Habeas Corpus Blog

Habeas Corpus - Second Circuit Orders - October 2011

Only one COA grant this month.  But it is not in a new case.  Rather, the court granted petitioner's request in Wright v. Duncan to expand the COA.  The court stated the COA is expanded "to include all of those claims raised by Appellant in his 28 U.S.C. § 2254 amended petition in the district court that assigned counsel concludes should be appropriately raised."  Nice and broad.  Just to note, the original issue in that case was: Due process/right to present a defense violation based on the exclusion of exculpatory evidence on hearsay grounds.

This counts as a COA grant, but does not add anything to the Pending Second Circuit Cases page.

As a teaser, there will be a few cases added to that page in the coming days, so stay tuned.

Habeas Corpus - September 2011 Second Circuit Orders

No COA's during September.  I believe this means that, for the first time since I started tracking orders in the Second Circuit on a monthly basis, the court did not grant a single COA during a month.

This comes on the heels of the month with the highest number of COA's.

I guess it all averages out in the end.  And what's the average?  I'd say probably between 2 and 3 COA's per month.

 

Habeas Corpus - August 2011 Second Circuit Orders

An all-time record number of COA grants last month from the Second Circuit - seven!  Okay, all-time is a stretch since I have only been able to keep track since January 2010.  But I am guessing there have not been too many months in the AEPDA-era where the Second Circuit has granted seven COA motions.

As I reported a few weeks back, the Second Circuit granted petitioner's motion to expand the COA in Jackson v. Conway.  That case's entry on the Pending Second Circuit Page has been updated previously.

But there were six others. 

The first one was a GVR-variety grant:

Sumpter v. Sears, 11-412-pr

• Lower Ct. Info: 09-CV-689, 2011 WL 31188 (EDNY Jan. 5, 2011) (KAM)
• Issue: timeliness of petition

Analysis:  It's a relatively short order, so I'll just quote the relevant language:

The district court held that the one-year limitations period was tolled from February 9, 2007 (the date Appellant filed his C.P.L. § 440 motions) until May 1, 2007 (when the state trial court denied them). We have held, however, that a state court motion for collateral review (such as a § 440 motion) is "pending" for purposes of 28 U.S.C. § 2244(d)(2) "from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999). . . .

Accordingly, it is further ORDERED that the district court’s order dismissing Appellant's § 2254 petition is VACATED, and the case is REMANDED to the district court for determination of when Appellant was served with a copy of the order denying his § 440 motions and the effect on the timeliness of his petition pursuant to 28 U.S.C. § 2244(d)(2).

The remaining five are of the more standard variety (mostly):

Conner v. Poole, 11-1865-pr

• Lower Ct. Info: 07-CV-6230, 2010 WL 1404671 (WDNY Mar. 30, 2010) (MAT)
• Issue: after the trial court suppressed evidence of a show-up of identification by the witness Rolanda Jones as unduly suggestive, did the trial court violate the Appellant’s due process rights by permitting Jones to identify the Appellant at trial, and such jurisdictional and other claims as may be interposed by the State
• Notes: This case was consolidated with the already existing Conner v. Poole, 10-1369-pr (see Pending Second Circuit Cases page).  And looking at the issue in that appeal, it appears to be exactly the same.  So I really don't know what's going on here.

Lampon v. LaValley, 11-895-pr

• Lower Ct. Info: 10-cv-2591, 2011 WL 684623 (EDNY Feb. 16, 2011) (BMC)
• Issue: whether, assuming petitioner’s insufficiency claim is procedurally barred, application of the bar would result in manifest injustice
• Notes: Technically, the Second Circuit did not grant a COA but denied the request as moot since the DJ actually granted petitioner a COA on this issue.  But I still think it is fair to count it as a Second Circuit grant since there is a good chance that they would have granted a COA on this issue.  That's because there are now at least three other cases before the court that present this issue (Garbutt v. Conway, Johnson v. Bellnier, and Sanchez v. Lee).

Emmons v. Artus, 11-1441-pr

• Lower Ct. Info: 09-CV-675, 2011 WL 841316 (NDNY Mar. 8, 2011) (DNH) (DRH)
• Issue: IAC based on counsel’s alleged failure to object to Appellant appearing “at a jury trial in manacles,” in possible violation of his due process rights and his rights to a fair trial under the Sixth Amendment. Davidson v. Riley, 44 F.3d 1118, 1122 (2d Cir. 1995)

Rush v. Lempke, 11-783-pr

• Lower Ct. Info: 09-CV-3464, 2011 WL 477807 (EDNY Feb. 2, 2011) (JFB)
• Issues: (1) appellant was entitled to equitable tolling of the limitations period under 28 U.S.C. § 2244(d)(1); (2) the commencement of the limitations period was governed by § 2244(d)(1)(B); and (3) his right to selfrepresentation was violated by the trial court’s restriction of his movement within the courtroom and by its denial of his initial requests to proceed pro se

Martinez v. Kirkpatrick, 11-2019-pr

• Lower Ct. Info: 09-CV-900 (NDNY May 10, 2011) (GTS) (MAD) (unpublished order)
  
• Issue: whether appellant was denied the effective assistance of trial counsel due to a conflict of interest presented by counsel’s own investigation, and subsequent prosecution, by the same district attorney’s office that was prosecuting Martinez

Habeas Corpus - July 2011 Second Circuit Orders

As mentioned earlier today, there were two COA grants from the Second Circuit in July.  One of the grants is in a case out of Connecticut.  First time in a long time I have seen one of those.  One other oddity: the district court decisions in both cases were issued on the same day.  That's a really odd coincidence.

Hawthorne v. Spitzer, 10-4324-pr

• Lower Ct. Info: 07-cv-4128, 2010 WL 3803861 (EDNY Sept. 21, 2010) (NG) (CLP)
• Issues: (1) whether Appellant has established prejudice for the procedural default of his claim that his Miranda rights were violated; and (2) whether counsel was ineffective during the suppression hearing when his counsel failed to cross-examine detectives about appellant's interrogation and did not call appellant to testify at the hearing

Notes: What's notable about the COA is that the court goes into some factual detail as to the basis for the IAC claim.  It states:

With respect to the ineffective assistance of counsel claims, the record indicates that Appellant submitted a “pro se supplemental motion to suppress his November 13, 2000 statements,” and his newly assigned counsel, Stephen Singer, Esq., submitted an affirmation to the state court stating that he had met with Appellant’s prior counsel, who had offered no “legitimate difference of opinion” or “alternative legal strategy” to explain his failure to cross-examine the Detectives as described above, or preserve issues for review. In addition, [the detectives'] and Appellant’s testimony at trial revealed new facts, not elicited at the Huntley hearing, respecting Appellant’s November 13, 2000 interrogation. These facts call into question whether counsel’s representation at the Huntley hearing was objectively reasonable and did not prejudice Appellant so as to deprive him of a fair trial. . . . The Clerk’s Office shall appoint counsel pursuant to the Criminal Justice Act.

Clearly, the court is sending a signal to appointed counsel to pay attention to these facts.  It's a bit unusual for the court to do that. 

Jones v. Murphy, 10-3997-pr

• Lower Ct. Info: 10-CV-49, 2010 WL 3829129 (D. Conn. Sept. 21, 2010) (JCH)
• Issues: (1) whether, before removing the Appellant from the courtroom, the trial court should have warned the Appellant that he would be removed if he continued his disruptive behavior; (2) whether the Appellant “reclaimed” his right to be present at trial; (3) whether the Appellant was interrogated within the meaning of Rhode Island v. Innis, 446 U.S. 291 (1980) and, (4) if so, whether his subsequent, post-Miranda statements are admissible consistent with Oregon v. Elstad, 470 U.S. 298 (1985), and Missouri v. Seibert, 542 U.S. 600 (2004).

Habeas Corpus - Second Circuit Orders - Preview

First, I'd like to note that there were two COA grants from the Second Circuit in July.  Unfortunately, I have them saved on a different computer, so I can't write about them right now.

But I learned today from a reader about a COA grant from the Second Circuit in August.  So look at this as a preview of the future August 2011 Second Circuit Orders post.

The COA grant was in a case already pending before the Second Circuit as a result of a habeas grant and a COA grant from the district court.  So this is actually an order granting a request to expand the COA.  Safe to say, there is a lot going on in the case.

The case is Jackson v. Conway, 11-922-pr (L).  I have previously written about the case here.  If you look at the case on the Pending Second Circuit Cases page, you will see that the list of issues is now quite long.  I actually was missing one issue from the district court COA.  That's now been added.

Here are the new issues that have been added as a result of the Second Circuit's COA grant:

whether defense counsel had been ineffective due to (1) his incorrect assumption that the prosecution had to prove that penetration occurred in order to sustain a first-degree sodomy conviction, and (2) his failure to investigate or introduce a “plethora of exculpatory evidence” at trial

Habeas Corpus - June 2011 Second Circuit Orders

Only one COA grant last month.  Here it is:

Montstream v. Superintendent, 11-802-pr

• Lower Ct. Info: 06-CV-787, 2011 WL 283252 (WDNY Jan. 25, 2011) (RJA) (VEB)
• Issues: (1) whether the double jeopardy claim was fairly presented to the state court; (2) whether petitioner's consecutive sentences represented a double jeopardy violation; and (3) IAC related to counsel's failure to challenge the consecutive sentences.

Habeas Corpus - May 2011 Second Circuit Orders

Two COA grants last month.

Santone v. Fischer, 10-5010-pr

• Lower Ct. Info: 04-CV-947, 2010 WL 4703396 (NDNY Nov. 10, 2010) (NAM) (DRH)
• Issues: (1) whether the trial evidence was sufficient to establish that the victim suffered “serious physical injury”; (2) whether trial counsel was ineffective for failing to investigate the facts surrounding petitioner’s alleged threats made to a State witness; and (3) whether the district court should have held an evidentiary hearing

Quick Note: Based on Pinholster, I am not quite sure where the court is going with issue (3).

Freeman v. Kadien, 11-353-pr

• Lower Ct. Info: 08-CV-6468, 2010 WL 4642925 (WDNY Nov. 17, 2010) (MAT)
• Issues: due process violation based on prejudicial spillover from blood sample evidence introduced in support of his later-invalidated count of conviction for driving while intoxicated

 

Habeas Corpus - April 2011 Second Circuit Orders

Four COA grants this month.  Details below.

1. Epps v. Poole, 10-2206-pr

• Lower Ct. Info: 07-CV-3432, 2010 WL 1991517 (EDNY May 14, 2010) (RJD)
• In Circuit: Circuit Ct. COA
• Issues: whether the evidence was sufficient to establish depraved indifference murder

2. Nickels v. Conway, 10-4228-pr

• Lower Ct. Info: 10-CV-413 (WDNY Sept. 2, 2010) (JJM) (unpublished order)
• In Circuit: Circuit Ct. COA
• Issues: whether petitioner was entitled to equitable tolling of the statute of limitations

3. Moore v. Conway, 10-4648-pr

• Lower Ct. Info: 08-cv-6390, 2010 WL 4117411(WDNY Oct. 20, 2010) (MAT)
• In Circuit: Circuit Ct. COA
• Issues: whether petitioner's constitutional rights were violated by the prosecution’s misconduct, individually and cumulatively, in: (1) using improper questioning in an attempt to rehabilitate a witness with respect to her in-court misidentification of Appellant in a photo array; (2) displaying to the jury a photograph ruled inadmissible by the trial court; and (3) making improper remarks in summation

4. Tatum v. Lempke, 10-3801-pr

• Lower Ct. Info: 10-CV-1211 (EDNY August 30, 2010) (JG) (unpublished order)
• In Circuit: Circuit Ct. COA
• Issues: (1) Whether Appellant’s Sixth Amendment right to confrontation was violated because the trial court permitted the introduction of a witness’s grand jury testimony and other statements, after the court found that the witness had refused to testify as a result of being threatened by Tatum’s brother; (2) whether Appellant received ineffective assistance of counsel at trial because his attorney failed to timely provide notice of an alibi witness; and (3) whether Appellant received ineffective assistance of counsel on appeal because his attorney did not argue that trial counsel had been ineffective

 

Habeas Corpus - March 2011 Second Circuit Orders

Three COA grants last month.  Details:

(1) Williams v. Ercole, 10-4601-pr

• Lower Ct. Info: 09-CV-5169, 2010 WL 3785523 (SDNY Sept. 28, 2010) (DAB) (RLE)
• Issue: Whether the district court erred in dismissing petitioner's 2254 petition as untimely

(2) Rock v. Conway, 10-3934-pr

• Lower Ct. Info: 09-CV- 3883, 2010 WL 3528871 (Aug. 30, 2010 SDNY ) (RMB) (DCF)
• Issues:(1) whether petitioner's due process rights were violated by the admission of in-court identifications; and (2) whether the state court's determination on that claim involved an unreasonable application of federal law or an unreasonable determination of the facts

(3) Gutierrez v. Smith, 10-4478-pr

• Lower Ct. Info: 06-CV-4939, 2010 WL 3855225 (EDNY Sept. 27, 2010) (SJF)
• Issues: whether the evidence was legally insufficient to establish depraved indifference murder

Habeas Corpus - Second Circuit Orders - February 2011

Two COA grants in February.

(1) Mack v. Conway, 10-3414-pr

• Lower Ct. Info: 05-CV-6519, 2010 WL 2899876 (SDNY July 27, 2010) (LTS) (KNF)
• In Circuit: Circuit Ct. COA
• Issues: (1) whether the admission of Appellant’s first confession violated Miranda; (2) whether the prosecutor’s failure to disclose exculpatory information regarding prior bad acts of a prosecution witness violated Brady; and (3) whether Appellant received IAC based on counsel’s failure to request a jury instruction permitting the jury to disregard appellant’s first confession if they found that it was involuntarily made

(2) Hubrecht v. Artus, 10-3610-pr

• Lower Ct. Info:  05-CV-5861, 2010 WL 3187233 (SDNY Aug. 13, 2010) (RJH) (FM)
• In Circuit: Circuit Ct. COA
• Issues: whether the trial court violated appellant's constitutional rights to a fair trial and to present a defense by failing to: (1) charge a justification defense; (2) permit appellant to introduce evidence to support a justification defense, and (3) permit Appellant to introduce his exculpatory statements that he had shot the victim in self-defense, while allowing the State to introduce testimony that might imply that appellant had made no statements to that effect