Flores v. Rivera, 06 Civ. 13517, 2009 WL 1110578 (SDNY April 23, 2009) (LTS JCF)
In the first substantive post on this blog about a month ago, I discussed a really interesting habeas grant in a case called Brown v. Ercole. In that case, a district judge concluded that a claim that the trial evidence was insufficient to prove the petitioner's guilt of depraved indifference murder could be reviewed in federal court even though the precise claim was not raised in state court. Typically, that type of claim would be barred from review on the ground of a procedural default (See FAQ 5). However, the district judge found that the lack of an objection at trial did not bar review since any objection would have been futile as the law did not change in favor of the petitioner until after the trial was over. So any objection at trial would have had been a sure-fire loser as the law in existence at the time would have required that the objection be rejected.
In Flores v. Rivera, however, the district judge held that the exact same claim under the same circumstances was procedurally barred. In that case, a magistrate judge (post on magistrate judges coming soon. . .) issued a report and recommendation recommending that a habeas petition be granted for the exact same reasons as in Brown, namely an objection at trial would have been futile as the law at the time stated that an objection could not have succeeded (so the claim was not procedurally barred) and the evidence was insufficient to show that the petitioner acted with depraved indifference in killing the victim.
However, the district court judge rejected the recommendation and denied the petition. The judge found that the claim was procedurally barred since, even though the law did not change until after the trial, the claim was not novel as the statute defined depraved indifference and intentional murder differently and it appearred to have been raised in earlier cases despite the existing law that basically said that the claim could not be raised. The court concluded, therefore, that the claim had a reasonable basis in law at the time of trial so an objection was necessary.
Of course, I won't spend my time explaining why I agree with Brown and not Flores. That speaks for itself.
So now there are two cases with similar fact but different results. What does it mean? Because the petitioner won in Brown, the State had an automatic right to bring an appeal, which they have done. In Flores, the district court judge granted a certificate of appealability on this issue (see FAQ 9), which means that it is also before the Second Circuit. It will now be up to the Second Circuit to pick a side. In habeasland, it doesn't get more interesting than that.
In the first substantive post on this blog about a month ago, I discussed a really interesting habeas grant in a case called Brown v. Ercole. In that case, a district judge concluded that a claim that the trial evidence was insufficient to prove the petitioner's guilt of depraved indifference murder could be reviewed in federal court even though the precise claim was not raised in state court. Typically, that type of claim would be barred from review on the ground of a procedural default (See FAQ 5). However, the district judge found that the lack of an objection at trial did not bar review since any objection would have been futile as the law did not change in favor of the petitioner until after the trial was over. So any objection at trial would have had been a sure-fire loser as the law in existence at the time would have required that the objection be rejected.
In Flores v. Rivera, however, the district judge held that the exact same claim under the same circumstances was procedurally barred. In that case, a magistrate judge (post on magistrate judges coming soon. . .) issued a report and recommendation recommending that a habeas petition be granted for the exact same reasons as in Brown, namely an objection at trial would have been futile as the law at the time stated that an objection could not have succeeded (so the claim was not procedurally barred) and the evidence was insufficient to show that the petitioner acted with depraved indifference in killing the victim.
However, the district court judge rejected the recommendation and denied the petition. The judge found that the claim was procedurally barred since, even though the law did not change until after the trial, the claim was not novel as the statute defined depraved indifference and intentional murder differently and it appearred to have been raised in earlier cases despite the existing law that basically said that the claim could not be raised. The court concluded, therefore, that the claim had a reasonable basis in law at the time of trial so an objection was necessary.
Of course, I won't spend my time explaining why I agree with Brown and not Flores. That speaks for itself.
So now there are two cases with similar fact but different results. What does it mean? Because the petitioner won in Brown, the State had an automatic right to bring an appeal, which they have done. In Flores, the district court judge granted a certificate of appealability on this issue (see FAQ 9), which means that it is also before the Second Circuit. It will now be up to the Second Circuit to pick a side. In habeasland, it doesn't get more interesting than that.
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