Waiting time is over. Weekly Review is here!
In this week's edition, there's a COA grant and a couple cases that merit some attention.
So let's get started:
1. Gibbs v. Donnelly, 03-CV-361, 2009 WL 4572733 (WDNY Dec. 07, 2009) (RJA) (VEB)
- Habeas Denied
- Issues: (1) IAC; (2) prosecutorial misconduct; (3) trial court erred in denying a justification charge: (4) insufficient evidence
- Notes: COA granted; To be Published; Adopting R&R (attached)
ANALYSIS: COA was granted on point (3) - whether the court should have granted the defense request for a justification charge. DJ adopts MJ's recommendation, which included the COA grant.
In the decision, MJ concluded that a reasonable view of the evidence supported the charge. However, the court concluded that the error was not sufficiently harmful to deny petitioner a fair trial since he does not believe that the jury verdict would have been different. MJ distinguishes a couple of Second Circuit that concluded that habeas should be granted on this ground (Davis v. Strack and Jackson v. Edwards) and finds that the case was more similar to a different Second Circuit case where the court denied habeas (Blazic v. Henderson). Nevertheless, MJ adds that, given the weaknesses in the State's case, reasonable jurists could disagree with his conclusion, so he recommends that a COA be issued.
- Habeas Denied
- Issues: (1) guilty plea was not voluntary because petitioner did not allocute to one of the elements of the crime, namely use of a dangerous instrument; (2) IAC
- Notes: Counseled; guilty plea case
ANALYSIS: Petitioner pled guilty to several robbery counts. One of the counts required that he use or threaten to use a dangerous instrument. In his plea allocution, petitioner never admitted that admitted. He argued that his guilty plea could not be considered voluntary without admitting that essential element.
This is a claim that looks pretty good on paper. Although intuitively it doesn't make sense, the DJ here cites to case law to show that a defendant does not need to admit every element of a crime when pleading guilty. Now, I am not sure that the particular cases that the DJ cites address a regular plea. The DJ relies heavily on the law for an Alford plea, where a defendant does not admit guilt, but willingly agrees to have a judgment entered against him. The DJ believes that, under that standard, so long as the record supports a finding that he is guilt, then that's enough to uphold the plea. And there is plenty of evidence in the record from the suppression hearing to support the conclusion that petitioner used a dangerous instrument.
But I mention this case mainly because I wanted to quote a couple lines from the decision. Here's what the DJ says in response to Respondent's argument that petitioner did actually admit at the plea that he used a dangerous instrument: "Likewise, despite respondent's strained interpretive gymnastics, petitioner's allocution does not contain an express or implied admission that petitioner used a dangerous instrument (i.e., the remote control) in the commission of the crime."
Petitioner is not immune from the judge's clever rhetoric: "Nonetheless, we disagree with petitioner's opportunistic assertion that these are the ingredients of innocence and conclude, as the Appellate Division correctly recognized, that the claimed defect in the allocution is not fatal to the validity of the plea."
Fun read.
3. McLean v. Green, 05-CV-5603, 2009 WL 4854512 (EDNY Dec. 11, 2009) (SLT) (SMG)
- Habeas Denied
- Issues: (1) denial of his right to be present at side bar conferences held during jury selection; (2) prosecutorial misconduct; (3) unconstitutional jury charge; (4) failure to respond meaningfully to jury notes; (5) improper verdict sheet; (6) IAC; and (7) unreasonable delay in sentencing
- Notes: Adopting R&R; R&R is attached to an order found at 2009 WL 4778824; not sure why there are two separate orders here
ANALYSIS: For the second stratight week in review (case 2), there is an issue about the right to be present at a sidebar conference during jury selection. And just like last week, the petitioner validly waived the right so any legal discussion was unnecessary.
Fortunately, MJ here does not reach the conclusion that the legal claim is not clearly established. However, he comes pretty close. He points out that whether a defendant has a federal constitutional right to be present at sidebar conferences during jury selection is an open question. He cites to a Second Circuit decision, which stated in a footnote that the court was not deciding whether the law is clearly established on this ground, and a district court decision, which specifically held that the law was not clearly established. MJ does not reject the claim on this ground.
Okay, I get it. The federal courts are not going to agree with me that this really is not a "clearly established" question. But I believe I am right. The law here is clearly established. For example, look at how the Second Circuit applied this law in Cohen v. Senkowski, 290 F.3d 485, 489-90 (2d Cir. 2002). In that case, the question was whether a defendant has federal constitutional right to be present during the "pre-screening of jurors." That was an "open question" under federal law. But the Second Circuit took the clearly established law -- "It is a well-settled principle of constitutional law that a criminal defendant has the right 'to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings'”-- and decided that that was a material stage. That's what courts should be doing here for these sidebar conferences. It's not hard.
Remaining cases below the fold . . .
4. Harvey v. Bennett, 98-CV-7814, 2009 WL 4779320 (EDNY Dec. 11, 2009) (RJD)
- Habeas Denied
- Issues: (1) Insufficient Evidence; (2) IAC; (3) Excessive Sentence
5. Word v. Lord, 04-CV-328, 2009 WL 4790222 (SDNY Dec. 11, 2009) (LAP) (HBP)
- Habeas Denied
- Issues: Due Process Violation based on state court's denial of her leave application
- Notes: Adopting R&R (attached)
6. Faison v. McKinney, 07-CV-8561, 2009 WL 4729931 (SDNY Dec. 10, 2009) (JGK)
- Habeas Denied
- Issues: (1) weight of the evidence; (2) improper admission of other crimes evidence; (3) prosecutorial misconduct; (4) IAC; (5) petitioner was denied the opportunity to
challenge the constitutionality of his prior convictions at sentencing
7. Harnett v. Conway, 08-CV-1061, 2009 WL 4729950 (SDNY Dec. 10, 2009) (JGK)
- Motion to Stay Petition Granted
8. Grajales v. Brown, 08-CV-788, 2009 WL 4823363 (EDNY Dec. 10, 2009) (JG)
- Motion for Reconsideration Denied
9. Felix v. Ercole, 08-CV-3104, 2009 WL 4799215 (EDNY Dec. 09, 2009) (ARR)
- Habeas Denied
- Issues: IAC
- Notes: Guilty Plea case
10. Igbinosun v. New York, 06-CV-6204, 2009 WL 4804269 (WDNY Dec. 09, 2009) (MAT)
- Habeas Denied
- Issues: (1) 4th Amendment violation; (2) improper admission into evidence of prior conviction; (3) racial composition of jury; (4) insufficient evidence
11. Roach v. Conway, 05-CV-6500, 2009 WL 4572730 (WDNY Dec. 07, 2009) (MAT)
- Habeas Denied
- Issues: (1) defective indictment; (2) audibility hearing should have been held; (3) chain of custody error; (4) court should have charged jury on chain of custody; (5) IAC; (6) IAAC
12. Venezia v. Greene, 06-CV-0524, 2009 WL 4745662 (EDNY Dec. 07, 2009) (JS)
- Habeas Denied
- Issues: (1) court erred in holding that extreme emotional disturbance defense was not proven by a preponderance of the evidence; (2) insufficient evidence; (3) expert was not properly qualified; (4) sentence is harsh and excessive
13. Brown v. Woods, 07-CV-10391, 2009 U.S. Dist. LEXIS 114610 (SDNY Dec. 7, 2009) (JGK)
- Granting Request to Amend Petition
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