Habeas Corpus Blog

Habeas Corpus - Relist Revisited

In my last post about the relists, I stated that I thought that the case in Maples would end up as a GVR in light of the supreme Court's decision in Walker v. Martin as both cases concerned the question of whether a state rule represented an independent and adquate state law ground.

A reader pointed out to me that this outcome does not seem likely since the lower court in Maples actually ruled against Maples and concluded that the State rule, which in some ways resembles the California rule at issue in Martin, was adequate.  So there would be no reason to reverse since it would seem to be consistent with Martin.

That makes sense, so I would like to take back my statement about the GVR.  I guess what I really should have said was that the result in Maples on the adequacy of the procedural rule, whatever it should end up being, seems to be dictated by the Martin decision.  So it makes sense that the Court would hold the case in light of Martin.

But then I starting looking into it some more and realized that Maples had the additional issue of cause for the procedural default.  I completely forgot that this was the case that got all of the media attention focusing on how a mailroom in a big New York City law firm screwed up the case.  And I can't believe that I forgot that, as it was the case in which I instituted the "uncommon sense meter" (which I guess has been in hibernation for awhile).

Which means that it could still be a GVR, but on this other ground.  However, I think that it is more likely to be a dissent from cert. denial.  I can't see the Supreme Court deciding to review this case on the "cause" ground.  But I am guessing that the facts in this death penalty case make at least one judge a little bit* uncomfortable.

*In my relist post yesterday, I also used the "a little bit" phrase.  It's because I had that great line from Goodfellas stuck in my mind: "No, no, no, no, no. You insulted him a little bit. You got a little bit out of order yourself."  I happened to watch Goodfellas again on Monday night.  I worry that it's a little cliche to refer to Goodfellas.  Who hasn't seen Goodfellas a million and a half times?   But it's such a ridiculously rewatchable movie.  So for your viewing pleasure, I've included the entire "Billy Batts" scene from Goodfellas.  It's obviously NSFW. The quote mentioned above is at 3:07 if you want to skip ahead:

 

 

 

Habeas Corpus - Second Circuit Opinion from Yesterday

Yesterday, the Second Circuit issued a somewhat quirky published opinion.  There is no doubt that the court had problems with the viability of the underlying conviction.  The issue had to do with territorial jurisdiction in a drug case where neither petitioner nor the drugs were ever in New York State.  However, the court refused to dig too deep into the merits since it believed the claim was procedural defaulted due to a failure to exhaust.

More in a second, but here's the details:

Carvajal v. Artus, 09-0826-pr

• Affirming Denial of Habeas; Opinion here
• Panel: Jacobs, Feinberg, Cabrane; Opinion by Jacobs, CJ
• Decided: 1/25/11
• Argued: 9/29/10
• Lower Ct. Info: 07-CV-10634, 2009 WL 62177(SDNY Jan. 9, 2009) (CMM) (AJP)
• Issue: whether New York lacked territorial jurisdiction to try petitioner on drug possession charges where possession was exclusively outside state of New York

ANALYSIS: As mentioned above, while expressing concerns about the conviction, the court affirms the denial of habeas based on petitioner's failure to fairly present the constitutional claim to state court under the Daye factors.*  According to the court, the claim was only advanced as a state law claim. 

*The Daye factors come out of what is now a pretty old case called Daye v. Attorney General, 696 F.2d 186 (2d Cir. 1982) (en banc).  The Second Circuit established the following four ways that a petitioner can satisfy the "fair presentation" test:

(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.

This Daye test has endured for the past 30 years since I don't think the Supreme Court has ever truly addressed this question and the AEDPA did not alter the fair presentation standard.

The novel aspect of the decision is the question of whether the State expressly waived the exhaustion issue.  For whatever reason, the State did not advance the exhaustion argument in the district court.  The AEDPA added the following language to the habeas statute: "[s]tate shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the [s]tate, through counsel, expressly waives the requirement." 28 U.S.C. § 2254(b)(3).

The court states that this express waiver is a stringent standard.  And the State did not make such an express waiver here.

For such a relatively simple question, the opinion is long.  It admirably takes on petitioner's arguments as to why the claim actually was fairly presented to the state courts.  And then the court sticks its toe into the merits water, but not particularly deep.  Once again it expresses concern about the conviction, but does not necessarily indicate that the claim would have succeeded on the merits.  The court states, "The Supreme Court has not had occasion to say how far a state may go in expanding its criminal jurisdiction. We therefore cannot say that the state court's interpretation of New York Criminal Procedure Law section 20.20, however surprising, was in conflict with 'governing law set forth' by the Supreme Court."

Two final notes.  One of these is pretty technical.  First, the Second Circuit skipped a step in the procedural default analysis.  The fact that the constitutional claim had not been fairly presented to the state court means that the claim is unexhausted.  If petitioner could still present the claim to state court, then the court should consider whether to (a) stay the petition and give petitioner a chance to exhaust the claim; (b) give petitioner the option to withdraw the petition to exhaust the claim (which would render the claim untimely in a follow-up habeas); or (c) deny the claim on the merits despite the exhaustion problem. 

On the other hand, if petitioner cannot present the claim in state court anymore, then the federal court is supposed to deem the claim exhausted, but procedurally defaulted.  That's apparently the situation here, but the court failed to note that petitioner could no longer raise the claim in state court, which meant the claim would be deemed exhausted.  Pretty technical, but relevant.

Second, as a reader pointed out to me, in a footnote the court kind of calls out petitioner's counsel.  After concluding that the claim is procedurally defaulted, the court concludes that there was no cause or prejudice and that petitioner had made no claim of actual innocence.  In a footnote, the court notes that "Carvajal's jurisdictional claim might be a sufficient basis from which he could have argued that he is 'actually innocent' and entitled to habeas relief. It may be that conviction in New York for conduct that is not a crime against that sovereign would fall within the 'narrow scope' of the 'miscarriage of justice exception' as defined by the Supreme Court."  However, the court would not address this "open and vexing" question because petitioner did not raise it.

As a lawyer, I kind of feel like it was a tad unfair for the court to point out this purported failing by counsel.  But, on the other hand, from a habeas point of view, it's nice that the court has put it out there that the miscarriage of justice exception may cover this type of argument.  It could be helpful to petitioners down the road.

Habeas Corpus - District Court Review - Habeas Grant Recommended - Edited

In District Court Review Number Two, I am going to briefly discuss a recent R&R recommending a grant of habeas relief based on the ground of insufficient evidence to establish depraved indifference.

[EDIT - In the original post I never included the name of the case.  It's Wells v. Perez, 10-CV-1107 (SDNY) (DC)(JCF)]

While the R&R was covered at length in the New York Law Journal (as I have said before, I will not provide a link to a subscription only site -- so here's one to the New York Post's brief article on the case), the R&R does not seem to be published anywhere.  I had to print it off PACER.  But it was worth the $2.40.  It's a really fascinating decision.

The case itself is quite infamous.  In fact, you can watch a Dateline NBC video about the case here.  It concerns a drunk driver who struck and killed a mother of three.  Petitioner, a popular party promoter, was, according to Dateline, one of the "worst kind of drunk drivers," namely someone who had been a repeat drunk driver. 

I have previously talked at length about the changes to the depraved indifference laws.  This was a case where all of the changes to the law applied to the case.  Although the conviction occurred before Feingold, the case was still pending on appeal when Feingold (the case that actually altered the depraved indifference law) was decided.  This meant that, for the appeals courts to uphold the conviction, it was necessary for the trial evidence to establish that petitioner had a depraved state of mind.  Relying on a New York Court of Appeals decision that discussed the relationship between intoxication and a depraved state of mind, the MJ concluded that the facts did not rise to the level of depravity.

The more interesting part of the decision, though, is how the MJ navigates the habeas corpus procedural issues.  At trial, counsel argued that the evidence was legally insufficient to established depraved indifference.  It was about as preserved as it could have been under the law as it stood at the time.  However, counsel did not make the Feingold argument -- that depraved indifference was its own culpable mental state that needed to be evaluated from the defendant's subjective perspective.

For this reason, the New York appellate court concluded that the claim was unpreserved.  Seems illogical, right?  How can a claim of law be unpreserved when it did not even exist at the time of the trial?  The MJ acknowledges the illogic of this, but nevertheless concludes that New York law requires it.  Thus, the appellate court's state procedural bar was independent and adequate. 

However, the MJ says that there is cause for the procedural default.  In fact, he flips around the illogic of New York's preservation rule.  He says, "Because New York's law on depraved indifference changed markedly while Mr. Wells' case was on direct appeal, the legal bases for his sufficiency claim was not reasonably available to his attorney at the time of trial."  R&R at 30-31.  Due to the drastic change in law, he later adds, "It would therefore be unreasonable to hold the petitioner's counsel to a standard of performance that would have required him to make multiple legal sufficiency objections based on hypothetical future changes in the law."  Id. at 31.

One problem: this sounds like a futility argument, which the Second Circuit rejected in an unpublished depraved indifference decision called Brown v. Ercole (discussed here).  The MJ provides the following explanation as to why that case does not control:

New York courts prior to Feingold had never applied the standard subsequently adopted in that decision.  Thus, it was not until after Feingold that defense attorneys generally started making objections based on the prosecution's failute to prove "culpability."

Unfortunately, that doesn't completely persuade me.  It's what the MJ said plus this -- this case is distinguishable from Brown.  In that case, the defense attorney did not raise any challenge to the sufficiency of the evidence.  None at all.  Here counsel made the one that was available to him at the time.  It was only unpreserved because he did not make the hypothetical argument based on a change in law.  To me, that's a big difference and completely distinguishes it from the previous futility case.

The MJ here noted that other DJ's had followed similar paths in depraved indifference cases, citing to Petronio (discussed around here before) and Fernandez v. Smith (discussed in the Petronio post).

Before we get too excited about this, it still needs to go through the DJ.  But even if the DJ disagrees with the R&R, let's hope that the DJ grants a COA. 

Habeas Corpus - Relist Revisited

The Volokh Conspiracy has a new post up about the Supreme Court relists.  My previous discussion of the relists is here.  A couple new cases were added to the relist list, but no new habeas cases.

Apart from Smith, no action was taken on the other three relists.  The only news is that the Court ordered the lower court record in Lawhorn.

One of the commenters to the post asked about Maples.  I tried to submit a comment but it didn't go through.  So I'll just talk about it here.

Preliminarily, let me say that my initial take on Maples was off.  Based on the Washington Post editorial, I got the sense that the issue in the case had to do with an untimeliness issue as to the petition in federal court.  The editorial asked the Supreme Court to use the same standards for missing a deadline that the Court used in a takings case.  That led me to believe that the issue had to do with the application of a time limit that the Court had control over.

But that's not the case at all.  I have now dug into the 11th Circuit's decision in Maples (something I should have done before -- teaches me to rely on a newspaper editorial).  Maples has to do with a procedural default in state court.  Maples did not timely file a notice of appeal from a trial court post-conviction decision.  As a result, he did not fully exhaust the issue.  So the question in that case is whether the procedural default was independent and adequate.  The Supreme Court would have absolutely no power in Maples to say to the Alabama state courts that they should apply their rules differently than the way that they did in this case.  Outside of my other complaints about the editorial, it made a completely irrelevant argument.  Makes me kind of really annoyed. 

The true question is whether Alabama had been consistently applying the procedural rule in the manner that they did in Maples' case.

When framed like that, I now have a pretty good guess as to what's happening with Maples.  It is most likely being held pending the Court's decision in Walker v. Martin (see the Pending Supreme Court Cases page).  The issues in that case are:

Whether a state procedural bar that prevents collateral relief for a “substantially delayed” filing represents an “independent and inadequate state law ground" because (1) the rule is vague, and (2) the courts did not “consistently” apply the rule

That would explain the lack of a relist and no request for the lower court record.

 

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 Grant Reversed - Updated Link

Second Circuit reverses another habeas grant, and, just like the last time this happened (in Gueits back in July), questions of petitioner's innocence hang over the case.

Here are the details:

Richardson v. Superintendent Mid-Orange Correctional Facility, 09-3655-pr

• Reversing Habeas Grant (opinion here)
• Argued: 3/11/10; Decided: 9/20/10
• Panel: Jacobs, Lynch, Restani, USCIT
• Lower Ct Info: 03-CV-2061, 2009 WL 2358619 (EDNY Aug. 3, 2009) (SJ)
• Issue: Unduly suggestive identification procedure

Here is the analysis:

The DJ concluded that two stationhouse show up ID's were suggestive and unreliable.  The Second Circuit concludes otherwise.  First, the Second Circuit concludes that one claim was procedurally barred from review.  As for the second, the court believes that it wasn't suggestive, and wasn't unreliable.

But the more interesting part about it is this: the Second Circuit does express a concern about whether petitioner is innocent.  The court stated, "Like the district court, we are concerned by the possibility that Richardson was an innocent bystander and that [the eyewitness] misidentified Richardson as a shooter based on a subconscious but inaccurate mental association between Richardson, who was present on the scene, and the young, short perpetrator." 

That's a strong statement.  But the result ends up like Gueits, not like the extraordinary one in Friedman.  The court basically says, "oh well, there's nothing we can do."  It points out that, in their mind, any possible mistake in the identification evidence was a "result of his inaccurate mental association" rather than any suggestiveness in the showups.  Although the court did not put it this way, what they are really saying is that the jury had a chance to consider whether the identification was inaccurate and rejected it.  On habeas review, the Second Circuit won't revisit that question.

A disappointing result for a petitioner who seems to have a legitimate claim to innocence.

Habeas Corpus - Summary Order

Pennington v. Bennett, 01-2204-pr, April 14, 2010, order here

• Affirming Denial of Habeas
• Panel: McLaughlin, Sack, Crotty, DJ
• Issues: whether there was a fundamental miscarriage of justice in order to excuse a procedural default
• Notes: petitioner appeared pro se in Second Circuit

ANALYSIS: I missed this case when putting together the Pending Second Circuit Cases. (and the Second Circuit previews)  I think it may have been because petitioner was pro se, so there was no argument time.  I usually just assume that the pr cases that are submitted are prisoner civil rights cases.  I guess I shouldn't do that.

While it was a pro se case, the court also did something interesting.  It assigned pro bono counsel to appear as amicus to address the miscarriage of justice issue. 

Amicus counsel argued that the miscarriage of justice exception should apply since petitioner was impermissibly convicted of mutually inconsistent offenses: intentional murder and depraved indifference murder.

It's actually kind of tricky.  The court concludes that, under its prior case law, a miscarriage of justice can only be established through factual innocence, rather than just legal insufficiency.  It must be shown that it was more likely than not that no reasonable juror would have concluded that the petitioner engaged in conduct that meets the required elements of each of the allegedly inconsistent charges.

The court's language suggests that it struggled a little with this.  But it ultimately concluded that the two verdicts were not inconsistent.  The facts show that petitioner shot the victim three times.  If each shot is looked at separately to determine petitioner's intent, then it could be stated that his intent was different for each shot.  It's a stretch, which the court acknowledges, but is consistent with reasoning that the court utilized in a prior case, Sweet v. Bennett, 353 F.3d 135 (2d Cir. 2003) [edited to include this cite to Sweet].

Habeas Corpus - Summary Order

Jones v. Armstrong, 00-2527-pr (Mar. 1, 2010), available here

• Panel: Katzmann, Lynch, Chin, DJ
• Affirming Denial of Habeas
• Issues: Whether there was cause and prejudice for petitioner's procedural defaults

ANALYSIS:  Not too much to say about this one.  Petitioner argued two somewhat unusual grounds as cause: (1) his own ineffectiveness in representing himself pro se in state court; and (2) the State did not provide him with adequate access to the courts and the assistance of counsel necessary to "effectuate his pro se endeavors" (actually, not sure what that means).  The Second Circuit rejects both of them as possible grounds for cause.

Petitioner also raised an actual innocence/miscarriage of justice claim to excuse the procedural defaults.  The court rejected it because petitioner's argument focused on the evidence at trial. This type of claim must be based on evidence that is discovered after the trial.

Second Circuit Preview of this case was here.

Habeas Corpus - Summary Order

Brown v. Ercole, 09-1683-pr, Nov. 16, 2009, Newman, Calabresi, Katzmann, order here

• Reversing Grant of Habeas
• Issues: Sufficiency of Evidence of Depraved Indifference

DISCLOSURE: Someone in my office worked on this appeal.  So I'll stick closely to the decision itself.

ANALYSIS: I had previously discussed this case in my first substantive post on the blog.*  The Second Circuit reversed the grant of habeas on a procedural ground.  The DJ had concluded that cause had been shown for a procedural default under the doctrine of "futility."  However, the Second Circuit rejected that ground for cause relying upon its prior decision in DeSimone v. Phillips, 461 F.3d 181 (2d Cir. 2006), in which the court concluded that the New York appellate courts had not consistently rejected the particular argument advanced in the habeas petition.  The DJ had attempted to distinguish DeSimone on the ground that DeSimone concerned a failure by appellate counsel while this case concerned an omission by trial counsel.  The Second Circuit rejected the distinction "[g]iven that New York appellate courts are equally bound by New York Court of Appeals precedent."

The court concluded the summary order by stating that petitioner may still have redress for claims that the Second Circuit decided not to address. 

* I probably should have included the official disclosure in my earlier post.  The post did mention that someone in my office worked on it.  And I stuck predominantly to the DJ's decision in discussing the case. 

Habeas Corpus - Summary Order

UPDATED

Interesting summary order today from the Second Circuit that demonstrates just how tricky habeas litigation can be.

Myers v. Phillips, 07-3692-pr, link, Sept. 15, 2009, Calabresi, Cabranes, Lynch, DJ

• Affirming Denial of Habeas
• Issues: whether state court unreasonably applied Batson when it concluded that the defendant had failed to establish a prima facie case of discrimination after the prosecutor challenged every black Jamaican prospective juror
• Notes: Same panel from the Summary Order last week that also dealt with a step one Batson claim

ANALYSIS: As I mentioned, this case demonstrates how tricky habeas litigation can be.  In state court, petitioner had argued that the prosecution had improperly challenged all Jamaicans on the panel.  The state court rejected it. The DJ and MJ concluded that this was not an unreasonable application of clearly established law since there was no clearly established law from the Supreme Court stating that national origin can be the basis of a Batson motion.  Before the Second Circuit, petitioner argued that the DJ and MJ got it wrong and that the claim was not a national origin challenge, but a race-based challenge.  Specifically, petitioner stated that the claim was that the jurors were challenged because of their "racial 'subcategory.'"  However, the Second Circuit played gotcha with petitioner and stated that this was not the claim before the state courts, so the claim is unexhausted and procedurally barred.

Pretty harsh.  Petitioner's litigation strategy can't really be faulted.  I think it's true that the Supreme Court has never stated that Batson applies to national origin claims.  I think it's pretty obvious that it should.  So the claim had to be characterized as a race-based challenge.  And I think that's a fair way to characterize a claim that all Jamaicans have been improperly challenged.  The population of Jamaica is overwhelmingly black.  According to Wikipedia, it's 91.2% black.  And I am guessing the record makes it pretty clear that all of these challenged Jamaicans were black.  But, at the same time, the state court claim can easily be categorized as a national origin challenge.  So it is difficult to criticize the Second Circuit's conclusion here. 

So this case shows that the habeas procedural rules really can restrict a petitioner's options when it comes to litigation strategy.

UPDATE:  It has been brought to my attention that there is a ongoing habeas case that is similar to Myers. The case is Watson v. Ricks, 05 Civ. 7288, 2008 WL 490610 (SDNY Feb. 22, 2008) (WHP) (JCF). 

In that case, the magistrate judge concluded that national origin is a cognizable group under Batson and recommended that habeas be granted to the extent that the case be sent back to the state courts for a further hearing on the Batson issue. 

But what makes the case different from Myers is that the district judge actually concluded that it was not a national origin challenge, but an "ethnic origin" case.  The Supreme Court has stated that "ethnic origin" does fall under Batson.  The DJ does say that the line between national origin and ethnic origin is blurry, but the state judge in Watson clearly saw the issue as an ethnic origin case. 

So my comments about Myers don't apply to Watson.  According to how the Second Circuit described Myers, it was exclusively litigated as a national origin case in state court.

But I should make clear that when I said in my original post about Myers that there is no clearly established law that national origin falls under Batson, what I am saying is that, under the troubling trend started in Musladin, I believe that courts (such as the Second Circuit) would find that the lack of any Supreme Court precedent directly on point would mean that the law is not clearly established on the issue.

Of course, my personal opinion is that it would be an unreasonable application of Batson to find that national origin is not covered.  This was the MJ's conclusion in Watson.  Unfortunately, that R&R is not published.  But you can find it through PACER.  And, of course, the DJ did not need to address that part of the R&R since he found that it was actually an ethnic origin claim covered under Batson.

So what it means is that, technically, it is still an open question in the Second Circuit whether or not, in habeasland, pure national origin discrimination can state a claim under Batson.  I am concerned about the Musladin effect on that one, but maybe the MJ's analysis in Watson will carry the day.