Habeas Corpus - Weekly Review - 9/14-18/09

UPDATED (Two Cases Added)

A lot of cases this week, but nothing too exciting.  Kind of a let down after last week where almost every case offered interesting nuggets.

There was a few cases dealing with procedural issues that caught my attention.  Let me start with one of those.  All of the remaining cases will be after the break:

1. Hernandez v. Girdich, 04-CV-6330, 2009 WL 2982979 (WDNY Sept. 14, 2009) (MAT)

• Petition Dismissed As Moot
• Issues: Improper Disciplinary Rulings

ANALYSIS:  A disciplinary ruling sentenced petitioner to essentially a year of punitive confinement in the Special Housing Unit ("SHU") plus a recommendation of the loss of 12 months of good time credit.  From my limited experience in these things, that's a pretty hefty punishment.  The DJ concluded that there was no case or controversy.  The DJ analyzed the issue under the "presumption of collateral consequences resulting from a criminal conviction" doctrine to determine whether there is continuing custody.  DJ reasoned that, apart from the fact that petitioner was no longer serving the disciplinary sentence, there was no presumption of collateral consequences where there is a loss of good time credits, citing a previous western district decision.

This does not seem right to me.  In fact, this issue came up recently around here (case number 5).  It seems that this type of case would be controlled by Preiser v. Rodriguez, 411 U.S. 475 (1973), which says that any challenge to the fact or length of a confinement is a claim that can (and must) be raised in a habeas petition, even if the claim could technically be raised in a 42 U.S.C. 1983 action.  The loss of good time credits does have an effect on the length of confinement.  So there is a case or controversy here, particularly because petitioner remained in custody.  In fact, it would seem that resorting to the "collateral consequence" doctrine is not even relevant here.  Maybe I am missing something here.  In any event, there does seem to be a conflict between this case and that NDNY case from a couple of weeks ago.

2. White v. Lape, 07 CIV. 11299, 2009 WL 2986660 (SDNY Sept. 18, 2009) (RJH) (KNF)

• Habeas Denied
• Notes: Adopting R&R discussed in this Weekly Review (case 6)
  

3. Flowers v. Ercole, 06 CIV. 6118, 2009 WL 2986738 (SDNY Sept. 18, 2009) (LTS) (FM)

• Habeas Denied
• Issues: (1) Improper Introduction of Prior Crimes Evidence; (2) Violent Persistent Sentence Unconstitutional; (3) IAAC; (4) IAC
• Notes: Adopting R&R, attached

4. Perez v. Cunningham, 09-CV-2233, 2009 WL 2984182 (EDNY Sept. 17, 2009) (JG)

• Habeas Denied
• Issues: (1) Prosecutorial Misconduct; (2) IAC
• Notes: Oral argument held

5. Woods v. Lempke, 08-CV-144, 2009 WL 2992308 (WDNY Sept. 17, 2009) (HKS)

• Motion for Reconsideration Dismissed

ANALYSIS:   I think this one was improperly denied on a procedural ground.  The MJ concluded that it did not have jurisdiction since an appeal had been taken.  That appeal had subsequently been dismissed.  In that decision, the Second Circuit denied a request for a stay of the appeal so that petitioner could pursue a motion for reconsideration.  The MJ said that this decision meant that it still did not have jurisdiction over the case.  I see two problems with the MJ's reasoning.  First, a DJ only loses jurisdiction to GRANT a motion for reconsideration after an appeal has been taken.  Toliver v. County of Sullivan, 957 F.2d 47 (2d Cir. 1992).  For that reason, it was improper to simply dismiss the motion without actually considering it.  The court had the authority to deny it, if it so desired.  And if it wanted to grant it, only then does the party need to get jurisdiction shifted back down to the district court. That's the procedure set up in Toliver.  Second, the appeal is over.  Thus, it is my belief that the district court is no longer without jurisdiction.  The only thing the Second Circuit addressed was whether a STAY OF THE APPEAL was warranted.  But once the appeal is over, that whole question now seems to be moot.  Once again, maybe I am missing something.

6. Spaight v. Dennison, 06-CV-0115, 2009 WL 2992288, W.D.N.Y., September 16, 2009 (HKS)

• Request to Submit Additional Evidence Granted
• Notes: parties consented to proceed before MJ; parole denial case

7. Doe v. Greiner, -Civ.-, 2009 WL 2950242 (SDNY Sept. 15, 2009) (DLC)

• Motion to Remove References to Petitioner's Name from the Case Denied
• Notes: To be published

ANALYSIS: Petitioner argued that he was an informant and faced danger based on the references to his name.  DJ says that petitioner has not made a sufficient showing to be granted this "extraordinary" relief.  In a bit of cruel irony, this decision will be published.

8. Jenkins v. Brown, 09-CV-828, 2009 WL 2957316 (EDNY Sept. 15, 2009) (FB)

• Habeas Denied
• Issues: (1) competency to stand trial; (2) denied right to proceed pro se; (3) trial should not have continued in his absence on one of the trial days; (4) denied his right to testify in his behalf; (5) trial judge was biased
  
• Notes: Counseled
  

9. Casillas v. Murray, 03-CV-6119, 2009 WL 2973487 (WDNY Sept. 15, 2009) (CJS) (VEB)

• Habeas Denied
• Issues: (1) 4th Amend. violation; (2) ID procedures were unduly suggestive; (3) IAC; (4) prosecutorial misconduct; (5) newly discovered evidence/actual innocence
• Notes: Adopting R&R; MJ points out that actual innocence does not state a claim for relief in habeas -- of course, that's an accurate state of the law and precisely what the Troy Davis struggle is all about

10. Thompson v. Kadien, 09-CV-3284, 2009 WL 2949782 (EDNY Sept. 14, 2009) (RJD)

• Habeas Dismissed as Time-Barred

11. Russ v. Burge, 04-CV-6472, 2009 WL 2982974 (WDNY Sept. 14, 2009) (MAT)

• Habeas Denied
• Issues: (1) court lacked authority to reinstate dismissed indictment; (2) IAC; (3) IAAC

12. Sample v. Pearlman, 04-CV-6619, 2009 WL 2982975 (WDNY Sept. 14, 2009) (CJS)

• Habeas Denied
• Issues: (1) guilty plea unlawfully induced by counsel misrepresentation; (2) IAC; (3) sentence was excessive

13. Washington v. Zon, 04-CV-6351, 2009 WL 2982977 (WDNY Sept. 14, 2009) (MAT)

• Habeas Denied
• Issues: (1) 4th Amend. violation; (2) IAC; (3) unconstitutional jury selection
• Notes: DJ essentially finds deficient performance where defense counsel failed to object to suppression court's use of GJ minutes in deciding a suppression motion after a hearing; however, DJ agrees with Appellate Division that there was no prejudice to petitioner

14. Wright v. Conway, 06-CV0319, 2009 WL 2982978 (NDNY Sept. 14, 2009) (GTS) (GHL)

• Habeas Denied
• Issues: (1) improper finding of second felony offender status; (2) court failed to put on record which counts the jury should consider during deliberations; (3) weight of the evidence; (4) insufficient evidence; (5) IAC
• Notes: Adopting R&R, attached

UPDATE: Two cases showed up on Saturday.  Here they are:

15.  Laraby v. Zon, 04-CV-6264, 2009 WL 3049731 (WDNY Sept. 18, 2009) (MAT)

• Habeas Denied
• Issues: (1) IAC; (2) Due process error based on failure to conduct psychiatric exams; (3) improper jury instructions; (4) failure to charge justification; (5) Insufficient Evidence; (6) failure to hold evidentiary hearing on 440 motion

16. Pace v. Herbert, 04-CV-843, 2009 WL 3046714 (WDNY Sept. 17, 2009) (MAT)

• Habeas Denied
• Issues: (1) Insufficient evidence; (2) jailhouse informant testimony should have been precluded under the attorney-client privilege
• Notes: counseled; attorney-client privilege claim is an odd one -- I guess the claim is that petitioner was somehow seeking legal advise from another inmate, and the conversation was privileged; outside of being procedurally barred, I am not sure what the basis for the claim was since the other inmate was not even an attorney; kind of confusing