Habeas Corpus Blog

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 - Second Circuit Matters

I have added a couple new cases to the Pending Second Circuit Cases page.

First, in lieu of doing a separate post covering the Second Circuit orders for the past two months (November and December 2011), I'll just mention here that there were zero COA's in November and only one in December.  The numbers continue to dwindle.

Here's the COA from December:

Munson v. Rock, 11-2943-pr (L); 11-3516-pr (Con)

• 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

After reviewing the upcoming calendars, I noticed a case that does not appear on the Pending Cases page.  Not sure how I missed the order as it was issued back in February 2011.  In any event, here it is:

Green v. Walsh, 10-3353-pr

• Status: Calendared for 2/2/12
• Lower Ct. Info: 03-CV-3606, 2010 WL 3037000 (EDNY Aug. 3, 2010) (RJD)
• In Circuit: Circuit Ct. COA
• Issues: whether the district court properly dismissed Green’s challenges as “beyond the scope of Rule 60(b)” when (1) Appellant’s sentence, subsequent to the district court’s denial of his petition filed pursuant to 28 U.S.C. § 2254, but prior to the filing of his Rule 60(b) motion, had been vacated and reimposed by the New York state courts, and (2) Appellant’s Rule 60(b) motion attacked the district court’s previous resolution of his claims on the merits

Habeas Corpus - Summary Orders

Three summary orders over the past month, Saracina v. Artus, Carncross v. Poole, and King v. Greiner. The details of each are listed below.

Of the three, Saracina was the most interesting to me.  The issue was whether petitioner was unlawfully adjudicated a persistent felony offender.  In other words, did the state court properly decide that petitioner had two prior qualifying felony convictions?  The Second Circuit concluded that this was a matter of state law that was not cognizable on habeas review.  I don't know if I necessarily agree with that.  I think a due process violation can potentially lie in there somewhere.  What caught my attention about this, though, is that the Second Circuit stated that it had previously held that this was simply a matter of state law.  It then cited to two cases from 1959.  Not that cases that old are no longer good precedent, but they seem a little ancient to me.  Maybe a published opinion would have been more appropriate in order to update an ancient holding.

But King also had an interesting procedural paragraph.  I am not quite sure I understand it though.  The question is whether 2254(d) deference should apply to petitioner's IAC claim which was based on counsel's failure to object to improper comments during the prosecutor's summation:

As an initial matter, the parties dispute whether AEDPA requires that we afford deference to the county court’s decision denying King’s motion to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10. While it is true that the county court rejected King’s ineffective assistance of counsel claim on the merits, it is not clear that deference is appropriate under AEDPA because King’s ineffective assistance of counsel claim was at least partially predicated on claims that New York’s highest court declined to reach on direct review. People v. Anonymous, 96 N.Y.2d 839, 840 (2001) (concluding that King’s claims regarding the prosecutor’s allegedly improper comments were not preserved for appellate review, but noting that it did “not condone” the prosecutor’s summation). In Cotto v. Herbert, 331 F.3d 217 (2d Cir. 2003), we noted that we were “inclined to conclude that the Court of Appeals’ holding that [petitioner’s claim] was unpreserved mean[t] that the claim was not ‘adjudicated on the merits’ in the state courts,” and thus that we should not defer to the lower court decisions addressing the merits of the claim. Id. at 231. Of course, in that case, we did not definitively resolve the issue as we proceeded to “assume without deciding that there was an ‘adjudication on the merits’ in the state courts,” and held that the state court’s merits adjudication failed even under AEDPA’s deferential standard of review. Id. at 231, 252-53. In this case, we also need not reach whether AEDPA deference is warranted because we conclude that King’s claim fails even under de novo review.

So, I understand the concept of what they are talking about: even if a lower court addresses the merits of a claim, if the last reasoned state court opinion does not address the merits of a claim, then potentially there should not be deference.  Habeas review focuses on the last reasoned decision. 

But I am not sure how that applies here.  The 440 decision came after the Court of Appeals' decision.  I would think that, because the state court addressed the IAC claim on the merits (probably in a completely summary fashion), then deference would apply to the IAC claim.  That would be true even if a state court failed to separately address the merits of the underlying deficient performance component when it was raised as its own claim.  Am I making sense?  I guess I shouldn't pick it apart too much since there is a potential benefit to petitioners.  But I just am having a hard time following the logic.

The details:

Carncross v. Lempke, 11-435-pr

• Affirming Denial of Habeas
• Argued: 11/17/11; Decided: 11/30/11; summary order
  
• 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

Saracina v. Artus, 10-3898-pr 

• Affirming Denial of Habeas
• Argued: 12/15/11; Decided: 12/20/11; summary order
• 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 

• Affirming Denial of Habeas
• Argued: 12/14/11; Decided: 12/23/11; summary order
• 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

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 - Summary Orders

Over the past week, the Second Circuit issued a couple of straightforward summary orders in Robles v. Dennison and Marrant v. Cuomo.  I am just going to give the details (although I found the Robles decision interesting as it concerns federal review of parole decisions, which doesn't come up a lot).

 Robles v. Dennison, 10-4480-pr

• Affirming Denial of Habeas
• Argued: 11/9/11; Decided: 11/23/11; summary order
• 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 arbi
• trary 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

Marrant v. Cuomo, 10-2347-pr 

• Affirming Denial of Habeas
• Argued: 9/20/11; Decided: 11/21/11; summary order
• 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

 

 

Habeas Corpus - Bell v. Ercole

Around the time that I did my global update to the Pending Second Circuit Cases page, I added another case to the page.  The name of the case is Bell v. Ercole.  

I have blogged about the case before.  Back in March 2010, the Second Circuit issued a summary order that remanded the case to the district court.  As I said in the prior post, the Second Circuit was "unsatisfied" with the district court's analysis in its order denying the evidentiary rulings.  The Second Circuit stated that it found it very hard to review the decision and it wanted the court's reasoning to be stated more explicitly to allow for appellate review.

The DJ has finally issued the order seeking to clarify things.  It's a really long and ornery opinion.  The DJ clearly was not happy that he had to make his reasoning more clear.  At various times in his opinion, he criticizes the remand order.  And, while I expressed a hope that maybe, on remand, the DJ would reconsider the habeas denial, that didn't happen.

Now the case is sent back to the Second Circuit.  I am guessing that the case probably should go back to the same panel.  I would think that further briefing will be necessary.  But I am not sure whether there will be another oral argument.  For this reason, I have put the case in the "Argued" section of the page.  I am not going to give periodic updates on the case because it is a pre-2010 docket number, so it will be relatively costly to keep looking at the docket sheet ($0.80 as opposed to $0.16 for the post-2010 docket sheet).  If I see it pop up on the calendar, I will add the info.  Otherwise, I will just wait for the decision.

Here are the details on the case:

Bell v. Ercole, 08-3539-pr

• Status: Request to Restore Case to Panel
• Panel: Leval, Straub, Wesley
• Prior Decision: Summary Order Remanding Case
• Issues: Juror misconduct; evidentiary rulings; prosecutorial misconduct; harmless error

 

Habeas Corpus - Second Circuit Updates

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

The most notable update is that, after a review of the upcoming calendars, a case has been added.  It's called Carncross v. Lempke,11-435-pr.  It's one of those unpublished district court COA's.  But it's even more frustrating than the typical one that gets missed.  This was a 30-page opinion denying habeas in which the DJ granted a COA.  Further, this was a relatively infamous case as it got some media attention (petitioner was convicted of aggravated manslaughter after he led the police on a high speed car crash during which an officer crashed into a tree and died) and was reviewed by the New York State Court of Appeals (People v. Carncross).  It makes no sense to me that this would go unpublished.

Here are the details:

Carncross v. Lempke, 11-435-pr 

• Status: To be argued 11/17/11, A panel
• 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 - Summary Order

The Second Circuit issued a summary order today in Burchard v. Cuomo.  The allegations in this case were interesting: a conflict of interest based on defense counsel's position as campaign manager for the district attorney.  The court concludes that, even assuming that this position was "representation," there is no indication that there was any active conflict (as the campaign ended four years earlier) and there was no showing of any divergance of interest.

The one thing I found interesting was that the court renamed the case Burchard v. Schneiderman, who, under FRAP 43(c0(2), gets automatically substituted as the named Attorney General. However, the order says that Scheiderman was replacing former Attorney General Eliot Spitzer.  What happened to Cuomo?  He had already been substituted for Spitzer in the Second Circuit appeal.  That is what happened at the time of the COA grant.  I looked at the rule and it would appear that Cuomo should have been considered the party on appeal for the purpose of this substitution.   

None of this matters, obviously.  I just thought it was weird that Cuomo was made to disappear here.  My only guess is that maybe the parties' briefs used the name Spitzer instead of Cuomo in the caption.  I am losing interest in all of this as I write it.

In any event, here are the details:

Burchard v. Cuomo, 10-1045-pr 

• Affirming Denial of Habeas
• Submitted: 10/26/11; Decided: 11/04/11; summary order
• 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 - Published Opinion from Second Circuit

Very brief per curiam* opinion from the Second Circuit today in Blackman v. Ercole.  It's actually quite odd.  It's more of an internal administrative oversight opinion concerning the method for deciding COA's in the district court, more than a real procedural decision.  And it may (I emphasize may) help to solve a perpetual gap in knowledge with respect to when DJ's grant COA's.

*I always want to spell this as "curium," probably because it's how "curiam" is pronounced (or maybe I am just pronouncing it wrong).  To note, I did some research to see if "curium" was actually a word.  It is (and maybe with an unofficial minor in chemistry I should have known that).  Curium is a "silvery metallic synthetic radioactive transuranic element. Its longest lived isotope is Cm 247 with a half-life of 16.4 million years. Atomic number 96; melting point (estimated) 1,350°C; valence 3."  I guess that opens up a potential blog post title of "Curium Per Curiam," should a per curiam opinion somehow be described as radioactive.

In Blackman, the EDNY DJ denied habeas relief.  Afterwards, the EDNY clerk's office sent the DJ a form to indicate, among other things, whether a COA had been granted.  The order denying the petition did not mention this.  The judge was asked to check either Yes or No.  The DJ checked Yes.  But there is nothing on the form to indicate the issue on which a COA was granted.

This upset the Second Circuit.  Rather than go after the DJ (whose name was not mentioned at all in the opinion, which is pretty unusual), the Second Circuit attacks the clerk's office for its sloppiness in allowing a DJ to simply check a box.  it says, "This does not appear to have been an isolated error, but rather, an oversight triggered by the practice of the Clerk’s Office to notify district judges of requests for COAs using a form that solicits only a 'Granted' or 'Denied' response." 

The court says that it does not have the resources to figure out which issue the DJ intended to issue a COA.  Apparently, other circuits have had the same problems with its district courts.  Thus, the court concludes, "Accordingly, we join our sister circuits that have considered and remanded similarly deficient COAs for specification of issues certified for appeal."

First, let me just say that, in this particular case, I don't think it was too hard to figure out what the issue was on which the COA was granted.  The right to remain silent issue was the only issue addressed on the merits in the opinion.  The others were clearly procedurally defaulted.  And the DJ engaged in a lengthy analysis on the right to remain silent issue.  So, I don't think that there was a danger of any resources getting wasted here.

It also feels odd to me that the Second Circuit would do this in a published opinion, rather than as an internal administrative matter.  The chief judge could just get on the phone with the different clerk's offices and tell them to stop.  An e-mail or memo could have the same effect.  Obviously, a published opinion will have the greatest effect, but it's a little like using a cannon to shoot a fly.  But this opinion should do the trick.

Despite these quasi qualms I have about the opinion, the upshot, to me, is that this may inspire more judges to either put the COA decision in the order denying the petition (most do, but some do not) or issue a substantive order when granting a COA.  If a more substantive order is issued, there is a stronger likelihood that it will end up on Westlaw.  This could go towards closing the perpetual gap in knowledge that I have about COA's grants from the district courts that are not a part of the order denying the petition.  There aren't many of them, but this case shows that they still do exist. 

Here are the details for Blackman:

Blackman v. Ercole, 10-205-pr

• Remanded for Dist. Ct. to Specify Issue on Which COA Was Granted
• Submitted 10/18/11; Decided: 10/27/11 per curiam opinion
  
• Panel: Miner, Cabranes, Livingston
• Lower Ct. Info: 06-cv-855, 2009 WL 4891767 (EDNY Dec. 17, 2009) (SLT)
• In Circuit: Dist. Ct. COA
• Issues: Improper comments on petitioner's post-arrest silence (probably)

 

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 . . .