Habeas Corpus - Weekly Review - 2/15-19/10

Another shortened week.  Another small number of habeas opinions.

Only one case deserves above the fold commentary.  But I am going to add a second case just because it has an entertaining footnote.

Let's get to the cases:

1. Davis v. Graham, 06-CV-0659, 2010 WL 597960 (WDNY Feb. 17, 2010) (MAT)

• Habeas Denied
• Issues: (1) insufficient evidence; (2) IAC; (3) juror misconduct; (4) right to be present violation; (5) prosecutorial misconduct; (6) IAAC

ANALYSIS: With respect to the IAAC claim, DJ concludes that appellate counsel's performance was adequate.  Judge notes that appellate counsel raised one claim -- prosecutorial misconduct -- and it was "persuasively argued, well-researched and carefully articulated." 

However, the DJ also notes that the appellate brief itself was only ten pages long, nine of which was dedicated to argument.  I know my briefs tend to be longer than they should be, but ten pages!  This was a murder case!  DJ says a mouthful when he described the claim as "carefully articulated." 

This isn't to say that I think counsel's performance was deficient per se for filing such a short brief in such a heavy case.  But, on its face, such a short brief is a cause for concern. Of course, without knowing much more, it's impossible to say whether there should have been more to the brief.  Maybe this murder case deserved nothing more than one  (unpreserved) issue in ten-pages. 

And just because it was only ten pages does not mean that petitioner suffered any prejudice.  Unpreserved prosecutorial misconduct may have been the only issue to brief in the case.  Who knows? 

But I think that the DJ's argument would have been more convincing if he rejected the claim on the prejudice prong rather than the deficient performance prong.

2. Myrick v. Demarco, 06-CV-2418, 2010 WL 652980 (EDNY Feb. 19, 2010) (JS)

• Habeas Denied
• Issues: (1) 4th Amendment violation; (2) jury trial right violation;(3) confrontation clause violation; (4) insufficient evidence
  
• Notes: Counseled

ANALYSIS: Here's the entertaining footnote: "Petitioner purports to seek relief under “42 U.S.C. § 2241.” Pet. Mem. at 1. But, as far as the Court knows, Petitioner did nothing to threaten the United States' “atomic safety.” See 42 U.S.C. § 2241. Because Petitioner was in state custody, the Court presumes that he meant 28 U.S.C. § 2254.

3. Cruz v. Smith, 05 CIV. 10703, 2010 WL 582348 (SDNY Feb. 17, 2010) (LTS) (DF)

• Habeas Denied
• Issues: (1) Batson; (2) IAC; (3) IAAC; (4) improper denial of state post-conviction motion; (5) newly discovered evidence
• Notes: Adopting R&R (attached)
  

4. Karimzada v. Cunningham, 09-CV-3317, 2010 WL 597947 (EDNY Feb. 17, 2010) (JG)

• Habeas Denied
• Issues: (1) insufficient waiver of right to jury trial; (2) length of sentence was punishment for exercising his right to trial
  
• Notes: Counseled
  

5. Gomez v. Taylor, 08-CV-1888, 2010 WL 597949 (EDNY Feb. 17, 2010) (JG)

• Habeas Denied
• Issues: (1) Insufficient Evidence; (2) IAC
  

6. Reynolds v. Greene, 05-CV-01539, 2010 WL 604179 (NDNY Feb. 16, 2010) (DNH)

• Motion for Reconsideration Denied

7. Dodell v. Walsh, 09 CIV. 9902, 2010 WL 624910 (SDNY Feb. 19, 2010) (DLC)

• Habeas Dismissed as Time-Barred
  

8. Harris v. New York, 05-CV-0160, 2010 U.S. Dist. LEXIS 14520 (WDNY Feb. 19, 2010) (MAT)

• Habeas Denied
• Issues: (1) IAC; (2) Brady violation; (3) Batson violation; (4) insufficient evidence