Welcome to this week's Weekly Review.
An almost record low number of cases, only two weeks after a record high. Strange.
The theme this week is "Attorneys Behaving Badly." There are examples this week of some really odd behavior. Let me get right into it:
1. Edmee v. Coxsackie Corr. Fac., 09-CV-3939, 09-CV-3940, 2009 WL 3318790 (EDNY Oct. 14, 2009) (BMC)
- Habeas Denied
- Issue: Excessive sentence
- Notes: Counseled
ANALYSIS: DJ sanctions the attorney for filing a frivolous habeas petition and for not knowing anything about habeas corpus. It's a really stunning decision. I think the opening paragraph says it all:
This is an unusual pair of habeas corpus petitions in which the Court, pursuant to an Order to Show Cause issued when the cases were filed, suggested to petitioners' counsel that the single claim raised appeared unexhausted, procedurally barred, time-barred, without merit, and that the papers presenting the claim appeared unprofessionally prepared. Petitioners' counsel has responded to the Order to Show Cause (with a document entitled “Order to Show Cause”) which apologizes for the unprofessional preparation, repeats the same arguments that he made in support of the petition, and generally ignores the points that the Court raised in its Order to Show Cause. The petitions are therefore dismissed.
The DJ then goes through the attorney's "Order to Show Cause" point-by-point. Here are two of the most extreme parts of the DJ's discussion as to the attorney's submission:
This assertion reflects a troubling lack of legal training, integrity, or some combination of these factors, as counsel does not appear to understand or recognize the meaning of controlling authority.
Counsel asserts that “[f]or this work, and these arguments, and even the work on the matter, they are not being charge [sic], but are being helped.” This Court cannot find value in anything that counsel has submitted, and to the extent commencement of the proceedings have given petitioners or their families false hope, they have been harmed, not helped. The Court comes away from counsel's submissions with the conviction that counsel does not understand legal analysis or the use of authority, nor the intricacies of federal habeas corpus law, nor the proper means of presenting legal argument.
Wow. Just wow. So based on all of this, the DJ sanctions the attorney. And the sanction itself is the best. There is no money involved. Instead, the attorney is ordered to take classes in federal habeas corpus and criminal procedure. That's a fantastic sanction. I love it. Here is what the decision says:
In light of the Court's concern that counsel lacks a basic understanding of federal habeas corpus law and the use of authority, the Court will impose a non-monetary sanction of requiring counsel to file, within one year of this Order, two certificates showing that he has completed, subsequent to the date of this Order, (a) a course in federal habeas corpus procedure; and (b) a course in criminal procedure focusing on the constitutional rights of defendants, both of which shall be offered by a recognized bar association or continuing legal education provider.
To truly understand how bad this petition/Order to Show Cause was and why sanctions were appropriate, I highly recommend reading the decision. They were really, really bad. And I can't get over that the attorney answered an "Order to Show Cause" with an "Order to Show Cause." That's just funny. The whole thing is just unusual.
2. Lasso-Reina v. Haponick, 05-CV-8817, 2009 WL 3334843 (SDNY Oct. 14, 2009) (SHS) (MHD)
- Habeas Denied
- Issues: (1) lack of jurisdiction, (2) Brady, (3) consecutive sentences illegal based on Apprendi, (4) 4th Amendment violations, (5) IAC, and (6) violation right to counsel based on prosecution's supposed use of his co-defendant as an informant.
- Notes: Adopting R&R
ANALYSIS: The IAC claim centered on some pretty bizarre behavior from the trial attorney. The MJ excuses all of it essentially because the evidence was overwhelming, so it was difficult to show prejudice: "Although the behavior of the attorney was, at times, both unorthodox and questionable, petitioner fails to demonstrate that this conduct not only fell below the fairly minimal standards commanded by the Sixth Amendment, but, most importantly, that it prejudiced him."
It's tough to disagree with the ultimate conclusion when you read about the evidence (such as petitioner caught on wiretap). But based on the allegations of attorney misbehavior, I think that "questionable" and "unorthodox" is not accurate. There was some real incompetence here. Petitioner pointed out that this attorney had been found to be ineffective in the past, he had been held in contempt and then later disbarred. Based on how he behaved at trial, that's not surprising at all. According to petitioner, among many different types of odd behavior, the attorney wore his outer garments during the trial, was belligerent with everybody, including the prosecutor, witnesses and judge who he accused of being biased, acted out in front of the jury in different ways, and basically feigned as if he was giving up. Indeed, the trial judge called the defense summation the most out of bounds summation she had ever heard.
The MJ addressed each of the instances of bizarre behavior in isolation, giving reasons why they may not have been as bad as they seem. The MJ also believed that the actions may have been part of a deliberate overall strategy of showing that the proceedings were unfair to petitioner. The MJ surmised that the attorney did not really have many choices on what defense to pursue since the evidence against petitioner was so strong.
I don't know. All of the justifications for the bizarre behavior seem like a stretch. Certainly, under Strickland, it is difficult to show that this was ineffectiveness since there was not a showing of prejudice. So I am not saying that the ultimate decision was wrong. But is this really how we want our system to operate? Is it really so easy to excuse such bizarre behavior in court? Shouldn't even the most guilty defendant in the world be entitled to a competent attorney who is not trying to undermine the proceedings? I would have felt much better here if the MJ had just said, "Yes, okay, petitioner, it certainly seemed, based on your allegations, that you had a less than competent attorney. Your attorney's actions were troubling and inexcusable. All defendants are entitled to more competent representation than you received. But under the legal standard, that's not enough to get you a new trial. Even if you had more competent representation, it would not have changed the outcome." Is it so hard to say it like that?
3. Rizzi v. Payant, 08-CV-5287, 2009 WL 3353026, (SDNY Oct. 15, 2009) (PKC) (KNF)
- R&R recommending denial of habeas
- Issues: (1) persistent felony offender sentence is unconstitutional under Apprendi and progeny; (2) prosecutorial misconduct; (3) length of the sentence is unconstitutional under 14th Amendment
ANALYSIS: I can't say as much about this as I would like. I need to respect my own ethical rules on this blog as to discussing an issue that is pending in one of my current cases. That's of course the Apprendi issue. What I can say is this: the MJ says that the claim is controlled by prior Second Circuit precedent. It's true that the Second Circuit has previously denied this claim in two cases both entitled Brown. However, the Brown decisions only concerned the constitutionality of the statute in light of the original Apprendi decision and then the first case after Apprendi, Ring. In this case, petitioner's case became final after Blakely (and Cunningham for that matter). The whole question in those pending Second Circuit cases (briefly discussed here and here) is whether the statute is unconstitutional in light of Blakely. Habeas was granted on this issue in Washington and Portalatin as a result of the decision in Blakely. So I am a little confused as to why the MJ would conclude that the Brown decisions are controlling without mentioning either Blakely or Cunningham.
Remaining cases are below the fold . . .
4. Robinson v. Artuz, 07-CV-6041, 2009 WL 3363716 (WDNY Oct. 16, 2009) (CJS) (VEB)
- Habeas Denied
- Issues: (1) Unduly suggestive ID procedure; (2) Insufficient evidence; (3) court erred in failing to declare mistrial based on inappropriate actions from the prosecutor
- Notes: To be published; adopting R&R (attached)
5. LeFlore v. Conway, 05-CV-283, 2009 WL 3300273 (WDNY Oct. 13, 2009) (MAT)
- Habeas Denied
- Issues: (1) 4th Amend. violation; (2) statements were taken in violation of 5th Amendment; (3) prosecutorial misconduct; (4) IAAC; (5) depraved indifference issue
- Notes: The depraved indifference issue has come up around here a bunch of times recently. Petitioner was convicted of both depraved indifference and intentional murder. After the changes in the law, that clearly is something that cannot stand. However, the claim in this case was procedurally defaulted.
6. Gee v. Conway, 03-CV-6184, 2009 WL 3334747 (WDNY Oct. 14, 2009) (DGL) (VEB)
- Habeas Denied
- Issues: (1) IAC; (2) IAAc
- Notes: To be published; counseled; adopting R&R
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