Weekly Review Time!
An above average number of cases this week. A few that merited some discussion.
The strange part about this week was the high number of cases that were on LEXIS but not on Westlaw. As of the date of this post (December 14), a full EIGHT cases did not make it onto Westlaw. Highly troubling. And after putting up the list, I saw one thing -- many of the cases were decided on December 4. But not all of them. It's maddening. If they eventually pop up on Westlaw, I'll add the citation.
UPDATED: Westlaw cites added for all but two. They kept trickling in through December 17! That's almost two weeks after they were decided. And another case popped up which has been added at the end.
Here are the cases:
1. Herrington v. Poole, 06-CV-6079, 2009 U.S. Dist. LEXIS 113171 (WDNY Dec. 4, 2009) (MAT)
- Habeas Denied
- Issues: (1) petitioner was denied his right to counsel and due process when the trial court permitted the prosecution to present an expert witness testimony before its fact witness which deprived defense counsel the opportunity to cross-examine the expert; (2) denial of right to compulsory process for obtaining a witness in petitioner's favor; (3) petitioner was denied due process when the court allowed expert testimony without first conducting a Frye hearing
ANALYSIS: There were some unusual facts in this case. The prosecution was allowed, over defense objection, to start off its case with an expert before any fact witness has testified. I have never seen that before. As the defense argued here, it made it nearly impossible to effectively to cross-examine the expert about the facts of the case -- particularly since the jury had not even heard them yet. At least, not in the form of testimony. The constitutional claim was that this presentation of evidence deprived petitioner of due process and the unfairness was exacerbated when the court refused to allow the defense to recall the expert after the victim testified to allow the defense to cross-examine the expert about the victim's testimony.
The DJ's analysis on the second part of the claim -- recalling the expert -- is a little confusing. First, it says that the trial court was allowed to place restrictions on the manner in which the cross-examination was conducted. It further stated that its restrictions -- the defense was given the opportunity to cross-examine the expert, but only before the victim testified -- were reasonable.
Then it gets confusing. Apparently, defense counsel chose not to cross-examine the expert at all since he was worried that it was harmful to petitioner to do it before the victim testified. The court then relies upon this waiver of cross and says that the defendant had the chance to cross-examine the expert, but did not and that this was a reasonable trial strategy. Huh? In the context of this case, it cannot be said that counsel was voluntarily choosing a strategy. He was trying to limit the amount of prejudice to petitioner from what he believed was an unfair decision from the court. It wasn't a voluntary strategic choice -- the defense was compelled to choose between two difficult options. And now the DJ is using that against the petitioner? That's really a damned if you do, damned if you don't situation.
I can't really say that I believe that these facts establish grounds for habeas relief. But there was something about the court's reasoning that just didn't seem persuasive to me.
- Habeas Denied
- Issues: (1) denial of right to be present at material stage of proceeding; (2) improperly admitted testimony; (3) IAC; (4) weight of the evidence
ANALYSIS: This is a case that falls victim to the troubling trend that is Musladin (i.e. the shrinking definition of what it means to be clearly established law). And the worst part: it was a completely unnecessary victim of the troubling trend.
Petitioner argued that he was denied his right to be present at sidebar conferences with jurors during voir dire. Apparently, the record indicates that petitioner waived his right to be present at these conferences. So that should have been the end of it and no need to move on to any consideration of clearly established law.
Unfortunately, the DJ addresses the claim on the merits. He states that, in Antommarchi and its progeny, the New York state courts concluded that a defendant's right to be present at these conferences is guaranteed to him under state law. The DJ concludes:
Since the so-called Antommarchi right to be present is purely a provision of New York state law, and petitioner has not cited any federal statute or Supreme Court precedent holding that petitioner has a right to be present at sidebar conferences during voir dire, this ground does not support a claim for habeas relief.
Where
to begin with this. It's a little difficult to unpack.
Let's start with the obvious proposition that a defendant has a
federal constitutional right to be present at all material stages of the
proceeding. Just because a defendant has a right under state law to a certain
right, this does not mean that a defendant can't also have a concomitant federal right. Even more important there is no doubt what the federal standards are for that federal constitutional right.
And then there's the Musladin analysis. Even though Musladin wasn't mentioned,
that's what the DJ was applying here. And there are some serious problems with the application. First, pointing out that there
was no citation to a "federal statute" is just odd. This is a federal
habeas proceeding. It must be custody based on a constitutional
violation.
As for citing to a Supreme Court case that specifically states that a defendant has the right to be present under the particular situation presented in this case, that is one of those improper applications of Musladin that I often complain about. It does not matter if such a case exists. There is no doubt what the applicable law here is-- it's the law related to a defendant's right to be present at all material stages of a trial. The question is solely whether this was a material stage under that standard. The analysis that should have been used here was whether there was an unreasonable application of that general rule to the situation here. Once again, in unison, Musladin should only be applied where there is a question as to what law should be applied to a particular situation. It's really frustrating when a court misapplies this principle.
- Motion for Reconsideration Denied
(1) Is this a second or successive petition that should be referred to the Court of Appeals for the Second Circuit? In particular, does the petitioner's contention that he raised these claims in his first petition for habeas relief indicate that this is not a second or successive petition?; (2) Does the petitioner's unsuccessful effort to obtain a certificate of appealability on these claims indicate that the current petition is barred? On what basis?; and (3) Should the Court reach the merits, what is respondent's response to the two claims raised by the petitioner?
Respondent answered no to (1), did not address (2), and argued that the court should not reach the merits since it was an untimely Rule 60(b) motion. Petitioner argued that his motion was a request to amend the original petition. DJ agrees with Respondent, addresses the merits of the two claims, and denies the motion.
- Habeas Denied
- Issues:
- Notes: Adopting R&R (discussed in this Weekly Review)
ANALYSIS: I am just going to cut and paste what I originally wrote about this case:
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.
And now there's a DJ that has adopted the faulty recommendation. Of course, the DJ not only denies a COA, but states that any appeal would not be taken in good faith. The worst part about it is that the pro se petitioner did not object to the R&R. So the case is for all intents and purposes over because there are strict rules against raising any issues on appeal where there was no objections to the R&R. If the Second Circuit should rule a certain way in those Apprendi cases, that's a pretty tough result for this petitioner, who could be entitled to relief.
Remaining cases below the fold . . .
- Habeas Denied
- Issues: (1) insufficient evidence/weight of the evidence; (2) discovery violation
- Notes: Adopting R&R (attached)
6. Marte v. Brown, 09-CV-1036, 2009 WL 4405803 (SDNY Dec. 01, 2009) (RJS) (KNF)
- R&R recommending Dismissing Petition as Untimely
- Notes: Was late to appear on LEXIS
7. Rojas v. Wood, 07-CV-6687, 2009 WL 4639620 (SDNY Dec. 03, 2009) (DAB) (THK)
- Habeas Denied
- Issues: (1) Grand Jury violations; (2) IAC; (3) right to a fair trial was violated based on improper admission of evidence; (4) newly discovered evidence; (5) Brady violation
- Notes: Adopting R&R (reported at 2008 WL 2875082)
8. Cook v. Hunt, 06-CV-1433, 2009 WL 4723274 (EDNY Dec. 01, 2009) (JS)
- Habeas Dismissed as Untimely
9. DeLeon v. Lempke, 09-CV-2310, 2009 WL 4498006 (EDNY Dec. 02, 2009) (BMC)
- Habeas Denied
- Issues: due process violation based on a failure to give a justification charge
- Notes: counseled
10. Boatswain v. Artus, 05-CV-8155, 2009 WL 4496049 (SDNY Dec. 03, 2009) (SCR) (GAY)
- Habeas Denied
- Issues: (1) IAC; (2) denial of right to fair trial based on judge's and prosecutor's actions at trial
- Notes: Adopting R&R (attached)
11. Torres v. Graham, 06-CV-508, 2009 U.S. Dist. LEXIS 113268 (WDNY Dec. 4, 2009) (MAT)
- Habeas Denied
- Issues: (1) IAAC; (2) insufficient evidence; (3) IAC; 4) defective Sandoval hearing; and 5) actual innocence
- WL: 2009 WL 4730313
12. Fifield v. Hunt, 06-CV-6235, 2009 U.S. Dist. LEXIS 113367 (WDNY Dec. 4, 2009) (MAT)
- Habeas Denied
- Issues: (1) coerced and invalid plea; (2) IAC; (3) Fourth Amendment violation; (4) prosecutorial misconduct
- WL: 2009 WL 4730322
13. Cabezudo v. Fischer, 05-CV-3168, 2009 U.S. Dist. LEXIS 112842 (EDNY Dec. 1, 2009) (JS)
- Habeas Denied
- Issues: (1) right to be present violation; (2) the trial court erred by failing to suppress an officer's testimony regarding his encounter with Petitioner on the day after the robbery; (3) IAC; (4) prosecutorial misconduct; (5) IAAC
- WL: 2009 WL 4723743
14. Gray v. Miller, 06-CV-6257, 2009 U.S. Dist. LEXIS 113241 (WDNY Dec. 4, 2009) (MAT)
- Habeas Denied
- Issues: IAC
- Notes: Since I have been hard on this DJ in other cases this week, let me just say that I thought this was a thorough and persuasive analysis on the IAC claim. Not going to go into details, but just wanted to mention that I can appreciate a good, thoughtful analysis even if it goes against the petitioner
- WL: 2009 WL 4730325
15. Martina v. Rock, 09-CV-6345, 2009 U.S. Dist. LEXIS 112419 (WDNY Dec. 3, 2009) (CJS)
- Denying Request for Assignment of Counsel
16. Johnson v. Behrle, 08-CV-733, 2009 U.S. Dist. LEXIS 113687 (EDNY Dec. 4, 2009) (SLT) (LB)
- Habeas Denied
- Issues: Not mentioned in decision
- Notes: Adopting R&R (neither attached nor reported earlier)
- WL: 2009 WL 4639677 (Westlaw says it was decided on Dec. 7; LEXIS says it was decided on Dec. 4, but filed on Dec. 7; checking PACER, the docket sheet is consistent with Westlaw -- the decision was December 7; however, the order itself confirms that LEXIS is right; it's enough to want to throw against the wall that soft thing that one squeezes to try and reduce stress)
- Habeas Denied
- Issues: (1) Insufficient Evidence; (2) IAC; (3) sentence was unduly harsh
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