Habeas Corpus Blog

Habeas Corpus - District Court Review - Oral Argument in Kozlowski Case - Updated

At 10:30 a.m. on Thursday, December 22, SDNY DJ Richard Holwell is going to hear oral argument on the habeas petition filed by Dennis Kozlowski.

It is a well-known case.  Kozlowski, who is the former CEO of Tyco, and Mark Swartz, the former CFO, were prosecuted in New York state court for grand larceny based on allegations that they awarded themselves a substantial bonus compensation to which he was not entitled.  The litigation in state court went all the way up to the Court of Appeals.  One issue raised in state court was whether the trial court properly quashed subpoenas that sought recorded statements from Tyco's directors who later testified against Kozlowski at trial.  The Court of Appeals held that it was reasonably likely that the statements contained information that had the potential to be both relevant and exculpatory.  However, the court concluded that the defendants were disqualifed from obtainining the statements because they failed to attempt to replicate the statements at "an earlier time."

In his habeas petition, Kozlowski has asserted that his constitutional right to present a defense was violated when the trial court quashed the subpoena for the statements of these prosecution witnesses and that the reasons for quashing the subpoena were arbitrary. 

The current status of the case is that an MJ has issued an R&R recommending that the petition be denied based on a procedural default with respect to the right to present a defense claim.  The R&R did not address the merits of the claim.  Kozlowski filed objections to the R&R.

It's a really interesting case.  If you are in lower Manhattan and have some free time on Thursday morning, I'd recommend checking out the oral argument.

Update: I should have mentioned that the DJ will be hearing oral argument on Swartz's petition as well.

Habeas Corpus - District Court Review - Straight Up COA!

In the past couple of District Court Reviews, I had been lamenting the fact that district court judges have been overly stingy with the COA's this year.

Well, a district court judge finally granted one last month.  It was in a case called Marte v. Berkman on a double jeopardy claim.  It has an interesting procedural posture, as petitioner was seeking a stay in the state court criminal proceedings based on the double jeopardy claim.  Since there was no criminal judgment, the DJ considered the petition as brought under 2241.  There appears to be authority for doing that.  What's interesting about that is that it is not clear what the standard of review would be in such a situation.  Additionally, a federal petitioner does not typically need a COA to appeal the denial of a 2241 to the Second Circuit.  It's an open question in the Second Circuit as to whether a state petitioner in a 2241 petition needs to get a COA.  So those are interesting issues.

Without getting too much into the specifics of the underlying double jeopardy claim, the question was whether the trial court's declaration of a mistrial was a manifest necessity at the time the court ended the jury's deliberations and excused the jury.  The state judges -- both in the Appellate Division and in the Court of Appeals -- were all over the place on whether or not there was a manifest necessity. 

The DJ denies the petition, but granted a COA.  Here's what the DJ said in granting the COA:

The petition[er]'s path through the state court system alone demonstrates that reasonable jurists could disagree with this Court's rejection of the double jeopardy argument; in fact, an Associate Justice of the New York Supreme Court, Appellate Division, an Associate Judge of the New York Court of Appeals, and the Chief Judge of the New York Court of Appeals already have. Additionally, the seemingly open question regarding the appropriate standard of review and the necessity of a certificate of appealability weigh in favor of appellate review.

Here are the details:

Marte v. Berkman 

• Habeas Denied; COA granted
• Lower Ct. Info: 11-CV-6082, 2011 WL 4946708 (SDNY Oct. 18, 2011) (JFK)
• Issues: (1) double jeopary violation - whether the trial court's declaration of a mistrial was a manifest necessity at the time the court ended the jury's deliberations and excused the jury; (2) standard of review on a 2241 petition; (3) is a COA necessary when appealing a 2241 denial

Habeas Corpus - District Court Review - Habeas Grant!

Another habeas grant in the district courts!  The case is called Cross v. Perez.  There's a lot going on in the case: Can a defendant waive his right to file a habeas petition when he pleads guilty?  Does IAC invalidate such a waiver?  IAC during plea negotiations.  Whether out-of-state convictions can be used as predicate felony convictions in New York.  The defendant knowing more about the law than the trial attorney.

The facts are actually pretty simple: during plea negotiations, the prosecution wanted to use three different New Jersey convictions to enhance petitioner's sentence.  Defense counsel did not put up a fight.  Petitioner stood up and said, wait, none of the New Jersey convictions qualify as predicate felony convictions under New York law.  He handed up to the court case law to support his position.  The prosecutor, defense counsel and the court were willing to accept that two of them did not, but believed that one of them did -- aggravated assault against a police officer.  Petitioner disagreed but let the issue go.  He was offered a plea with a sentence for a second violent felony offender.  As part of the plea, he agreed to waive his right to bring a federal habeas petition.

He brought one anyways.  In his petition, he argued that he received IAC during plea negotiations because the NJ conviction did not qualify as a felony in New York and his attorney's deficient performance rendered involuntary the waiver of his rights.

The DJ agreed.  First, the DJ concluded, in what appears to be a relatively novel conclusion, that a petitioner could waive his rights to bring a federal habeas petition but that IAC could render such a waiver involuntary.  There is a lenghty discussion on this issue in the opinion.  The DJ then found that the NJ conviction did not qualify as a New York felony because it criminalized conduct as a felony that would not be a felony in New York. 

And here's where the case runs into Lafler v. Cooper: the DJ also concluded that petitioner would have been offered and would have accepted a lower offer as a first time violent felony offender.  The DJ orders specific performance of a plea offer that was not actually ever made.  So that's a little controversial.  Let's see if the State appeals.  Despite the opinion being dated October 4th, an amended judgment was entered on October 20, so the time to appeal has not yet run out.

Here are the details:

Cross v. Perez  

• Habeas Granted
• 11-CV-1186, 2011WL 4711466 (EDNY Oct. 4, 2011) (BMC)
• Issues: IAC in plea negotiations based on counsel's failure to challenge use of out-of-state conviction to enhance petitioner's sentence

 

Habeas Corpus - District Court Review - Checking In On Quezada

When we last checked in on Quezada v. Brown -- the groundbreaking habeas case in which authorization to file a second petition and a request for discovery were granted -- the State had moved for reconsideration of the DJ's order granting discovery.

The good news is that, back on October 19, the DJ denied Respondent's motion for reconsideration on both procedural and substantive grounds.  First, the DJ faulted Respondent for filing the motion in an untimely fashion.  The DJ rejected all of Respondent's excuses for the late filing.

More important, the DJ rejected the arguments on the merits.  And it's an important decision.  As mentioned in the prior post, the State had argued that Pinholster had changed the law and discovery was no longer appropriate in a habeas corpus proceeding as the 2254(d)(1) analysis only focuses on the facts that were before the state court.

The DJ disagreed.  First, the DJ concluded that Pinholster did not change the law on discovery as that decision did not mention discovery, the rule that covers discovery (RGHCCUS2254 6) or even mention the leading Supreme Court case on the issue, Bracy v. Gramley.  The DJ believed that, if Respondent was correct, it would render Rule 6 meaningless and would require the DJ to find that Bracy is no longer good law.  The DJ also noted that petitioner's claims was pursuing claims beyond a 2254(d)(1) claim.

Thus, the DJ joins those cases that have reached a similar conclusion (Conway v. Hauk (from SD Ohio) & Brady v. Hardy (from ND Ill), both cited in the DJ's order).  But there is a definite split developing here.  I would think that the Supreme Court will have to weigh in on this someday.  But for now, at least in Quezada, discovery continues.*

*Just to note, discovery continued while the motion for reconsideration was pending.  I guess it just continues to continue.

Habeas Corpus - District Court Review - Habeas Grant and COA!

I feel like there have been more habeas grants than COA's this calendar year in the district courts.  I guess I probably should have kept better track.  Nonetheless, assuming that feeling is correct, it just surprises me.  There should be more COA's than grants.  Kind of obvious, right?  A COA is a lower standard than a habeas grant.  But the DJ's have been pretty stingy this year with the COA's.

Setting that aside for a moment, for the second time this year, a DJ granted habeas and a COA in the same case!  That's pretty remarkable.  I guess it won't do anything to close the gap between COA's and grants this past year.  Still pretty exciting though.

The name of the case is Cardoza v. Rock and the issue is IAC on the habeas grant and IAC/conflict of interest on the COA.  More specifically, the court concluded that counsel was ineffective for failing to convey a plea offer to petitioner, who had been charged with participating in a drug conspiracy.  Petitioner was found guilty after a trial and was sentenced to a longer sentence than the one that was available in the plea offer.  The DJ ordered that the state court impose the sentence offered in the plea (since petitioner has sworn that he would have taken it had he known about it).  As for the conflict of interest issue, petitioner argued that his counsel had a conflict for two reasons: (1) he represented two co-conspirators; and (2) the attorney himself may have been involved in the drug conspiracy.  Crazy stuff.

One thing to note: as I discussed in my Supreme Court preview, the Court is going to hear two cases that raise these IAC issues - Lafler v. Cooper and Missouri v. Frye (to be argued on 10/31).  The Court could potentially conclude that this is not even a viable IAC claim or that the relief that the DJ ordered here is not an appropriate remedy.  So those cases could have a huge impact here.  Maybe I should have ranked those cases higher on the list of most interesting cases this term (they came in as number 4).

In any event, here are the details:

Cardoza v. Rock

• Habeas Granted; COA Granted
• 08-CV-8210, 2011 WL 4472030 (SDNY Sept. 27, 2011) (PAC) (RLE)
• Issues: Habeas Grant: IAC based on counsel's failure to advise petitioner of plea offer; COA: IAC/conflict of interest based on allegations that attorney had participated in same drug conspiracy and had represented two co-conspirators
• Notes: Adopting R&R (available at 2010 WL 7597717)

Habeas Corpus - District Court Review - Habeas Grant!

There's been a habeas grant out of EDNY!  The name of the case is Evans v. Fischer and habeas was granted on a due process violation based on the admission of a vast amount of hearsay evidence at the trial.   

The DJ does a great summary right at the beginning of the opinion, so I'll just quote it:

The focus of the petition is the admission at petitioner's trial of an unsworn, highly detailed seven-page hearsay narrative, penned by the state's key trial witness, containing the most damaging evidence and nearly the entirety of the state's case. Admitted for its substance without a limiting instruction, the document was touted by the prosecutor during summation and furnished to the jurors, upon their request, at the outset of deliberations. Petitioner claims that the document's effect, as well as the state's objective in offering it, was essentially to supplant the witness's poor performance on the stand, and to nullify his primary defense, which consisted of a compelling impeachment of that testimony. He argues that he was denied due process because his conviction rests principally on this hearsay rather than the trial testimony.

The state appellate court held that the trial court's decision to admit the hearsay document was error in three distinct ways and not reconcilable with any extant evidentiary theory, but the appellate court nonetheless rejected petitioner's claim that the ensuing unfairness was of constitutional magnitude. Under the unique circumstances and considerations addressed below, however, I conclude that the state appellate court unreasonably applied controlling Supreme Court holdings, which have long embodied the principle that the fundamental fairness guarantee of the Due Process Clause prohibits the state from obtaining a criminal conviction in the manner in which the State secured petitioner's. As this Memorandum explains, the record reveals manifest trial error of enormously prejudicial consequences, indeed a very thwarting of the trial as a trial. Mindful of the strict limits of my jurisdiction under AEDPA, I am compelled to conclude that the state appellate court's rejection of the due process claim on these facts was not merely error but objectively unreasonable, and I accordingly grant the petition.

Really interesting stuff.  Here are the specific details:

Evans v. Fischer

• Habeas Granted
• Lower Ct. Info: 06-CV-5919, 2011 WL 4434058 (EDNY Sept. 22, 2011) (RJD)
• Issues: Due process violation based on the admission of hearsay evidence

It's been added to the Pending Second Circuit Cases page.  I am assuming that the State will appeal (they haven't yet, though).  I'll just remove it if they don't.

Habeas Corpus - District Court Review - Rule 60(b) Motion

Interesting decision out of EDNY on a Rule 60(b) motion for reconsideration.  The original habeas petition had raised a Brady claim based on the prosecution's failure to turn over the criminal history of a testifying witness.  In the original petition, petitioner did not provide much of a factual foundation for the claim.  He presented a note from his attorney which stated that the witness had a violation in his background, but no crimes.  Of course, the State did not provide any assistance in answering the question of whether the witness had a criminal background.  In fact, the State denied it.

Surprise, surprise -- the witness had a "substantial criminal record relevant to credibility."  So petitioner moved for reconsideration under Rule 60(b).  Although the DJ denies the petition, the court acknowledged that there were "serious factual and legal problems presented" in the case.  Except the DJ drops the ball on a COA.

First, the details:

Graves v. Smith

• Denying Rule 60(b) Motion
• Lower ct. Info: 02-CV-6550, 2011 WL 4347881 (EDNY Sept. 15, 2011) (JBW)
• Issues: Brady violation based on prosecution's failure to disclose criminal history of witness

ANALYSIS: DJ does a nice job with the habeas procedural issues, except for the COA.

The DJ concludes that the Rule 60(b) motion was not a second or successive petition since it "'attack[ed], not the substance of the federal court's resolution of a clim on the merits, but some defect in the integrity of the federal habeas proceedings.'"  Good decision.

The DJ next concludes that Pinholster did not preclude reliance on the new evidence since it had been presented to the state courts in post-conviction proceedings.  Good decision.

The Dj next concludes that, even though the state court rejected the claim on the merits, "[d]eference is not required," since the state court did not hold an evidentiary hearing, so not factual findings that are entitled to deference, and the Appellate Division's "bare conclusion [on the legal claim], without analysis, presents no opportunity for a federal court to assess whether the Appellate Division unreasonably applied federal law."  Okay, maybe that last part is a bit out of the mainstream.  That does not seem consistent with Richter.  If a summary disposition is entitled to deference, then I would think that a bare conclusion would as well.  But, in the end, that does not play a part in the analysis, since the DJ concludes under a de novo review that the Brady claim fails.

The DJ next expresses some regret that he did not order a hearing back when he originally reviewed the petition.  He doesn't explain why that's relevant, but I am thinking he believes that it matters as to whether the Rule 60(b) motion was an appropriate vehicle to reconsider the claim. 

Then the DJ turns to merits and concludes that the State suppressed favorable evidence, but that there was no reasonable probability that it affected the outcome of the trial.  Although this witness' credibility would have been thoroughly undermined, there was other evidence against petitioner, including testimony from an alleged co-conspirator.   So Brady claim fails.

The DJ then whiffs on a COA.  The DJ states, "Were a certificate of appealability required for a Rule 60(b) motion to be appealed, it would be granted by this court in this case in view of the serious factual and legal problems presented.  A fresh view by a panel of the Court of Appeals for the Second Circuit might be helpful." 

I am not sure why the DJ would think that a COA is not necessary for the denial of a Rule 60(b) motion.  Some quick research shows that the Second Circuit has held that it is necessary.  See Kellog v. Strack, 269 F.3d 100, 103 (2d Cir. 2001) ("We thus expressly hold that the COA requirement provided in 28 U.S.C. § 2253(c) applies to an order denying a Rule 60(b) motion for relief from a judgment denying a § 2254 petition.").

I hope that the DJ straightens this out.  Maybe another Rule 60(b) motion is necessary.

 

Habeas Corpus - District Court Review - Habeas Denial in the News

Yesterday, the New York Law Journal had an article about a habeas denial in WDNY.  Apparently, the New York Law Journal's website is no longer subscription only.  Instead, they seem to be going to the other extreme and encouraging traffic by allowing readers to personalize the way the content on the site is presented.  I wonder if this is a temporary experiment or permanent.

In any event, the title of the article is: "Anti-Abortion Activist's Fair Trial Claims, Habeas Bid Are Rejected."  It covers the habeas denial of the petition filed by James Kopp, the anti-abortion activist who was convicted of murdering a doctor who performed abortions. 

He raised a Sixth Amendment conflict-of-interest issue.  It's a little interesting since the same conflicts that were not enough to disqualify the lawyer in state court were apparently the same conflicts that were used to disqualify that attorney in Kopp's federal court criminal case. 

But the DJ found nothing wrong with this.  According to the article, "Western District Judge Michael A. Telesca in Rochester held that any negative consequence resulting from Mr. Kopp's choice of attorneys, or his decision to grant an interview to the Buffalo News that amounted to a pretrial confession, were purely and solely the result of the defendant's own decisions."

The opinion itself can be found here.  The DJ did not grant a COA.

Habeas Corpus - District Court Review - Another COA!

In one of the district court reviews from yesterday (there were two of them), I mentioned the habeas grant in Johnson based on insufficient evidence to establish depraved indifference.  What I found important about Johnson was the DJ's analysis on the miscarriage of justice issue.

Today, I learned from a reader that another COA has been granted on this very issue.  The case is called Sanchez v. Lee.  It is such a recent COA that it has not made its way onto Westlaw yet.  I'll update the information when it becomes available.

So now we have three cases before the Second Circuit (Garbutt, Johnson, and Sanchez) with the miscarriage of justice issue.  That's going to be a big decision.

For now, here's the details:

Sanchez v. Lee, 10 Civ. 7719 (SDNY Aug. 8, 2011) (PKC) (AJP)

• Habeas Denied; COA granted
• Issues: whether whether petitioner had shown a miscarriage of justice in order to overcome a procedural default
• Notes: Adopting R&R (avaiable at 2011 WL 924859)

Habeas Corpus - District Court Review - COA's Granted!

During the week of July 25, 2011, there were two COA's issued in the district courts.*  I am only going to mention the details below without analysis.  It's more about the D/D associated with one of the cases that I am going to refrain from any analysis here.  I am just going to list them here and then add them to the Pending Second Circuit Cases page.

*Of course, other COA's may have been issued that week (or in prior weeks/months) in unpublished orders.  As I have complained about before, those represent a gap in my knowledge about what's pending before the Second Circuit.

Pagan v. Brown, 07-CV-0453, 2011 WL 3235769 (EDNY July 28, 2011) (JS) (WDW)

• Habeas Denied; COA Granted
• Issues: whether the trial court impermissibly allowed a police officer to testify about petitioner's silence in response to police questioning (known as a Doyle violation)
  
• Notes: Adopting R&R (available at 2011 WL 3235840)

Mason v. Duncan, 02-CV-5729, 2011 WL 3251535 (SDNY July 27, 2011) (KMW)

• COA Granted
• Issues: whether petitioner's sentence as a persistent felony offender is unconstitutional
• Notes: D/D - I represent petitioner in this case