An evidentiary hearing ordered for a habeas petitioner!
Can a habeas petitioner disqualify a district attorney's office from representing Respondent in a habeas proceeding?
All this and more in this week's Weekly Review! Of course, this week's Weekly Review discusses cases from last week.
Let's start with the case which will answer that quirky question mentioned above:
1. Evans v. Kirkpatrick, 08-CV-6358, 2009 WL 3078949 (WDNY Sept. 24, 2009) (CJS) (VEB)
- Motion to Disqualify District Attorney's Office Denied
ANALYSIS: Citing to New York statutes, petitioner argued that a DA's office cannot represent a state official in a legal proceeding, only the Attorney General's Office can do it. MJ handled the motion since the case had been referred to him. MJ stated that those New York laws don't stand for what the petitioner was claiming. Courts in the Western District have observed that it is the practice of the Attorney General's Office to allow the DA offices in the more populous counties to appear on behalf of habeas respondents. MJ pointed out that there is no doubt that the DA's office has an interest in the outcome of the habeas proceeding, they were the ones who obtained the conviction after all. In this regard, the Rules governing habeas cases say that the petitioner needs to be served on all appropriate officers. And the Advisory Committed Notes for this rule says that the Attorney General does not need to answer if it is more appropriate for some other agent to respond. The crux of the case is the conviction rather than the actual custodian. So an appropriate agent can be considered the DA's office.
2. Dozier v. Phillips, 03 Civ.3298, 2009 WL 3030299 (SDNY Sept. 21, 2009) (RJS) (HBP)
- Evidentiary Hearing Ordered
- Issues: IAC
- Notes: Rejecting R&R
ANALYSIS: Counsel mistakenly believed during plea stage of case that petitioner only qualified as a second violent felony offender. However, after trial, petitioner was sentenced as a mandatory violent persistent offender, resulting in obviously a much higher sentence. DJ says that there really is no debate that counsel's performance was deficient. While noting that petitioner had a pretty high bar to jump over in showing prejudice, DJ orders a hearing to determine whether there is a reasonable probability that, but for counsel's deficient performance, petitioner would have been offered and would have accepted a plea deal more favorable than the sentence he received.
Remaining cases below the fold . . .
3. Lee v. Fischer, 09-CV-4006, 2009 WL 3112078 (EDNY Sept. 24, 2009) (BMC)
- Order to Show Cause Why Petition Should Not Be Dismissed as Time-Barred
4. Cunningham v. Lempke, 06-CV-00659, 2009 WL 3076158 (NDNY Sept.23, 2009) (JKS)
- Habeas Denied
- Issues: (1) IAC; (2) Right to Confront Witnesses; (3) Double Jeopardy; (4) Double Jeopardy under New York law; (5) Improper Bolstering
- Notes: Counseled
ANALYSIS: DJ is especially critical of petitioner here, which really means that the court is criticizing his attorney. DJ says that the lengthy documents submitted by petitioner "read more like a brief on direct appeal than a petition for federal habeas relief. In so doing, Cunningham grossly misperceives the role of this Court in a federal habeas proceeding." Ouch.
5. Marquez v. Artus, 08 CIV.10847, 2009 WL 3029304 (SDNY Sept. 22, 2009) (PKC) (HBP)
- Request for Counsel Denied
- Notes: MJ issued decision
6. Dantzler v. Supt., Sing Sing, 09-CV-1513, 2009 WL 3055297 (EDNY Sept. 22, 2009) (JG)
- Habeas Denied
- Issues: (1) court erred in giving adverse inference charge when petitioner's mother did not testify at trial; (2) excessive sentence
- Notes: oral argument held
7. Johnson v. Burge, 04-CV-6101, 2009 WL 3064878 (WDNY Sept. 22, 2009) (MAT)
- Habeas Denied
- Issues: (1) Insufficient Evidence; (2) Statement to police should have been suppressed; (3) improper evidentiary rulings; (4) prosecutorial misconduct; (5) sentence was excessive
8. Poole v. New York, 08 CIV. 6236, 2009 WL 3009356 (SDNY Sept. 21, 2009) (RMB) (MHD)
- Habeas Denied
- Issues: (1) 4th Amend. violation; (2) Improper jury charge
- Notes: Adopting R&R (attached)
9. Escalante v. Brown, 08-CV-2040, 2009 WL 3075311 (EDNY Sept. 21, 2009) (JS)
- Habeas Dismissed as Time-Barred
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