Habeas Corpus Blog

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 - A Call for Changes to the Federal Post-Conviction System

There has been even more good stuff from The National Law Journal lately.  In an article entitled, "Federal habeas corpus & actual innocence," Philip G. Cormier, Andrew Good, Barry C. Scheck and Harvey A. Silverglate discuss the many post-conviction roadblocks that has faced federal criminal defendant Jeffrey MacDonald, who has been pursuing an actual innocence claim based on DNA evidence.

It's a really interesting article and gives a lot of background about the MacDonald case, which I mentioned around here recently due to a Fourth Circuit decision in his favor. 

Of course, I prefer the article's subtitle's reference to all of this as part of the "federal post-conviction system" (which is the proper way to describe 2255 motions) as opposed to the main title's "federal habeas corpus" (which is not an accurate description of a 2255 motion), but that's not really that important overall.  The article is definitely worth a read.

And speaking of 2255 motions, I have written in the past about a 2255 motion filed in SDNY in the DiPietro case up in Westchester.  A local paper in Westchester named Westchester Rising had a series of articles documenting the paper's belief that DiPietro is innocent.  Now, the paper reports that a Hollywood producer is interested in potentially making a film about the case.  As the paper says at the end of the article, "Stay tuned." 

Habeas Corpus - Habeas Cases From Around the Country

Saw some interesting habeas cases from other places over the past few weeks. . .

Last week, the Third Circuit re-affirmed its prior decision to grant habeas relief to Mumia Abu-Jamal on the grounds that the instructions in his capital sentencing phase were unconstitutional.  The court had originally granted habeas relief, but the Supreme Court vacated the decision in light of Smith v. Spisak.  On remand, the Third Circuit stuck to its prior conclusion, saying that it was not inconsistent with Spisak. 

Interesting habeas grant out of New Mexico a few weeks back in a case called Case v. Hatch, 2011 WL 1126335 (D.NM Mar. 28, 2011).  Petitioner was able to establish under 28 U.S.C. 2244(b)(2)(B)(i) & (ii) that the facts underlying a Brady claim "if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense."  After concluding that this gateway standard had been met, the court then granted habeas relief on the Brady claim.  This is a rare occurence.  The facts are also really interesting, as it appears that law student investigators were the ones who unearthed the Brady material.  You can download the decision here -- Download Case v. Hatch.

Briefly, here's an article about a habeas petition being filed in a high-profile murder case in Las Vegas from the '90's in which a grandmother was convicted of killing her husband.

It's a 2255 motion, but here's an article about a Fourth Circuit decision in the infamous Jeffrey MacDonald case, dramatized in the made for tv movie/Karl Malden vehicle "Fatal Vision." (of course, it was a book first, but I was a big fan of the movie, which also starred Eva Marie Saint and one of my all-time favorites, Gary Cole).  I mention it, not just because of its pop culture relevance (and the actual innocence issues hovering over the case), but because the decision concerns whether the lower court properly applied the standards for evaluating a second or successive 2255 motion, which appear to be the exact same as those for evaluating a second or successive 2254 petition under 2244(b)(2) (analyzed above in Case v. Hatch).  So, it does have relevance to 2254 cases.  The Fourth Circuit decision is here.

 

Habeas Corpus - Even More Unrelated Stuff

Just wanted to note that the Second Circuit issued an opinion today in a 2255 case in a case called Matthews v. United States.  I have previously mentioned my feelings about 2255 motions.  And there are some situations where a decision in a 2255 case will impact a 2254 case.  But this isn't one of them. 

Nevertheless, like Connick, it's related on some level (collateral proceeding, certificate of appealability was granted, one section away from 2254 in the United States Code).  And it's kind of a fascinating discussion of capital punishment procedures in the federal system. post Apprendi  For these reasons, I thought I'd at least give the link (that will expire in 30 days).

Habeas Corpus - More Coverage of 2255 Motion

I have previously discussed the DiPietro 2255 motion here and here.

As mentioned in the previous post, a local paper in Westchester County has been covering the motion and has published a series of articles documenting the paper's belief that he is innocent.

The previous post linked to part 1 of the article. 

The paper has now issued parts 2 and 3.

The links are to pdf's of the entire paper.  The articles are prominently featured on the front page of the paper.

Habeas Corpus - 2255 In the News

Usual caveats about 2255 motions . . .

A reader passed along an interesting article from a paper called Westchester Rising concerning a 2255 motion that I have previously mentioned around here (actually it's the same post that has the caveats about 2255 motions).  Since I do tend to talk a bit about actual innocence claims around here, I thought I'd provide a link to the article.

But first, here are the first three provocative paragraphs from the article, entitled "Rising Exclusive: A Westchester Miscarriage of Justice? All Evidence Points to Angelo DiPietro's Innocence":

    Initially, Rising took little interest in the case of organized crime figure Angelo DiPietro, who is currently serving a life sentence in federal prison for kidnapping, extortion and robbery charges that he claims he never committed.

    Until recently, many media sources, including Rising, had ignored DiPietro’s conviction and the possibility of prosecutorial foul play. Government propaganda and fabricated nicknames, like “Fat Angelo,” had conveniently overshadowed what is, in hindsight, an obviously weak case built upon a pack of lies.

    A review of court documents, new testimony from witnesses and the presence of tainted Westchester politicians (Anthony Mangone, Zehy Jereis, Jeannie Pirro and Mo Sanginiti) has now made this story simply too interesting to pass up, and points to one logical conclusion: DiPietro was framed for a host of crimes that he did not commit, including a robbery in Eastchester and an alleged kidnapping at the Cross County Shopping Center.

A link to the pdf of the entire paper.  It's on the front page of the paper, just scroll down a little.

Habeas Corpus - 2255 Decision

The New York Law Journal has a blurb today about an opinion in a "habeas" case that supposedly "eased the burden on defendant who want to challenge their lawyers' performance through a petition for a writ of habeas corpus."

I wanted to make a few comments about the article.  In the first instance, the article's description of both the name and type of case is off.  First, the paper inaccurately says that the name of the case is People v. Yick Man Mui.  It's actually Yick Man Mui v. United States.  That's a big difference.  It changes it from a state criminal case to a federal criminal case.  Which means that the "habeas" we are talking about is actually a motion to set aside the conviction under 28 USC 2255.  So the case does nothing to clarify anything about petitions for a writ of habeas corpus.  Sure, 2255's are sometimes referred to as "habeas" cases, but as I have previously explained, 2254 and 2255 cases only share a small amount in common.

The case really focuses more on question of federal procedure -- when and where can a federal criminal defendant raise an ineffectiveness claim.

The decision itself actually came out last week on July 30.  And you can read it here.

Habeas Corpus - 2255 Motion In the News

Under 28 U.S.C. 2255, a federal criminal defendant can move in the district court to set aside his federal sentence.  2255 is often referred to as federal habeas and looked at as a cousin to 2254 petitions.  Indeed, the statute itself does (sort of) refer to it as similar to an application for a writ of habeas corpus.

I usually don't talk about 2255 motions on the blog.  Actually, I am not sure if I ever have. 

Why not?

While they are often referred to as federal habeas petitions, they really aren't and are nearly irrelevant to federal habeas petitions challenging state court convictions, which is the focus of the blog.  In reality, 2255 is basically the equivalent to a 440 motion in New York state court -- a post-conviction collateral proceeding before the same court as the conviction raising claims that were outside the record on the direct appeal.  So it is a little different from a 2254 petition in nature. 

2255 also does not have the AEDPA standard of review.  So almost any decision on a substantive issue in a 2255 motion is essentially a criminal law decision, similar to a decision in a federal criminal case.  Apart from the Supreme Court, a federal court's decision on an area of substantive criminal law is not relevant to a 2254 case.

On the other hand, there are some AEDPA-aspects to a 2255 motion that are similar to a 2254 petition.  The COA requirement applies, as does the one-year statute of limitations.  There is also the same restriction on second or successive motions.

So some procedural decisions on 2255 motions are relevant to 2254 petitions.  Otherwise, not particularly relevant.

With that being said, I am going to briefly mention something about a 2255 motion.  A reader pointed me to an article yesterday on LoHud.com (a website that covers the lower Hudson Valley) about a 2255 motion that was recently filed.  Since it is so rare for a collateral proceeding in federal court to get some media attention, I thought I'd provide a link to the article. 

It's entitled, "Mount Vernon man says new evidence clears him in extortion case."

Here are the opening paragraphs:

A Mount Vernon man serving 59 years in a federal prison for kidnapping, extortion and robbery says newly uncovered evidence warrants a new trial in the case.

Angelo DiPietro, 53, wants a federal judge to void his 2005 conviction because of what he says was the failure of prosecutors to disclose information about witnesses who could have helped him prove his innocence.

The rest of the article is here.  It's an interesting article, worth the read.

Habeas Corpus - Executive Detention

A couple of days ago, I asked what have been the biggest habeas corpus cases in the Supreme Court.  I suggested that they would potentially fall into three categories:  (1) the establishment cases; (2) the procedural cases; and (3) the cases with significant criminal law development.

Al O'Connor in the comments suggested Hamdi v. Rumsfeld, 542 U.S. 507 (2004), as one of the biggest habeas cases.  I agree.  And it led me to conclude that there needs to be (at least) one other category: executive detention.

In addition to Hamdi, there are the other more recent executive detention cases (what I'll call the Bush clusterf*ck cases - still don't feel right using out and out profanity around here), such as Rumsfeld v. Padilla, 542 U.S. 426 (2004), Boumediene v. Bush, 128 S. Ct. 2229 (2008), and Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

Going back further, there are other executive detention cases such as Ex Parte Bollman, 4 Cranch 75 (1807), Ex Parte Milligan, 4 Wall. 2 (1866), and Korematsu v. United States, 323 U.S. 214 (1944).  A couple of these, like Bollman and Milligan, could also fall into the establishment cases.

And I would be remiss if I didn't mention the non-Supreme Court case of Ex Parte Merryman, 17 F.Cas. 144 (C.D. Md. 1861).  Coincidentally enough, today, the New York Law Journal published an essay about Merryman, which was written by this year's winner of its high school legal essay writing contest.  Nice to see habeas corpus on the minds of high school students.

Habeas Corpus - Something Like a Phenomenon

I have noticed this phenomenon before.  And, despite the title, I am not referring to an LL Cool J song.  Rather, what I have noticed is that when an unusual issue pops up in one case, it is certain to pop up again soon afterward.

In this week's Weekly Review, I pointed out that an extradition issue popped up in Nguyen v. Ercole, 05-CV-0855, 2009 U.S. Dist. LEXIS 110331 (WDNY Nov. 25, 2009) (MAT), and I had never seen that type of issue before.

I should have known that, because I singled this issue out, it would come up again.  And, Presto!, it did today, albeit not exactly in the same way as it did in Nguyen.

In Nguyen, the issue concerned the petitioner's extradition to the U.S.

In Sacirbey v. Guccione, 06-5137, opinion here, the issue concerns the petitioner's extradition to another country.  While it was a habeas petition challenging federal custody (so slightly outside the typical subject matter of this blog), the issue is certainly close enough to fall into the phenomenon.

And if I thought the issue in Nguyen was unusual, here's how the author of Sacirbey, Judge Cabranes, describes the issue in that case:

    In this appeal we consider whether an arrest warrant issued by a foreign court that no longer has jurisdiction over the accused, nor the power to enforce the warrant, can provide an adequate basis for the extradition of a United States citizen. This is a question of first impression—and the fact that this issue has not been previously decided should not be surprising. It is a rare circumstance where the very document that provides the basis for an extradition request turns out to have been issued by an entity that no longer has lawful authority over the matter. While the factual and procedural history of this case is extraordinary, our resolution of it requires only that we apply the plain meaning of the provisions of the relevant treaty. The treaty authorizes the extradition of an individual who has been “charged” with a crime and requires that an arrest warrant and supporting materials be provided in order to obtain that extradition. Because the arrest warrant at issue in this case was issued by a court that neither has jurisdiction over the matter nor authority to enforce the warrant, the requirement of the treaty that an individual be “charged” with an extraditable offense has not been satisfied. This defect falls within the narrow category of issues that is cognizable on habeas review of an extradition order; we therefore reverse the order of the District Court denying the petition for a writ of habeas corpus.

Judge Leval joined the opinion and Judge Kearse dissented.