The New York Law Journal reports today that an EDNY judge granted habeas relief on the ground that there was legally insufficient evidence to support petitioner's conviction for depraved indifference murder. The case is entitled, Petronio v. Walsh, 09-CV-341.
I am not even going to link to the subscription only article. Or even quote it. I have given up on doing that.
So I have tracked the opinion down on LEXIS. Here's the full cite: Petronio v. Walsh, 09-CV-341, 2010 U.S. Dist. LEXIS 95844 (EDNY Sept. 14, 2010) (ADS) (it hasn't been published on Westlaw yet).
And I am happy that I did. The Law Journal article does not discuss whether there were any procedural issues in the decision. But there was an interesting quote from defense counsel. He stated that the decision will help petitioners get around procedural obstacles. That got me curious.
The procedural obstacle was what we would expect here: trial counsel did not raise an adequate motion to dismiss based on legal insufficiency grounds. That's an independent and adequate state law ground to bar habeas review (at least when the Appellate Division concludes that the claim is unpreserved for that reason) unless there is cause and prejudice or there would be a miscarriage of justice if the federal court does not address the claim.
In a major step, the DJ concluded that there would be a miscarriage of justice for the federal courts to refuse to address the claim. This appears to be the second time that a federal judge has invoked this exception to address this specific claim. As the DJ here notes, Judge Chin did it in Fernandez v. Smith, 558 F.Supp.2d 480 (SDNY 2008).
So that's big news.
Also of note, there is a case pending before the Second Circuit on the issue of whether the miscarriage of justice exception applies in this situation. Look at case 23, Garbutt v. Conway, on the Pending Second Circuit Cases page. Assuming that the State appeals here, maybe these cases should be heard together?
Update: I totally overlooked the fact that the court also found that the depraved indifference argument was so "novel" that it represented cause for the procedural default. Or as the court put it: petitioner's "counsel's failure to preserve the legal sufficiency challenge should be excused because this argument could not reasonably have been within counsel's contemplation at the time of the trial" and before the radical change in the law, which occurred during the appeal in petitioner's case.
So the court concluded that petitioner had overcome the procedural obstacle in two different ways.
I'll say it again, that's big news.
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