Circuit: Circuit Ct. COA
  • Issues: whether petitioner's constitutional rights were violated by the prosecution’s misconduct, individually and cumulatively, in: (1) using improper questioning in an attempt to rehabilitate a witness with respect to her in-court misidentification of Appellant in a photo array; (2) displaying to the jury a photograph ruled inadmissible by the trial court; and (3) making improper remarks in summation

Tatum v. Lempke, 10-3801-pr [updated 11/05/11]

  • Status: Appellee's Brief filed 10/27/11
  • Lower Ct. Info: 10-CV-1211 (EDNY August 30, 2010) (JG) (unpublished order)
  • In Circuit: Circuit Ct. COA
  • Issues: (1) Whether Appellant’s Sixth Amendment right to confrontation was violated because the trial court permitted the introduction of a witness’s grand jury testimony and other statements, after the court found that the witness had refused to testify as a result of being threatened by Tatum’s brother; (2) whether Appellant received ineffective assistance of counsel at trial because his attorney failed to timely provide notice of an alibi witness; and (3) whether Appellant received ineffective assistance of counsel on appeal because his attorney did not argue that trial counsel had been ineffective

Harrison v. Cunningham, 11-2949-pr [updated 9/17/11]

  • Status: Appellant's Brief due 11/22/11
  • Lower Ct. Info: 07-CV-4077, 2011 WL 1897655 (EDNY May 18, 2011) (NGG)
  • In Circuit: Habeas Grant
  • Issue: IAC based on counsel's failure to give adequate alibi notice and call two alibi witnesses

Santone v. Fischer, 10-5010-pr [updated 11/05/11]

  • Status: Appellee's Brief due 12/22/11 
  • Lower Ct. Info: 04-CV-947, 2010 WL 4703396 (NDNY Nov. 10, 2010) (NAM) (DRH)
  • In Circuit: Circuit Ct. COA
  • Issues: (1) whether the trial evidence was sufficient to establish that the victim suffered “serious physical injury”; (2) whether trial counsel was ineffective for failing to investigate the facts surrounding petitioner’s alleged threats made to a State witness; and (3) whether the district court should have held an evidentiary hearing

Freeman v. Kadien, 11-353-pr [updated 11/05/11]

  • Status: Appellee's Brief due 12/12/11
  • Lower Ct. Info: 08-CV-6468, 2010 WL 4642925 (WDNY Nov. 17, 2010) (MAT)
  • In Circuit: Circuit Ct. COA
  • Issues: due process violation based on prejudicial spillover from blood sample evidence introduced in support of his later-invalidated count of conviction for driving while intoxicated

Montstream v. Superintendent, 11-802-pr [updated 11/05/11]

  • Status: Appellant's Brief filed 10/12/11
  • Lower Ct. Info: 06-CV-787, 2011 WL 283252 (WDNY Jan. 25, 2011) (RJA) (VEB)
  • In Circuit: Circuit Ct. COA
  • Issues: (1) whether the double jeopardy claim was fairly presented to the state court; (2) whether petitioner's consecutive sentences represented a double jeopardy violation; and (3) IAC related to counsel's failure to challenge the consecutive sentences.

Johnson v. Bellnier, 11-3488-pr [updated 10/08/11]

  • Status: Resp.-Appellant Brief due 12/12/11
  • Lower Ct. Info: 09-CV-381, 2011 WL 3235708 (EDNY July 27, 2011) (KAM) (RER)
  • In Circuit: Habeas Grant
  • Issues: (1) whether petitioner had shown a miscarriage of justice in order to overcome a procedural default; (2) legal insufficiency on depraved indifference

Pagan v. Brown, 11-3434-pr [updated 10/08/11]

  • Status: Appellant's Brief due 10/24/11
  • Lower Ct. Info: 07-CV-0453, 2011 WL 3235769 (EDNY July 28, 2011) (JS) (WDW)
  • In Circuit: Dist. Ct. COA Grant
  • Issues: whether the trial court impermissibly allowed a police officer to testify about petitioner's silence in response to police questioning

Mason v. Duncan, 11-2976-pr [updated 10/08/11]

  • Status: Stay Lifted; Appellant's Brief due 12/2/11
  • Lower Ct. Info: 02-CV-5729, 2011 WL 3251535 (SDNY July 27, 2011) (KMW)
  • In Circuit: Dist. Ct. COA Grant
  • Issues: whether petitioner's sentence as a persistent felony offender is unconstitutional
  • D/D: I represent petitioner in this case

Sanchez v. Lee, 11-3617-pr [updated 10/08/11]

  • Status: Appellant's Brief due 12/19/11; Motion to consolidate plus Expand COA pending
  • Lower Ct. Info: 10 Civ. 7719, 2011 WL 3477314 (SDNY Aug. 8, 2011) (PKC) (AJP)
  • In Circuit: Dist. Ct. COA grant
  • Issues: whether whether petitioner had shown a miscarriage of justice in order to overcome a procedural default

Hawthorne v. Spitzer, 10-4324-pr [updated 10/08/11]

  • Status: Appellant's Brief due 11/18/11
  • Lower Ct. Info: 07-cv-4128, 2010 WL 3803861 (EDNY Sept. 21, 2010) (NG) (CLP)
  • In Circuit: Circuit Ct. COA
  • Issues: (1) whether Appellant has established prejudice for the procedural default of his claim that his Miranda rights were violated; and (2) whether counsel was ineffective during the suppression hearing when his counsel failed to cross-examine detectives about appellant's interrogation and did not call appellant to testify at the hearing

Jones v. Murphy, 10-3997-pr [updated 11/05/11]

  • Status: Appellant's Brief filed 10/17/11; Appellee's Brief due 12/22/11
  • Lower Ct. Info: 10-CV-49, 2010 WL 3829129 (D. Conn. Sept. 21, 2010) (JCH)
  • In Circuit: Circuit Ct. COA
  • Issues: (1) whether, before removing the Appellant from the courtroom, the trial court should have warned the Appellant that he would be removed if he continued his disruptive behavior; (2) whether the Appellant “reclaimed” his right to be present at trial; (3) whether the Appellant was interrogated within the meaning of Rhode Island v. Innis, 446 U.S. 291 (1980) and, (4) if so, whether his subsequent, post-Miranda statements are admissible consistent with Oregon v. Elstad, 470 U.S. 298 (1985), and Missouri v. Seibert, 542 U.S. 600 (2004)

Lampon v. LaValley, 11-895-pr [updated 10/08/11]

  • Status: Brief due 12/12/11
  • Lower Ct. Info: 10-cv-2591, 2011 WL 684623 (EDNY Feb. 16, 2011) (BMC)
  • In Circuit: Circuit Ct. COA
  • Issue: whether, assuming petitioner’s insufficiency claim is procedurally barred, application of the bar would result in manifest injustice

Emmons v. Artus, 11-1441-pr [updated 10/08/11]

  • Status: Appellant's Brief due 11/21/11 
  • Lower Ct. Info: 09-CV-675, 2011 WL 841316 (NDNY Mar. 8, 2011) (DNH) (DRH)
  • In Circuit: Circuit Ct. COA
  • Issue: IAC based on counsel’s alleged failure to object to Appellant appearing “at a jury trial in manacles,” in possible violation of his due process rights and his rights to a fair trial under the Sixth Amendment. Davidson v. Riley, 44 F.3d 1118, 1122 (2d Cir. 1995)

Rush v. Lempke, 11-783-pr [updated 10/08/11]

  • Status: Appellant's Brief due 12/20/11
  • Lower Ct. Info: 09-CV-3464, 2011 WL 477807 (EDNY Feb. 2, 2011) (JFB)
  • In Circuit: Circuit Ct. COA
  • Issues: (1) he was entitled to equitable tolling of the limitations period under 28 U.S.C. § 2244(d)(1); (2) the commencement of the limitations period was governed by § 2244(d)(1)(B); and (3) his right to selfrepresentation was violated by the trial court’s restriction of his movement within the courtroom and by its denial of his initial requests to proceed pro se

Martinez v. Kirkpatrick, 11-2019-pr [updated 11/05/11]

  • Status: Appellant's Brief due 11/21/11; Motion to Expand COA Denied
  • Lower Ct. Info: 09-CV-900 (NDNY May 10, 2011) (GTS) (MAD) (unpublished order)
  • In Circuit: Circuit Ct. COA
  • Issue: whether appellant was denied the effective assistance of trial counsel due to a conflict of interest presented by counsel’s own investigation, and subsequent prosecution, by the same district attorney’s office that was prosecuting Martinez

Graves v. Phillips, 11-4023-pr [updated 10/08/11]

  • Status: Forms C & D filed
  • Lower ct. Info: 02-CV-6550, 2011 WL 4347881 (EDNY Sept. 15, 2011) (JBW)
  • In Circuit: Dist. Ct. COA (kind of)
  • Issues: Brady violation based on prosecution's failure to disclose criminal history of witness [denial of Rule 60(b) motion]

Evans v. Fischer, 11-4418-pr [updated 11/05/11]

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

Cardoza v. Rock [updated 10/17/11]

  • Status: Motion for reconsideration pending in district court
  • Lower Ct. Info: 08-CV-8210, 2011 WL 4472030 (SDNY Sept. 27, 2011) (PAC) (RLE)
  • In Circuit: Habeas Grant; Dist Ct COA
  • 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

Cross v. Perez  [updated 11/05/11]

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

Marte v. Berkman, 11-4486-pr [updated 11/27/11]

  • Status: Form C & D filed
  • Lower Ct. Info: 11-CV-6082, 2011 WL 4946708 (SDNY Oct. 18, 2011) (JFK)
  • In Circuit: Dist. Ct. COA
  • 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

Munson v. Rock, 11-2943-pr (L); 11-3516-pr (Con) [updated 1/7/12]

  • Status: Counsel Assigned, Form D filed
  • Lower Ct Info: 09-CV-6655, 2011 WL 2516499 (WDNY June 23, 2011) (MAT)
  • In Circuit: Circuit Ct. COA
  • Issues: Whether petitioner is entitled to a writ of habeas corpus based on his claim that he received ineffective assistance of counsel when counsel advised him that he faced consecutive sentences of up to 50 years in prison

 

About

Important Info

Subscribe to this blog's feed
Blog powered by TypePad