UPDATED
Even though it was a short week, there was a lot happening in habeasland.
As discussed before, there was a habeas grant. On two separate grounds, no less.
There was also a slightly above average number of decisions (14). Several of which deserve analysis.
The typical Westlaw/LEXIS issues were present (cases appearing on one but not the other, cases appearing more slowly on Westlaw than they do on LEXIS), but at least the habeas grant showed up on both pretty early. Breaks the pattern that I had noticed developing last week (cases in which relief was granted -- either habeas or COA -- showed up on LEXIS long before appearing on Westlaw).
Another recurring theme popped up this week -- the stinginess in granting COA's. And this one was particularly frustrating.
And Musladin reared its ugly head. But this was not an offensive use of the Musladin doctrine -- i.e., restricting the meaning of clearly established law under the 2254(d) standard of review. It gets applied here in the way that Musladin intended this sword to be applied.
Pretty busy week. So settle in for a long post.
On to the cases . . .
1. Nelson v. Brown, 06-CV-116, 2009 WL 4282051 (EDNY Nov. 25, 2009) (JS)
- Habeas Granted
- See separate post here
2. Torres v. Ercole, 06-CV-674, 2009 WL 4067281 (SDNY Nov. 24, 2009) (RMB) (KNF)
- Habeas Denied
- Issues: IAC
- Notes: Overruling that part of R&R that recommended granting habeas; R&R available at 2008 WL 7149183
ANALYSIS: Here is a perfect situation where a COA should be granted. But, not only does DJ deny a COA, he says that any appeal would not be taken in good faith, in other words, any appeal would be frivolous. As you will see, that was just patently wrong on any level. You get the feeling that some DJ's just hit a macro button when denying a habeas.
Here's the details: Prior to petitioner's first trial on a robbery charge, the prosecutor informed the court that the arresting officer had just told him that, soon after the arrest, he asked the petitioner why he went through the victim's pockets and petitioner responded with an inculpatory statement. The court precluded the statement as a sanction for the late notice. The first jury hung.
Second trial. The court decided not to preclude the statement but, instead, to hold a Huntley hearing. That caught petitioner's counsel off-guard. He had assumed that law of the case would attach to the prior decision to preclude the statement. Counsel was unprepared for the Huntley hearing and failed to even impeach the testifying officer with the prior statement that he had asked petitioner about going through the pockets.
MJ concludes that counsel was ineffective based on his performance at the Huntley hearing.
DJ rejects that recommendation. I will agree with one of the DJ's main criticisms of the MJ's report -- he failed to hold a hearing on the issue. Under the Second Circuit decision in Sparman v. Edwards, holding a hearing was probably the right step before recommending a habeas grant on IAC. DJ holds a hearing and finds that counsel's actions in failing to be prepared for the hearing were strategic. Now, I could be misreading this. But here is what the DJ concludes on page *8: because counsel reasonably pursued a strategy of relying on the law of the case argument, it was understandable for him to be unprepared for the hearing.
To me, that's pretty astounding. Really. In my mind, it was pretty risky, and I would even say reckless, to rely on a law-of-the-case strategy where the statement was only precluded as a discovery sanction. Contrary to what the DJ states in the decision, this was not an order after a 710 motion, which is "generally binding." It appeared to be nothing more than a discretionary sanction. Under such a circumstance, it was a completely unreasonable strategy and would not justify his failure to be prepared for a Huntley hearing. He probably should have been prepared no matter what.
The DJ also makes some prejudice arguments that are a little more persuasive. But I would say far from conclusive. I think it's a pretty close call.
In either event, even if the DJ is right, this case is a prime candidate for a COA. A COA is appropriate where reasonable jurists would disagree about the outcome. Here, you have a DJ and an MJ expressing different opinions about the outcome of the case. By its very definition, that's when a COA should be granted. Is the DJ really saying here that the MJ's position was completely unreasonable? Based on how hard the DJ had to work to show that the MJ was wrong, I don't think that's appropriate.
And it's even less appropriate to say that any appeal would not be taken in good faith. It's like a SNL skit, Really DJ!?! Really? By the DJ's own analysis, this case was not frivolous. The DJ held a hearing on the issue for crissakes. Saying that any appeal would be frivolous is simply wrong.
3. Orraca v. Walker, 00-CV-5503, 2009 WL 4277078 (SDNY Nov. 24, 2009) (LMM)
- Assigning Counsel
- Notes: Does not appear on LEXIS
4. Robinson v. Conway, 05-CV-6091, 2009 WL 4067405 (WDNY Nov. 23, 2009) (MAT)
- Habeas Denied
- Issues: (1) Batson; (2) failure to charge lesser included count; (3)
ANALYSIS: This is the Musladin case.
DJ provides several reasons to deny the failure to charge lesser included count claim. For one, DJ explains the supposed lesser included charge - attempted manslaughter in the first degree - is nonexistent.
Alternatively, DJ points out that Musladin forecloses the claim. He says, "the Supreme Court has held that due process only requires a trial court to submit jury instructions regarding lesser-included offenses when it is a capital case and the Court has expressly declined to consider whether such a requirement applies in a non-capital context." This means that the question is open and any decision on this claim would be a "new rule," so he is barred from considering it under Musladin.
I have seen this exact situation before. Under Musladin, I think it's mostly correct. I am not sure why he threw in all of the "new rule" stuff as that is more of a Teague issue, not necessarily a standard of review matter. But the quoted language up above does pretty much make it a Musladin matter -- it is not clear whether due process covers this type of claim. Under Musladin, that means that there is no clearly established law. This is different from the troubling trend of stretching Musladin to a situation where there is a novel fact situation, but the controlling law is clear. That's where Musladin should not apply.
5. Nguyen v. Ercole, 05-CV-0855, 2009 U.S. Dist. LEXIS 110331 (WDNY Nov. 25, 2009) (MAT)
- Habeas Denied
- Issues: (1) prosecutorial misconduct; (2) unconstitutional seizure in Vietnam; (3) improper sentence; (4) inclusory concurrent counts should be dismissed; (5) Insufficient evidence; weight of the evidence; (6) IAC; (7) IAAC
- Notes: Does not appear on Westlaw as of 12/6/09
ANALYSIS: I have never seen this type of unconstitutional seizure claim. The claim is that petitioner was denied due process when he was seized in Vietnam and brought to New York without any extradition procedure. The law on this is particularly bad for petitioners. Even if a defendant is forcibly abducted and brought to court, due process of law is satisfied when one present in court is convicted of crime after having been fairly apprised of the charges against him and after a fair trial in accordance with constitutional procedural safeguards. That's one. And two, while extradition procedures do provide certain procedural protections to a petitioner, extradition procedures do not apply where an extradition treaty is not invoked, or where one does not exist. And the US does not have one with Vietnam.
UPDATE: The Westlaw cite is 2009 WL 4505943.
Remaining cases below the fold . . .
6. Porter v. Conway, 05-CV-6142, 2009 WL 4280379 (WDNY Nov. 24, 2009) (MAT)
- Habeas Denied
- Issues: (1) conviction on an unindicted act; (2) photo array was unduly suggestive; (3) prosecutorial misconduct; (4) unbalanced jury instruction; (5) IAAC
- Notes: DJ does something odd with exhaustion here; it has inspired me to do a separate post about exhaustion in which I'll discuss what the judge did here; coming soon!
7. Nelson v. Herron, 09-CV-4652, 2009 WL 4110299, (EDNY Nov. 25, 2009) (SLT)
- Ordering Petitioner to Submit Affidavit Explaining Why Habeas Should Not be Dismissed as Untimely
8. Lizaide v. Kirkpatrick, 09-CV-5038, 2009 WL 4110296 (EDNY Nov. 24, 2009) (CBA)
- Ordering Petitioner to Submit Affidavit Explaining Why Habeas Should Not be Dismissed as Untimely
9. Silva v. Miller, 04-CV-8013, 2009 WL 4060946 (SDNY Nov. 24, 2009) (KMK) (LMS)
- Habeas Denied
- Issues: (1) indictment issue; (2) IAC; (3) Brady; (4) knowing use of false testimony; (5) illegal sentencing procedure; (6) sentence imposed was improper punishment for exercising his jury trial rights; (7) improper denial of post-conviction motion
- Notes: Adopting R&R (attached)
10. DeNormand v. Graham, 06-CV-0294, 2009 WL 4067691 (WDNY Nov. 23, 2009) (MAT)
- Habeas Denied
- Issues: (1) Improper jury charge; (2) judicial misconduct; (3) Miranda violation; (4) confrontation rights were violated; (5) IAC; (6) IAAC; (7) Insufficient evidence
11. Thompson v. Lemke, 08-CV-3426, 2009 WL 4110290 (EDNY Nov. 23, 2009) (ARR)
- Habeas Denied
- Issues: (1) IAC; (2) IAAC
- Notes: Odd spelling mistake. At one point, instead of counsel, DJ put "bounsel." While not a word, a Google search does show that "Bounsel" can be a last name.
12. Chestnut v. New York, 06-CV-2172, 2009 WL 4282077 (EDNY Nov. 24, 2009) (JS)
- Habeas Denied
- Issues: (1) Right to be Present violation; (2) repugnant verdict; (3) failure to give accomplice as-a-matter-of-law jury charge; (4) Insufficient corroboration for accomplice's testimony
13. Ayala v. Walsh, 05-CV-1497, 2009 WL 4282034 (EDNY Nov. 23, 2009) (JS)
- Habeas Denied
- Issues: (1) prosecutorial misconduct; (2) improper jury charge; (3) insufficient evidence; (4) excessive sentence
14. Gibson v. Artus, 05-CV-3009, 2009 WL 4405759 (SDNY Nov. 24, 2009) (RMB) (KNF)
- R&R recommending that Rule 60(b)(2) Motion for Reconsideration be Denied
- Notes: Does not appear on LEXIS
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