Habeas Corpus - Weekly Review - 10/4-8/10

Busy week in the district courts.  Late September-early October seems to represent one of the peak seasons for habeas cases.

The biggest news is that there was a COA!  That's above the fold.  Two other cases brought up the fold are somewhat interesting depraved indifference cases. 

Here they are:

1. McClary v. Conway, 06-CV-2064, 2010 WL 3928563 (EDNY Oct. 04, 2010) (ENV)

• Habeas Denied; COA granted
• Issues: (1) prosecutorial misconduct; (2) IAC; (3) excessive sentence

ANALYSIS: DJ issues a COA on the IAC claim.  The specific claim is whether counsel was ineffective for failing to move to suppress petitioner's confession, which was the only evidence admitted against him at trial.

Facts were that counsel moved to suppress on 5th Amendment grounds, but not 4th Amendment grounds.  Counsel did not renew after counsel learned that petitioner was arrested in his home without a warrant and on the basis of two confidential informants.

DJ has analysis is a little odd.  DJ concludes that "defense counsel's failure to pursue the Dunaway motion in these circumstances was not objectively unreasonable."  Neverthless, DJ says that there is some potential merit to the underlying 4th Amendment claim.  But DJ says that, even if petitioner could show both prongs, the DJ was going to defer to the state court's ruling that there was no ineffectiveness.  Honestly, it's tough to tell how the DJ actually feels about the claim, the analysis is a little all over the place.  Good thing he granted a COA.

2. Melendez v. Kirkpatrick, 06-CV-6416, 2010 WL 3928697 (WDNY Oct. 08, 2010) (VEB)

• Habeas Denied
• Issues: (1) Insufficient evidence to support depraved indifference conviction; (2) IAC
• Notes: To be published; parties consented to proceed before MJ; 

ANALYSIS: Although there are some potential procedural defaults in the case, MJ goes straight to merits in interest of judicial economy. MJ concludes that facts support depraved indifference -- these include fact that petitioner pulled gun in scuffle, held it close to victim's face while other people were standing around and petitioner stated to police that he did not mean to kill person with gun, but was only trying to scare him.

3. Ortega v. Brown, 09-CV-5604, 2010 WL 3945669 (SDNY Oct. 08, 2010) (DLC) (DF)

• Habeas Denied
• Issues: (1) insufficient evidence to support depraved indifference conviction; (2) IAC
• Notes: counseled; adopting R&R, but not available online

ANALYSIS: Although there are some potential procedural problems, DJ goes straight to merits. The facts were that after a violent struggle in their apartment, petitioner pushed his girlfriend out of the window and she fell to her death.  Petitioner's argument was a little different than standard depraved case.  He argued that the evidence was insufficient to show reckelessness and that evidence only showed that it was an accident.

Remaining cases below the fold . . .

 

4. Wise v. Superintendent, Attica, 08-CV-6312, 2010 WL 3943733 (WDNY Oct. 07, 2010) (MAT)

• Habeas Denied
• Issues: (1) improperly admitted hearsay; (2) prejudicial evidence deprived him of fair trial; (3) IAC; (4) insufficient evidence

5. Arroyo v. Conway, 08-CV-3887, 2010 WL 3950734 (EDNY Oct. 07, 2010) (DLI)

• Habeas Denied
• Issues: (1) IAC; (2) impermissibly suggestive lineups; (3) sentencing court erred in considering  acquitted conduct

6. Flores v. Ercole, 09-CV-602, 2010 WL 3951048 (EDNY Oct. 07, 2010) (DLI)

• Habeas Denied
• Issues: (1) evidence of gang violence improperly admitted in violation of due process and petitioner's First Amendment right to freely associate; (2) unconstitutional sentence; (3) IAC

7. Fernandez v. Annets, 07-CV-3338, 2010 WL 3958428 (EDNY Oct. 07, 2010) (SF)

• Habeas Denied
• Issues: (1) illegal arrest; (2) IAC; (3) vehicle was improperly forfeited
• Notes: guilty plea case

8. Washington v. Poole, 06-CV-6477, 2010 WL 3910176 (WDNY Oct. 06, 2010) (VEB)

• Habeas Denied
• Issues: IAC
• Notes: to be published; parties consented to proceed before MJ

9. Rodriguez v. Mance, 09-CV-74142, 2010 WL 3927328 (SDNY Oct. 06, 2010) (HB) (MHD)

• Habeas Denied
• Issues: (1) insufficient evidence; (2) deprivation of due process at sentencing
• Notes: Adopting R&R (not available online)

10. Johnson v. Conway, 08-CV-3302, 2010 WL 3942897 (EDNY Oct. 06, 2010) (DLI)

• Habeas Denied
• Issues: (1) improper Sandoval ruling; (2) prosecutorial misconduct

11. Mitchell v. Lempke, 10-CV-1696, 2010 WL 3937306 (EDNY Oct. 04, 2010) (JG)

• Habeas Denied
• Issues: (1) unduly suggestive lineup procedures; (2) IAAC
  

12. Winship v. Berbary, 06-CV-6441, 2010 WL 3944718 (WDNY Oct. 06, 2010) (VEB)

• Habeas Denied
• Issues: (1) involuntary plea; (2) illegal sentence; (3) IAC

13. Heise v. New York, 08-CV-773, 2010 WL 3944721 (WDNY Oct. 06, 2010) (MAT)

• Habeas Denied
• Issues: (1) involuntary plea; (2) coerced confession; (3) 4th Amend. violation; (4) double jeopardy violation

14. Bennefield v. Kirkpatrick, 06-CV-6104, 2010 WL 3860992 (WDNY Oct. 05, 2010) (VEB)

• Habeas Denied
• Issues: (1) IAC; (2) involuntary plea; (3) public trial violation; (4) double jeopardy
• Notes: to be published; parties consented to proceed before MJ

15. Griffin v. Powers, 08-CV-6026, 2010 WL 3911417 (WDNY Oct. 05, 2010) (MAT)

• Habeas Denied
• Issues: (1) IAC; (2) Double jeopardy

16. Bermudez v. Conway, 09-CV-91, 2010 WL 3937321 (NDNY Oct. 05, 2010) (JKS)

• Habeas Denied
• Issues: (1) involuntary statements; (2) Brady violation; (3) self-incrimination violation; (4) 4th Amend. violation; (5) IAC; (6) IAAC

17. Warren v. Poole, 07-CV-10416, 2010 WL 4058154 (SDNY Oct. 05, 2010) (CS) (GAY)

• Habeas Dismissed as Untimely
• Notes: Adopting R&R, not available online

18. Giles v. Smith, 10-CV-5322, 2010 4159468 (SDNY Oct. 8, 2010) (PKC)

• Habeas Dismissed as Untimely