Habeas Corpus Blog

Sotomayor Writes Amicus Brief to the District Court: Hodge v. Kentucky (front-end cert denial)

By Alexandr Satanovsky

I've been meaning to post about this for a while.  On December 3, 2012, the Supreme Court denied certiorari in Hodge v. Kentucky, a front-end capital case, seeking to review the Kentucky Supreme Court's denial of a penalty phase IAC claim. The underlying facts are all too common in capital practice: Hodge's trial counsel presented no mitigation during the penalty phase; the post-conviction team developed a significant amount of truly gruesome mitigation, which was presented in a state evidentiary hearing. The State even conceded that Hodge's trial counsel was objectively deficient under Strickland. However, the Kentucky Supreme Court denied relief, finding no prejudice.

The cert. petition arose from the Kentucky Supreme Court's questionable analysis underlying the conclusion that Hodge was not prejudiced. According to Hodge, the state court's conclusion rested on a legally required "nexus" between the mitigation and the facts of the crime. Now the State disagreed with this characterization. According to the State, the Kentucky Supreme Court simply found the evidence to be factually uncompelling, in light of the aggravated nature of the homicide. You can see for yourself at pages 5-11 of the short state court opinion.

Now, I suppose that it's possible for a state court to rely, in part, on a lack of nexus, without being contrary to established law. For example, if the state court explicitly acknowledges that there is no legal significance to a (lack of) nexus, it may then find that, as a matter of fact, the nexus-free mitigation was not compelling to show prejudice in light of the aggravated nature of the homicide.  In other words, I don't think there's anything remarkable about the notion that, all things equal, mitigation without a direct nexus to the facts of the crime may be less compelling than that which does bear on the facts of the crime. [Obviously, all things are never equal when trying to compare the strengths of gruesome childhood mitigation, versus, e.g., crime-specific mitigation]. More importantly, as a matter of clearly established law, a fact-finder cannot give anything like a legal presumption--a legal thumb on the scales--to "nexus" mitigation versus "non-nexus" mitigation.

After placing the case for three consecutive conferences, Justice Sotomayor penned a lengthy dissent from the denial of cert (longer than the entire reasoned state court opinion). To her, Hodge was right that the Kentucky Supreme Court's prejudice inquiry involved a legal nexus requirement. She would have summarily vacated and remanded this case to apply the proper legal standard, allowing the state court to re-do its prejudice determination without giving legal (in)significance to Hodge's powerful childhood evidence.

This sleeper dissent seems noteworthy to me for another reason. We often hear of circuit dissents as amicus briefs to the Supreme Court; well, here, it is Sotomayor who is essentially writing an amicus brief to the Kentucky federal district judge (who will hear this claim next), stating that 2254(d)(1)'s "contrary to" clause is satisfied by the state court's improper prejudice standard. She really minces no words: "[t]he Kentucky Supreme Court’s opinion is plainly contrary to these precedents [rejecting the "nexus" requirement for mitgiation evidence]," (slip op. at 8). In another paragraph, she notes that the state court's view "that in cases involving 'violent and cruel murders, it does not matter that the 'malefacto[r]' had a 'terrible childhoo[d]' . . . is contrary to our cases applying Strickland’s prejudice prong." (My emphasis).

This strikes me as an unusual occurrence. The universe of claims that have satisfied the onerous post-AEDPA 2254(d)(1) standard is relatively small, and from this it follows that those claims should be the strongest at the front-end cert. stage, and so most likely to have been the chosen issues in the front-end cert petition. Still, none of the high profile 2254(d)(1) grants that I have read, to my knowledge, involved written dissents from the denial of state court cert., assessing the same legal question without the additional (d)(1) deference. Justice Sotomayor's opinion, in other words, is my first encounter with a dissent from a denial of cert. on a front-end claim that necessarily will be relitigated in federal court, but now with the the added cloak of 2254(d)(1). And her dissent may prove quite imporant if Hodge gets through this cloak, and wins penalty phase relief in the Sixth Circuit.

Habeas Corpus - More Loose Ends - Updated

Actually, going to be a lot of loose ends to pull together around here for awhile. 

One of those is recent Supreme Court action.  Seems timely now that I have updated the Supreme Court page.

First, I wanted to mention Sotomayor's dissent from the denial of cert. in Fairey v. Tucker.  The issue in the case was petitioner's right to be present at the trial.  Reading between the lines of her dissent, it appears that the lower court denied the petition based on the lack of clearly established law covering the particular situation. Or maybe it was simply not an unreasonable application of clearly established law.  Overall, doesn't matter.

Before I get to the specifics of the dissent, it is important to mention two unusual aspects to the case.  First, petitioner was pro se.  Rare to see a pro se case get a lot of attention.  Second, Sotomayor's dissent really is about whether a COA should have been granted, not necessarily whether the district court was wrong in denying the petition. 

And Sotomayor makes a convincing case that there was enough established law to, at the very least, justify a COA on the issue.  What happened was petitioner was representing himself in the trial court.  He showed up at all of his pre-trial court dates but then did not show up at the trial.  Notice was sent to him about his trial date, but it was sent to old addresses in California and South Carolina.  But he had moved to Florida.  He had let the court know about this.  Petitioner had signed a bond saying that he understood that if he did not appear in court, the trial would proceed without him.  But that bond did not advise him of his trial date.

Sotomayor concludes that, in upholding the conviction, the state created a new exception to the right to be present -- a defendant's actions before the trial began.  She did not believe that the law or the facts here justified such a step.  Rather, the trial should not have begun until the defendant had actually waived his right to be present.  She believed that, based on the facts here and the importance of the right, there should have been more review of the case.  Here's her powerful summary:

A trial conducted without actual notice to a defendant and in his absence makes a mockeryof fair process and the constitutional right to be present attrial. That is particularly true where, as here, the defendant participated actively in his defense and kept the Stateinformed of his whereabouts.

It's too bad that no other Justice decided to join her.

One other Supreme Court thing to note.  In the most recent SCOTUSblog relist post, it is noted that a habeas case is among one of the three new relists: Williams v. Wetzel.  The issues are:

(1) Does Harrington v. Richter, which interpreted 28 U.S.C. § 2254(d)(1) as requiring federal habeas courts to determine what arguments or theories could have supported the state court judgment when the state court ruling is unexplained, also apply when the state court has explained the basis for its ruling, a question that has divided the Courts of Appeals?; (2) Should this Court grant certiorari, vacate, and remand for reconsideration in light of Cullen v. Pinholster – which was decided after the Third Circuit issued its opinion — where the Third Circuit assessed reasonableness under § 2254(d)(1) in the light of evidence that was presented for the first time in federal court?

Both really fascinating issues.  Both very technical, but it does appear, based on Greene v. Fisher and the habeas case currently on the Court's docket (Cavazos v. Williams), that the Court is very interested in getting down into the nitty gritty on how to apply the standard of review.  And these two issues are really interesting ones in light of Richter and Pinholster, cases that dramatically altered habeas law. 

On the Richter issue, I'll put it in plain English (to borrow a SCOTUSblog concept).  What they are saying is that, on habeas review, are the federal courts constrained to the state court's reasons in determining whether or not the state court acted reasonably or can they consider any reason in existence for finding the state court's decision reasonable.  I think that Richter said something like "all possible reasons" for a state court decision.  My interpretation was that it could be any reason, even if not mentioned in the decision.  But maybe I was just being overly cynical.  There does seem to be a split on the issue.  While technical, this is a really important practical question.

On Pinholster, plain English: what's good for the goose must be good for the gander.  I.e., if petitioner cannot rely on new facts established at a hearing in federal court, then neither can the State.  Logic says that petitioner is right.  But don't forget the mantra: habeas is different.  Logic doesn't always apply.

Final conference, I believe, is today.  We will get a better sense of what's going on with this case when the order list is issued.

UPDATE: Cert. was denied in Williams (order list here).

Habeas Corpus - The Good, The Bad, The Summary Reversal

There are three relevant Supreme Court decisions from the past couple of months that I have yet to cover.  They are in order of release: Hardy v. Cross, Cash v. Maxwell, and Perry v. New Hampsire.  So, just to make sure I put something up about them, I thought I'd stick them all in the same post.

There isn't a theme that connects all three.  But they aren't completely disconnected, either.  There was some great work from Sotomayor in Maxwell (in an opinion respecting the denial of cert.) and Perry (in dissent).  In both cases, she shined a light on two of the greatest causes of wrongful convictions: misidentification and jailhouse informants.  It's sad that, in the DNA era of wrongful convictions, not a single other judge joined her opinions or expressed any concerns about these problems in the criminal justice system.

I'll start with the front-end case of Perry.  In an opinion by Ginsburg, the Court holds that only identifications procedures arranged by the police are subject to pretrial suppression hearings to determine the reliability of the identification.  Those procedures that are not police arranged, such as where a civilian convinces another person in some manner that the defendant is the perpetrator, cannot be the subject of a pretrial hearing to determine  reliability.  So, even though an identification could have been made under extremely suggestive circumstances, it remains completely reliable evidence that a jury is free to hear and use to convict someone, so long as the police did not arrange it.  Let me repeat, Ginsburg wrote that.  Sotomayor dissented. 

I expressed my outrage about where the Court was going with the case back at the time of the argument.  As I said then, the disjunction between the Supreme Court and where society is at on these matters is striking and tragic.  As everyone around the country acknowledges, we should be doing more to protect against misidentifications, not less.  Only Sotomayor in her dissent showed any acknowledgement of the problem.

Back when the Supreme Court issued its opinion in the prison overcrowding case Brown v. Plata, there was a hyperbolic line in Scalia's dissent in which he stated "terrible things (were) sure to happen as a consequence of this outrageous order."  Let me be equally hyperbolic: terrible injustices are certain to happen as a consequence of the misguided Perry decision.  Innocent people will be wrongfully convicted and maybe even sentenced to death and executed as a result of Perry.  The Supreme Court had a chance to take a small step to make the system more fair.  Instead, they basically went backwards.*

*Once again, in an opinion by Ginsburg, a member of the alleged "liberal wing" of the Supreme Court.  Of course, that isn't going to stop pretty much every commentator from describing her (and Kagan and Breyer who joined her opinion) as liberal.  Tragic on many levels.  

On the other hand, Maxwell actually was a bright spot in habeasland.  The main issue in Maxwell focused on the reliability of a jailhouse informant.  The particular informant who had testified against Maxwell, Sidney Storch, was an infamous liar who had repeatedly testified in criminal cases as a jailhouse informant in order to gain personal advantages.  As I discussed in a prior post, outside of the unreliability of the jailhouse informant, the evidence of guilt was nearly non-existent.  There were compelling reasons to believe that an innocent man had been wrongfully convicted and sent to prison for life.

In Maxwell's case, the state courts premised its denial of relief on the factual finding that there was “no credible or persuasive evidence Sidney Storch lied at [Maxwell’s] trial in 1984.”  The Ninth Circuit had granted habeas relief, "meticulously set[ting] forth an avalanche of evidence demonstrating that the state court’s factual finding was unreasonable."*

*Quotes are from Sotomayor's opinion, discussed more below.

After relisting the case numerous times, the Supreme Court finally denied cert.  That was welcome news.  It also probably means that Maxwell won't be retried and will eventually be released.

Sotomayor issued an opinion respecting the denial of cert., stating that the Ninth Circuit properly did its job -- both procedurally and substantively -- in concluding that the state court's factual finding was unreasonable.  Although not directly, her opinion does raise some awareness about the problem of jailhouse informants in detailing the ways that Storch used alleged jailhouse confessions to get personal benefits.  And Storch is far from the only problematic jailhouse informant out there.

Scalia, joined by Alito, dissented from the denial of cert.  He makes the same old complaint that the Ninth Circuit didn't show enough deference to the state court.  His analysis isn't very persuasive, as he relied upon evidence that even the state courts found to be ludicrous.  As Sotomayor points out, Scalia's argument boils down to this: although there was evidence showing that Storch lied almost every time he opened his mouth, he miraculously told the truth about Maxwell's jailhouse confession.  It's pretty ridiculous.  At bottom, it appears that Scalia was simply taking another opportunity to criticize the Ninth Circuit -- a standard conservative legal dog whistle.

Finally, Hardy v. Cross was another entry in the Supreme Court's expanding "summary reversal based on a lack of deference" jurisprudence (Maxwell obviously escaped that fate).  The full Court concludes that the Seventh Circuit was not sufficiently deferential to the state court's conclusion that the prosecution made a good faith effort to find an unavailable witness. 

The opinion is short and there really isn't much in it.  My sense is that the Seventh Circuit cut through the b.s. and understood that the prosecution's claim of good faith was empty, as the prosecution made the most minimal effort to find the witness.  But I am constrained to agree that the law basically says that the minimal effort that was made there was all that's necessary.  Of course, as I am sure the Seventh Circuit understood, if the prosecution or the police really wanted to find the witness (for example, if they wanted to arrest her), it would have taken them probably about an hour to do it.  But that's not the standard.  So it's hard to say that the state court acted unreasonably.  But that is not to say that this was fair.  Just not (apparently) unreasonable.

Habeas Corpus - Williams v. Hobbs

The Supreme Court issued an order list today.  No cert. grants in any habeas cases.

And one very notable denial.  It occurred in Williams v. Hobbs.  Sotomayor dissented from the denial of cert. in an opinion joined by Ginsburg. 

I had previously talked about Williams here as it was one of the Relisted cases and it had the amicus filed by the Scholars of Habeas Corpus Law.  As I mentioned in the prior post, the issue in the case was whether it was appropriate for the 8th Circuit to raise a procedural defense sua sponte that the State did not raise in the district court?  The procedural defense was whether it was appropriate to order an evidentiary hearing.  The State did not object to the hearing in the district court, and the district court held one.  The district court then granted habeas relief after the hearing.

In my prior post, I was trying to think of a way that the relist could possibly mean a summary reversal -- the Eighth Circuit's ruling seemed pretty absurd to me.  But even there I had my doubts.  So the cert. denial is not surprising, but it is still very, very disappointing.

Sotomayor's dissent is a pleasure to read.  She effectively takes down the Eighth Circuit's reasoning and credibly shows that the State made a strategic decision in going forward with the hearing.  Essentially, the State thought the hearing would help them show that habeas relief should not be granted.  They ended up being wrong.  But only after taking that risk and losing did the State say that the hearing shouldn't have been held in the first place.  She concluded that the State should not be allowed "to manipulate federal habeas proceedings to their own strategic advantage at an unacceptable cost to justice."  Strong words -- and her opinion backs them up.  Her opinion is so effective that I find it really surprising that she couldn't get four votes for cert. (I am looking at you Breyer and Kagan).

While this cert. denial smarts a little for habeas petitioners (at least for those in the Eighth Circuit), it is nice to see Sotomayor coming out so strongly, once again, in favor of the habeas petitioner/criminal defendant. 

Habeas Corpus - Besser Cert. Petition

A reader brought to my attention that, on Monday, the Supreme Court denied a cert. petition in the Besser case.  Besser is the case in which the Second Circuit held that the persistent felony offender statute was unconstitutional under Blakely.*  However, the conviction for the Besser petitioner became final before Blakely, so Besser actually lost.  And now the Supreme Court has denied Besser's cert. petition.

*As mentioned around here before, the Second Circuit decided to rehear the case involving the remaining petitioners** en banc.  When decided, that opinion will probably have the name Phillips v. Artus.

**Save one, who died while the appeal was pending.

But there is definitely something a little off about the cert. denial.  In the order list, it says the following:

10-5760 BESSER, JAMES V. WALSH, SUPT., SULLIVAN

The petitions for writs of certiorari are denied. Justice Sotomayor took no part in the consideration or decision of these petitions.

It says "petitions".  That suggests that (at least) two petitions were filed.  And since there are only two parties, that would also suggest that both the habeas petitioner and the State filed petitions.

But I checked the docket sheet and it says that only one petition had been filed -- by the habeas petitioner.  In fact, the State waived its opportunity to respond.  So I think that has to be a typo in the order list, unless someone can offer a better explanation.

Otherwise, I guess Sotomayor recused herself since she was one of the judges in the second Brown case* and that second Brown case controls the outcome of pre-Blakely cases.  

*In a case called Brown v. Greiner, the Second Circuit rejected a claim that the persistent felony statute was unconstitutional in light of  Apprendi.  In a case called Brown v. Miller, the court once again rejected the claim after the Supreme Court's decision in Ring.  Sotomayor was on the panel of the Brown v. Miller case.

But it does raise a bigger question -- if the Court should grant cert. from the en banc decision, would Sotomayor recuse herself?  I don't see a reason why she would have to, assuming she recused herself for the reason mentioned above.  But maybe there is a different reason why she recused herself in Besser.  Maybe that reason would also force her to recuse herself in the en banc case?  I guess all of this is way too premature and speculative at this point.

Habeas Corpus - Something Encouraging

Playing some catch-up this morning, I just reviewed the Supreme Court's per curium opinion in Michigan v. Fisher (available here).  I actually can't even qualify it as a "front end of habeas" decision since it concerns Fourth Amendment issues and Stone v. Powell precludes habeas review of Fourth Amendment issues (for the most part).

But I wanted to mention the opinion due to the dissent.  Stevens dissented, stating that the Court should not interject itself into such a mundane Fourth Amendment case where the ultimate decision was fact-based.

What's most encouraging about the opinion is that Sotomayor joined Stevens dissent.  This continues her general pattern so far of taking the more liberal position on criminal/habeas matters (for example, see here). 

Habeas Corpus - A Shout Out to Habeas

Last week, the DC Sniper, John Alan Muhammad, was executed.  The execution date was set pretty quickly.  In fact, Muhammad's timely cert. petition from his direct appeal was still pending when the date was set.  This means, obviously, that Muhammad was never even given a chance to bring a first habeas petition.

As a result, the Court was forced to expedite its consideration of the cert. petition.  On November 9, 2009, the Court issued an opinion denying cert.  It was in an "opinion" format because Justice Stevens, joined by Ginsburg and Sotomayor, issued an opinion respecting the denial of cert. 

Quick summary: they agreed that cert. should be denied but they were not happy about the timing of the execution. 

In the opinion, Stevens gives a shout out to the importance of habeas corpus.  He says that he believes that the Supreme Court should adopt a policy of granting stays in all death penalty cases until the Court has at least had a chance to consider a first federal habeas petition.  Here's what he wrote:

I continue to believe that the Court would be wise to adopt a practice of staying all executions scheduled in advance of the completion of our review of a capital defendant’s first application for a federal writ of habeas corpus.See, e.g., Emmett v. Kelly, 552 U. S. 942 (2007) (STEVENS, J., joined by GINSBURG, J., respecting denial of certiorari); Breard v. Greene, 523 U. S. 371, 379 (1998) (STEVENS, J., dissenting). Such a practice would give meaningful effect to the distinction Congress has drawn between first and successive habeas petitions. See 28 U.S.C. §2244(b). It would also serve the interests of avoiding irreversible error, facilitating the efficient management of our docket, and preserving basic fairness by ensuring death row inmates receive the same procedural safeguards that ordinary inmates receive.

All of that is nice to hear around here that at least these three judges view habeas as an integral part of the process and not just an annoying obstacle that's getting in the way of a speedy execution.

But there is also something important to note in this decision.  This appears to be at least the third time that Stevens has issued this type of opinion.  In 1998, he issued the opinion alone as a dissenting judge.  In 2007, Ginsburg joined him in one of these opinions respecting denial of cert.  Now, in 2009, Ginsburg and Sotomayor joined him.  So, slowly, he is gaining support for this idea.  And it is nice to see Sotomayor joining this opinion.  Maybe I was being a little too hard on her (here and here) during the confirmation battle.  Maybe.  I guess it's still a little too early to tell.  But, so far, there has been some positive signs (for example, see this).

Habeas Corpus - Sotomayor's First Pitch

MLB.com has video footage of Sotomayor's first pitch at the Yankees game on Saturday.

I definitely found it fun to watch.  The person in my office who lives in the Bronx says that there really has been a huge amount of excitement on the street over her elevation to the Supreme Court.  So it's nice to see that she gets to have the spotlight shone on her at Yankee stadium.

Of course, I am not a Yankee fan.  I am a lifelong Cubs fan. All I can say is that I have learned from an early age how to deal with losing and heartbreak.  And this has been a particularly grueling season, especially because the Cardinals are in first. Alas, it's not a complete loss.  My years of suffering as a Cubs fan has left me well-prepared  to represent petitioners in habeas cases.  At least from an emotional point of view.

Habeas Corpus - Summary Order Affirming A Grant - Again

Another summary order this week affirming a district court grant of habeas corpus.  That's back to back weeks for that.

Schulz v. Marshall, 07-5543-pr, available here, Sept. 4, 2009, Pooler, Kravitz, DJ and ** (see below)

• Affirming Grant of Habeas
• Issues: IAC
• Notes: Court agrees with DJ that counsel was ineffective for failing to make adequate efforts to interview eyewitness and this failure prejudiced petitioner; Second Circuit goes out of its way to say that they were not exercising their own independent judgment on the issue, but that they had concluded that NY Court of Appeals unreasonably applied the Strickland standard; it's sad, the AEDPA really has emasculated the federal courts

The asterisk that once was Sotomayor also appears in this case, but unlike the summary order from last week where another judge was designated, this ended up just being a two-judge panel.  And one of those judges was a DJ sitting by designation.  These facts put together definitely lend a lot of support to Andy Fine's theory from last week that Sotomayor may have been preparing a dissent in last week's case.  And at the same time it throws cold water on the theories that I proposed: (a) the panel wanted a third judge since one of the judges was a DJ sitting by designation, and (b) the panel wanted a third since habeas was being granted. 

Habeas Corpus - Summary Order w/o Sotomayor

[UPDATED]

Habeas grant in a summary order today.

Smith v. Rock, available here, Aug. 27, 2009, Newman, Wesley, Rakoff, DJ

• Affirming Grant of Habeas
• Issue: whether petitioner due process rights were violated where the trial court neglected to sua sponte order a competency hearing

One thing to note, Sotomayor was originally on the panel.  I have previously noted that in many of the recent decisions, the case was decided by a two judge panel with Sotomayor being mentioned in a footnote.  When the remaining two judges agree on the outcome, then the two judges are enough.   However, unlike those cases, a third judge was randomly designated to the case.  On the surface, it's a little odd since this was a unanimous decision.

So I checked the pertinent local rule.  Here's what it says:

Unless directed otherwise, a panel of the court shall consist of three judges. If a judge of a panel of the court shall cease to continue with the consideration of any matter by reason of recusal, death, illness, resignation, incapacity, or other reason, the two remaining judges will determine the matter if they reach agreement and neither requests the designation of a third judge. If they do not reach agreement or either requests such a designation, another circuit judge will be designated by the Clerk to sit in place of the judge who has been relieved. The parties shall be advised of such designation, but no additional argument will be had or briefs received unless otherwise ordered.

Since the other two judges were in agreement, it appears that one of them asked for a third judge to be designated.  The reason for this is kind of hard to tell, so let me engage in some speculation.  Maybe they felt uncomfortable with a panel of two where one was a district judge.  Maybe they wanted a third judge to make them feel more certain about the outcome since it was a habeas grant.  Really can't say. 

UPDATE: After this post, I received an e-mail from Andy Fine at Legal Aid concerning the summary order.  He had an interesting theory about Wesley's designation.  His take: Sotomayor may have disagreed with the other two judges in the original panel and was potentially drafting a dissent.  Here's what he wrote:

Procedurally, it seems likely that Sotomayor, who was on the original panel, had preliminarily dissented from the decision to affirm.  In all other cases handed down since her elevation in which she was on the original panel,  the decision has been released with the remaining two judges in agreement, with the 2d Circuit dropping the following footnote, in each instance:  "The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. The two remaining members of the panel, who are in agreement, have determined the matter."

Here, however, the footnote reads: "The Honorable Sonia Sotomayor, originally a member of the panel, was elevated to the Supreme Court on August 8, 2009. The Clerk has designated, by random selection, the Honorable Richard C. Wesley to replace her." 

 

This is impossible to prove, but logically, it seems likely that Sotomayor and her two fellow panelists, Rakoff (sitting by designation) and Newman, were split, and that after her departure, the court deemed it necessary to vouch in a third judge(Wesley), either to break a tie or to create the impression of unanimity.  Since Rakoff and Newman both voted to affirm, Wesley probably may not have been vouched in to break a tie, but Sotomayor may have written a dissent and the court thought that was sufficient to exercise their discretion to substitute another judge.  Of course, if either Newman or Rakoff changed his mind during the pendency of the decision, Sotomayor originally dissented and Wesley was supposed to be the tie-breaker. 

This theory makes a lot of sense.  More sense than the two theories I proposed.  Nevertheless, it is a troubling theory as it does provide evidence that Sotomayor leans to the right on habeas issues. 

On the other hand, Andy does point out in his e-mail that Wesley seems to be getting better in criminal cases:  "He recently wrote a decision reversing a conviction on Miranda grounds, over the dissent of another panelist, and now, here, he took a position apparently to the left of Sotomayor's."  For those of us who had to appear before Wesley back when he was a judge on the New York Court of Appeals, it really is quite stunning and unexpected.