Habeas Corpus - Weekly Review - 5/17-21/10

Weekly Review has arrived, and it's a very special edition. 

We have a habeas grant!  That's number 3 for the year in the district courts.

In addition, there was another really interesting decision that, most likely, will be working it's way up to the Second Circuit.

Let's get to them:

1. Dingle v. Mance, 08-CV-2044, 2010 WL 2010918 (SDNY May 18, 2010) (SAS)

• Habeas Granted
  
• Issues: trial court erred in failing to charge justification
  
• Notes: counseled; adopting R&R (available at 2009 WL 6484075)

ANALYSIS: As set forth above, DJ adopts MJ's recommendation that habeas be granted.  The case involved a fight between petitioner and his roommate.  The roommate was found dead with a knife in his chest.  Petitioner asserted self-defense (this included a statement that he made to the police), but the trial court refused to charge the jury on justification.

I kind of liked how the DJ breaks down the analysis of the justification claim:

There are three relevant questions, therefore, that must be answered in the affirmative before a federal court can grant a writ of habeas corpus based on a state court's refusal to give a particular jury charge. First, was the jury charge in dispute required as a matter of New York State law? The second question asks “whether the failure to give such a charge was sufficiently harmful to make the conviction unfair.” In other words, “did the failure to give the requested charge violate the standard set out in Cupp [v. Naughten, 414 U.S. 141 (1973)].” Finally, the third question asks whether the state court's failure is remediable by habeas corpus, i.e., did the state court's refusal to charge justification constitute an unreasonable application of Cupp or was its decision based on an unreasonable determination of the facts. Only when all three questions can be answered in the affirmative can a federal court grant a petitioner habeas relief.

DJ says that the MJ correctly answered all three of these questions in the affirmative.  This included a conclusion that the evidence at trial, plus the inferences that can be drawn from the evidence, supported the justification charge.  In overruling Respondent's objections and adopting the MJ's recommendation, the DJ emphasizes three things:

First, the evidence was undisputed that Clark (the roommate) viciously attacked Dingle [with a knife], who was undoubtedly justified in defending himself against his armed aggressor to a certain point. Second, Dr. Gill (the medical examiner) testified that there were two possible causes of Clark's death: a skull fracture and penetration of the liver. Dr. Gill further testified that “ ‘[t]his fractured area, in and of itself, was sufficient to cause death.’" Thus, Clark could have sustained a fatal blow to his skull while still holding the knife and still confronting Dingle with deadly force. Third, it is unclear whether Clark ceased confronting Dingle with deadly force after he dropped the knife.

Based on the extent of Respondent's objections, I am guessing they are going to appeal.

2. Cortijo v. Bennett, 03-CV-5102, 2010 WL 2079711 (SDNY May 17, 2010) (LAP) (GWG)

• Habeas Denied
• Issues: court's response to jury note shifted burden of proof or reduced prosecution's burden of proof
• Notes: rejecting R&R recommending habeas grant (available at 2004 WL 418091)

ANALYSIS: Since I don't think I could do a better job of giving an overview, I am going to quote from the DJ's first two paragraphs:

Cortijo argues that the trial judge's supplemental jury instruction either impermissibly shifted the burden such that the jury thought Cortijo had to prove affirmatively that his inculpatory statements were false or reduced the prosecution's burden of proving the truthfulness of the statements beyond a reasonable doubt.

Magistrate Judge Gorenstein issued a Report and Recommendation (the “Report”) suggesting that the Court grant the petition. Respondents objected to the Report. Judge Richard Casey denied the Petition, and Cortijo appealed. The Court of Appeals remanded the case to this Court for reconsideration in light of the discovery of the original jury note that led to the disputed jury instruction (see 2006 WL 1228894). Magistrate Judge Gorenstein reissued the Report, and Respondents again objected. In light of the subsequent clarification and numerous correct articulations of the proper burden, the trial judge's supplemental instruction did not impermissibly shift or reduce the People's burden. The Appellate Division reasonably determined that it was unlikely that the jury applied the challenged instruction in a way that violated the Constitution. The Court thus declines to accept the Report, and the Petition is DENIED.

Setting aside the issue of whether I would agree with the MJ or the DJ (I think you can guess), I wonder what happens next.  DJ did not rule on a COA (and has not since the date of the decision). 

Is this because petitioner does need a COA to bring the case back before the Second Circuit?  I don't think that's the case.  The Second Circuit's order did not say that the case would be brought back before the panel upon a decision from the district court.  I have reviewed the docket sheet and did not find anything. 

In fact, I reviewed both docket sheets and could not even find who issued a COA the first time around.  It's very frustrating.  I can deduce that the DJ did the first time around since the Second Circuit's docket sheet for the case jumped right into the scheduling order without ruling on a COA motion.  It's a safe deduction, but why doesn't the COA decision appear on the lower court docket sheet?  I wish I knew.

Due to the unusual procedural posture of the case, does the prior COA continue?   Well, I don't think there's a mechanism for that.  But in all fairness, it should automatically reissue.  The substance of the case hasn't changed.  And even the Second Circuit noted that the case presented "complicated legal questions."  The case has been placed back in the exact same position it was in 2004 - MJ recommended a grant, DJ did not follow the recommendation.  There really is no question that this case should go back before the Second Circuit.

Remaining cases below the fold . . .

3. Lear v. Poole, 06-CV-750, 2010 WL 1948264 (WDNY May 17, 2010) (RJA) (VEB)

• Habeas Denied
• Issues: (1) excessive sentence; (2) plea was not voluntary; (3) IAC; (4) indictment issues
• Notes: To be published; adopting R&R (attached)

4. White v. Artus, 05-CV-465, 2010 WL 2024879 (SDNY May 20, 2010) (RJS) (DFE)

• Habeas Denied
• Issues: (1) IAC; (2) IAAC; (3) double jeopary; (4) due process violations; (5) weight of the evidence; (6) excessive sentence; (7) inadequate and improper jury instructions; (8) lack of jurisdiction
  
• Notes: Adopting R&R (available at 2009 WL 6490004)
  

5. Battee v. Phillips, 04-CV-4334, 2010 WL 2026443 (EDNY May 20, 2010) (ENV)

• Habeas Denied
• Issues: (1) IAC; (2) court erred in refusing to charge justification or lesser included count of manslaughter; (3) court erred in refusing to allow petitioner to retake the stand after the close of the proof; (4) improper admission of certain evidence; (5) excessive sentence
• Note: as the Second Circuit has done, DJ relies on the broad definition of prejudice set forth in Wong; looks like my concern about Wong is real
  

6. Antinuche v. Zon, 05-CV-1246, 2010 WL 2035795 (EDNY May 20, 2010) (ENV)

• Habeas Denied
• Issues: (1) prosecutorial misconduct; (2) excessive sentence; (3) persistent violent felony offender was unconstitutional under Apprendi

7. Reyes v. Morissey, 07-CV-2539, 2010 WL 2034527 (SDNY May 19, 2010) (LAP) (DF)

• Habeas Denied
• Issues: (1) improper admission of uncharged crime evidence; (2) prosecutorial misconduct; (3) IAAC
  
• Notes: Adopting R&R (available at 2010 WL 2034531)

8. Bell v. Center, 09-CV-7218, 2010 WL 2000526 (SDNY May 18, 2010) (PKC) (GWG)

• R&R recommending that Habeas Be Denied
• Issues: parole revocation violated due process
  

10. Jackson v. Conway, 07-CV-06364, 2010 WL 2010924 (WDNY May 18, 2010) (MAT)

• Habeas Denied
• Issues: (1) Batson violation; (2) insufficient evidence; (3) erroneous jury instructions

11. Comfort v. Artus, 07-CV-0727, 2010 WL 2010941 (WDNY May 18, 2010) (MAT)

• Habeas Denied
• Issues: (1) IAAC; (2) juror misconduct; (3) NY coram nobis procedure violates due process

12. Hartzog v. Rabideau, 05-CV-0554, 2010 WL 2010948 (WDNY May 18, 2010) (VEB)

• Habeas Denied
• Issues: (1) improper admission of expert opinion; (2) insufficient evidence; (3) prosecutorial misconduct
  
• Notes: parties consented to proceed before MJ; MJ notes that it agreed with petitioner that the opinion testimony was improperly admitted (notably, the Appellate Division also agreed with petitioner, but found the error harmless); MJ states that the error did not rise to the level of a constitutional violation
  

13. Marrant v. Breslin, 09-CV-4964, 2010 WL 1962914 (SDNY May 17, 2010) (LTS) (MHD)

• Habeas Denied
• Issues: (1) deprivation of right to counsel; (2) IAC
• Notes: Adopting R&R (available at 2010 WL 1983443)
  

14. Strauss v. Yelich, 09-CV-341, 2010 WL 1972781 (NDNY May 17, 2010) (LEK)

• Habeas Dismissed as Untimely
  
• Issues: parole revocation violated due process

15. Alejandro v. Berbary, 08-CV-1809, 2010 WL 2075941 (EDNY May 21, 2010) (JFB)

• Habeas Denied
• Issues: (1) due process violations; (2) equal protection violations; (3) state law errors; (4) sentence represented cruel and unusual punishment

16. Nelson v. Herron, 09-CV-4652, 2010 U.S. Dist. LEXIS 50798 (EDNY May 21, 2010) (SLT)

• Habeas Dismissed as Untimely