Habeas Corpus - Weekly Review - 8/23-27/10

Coming up in this version of the Weekly Review. . .

Another COA!  It was granted on two grounds, and the first one was highly unusual -- whether a delay in deciding a collateral motion can violate due process. 

Here it is:

1. McGuire v. Walsh, 09-CV-464, 2010 WL 3420629 (EDNY Aug. 26, 2010) (ARR)

• Habeas Denied; COA Granted
• Issues: (1) the nine years the trial court took to decide his 440.10 motion violated due process; (2) IAC; (3) actual innocence; (4) unconstitutional sentence
• Notes: counseled
  

ANALYSIS: COA granted on the first issue and the underlying IAC claim. 

As for the delay issue, court points out that most courts have concluded that such a long delay in deciding a state post-collateral motion does not represent a cognizable habeas claim.  However, the First Circuit has concluded that it does.  It is still an open question in the Second Circuit.  The judge here concludes that the delay claim was cognizable.  The DJ reasons:

Because of the requirement in New York that petitioners bring off-record ineffective assistance of counsel claims via a separate 440.10 motion, and because delay of adjudication of such a claim bears close resemblance to the delay-of-direct appeal claims found cognizable in this Circuit, I cannot find that petitioner's delay claim is unreviewable on habeas review despite the majority rule.

Even though the court concludes that it's a cognizable claim, the court denies it on the merits.  Nonetheless, DJ grants a COA on the issue.

As for the IAC claim, the DJ concludes that it is questionable whether trial counsel conducted an adequate investigation.  Counsel failed to investigate a potential alibi witness.  However, DJ concludes that petitioner was not prejudiced by the error.  Nonetheless, DJ grants a COA on this issue as well.

Remaining cases below the fold . . .

2. Thomas v. Conway, 08-CV-6263, 2010 WL 3420614 (WDNY Aug. 26, 2010) (MAT)

• Habeas Denied
• Issues: (1) involuntary guilty plea; (2) 4th Amend. violation; (3) IAAC

3. Pillco v. Bradt, 10-CV-2393, 2010 WL 3398467 (SDNY Aug. 26, 2010) (SAS)

• Habeas Dismissed as Untimely
• Issues: Illegal Sentence

4. Floyd v. Conway, 08-CV-6246, 2010 WL 3420630 (WDNY Aug. 26, 2010) (MAT)

• Habeas Denied
• Issues: (1) denied right to be present at material stage; (2) prosecutorial misconduct; (3) unduly suggestive ID procedure; (4) conflict of interest; (5) Batson violation; (6) weight of the evidence; (7) excessive sentence

5. Johnson v. Ercole, 07-CV-581, 2010 WL 3338607 (NDNY Aug. 23, 2010) (FJS) (RFT)

• Habeas Denied
• Issues: (1) prosecutorial misconduct; (2) improper admission of evidence; (3) IAC; (4) insufficient evidence
  
• Notes: Adopting R&R (available at 2010 WL 3338584)

6. Garrison v. Rock, 08-CV-6266, 2010 WL 3369602 (WDNY Aug. 23, 2010) (MAT)

• Habeas Denied
• Issues: weight of the evidence

7. Brown v. Fischer, 06-CV-2771, 2010 WL 3452420 (SDNY Aug. 27, 2010) (RJS) (JCF)

• Habeas Denied
• Issues: (1) Brady violation; (2) IAC; (3) right to confront violation; (4) right to fair trial violations
• Notes: Adopting R&R (available at 2010 WL 3452372)

8. Long v. Connolly, 10-CV-0715,  2010 WL 3463140 (EDNY Aug. 27, 2010) (BMC)

• Habeas Denied
• Issues: whether statement to police after he was shot in chest was voluntary