Habeas Corpus Blog

Habeas Corpus - Second Circuit Preview - Week of January 9, 2012

First Preview of the new year.  Still playing catch up, both at work and on the blog.  Priority is to catch up on the Second Circuit stuff.

One habeas case to be heard this week:

Wednesday, January 11

Hubrecht v. Artus, 10-3610-pr  

• Status: Calendared for 1/11/12, B Panel
• Panel: Jacobs, Wesley, Carney
• Lower Ct. Info:  05-CV-5861, 2010 WL 3187233 (SDNY Aug. 13, 2010) (RJH) (FM)
• In Circuit: Circuit Ct. COA
• Issues: whether the trial court violated appellant's constitutional rights to a fair trial and to present a defense by failing to: (1) charge a justification defense; (2) permit appellant to introduce evidence to support a justification defense, and (3) permit Appellant to introduce his exculpatory statements that he had shot the victim in self-defense, while allowing the State to introduce testimony that might imply that appellant had made no statements to that effect

Habeas Corpus - Back in Business

Just wanted to put up a post saying that the blog is still running and that new posts will be coming soon.  I guess it's been almost a month since my last post.  I was simply overwhelmed with work stuff during that time.  But I was still able to follow habeas developments in the Supreme Court and in the Second Circuit. 

Actually, a lot has happened in habeasland during the past month.  Some good (a habeas grant from the Second Circuit), but mostly depressing (such as an unusual, and mostly unexplained, reversal from the Second Circuit of one of its own previous habeas grants).

I'll try and put up a post about most of what I saw.  The posts will begin later this week, I hope.

For now, I just want to point out that the following three cases were argued before the Second Circuit while the blog was silent.  They were the final three habeas cases to be heard during 2011:

Rivas v. Fischer, 10-1300-pr 

• Argued 12/8/11
• Panel:Cabranes, Pooler, Sack
• Lower Ct. Info: 01-CV-1891, 2010 U.S. Dist. LEXIS 29689 (NDNY Mar. 26, 2010) (GLS) (DEP)
• In Circuit: District Court COA
• Issues: (1) when petitioner discovered the new evidence that serves as the factual predicate for some of his claims, and (2) whether it could have been discovered earlier through the exercise of due diligence 

Saracina v. Artus, 10-3898-pr

• Argued 12/15/11, A Panel
• Panel: Calabresi, Katzmann, Parker
  
• Lower Ct. Info: 04-CV-521, 2010 WL 3529339 (WDNY Sept. 08, 2010) (MAT) (JWF)
• In Circuit: Dist. Ct. COA
• Issues: whether petitioner's claim that he was improperly adjudged a PFO based on a non-qualifying, out-of-state conviction is cognizable on habeas review.

King v. Greiner, 10-480-pr 

• Status: Calendared for 12/14/11, A panel
• Panel: Sack, Katzmann, Parker
• Lower Ct. Info: 02 Civ. 5810, 2009 WL 2001439 (SDNY July 8, 2009) (DLC) (AJP)
• In Circuit: Dist. Ct. COA
• Issues: IAC based on counsel's failure to object to prosecutor's summation comments

To note, the court has already decided Saracina.  I'll talk about that in a separate post.

Habeas Corpus - Second Circuit Preview - Week of November 28, 2011

One habeas case to be heard this week.  It's one that I have discussed around here recently, Garbutt v. Conway.  The issue in the case is whether a procedurally defaulted depraved indifference claim can be considered under the miscarriage of justice exception.  There are a couple of other current appeals that raise that issue.  I am disappointed that the court did not consolidate them.

Here are the details:

Thursday, December 1 

Garbutt v. Conway, 10-1039-pr 

• Status: To be argued 12/1/11
• Panel: Hall, Lynch, Chin
• Lower Ct. Info: 05-CV-9898, 2009 WL 2474099 (SDNY Aug. 12, 2009) (SHS) (JCF)
• In Circuit: Dist. Ct. COA
• Issue: whether a failure to consider a procedurally barred sufficiency-of-the-evidence claim based on the change in the depraved indifference law represents a fundamental miscarriage of justice

Habeas Corpus - Second Circuit Preview - Week of November 14, 2011

Two habeas cases to be heard this week.

Monday, November 14

Parker v. Ercole, 10-2510-pr 

• Status: To be argued 11/14/11, A panel
• Panel: Kearse, McLaughlin, Cabranes
• Lower Ct. Info: 07-CV-373, 2010 WL 1854079 (NDNY May 07, 2010) (JKS)
• In Circuit: Circuit Ct. COA
• Issues: (1) insufficient evidence to support depraved indifference conviction; (2) IAC

Thursday, November 17

Carncross v. Lempke, 11-435-pr

• Status: To be argued 11/17/11, A panel
• Panel: Jacobs, Cabranes, Livingston
• Lower Ct. Info: 10-CV-522 (NDNY  Jan. 20, 2011) (LEK) (unpublished order)
• In Circuit: Dist. Ct. COA
• Issues: whether the trial court wrongfully deprived petition of his right to utilize counsel of his choice in the related criminal action

 

Habeas Corpus - Second Circuit Preview - Week of November 7, 2011

Posting this a little later than I planned, but still before the one habeas case to be heard this week.

Wednesday, November 9

Robles v. Dennison, 10-4480-pr 

• Status: To be argued 11/9/11
• Panel: Pooler, Parker, Lohier
• Lower ct. Info: 05-CV-428, 2010 WL 4026814 (WDNY Oct. 13, 2010) (VEB)
• In Circuit: Dist. Ct. COA
• Issues: (1) whether Corr Law s. 213 applies to petitioner's case; (2) did 213 create a liberty interest in parole; (3) whether inmates have a due process right not to be denied parole for arbitrary or impermissible reasons, and to be protected from flagrant and unauthorized action by the Parole Board; and if so, (4) was petitioner denied parole for arbitrary or impermissible reasons; and (5) is the available process in New York for reviewing parole denials ineffective to protect the rights of the habeas applicant and therefore futile for purposes of exhaustion

Habeas Corpus - Second Circuit Preview - Week of October 24, 2011

One habeas case this week.  It's a submission.

Wednesday, October 26

Burchard v. Cuomo, 10-1045-pr 

• Status: To be submitted on 10/26/11
• Panel: Walker, Katzmann, Wesley
• Lower Ct. Info: 07-CV-0124, 2010 WL 681258 (WDNY Feb. 24, 2010) (MAT)
• In Circuit: Circuit Ct. COA
• Issue: IAC based on his trial counsel's alleged conflict of interest

Habeas Corpus - Second Circuit Preview - Week of Oct. 3, 2011

One habeas case to be heard this week.  Here are the details:

Monday, October 3

Conner v. Poole, 10-1369-pr, 10-2060-pr, 11-1865-pr 

• Status: Calendared for 10/3/11
• Panel: Sack, Raggi, Eaton, USCIT
• Lower Ct. Info: 07-CV-6230, 2010 WL 1404671 (WDNY Mar. 30, 2010) (MAT)
• In Circuit: Circuit Ct. COA
• Issues: whether, after trial court suppressed an unduly suggestive show-up identification by a witness, the trial court deprived petitioner of due process when it allowed the witness to identify petitioner in court

 

Habeas Corpus - Second Circuit Preview - Week of Sept. 19, 2011

Busy, busy week coming up in the Second Circuit.  Four habeas cases.

Here they are:

Tuesday, Sept. 20

Munoz v. Burge, 10-3834-pr 

• Status: Calendared for 9/20/11, B Panel
• Panel: Pooler, Parker, Chin
• Lower Ct. Info: 02-CV-6198, 2010 WL 3394696 (EDNY Aug. 20, 2010) (NGG) (LB)
• In Circuit: Dist. Ct. COA
• Issues: IAAC based on counsel's failure to raise claims that the trial court impermissibly delegated judicial responsibility and did not disclose jury notes to the defense.

Marrant v. Cuomo, 10-2347-pr 

• Status: Calendared for 9/20/11, B Panel
• Panel: Pooler, Parker, Chin
• Lower Ct. Info: 09-CV-4964, 2010 WL 1962914 (SDNY May 17, 2010) (LTS) (MHD)
• In Circuit: Circuit Ct. COA
• Issues: whether, as a result of the short time that counsel was given to prepare for trial, petitioner was deprived of his rights to a fair trial, to present a defense, and to the assistance of counsel

Wednesday, Sept. 21

Grayton v. Ercole, 10-1419-pr 

• Status: Calendared for 9/21/11, B Panel
• Panel: Leval, Hall, Lohier
• Lower Court Info: 07-CV-0485, 2009 WL 2876239 (EDNY Sept. 8, 2009) (SLT) (RLM)
• In Circuit: District Court COA
• Issues: (1) Whether a state defendant's exclusion from a Geraci hearing warrants habeas relief, and; (2) Whether defense counsel could effectively waive a state  defendant's right to be present at a Geraci hearing, assuming such a right exists.

Note: To be heard in the Court of International Trade

Friday, Sept. 23

Graham v. Portuondo, 10-3636-pr 

• Status: Calendared for 9/23/11, A Panel
• Panel: Walker, Chin, Lohier
• Lower Ct. Info: 01-CV-6911, 2010 WL 3210691 (EDNY Aug. 12, 2010) (JBW)
• In Circuit: Habeas Grant
• Issues: IAC based on counsel's failure to adequately investigate petitioner's mental health issues prior to trial

 

Habeas Corpus - Second Circuit Review - Week of Aug. 29 - Updated

Last week (at the same time I had to evacuate from my apartment), I got completely knocked to the ground (pretty much literally) as a result of the flu.  As soon as I was able to pull myself up off the ground (once again, pretty much literally), I had to prepare for an oral argument up in the Albany.  Which is why I missed posting the Second Circuit Preview last week.

So instead of a preview, I'll just call it a review.  The Second Circuit heard a habeas case last week.  Here are the details:

Wednesday, August 31, 2011

Collins v. Ercole, 10-2331-pr 

• Argued 8/31/11
• Panel: Livingston, Lohier, Carney
  
• Lower Ct. Info: 08-CV-7636 (SDNY Mar. 29, 2010) (AKH) (unpublished)
• In Circuit: Circuit Ct. COA
• Issue: whether the one-year limitations period under 2244(d) was tolled by petitioner's filing of an Article 78 proceeding in New York state court

Just to note, no habeas cases are going to be heard this week in the Second Circuit.

Update: Panel information added.

 

Habeas Corpus - Second Circuit Preview - Week of August 22, 2011

The Second Circuit's August 2011 Term kicked off today!  And I completely forgot to put up a preview.

Fortunately, the first habeas case is not going to be heard until Tuesday.  So I can still sneak this preview in ahead of time.

Two habeas cases to be heard this week:

Tuesday, August 23

Cornell v. Kirkpatrick, 10-561-pr 

• Status: Calendared for 8/23/11, B panel
• Panel: Newman, Cabranes, Straub
• Lower Ct. Info: 06-CV-0734, 2010 WL 161429 (WDNY Jan. 13, 2010) (MAT)
• In Circuit: Circuit Court 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

 

Friday, August 26

Harris v. Fischer, 10-795-pr 

• Status: Calendared for 8/26/11 B Panel
• Panel: Chin, Lohier, Korman, DJ
• Lower Ct. Info: 05-CV-0160, 2010 WL 681061 (WDNY Feb. 19, 2010) (MAT)
• In Circuit: Circuit Court COA
• Issue: (1) whether the district court erred in finding Appellant’s claim that he had established the affirmative defense to felony murder, pursuant to New York Penal Law § 125.25(3), procedurally barred; and (2) whether Appellant’s claim raises a federal constitutional issue for purposes of relief under 28 U.S.C. § 2254