Weekly Review delivers this week -- a habeas grant! (only available on Lexis Westlaw cite added) It's a Besser grant. Which is nice. That is Besser grant number three, I believe.
Otherwise, I will say that one other thing got my attention. A single MJ released four opinions this week in which the parties consented to proceed before the MJ and all four of the opinions are going to be published in the federal reporter. Soon after I started the blog, I had a long post about opinions getting published in the federal reporter. Basically, it doesn't matter too much anymore overall. But I did find it striking that all four of these, which I can't say are particularly important opinions, are gonna take up some of the sacred ground in the federal reporter. A little odd, particularly when it does not appear that the habeas grant is going to be published.
1. Stevens v. Spitzer, 05-CV-10819, 2010 WL 3958845, 2010 U.S. Dist. LEXIS 107698 (SDNY Sept. 23, 2010) (LAK) (FM)
- Habeas Granted
- Issues: Persistent felony offender sentence is unconstitutional
- Notes: Counseled; Rejecting R&R
ANALYSIS: MJ had recommended that it be denied, but that R&R came out before Besser.
One other important note, DJ concludes that the error was not harmless. DJ says, "the error here obviously was not harmless. Absent the unconstitutional PFO determination, petitioner could not have been sentenced to more than seven years." I like that analysis.
Remaining cases below the fold . . .
2. Scott v. Dennison, 05-CV-857, 2010 WL 3718954 (WDNY Sept. 23, 2010) (VEB)
- Habeas Denied
- Issues: due process violations related to denial of parole
- Notes: To be published; parties consented to proceed before MJ
3. Huffman v. Kirkpatrick, 07-CV-0481, 2010 WL 3636751 (WDNY Sept. 20, 2010) (VEB)
- Habeas Denied
- Issues: (1) violation of Interstate Detainer Agreement; (2) IAC; (3) prosecutorial misconduct; (4) improper denial of 440 motion
- Notes: To be published; parties consented to proceed before MJ
4. Miles v. Conway, 04-CV-6156, 2010 WL 3667011 (WDNY Sept. 22, 2010) (VEB)
- Habeas Denied
- Issues: (1) improper denial of for-cause challenge; (2) IAC; (3) improper admission of expert evidence; (4) insufficient evidence; (5) Brady violation
- Notes: To be published; parties consented to proceed before MJ
5. Peppard v. Fischer, 06-CV-0729, 2010 WL 3636750 (WDNY Sept. 21, 2010) (VEB)
- Habeas Denied
- Issues: (1) insufficient evidence; (2) sentence violated eighth amendment; (3) due process violation; (4) IAC; (5) state law violations
- Notes: To be published; parties consented to proceed before MJ
6. Harris v. Lee, 10-CV-2521, 2010 WL 3734065 (SDNY Sept. 23, 2010) (SAS)
- Habeas Dismissed as Untimely
7. Smith v. Conway, 08-CV-669, 2010 WL 3788047 (WDNY Sept. 23, 2010) (MAT)
- Habeas Denied
- Issues: (1) involuntary plea; (2) IAC
8. Timmons v. Lee, 10-CV-1155, 2010 WL 3813963 (EDNY Sept. 23, 2010) (JG)
- Habeas Denied
- Issues: (1) double jeopardy; (2) duplicitous indictment; (3) insufficient evidence; (4) witnesses were not properly sworn; (5) 4th Amend. violation; (6) statements to law enforcement were involuntary and obtained in violation of right to counsel; (7) evidence was improperly admitted and/or authenticated; (8) dismissed counts of indictment improperly read to jury; (9) Brady violation; (10) judicial misconduct; (11) jury tampering; (12) 440 motion improperly denied
- Notes: First-degree murder case
9. Headley v. Ercole, 07-CV-979, 2010 WL 3808685 (NDNY Sept. 22, 2010) (FJS)
- Habeas Denied
- Issues:(1) IAC; (2) weight of the evidence; (3) double jeopardy violation
- Notes: Counseled
10. Hawthorne v. Spitzer, 07-CV-4128, 2010 WL 3803861 (EDNY Sept. 20, 2010) (NG) (CLP)
- Habeas Denied
- Issues: IAC
- Notes: DJ had previously adopted an R&R recommending a denial, but had ordered that petitioner's counsel submit an affidavit in response to IAC claim; DJ reviewed the affidavit and concluded that claim had no merit
Comments