Habeas Corpus Blog

Habeas Corpus - Depraved Indifference Overview - Updated

Recently, some readers have reached out to me with inquiries about depraved indifference cases.

There is no doubt that depraved indifference cases have popped up a lot around here.  In fact, the first substantive post on the blog had to do with a habeas grant in a depraved indifference case (it was later overturned by the Second Circuit).  A search of the blog shows that there have been dozens of posts that have mentioned this category of cases. 

So I thought it might be helpful to give an overview of what's happened and is happening in those type of cases.*

*For some reason, I felt uncomfortable trying to find a pithy title for a post about depraved indifference cases.  I have previously lamented the fact that pithy titles are not really my forte.  Only rarely do I find that right combination of brevity, cleverness, metaphors and/ or puns, that all come together in a perfectly pithy blog post title.  I am always amazed when someone can do it.  UPDATE: From the comments, this clever proposed title made me laugh: "I'm deprived on account of I'm depraved."  It's kind of perfect.

I am going to cover the following areas:

A. Background (discussing the change in law)

B. Relief

C. Habeas Review of the Merits

D. Procedural Default

E. Retroactivity

This is going to be a long post.  So, for the first time in a long time, I am going to put stuff below the fold . . .

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 - Habeas Granted!

In the comments to my post about the Second Circuit's habeas grant in Rivera, reader DB pointed out that there had been another recent habeas grant on a depraved indifference claim in a case called Johnson v. Bellnier. I have now read it and its a really important decision.

But first, let me note that, even though I tried to keep up to date with recent habeas developments over the summer, I had not heard about the decision.  Actually, I had not yet looked through the decisions from the week in which it was issued, and that week turned out to be a pretty busy one in the district courts - a habeas grants and two COA's.  There had not been a COA in the district courts in months.  I'll put those up in a separate post.

Here, I am going to quickly talk about Johnson.  First, the details:

Johnson v. Bellnier, 09-CV-381, 2011 WL 3235708 (EDNY July 27, 2011) (KAM) (RER)

• Habeas Granted in Part
• Issues: (1) whether petitioner had shown a miscarriage of justice in order to overcome a procedural default; (2) legal insufficiency on depraved indifference
• Notes: Adopting R&R in part (available at 2010 WL 7100915)

ANALYSIS: DJ grants habeas relief concluding that the evidence was legally insufficient to establish depraved indifference murder.

But that's not what makes this an important decision.  It is the procedural default ruling that really matters.  Both the MJ in his R&R and the DJ here conclude that petitioner can overcome the procedural default (i.e. failure to raise the claim at trial) because a fundamental miscarriage of justice would result if his case is not reached on the merits.  We have seen that result before (in Petronio and Fernandez v. Smith).  This issue is now currently before the Second Circuit in a case called Garbutt v. Conway (see Pending Second Circuit Cases page).  But the DJ ruled against the petitioner on this issue in Garbutt.  So now we have another DJ going in the other direction.  That's really helpful.

Hopefully, this case will be heard with Garbutt (assuming the State appeals).  At the very least, this decision is now out there and could have an influence on the court.

 

Habeas Corpus - A Favorable Outcome for Petitioner

Back in September, in a case called Petronio v. Walsh, an EDNY judge granted habeas on the ground that the evidence was insufficient to support a depraved indifference conviction. 

It was great opinion as it not only granted relief on that ground, but it granted relief even though the claim had been procedurally defaulted in state court.  The judge concluded that petitioner had overcome the procedural default in two ways: one, he had shown cause because the depraved indifference argument "could not reasonably have been within counsel's contemplation at the time of the trial"; and two, there would be a miscarriage of justice for the federal courts to refuse to address the claim.

What was so great about this opinion is that in stood in direct contrast to a separate lower court opinion that had gone the other way on at least the miscarriage of justice issue and that case is now pending before the Second Circuit.  This would have been a great companion case for that one.

But something else happened with the case.  I recently read an article* in Newsday about the case and the paper reported that Petronio and the Nassau County DA's office reached a plea agreement under which Petronio would plead guilty to second-degree manslaughter.  The guilty plea was entered on October 15.  According to the article, the arrangement will make him almost immediately eligible for parole after serving ten years in prison.

*The article is subscription only, so no link.  I was able to read it on Lexis/Nexis.

I checked the EDNY docket sheet for the case and the DA's office did file a notice of appeal.  However, one of Petronio's attorneys has informed me that the DA's office does not plan on pursuing the appeal.  And the Second Circuit's PACER system has no record of an appeal in that case.  So it looks like the case is over.

While I would have liked the EDNY's great opinion to become the law of the circuit, I like the fact that the habeas grant resulted in a reduced plea for petitioner.  It's a situation where habeas corpus provided a real world benefit to a habeas petitioner.  Despite those recent calls for its abolition, this is a nice example of the continuing importance of the writ.

 

Habeas Corpus - Habeas Granted! - Updated

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.