Habeas Corpus - Weekly Review 12/14-18/09

UPDATED

Welcome to the Weekly Review!

Above average number of cases this week, but only a few deserve a little bit of attention.

One final note about LEXIS/Westlaw.  It comes down to this:  LEXIS is more reliable when it comes to the overall number of cases that were decided.  And they are quicker to post them.  Westlaw has a much better interface.  Much cleaner screen.  Easier on the eyes.  Better research experience overall.  In contrast, I feel like LEXIS is shouting at me.  There are so many arrows and links.  It gives me a headache.  But to be comprehensive, I will continue to use both.  When I post a Weekly Review, I will give the Westlaw cite if it's available.  If not, I'll give the LEXIS cite and then later update with WL cite if it every becomes available. 

Let's turn to the cases:

1. Jones v. Woods, 07-CV-1326, 2009 WL 4906882 (EDNY Dec. 18, 2009) (CBA)

• Habeas Denied
• Issues: IAC

2. Blackman v. Ercole, 06-CV-855, 2009 WL 4891767 (EDNY Dec. 17, 2009) (SLT) (SMG)

• Habeas Denied
• Issues: (1) Improper Admission of Evidence; (2) Sandoval ruling; (3) Violation of right to remain silent
  

ANALYSIS: I am going to bunch together some cases today.  Here's the first set: Jones and Blackman.  In each case, the DJ's conclude that there was some kind of error.  In both cases, the DJ concluded that the errors did not cause prejudice.  In both cases, the DJ did not grant a COA.  A comparison between these two cases shows when, in my mind, a COA should be granted.

The DJ in Jones says that counsel's performance was arguably deficient because he failed to properly object to the prosecutor's attempt to impeach his own witness and then failed to ask for a limiting instruction.  The DJ in Blackman concluded that there had been a Doyle violation (improper comment on defendant's silence after his arrest).  Specifically, it was a robbery case and petitioner's defense at trial was that it was a fight, not a robbery.  The prosecutor asked petitioner at trial why he didn't say that to the police upon his arrest and then she commented about this silence in summation.

As for prejudice, the DJ in Jones showed that there was no prejudice to petitioner.  Despite counsel's failure to properly object, the Appellate Division addressed the claim on the merits.  In addition, despite counsel's failure to get the limiting instruction, it ended up being included in the court's final charge.  Negligible prejudice.

In contrast, in Blackman, the DJ concludes that there was not sufficient prejudice.  She states, "Based on the inconsistencies in Petitioner's testimony, the corroboration of [the] eyewitness account, and the record as a whole, the prosecutor's one improper question and her related summation remarks did not alter the jury's verdict and was harmless beyond a reasonable doubt."

I think that a COA was appropriate in Blackman (or at least a possibility), but not in Jones.  I have stated around here that I think that a COA should be granted when a court finds constitutional error but denies habeas relief after concluding that there wasn't prejudice.  These cases show that not every prejudice analysis is made the same.  The prejudice in Jones was negligible while there was some prejudice in Blackman only not enough for habeas relief. 

So I should clarify:  I believe a COA should be granted when the DJ finds error but denies habeas because the error was not sufficiently prejudicial.  When a court begins weighing the strength of the evidence and decides upon the level of prejudice to the petitioner, I think that it enters into the area of "reasonable jurists could differ."  Maybe not in every case.  If the State's evidence is laughably overwhelming, we can skip the COA.  Or if there is objective evidence to show that it had no effect on the jury, that's another situation.  But, to me, if a true constitutional error happened and there was some prejudice, maybe other judges should take a look at the case before the petition gets completely squashed.

Certainly, nobody would want the Second Circuit to be overrun with appeals that solely raise harmless error/prejudice issues.  Not a lot of fun for them.  But I don't think that would be a consequence of this suggestion and, in any event, an appellate court specializes in those types of analyses.  So I don't see it as asking too much.

3. Bonilla v. Burge, 06-CV-4755, 2009 WL 4884092 (SDNY Dec. 17, 2009) (LTS) (DF)

• Habeas Denied
• Issues: (1) court did not respond adequately to a jury note; (2) prosecutorial misconduct; (3) persistent violent felony sentence violates Apprendi
• Notes: Adopting R&R

4. Lewis v. Rock, 07-CV-4350, 2009 WL 4929263 (EDNY Dec. 17, 2009) (CBA)

• Habeas Denied
• Issues: (1) Sandoval; (2) Persistent violent felony sentence violates Apprendi

ANALYSIS: Both of these cases raised Apprendi challenges to persistent violent felony offender sentences.  This claim is different from those case pending before the Second Circuit.  Those cases concern the discretionary persistent felony offender statute.  The violent persistent statute is mandatory -- if a defendant has two prior violent felony convictions and was just convicted of a third, then the enhancement is mandatory.  As the law stands, this enhancement does not implicate constitutional concerns due to the "prior conviction" exception to the Apprendi rule.

5. Robinson v. Artus, 05-CV-6199, 2009 WL 4906642 (WDNY Dec. 14, 2009) (DGL)

• Habeas Denied
• Issues: (1) court erred in refusing to charge lesser; (2) court did not give appropriate justificiation charge; and (3) verdict was against the weight of the evidence
• Notes: To be published; Adopting R&R
  

6. DeJesus v. Rivera, 09-CV-105, 2009 U.S. Dist. LEXIS 118294, (NDNY Dec. 17, 2009) (JKS)

• Habeas Denied
• Issues: (1) sentencing minutes were missing from his file; (2) denial of parole was tantamount to re-sentencing; (3) separation of powers violation based on enhancement of minimum sentence; and (4) separation of powers violation because "executive branch infringed upon the authority of the judicial branch"

ANALYSIS:  These two cases are grouped together since the DJ in both cases addressed the merits of unexhausted claims under 2254(b)(2).  I am going to talk about this in a separate post since I have noticed it coming up before.  When I write the separate post, I'll add a link here (UPDATE - link added).

Remaining cases below the fold . . .

7.Timmons v. Artus, 06-CV-386, 2009 WL 4884032 (WDNY Dec. 16, 2009) (WMS) (LGF)

• Habeas Dismissed as Untimely
  
• Notes: To be published; Adopting R&R
  

8. Harper v. Ercole, 08-CV-3442, 2009 WL 4893196 (EDNY Dec. 16, 2009) (ENV) (LB)

• Habeas Dismissed as Untimely
• Notes: Adopting R&R
  

9. Ortiz v. Ercole, 09 CIV. 2571, 2009 WL 4781749 (SDNY Dec. 14, 2009) (RMB) (GWG)

• R&R Recommending Denial of Habeas
• Issues: (1) conflict of interest; (2) an unidentified caller to the courtroom reported discomfort with a witness's testimony and (3) deprived right to adequately question jurors in voir dire
  

10. Beard v. Unger, 06-CV-0405, 2009 WL 5042696 (WDNY Dec. 15, 2009) (MAT)

• Habeas Denied
• Issues: (1) IAC; (2) prosecutorial misconduct; (3) court improperly limited scope of cross-examination; and (4) selective prosecution
• Notes: DJ concludes that prosecutor committed misconduct in summation; it was a statutory rape case and the prosecutor clearly attempted to inflame the jurors emotions by denegrating petitioner through the use of several derogatory names; however, DJ concludes that it had no effect on the jury, as the jury rejected the testimony of one complainant, but accepted the testimony of two others.  Based on the standards I mentioned before, I think that this case is closer to Jones than Blackman, making the denial of a COA understandable.

11. Cassidy v. Poole, 06-CV-6310, 2009 U.S. Dist. LEXIS 117712 (WDNY Dec. 17, 2009) (MAT)

• Habeas Denied
• Issues: Improper denial of motion for severance
• UPDATE: 2009 WL 5092932

12. Ruddy v. Bocaud, 08-CV-1319, 2009 WL 5030790 (NDNY Dec. 14, 2009) (LEK)

• Dismissed as Moot
• Notes: DJ concludes:  "Since: i) this action does not attack the underlying criminal conviction that resulted in the sentence imposed on Ruddy; and ii) the latest date on which Ruddy could have either been incarcerated or placed on parole for his crime has already expired, this Court finds that this action must be dismissed as moot."

13. Banks v. Conway, 09-CV-4517, 2009 U.S. Dist. LEXIS 118702 (SDNY Dec. 17, 2009) (VM)

• Habeas Denied
• Issues: Failure to charge jury on agency defense
• Notes: Counseled; UPDATE: 2009 WL 5103123

14. Simpson v. Bellnier, 07-CV-281, U.S. Dist. LEXIS 118538 (NDNY Dec. 17, 2009) (JKS)

• Habeas Denied
• Issues: (1) right to be present violation; (2) grand jury issues