Habeas Corpus - Weekly Review 5/11-15/09

What is the Weekly Review? Answer here.

1. Berry v. Ercole, 06 Civ. 6957, 2009 WL 1321906 (SDNY May 12, 2009) (DLC) (THK)

Habeas Denied
Claims: "Pared to its essentials, the question presented through this habeas petition is whether an attorney provides ineffective assistance of counsel when he fails to advise his client, who is adamant in his position that he is innocent, to plead guilty. In this case, the answer is no."
Notes: Very interesting case. Magistrate judge (I know, I know) recommends that the petition be granted after a hearing, but district judge rejects the recommendation. District judge grants a certificate of appealability on this issue (see FAQ 9), so Second Circuit will get a chance to review this interesting claim. I'll probably do a separate blog post at some point about this case alone.

2. Faigaro v. People, 04 Civ. 2763, 2009 WL 1285847 (SDNY May 11, 2009) (TPG)

Habeas Denied
Claims: illegal arrest, identification errors, speedy trial, ineffective assistance of trial counsel, evidentiary issues
Notes: Not much. Pretty garden-variety denial. Some claims procedurally defaulted (see FAQ 5), some were not exhausted (see FAQ 4), some were simply barred from reviewed as not cognizable on habeas, and the rest had no merit.

UPDATE with more cases below the fold.

3. Mills v. Girdich, __ F.Supp.2d __, 2009 WL 1353539 (WDNY May 15, 2009) (RJA)(VEB)

Habeas Denied and Request to Amend Petition Denied
Claims: Grand Jury Issue; Failure to Charge Lesser Included Counts; Erroneous Jury Charges; Ineffective Assistance of Appellate Counsel ("IAAC")
Notes: Adopting Report and Recommendation ("R&R")

4. Edmonds v. Purdy, 08 Civ. 8808, 2009 WL 1357953 (SDNY May 14, 2009) (DLC) (AJP)

Habeas Denied
Claims: State failed to preserve evidence; prosecutor knowingly presented false evidence; Ineffective Assistance of Trial Counsel ("IAC")
Notes: Adopting R&R; no R&R attached; Eventually published in the Decision of Interest section of New York Law Journal, but I have absolutely no idea why

5. Jones v. Giambruno, 05-CV-0008, 2009 WL 1362847 (WDNY May 14, 2009) (HKS)

Habeas Denied
Notes: Parties consented to proceed before Magistrate Judge; parole case; I am personally not too familiar with habeas cases concerning parole; the judge here rejected most claims because habeas relief is not available on many constitutional challenges to parole decision since a petitioner does not have a constitutional right in New York to early release. This was an unusual petition.

6. Maynard v. Brown, 07 Civ. 10480, 2009 WL 1344688 (SDNY May 13, 2009) (WHP)(FM)

7. Rhodes v. Ercole, 07 CV 1039, 2009 WL 1346395 (EDNY May 13, 2009) (ARR)

Habeas Denied
Claims: Prosecutorial Misconduct; Preclusion of cross-examination; Improper admission of hearsay evidence; Involuntary statement to police; IAC; IAAC

8. Brown v. Ercole, 07 Civ. 11609, 2009 WL 1390854 (SDNY May 13, 2009) (NRB)

State's Stay Application Denied
Notes: Petition was granted in this case. I discussed the case here. The court ordered that petitioner either be retried or released within 45 days of the order. State argued that a stay should be granted while they pursued the case on appeal. District court disagreed. As a followup, Second Circuit later denied a stay. in an unpublished order. However, the court stated that petitioner could be released and then immediately rearrested on the charges still pending against him.

9. Serrano v. Smith, 05 Civ. 1849, 2009 WL 1390868 (SDNY May 13, 2009) (KTD)

Motion for Reconsideration of Previous Habeas Denial Denied
Notes: While this type of motion can be used to reopen a habeas case, the petitioner in this case did not articulate a proper ground for relief. Essentially, he attempted to reargue the claims that the court already denied.

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