Habeas Corpus Blog

Habeas Corpus - Today's Summary Orders - Martinez - Edited (Big Time)

The other summary order from today was in Martinez v. Kirkpatrick, 11-2019-pr.

This actually was a habeas win!  Rare these day.  And in a summary order.  I can kind of see why, though.  The decision kind of ends up being in the form of an interim order.  It also kind of sidesteps a big hurdle.  So when that is done in a summary order it means that it did not actually happen, like the sound of a tree falling in the woods in habeasland.  Or something like that.

Petitioner argued that his right to counsel was violated since counsel had labored under a per se conflict of interest.  Counsel had used methamphetamine during petitioner's trial and, at the time, was being investigated and later prosecuted by the same DA's office for his use of the drug.  In the alternative, petitioner asked for an evidentiary hearing to determine whether there was an actual or a potential conflict of interest.  The state court had mistakenly rejected the argument on a procedural ground so there was no factual record of the conflict.*

*The state court had concluded in a 440 proceeding that the conflict of interest claim had to be rejected because it had been raised and rejected previously.  But that was not true.

The Second Circuit rejected the per se conflict claim, but granted the request for a remand to hold an evidentiary hearing. 

That's a little problematic.  Pinholster prevents such an evidentiary hearing.  The Second Circuit does not mention Pinholster at all.  Rather, it says that the hearing is necessary because no factual record was created in state court. 

But as I have said before that's just a part of the unworkable unfairness of Pinholster.  The state court's decision not to hold a hearing has preclusive effect.  The factual record is the one that was before the state court, even though further factual investigation was necessary.  That's the ridiculous conclusion of Pinholster.  This claim also clearly does not meet the ridiculously high (and impractical) standard of the habeas statute for an evidentiary hearing.  So the Second Circuit was not authorized to grant one.  But summary orders don't count, so it doesn't really matter.

Silver lining: maybe the Second Circuit is saying that Pinholster only applies when the state court rejects a claim on the merits.  But if the state court mistakenly rejects a claim on a procedural ground leaving no factual record, then an evidentiary hearing can be held.  Not sure that squares with Pinholster, but maybe this is one out from that unfairness.

You know what, strike all of what I said before.  I was mostly wrong and the Second Circuit was mostly right.  I was wrong because Pinholster only applies when there has been an adjudication on the merits.  That's really the holding: in order to assess the 2254(d) standard of review, the federal courts are confined to the state court record.  My big bad there.

And the Second Circuit appears to be mostly right.  But maybe not.  I guess the question is, when the state court does not adjudicate a constitional claim on the merits, does the 2254 standard for an evidentiary hearing apply?  If it does, then no hearing is authorized here.  If it does not, then a hearing would be okay.  I am not sure how open or closed this question is.  There's Schriro v. Landrigan, which predates Pinholster.  So, to the extent that it survives Pinholster (and I am not sure that it did), that decision would not stand in the way of the hearing.  But it doesn't specifically authorize it either.

But I think the Second Circuit is probably right.  It does not seem fair to preclude an evidentiary hearing here where the state court erroneously rejected the claim on a procedural ground.  Of course, that is no more unfair than a state court refusing to hold a hearing and denying a claim on the merits when a factual hearing was necessary to fairly adjudicate the claim.  But maybe when the state court erroneously refuses to even get to the merits, there is some room for a federal court to review the constitional claim based on facts developed in an evidentiary hearing in federal court.  The federal court won't be restricted under the standard of review.  The review will be de novo.  So I guess it does make logical sense.

Habeas Corpus - Today's Summary Orders - Montstream

Dusting Off the Old Blogging Machine . . .

Thought that today would be a good day to jump back into some habeas corpus blogging due to the two very interesting summary orders out of the Second Circuit today.

This post will cover Montstream v. Superintendent, 11-802-pr. 

Petitioner pled guilty to, among other things, manslaughter and possession of a weapon and was given consecutive sentences.  Petitioner argued that this was illegal/unconstitutional because sentences for  crime A committed with a weapon and the possession of that same weapon with the intent to use it unlawfully cannot run consecutively when the intent to use the weapon was solely based on the commission of crime A.  Very recently, the New York Court of Appeals confirmed that this was true.  Hence, petitioner's consecutive sentences are, at the very least, illegal under state law.  The  question though for habeas is: are they unconstitutional under the Double Jeopardy Clause?  Or more relevant for habeas purposes: is it an unreasonable application of clearly established double jeopardy principles for the state courts to uphold the sentences?

All of that is very interesting.  But what makes the summary order so fascinating, for me at least, is that it really is the first one I've seen from the Second Circuit that really digs deep into the post-Richter world of extreme deference.  The court does cite to Richter in the forefront of its analysis as to what petitioner must show to get relief -- the state court error must be “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”

The Second Circuit concludes that petitioner has not met this standard.  The court frames the issue as: whether a state court's erroneous application of a state concurrent sentence statute violates double jeopardy?  Relying upon some Supreme Court precedent, petitioner argued that the only sentences that the Legislature authorizes can survive double jeopardy.

This is where the deference comes in.  The Second Circuit states, "Reasonable judges may well find that argument persuasive were the issue presented for de novo review."  However, the rejection of that argument would not be unreasonable.  It pointed out that there was no Supreme Court precedent that dictated that conclusion, particularly where the NY statute limiting consecutive sentences gives broader protection than the double jeopardy clause.  The Supreme Court has never held that state legislatures have the power to expand double jeopardy protections in that way.  The Second Circuit concluded that it is "at least a debatable question whether the Court would extend its [prior] holdings" in the manner that petitioner suggests.  Because it is debatable, then it cannot win on habeas. 

And, in a conclusion that does not quite follow from the rest of the opinion, the Second Circuit says: "There can be no dispute, however, that the Supreme Court itself has never clearly answered the question.  It follows, therefore, that we must dismiss [the] petition." 

Odd ending.  Use the entire opinion to show why it cannot be an unreasonable application of federal law; conclude that petition must be denied for lack of clearly established law.  If you can't tell, I am kind of obsessed with the whole internet meme image macro.  It would look something like this:

Pretty geeky.  Don't expect an image macro in ever post from now on.

 

Habeas Corpus - Summary Orders

Three summary orders over the past month, Saracina v. Artus, Carncross v. Poole, and King v. Greiner. The details of each are listed below.

Of the three, Saracina was the most interesting to me.  The issue was whether petitioner was unlawfully adjudicated a persistent felony offender.  In other words, did the state court properly decide that petitioner had two prior qualifying felony convictions?  The Second Circuit concluded that this was a matter of state law that was not cognizable on habeas review.  I don't know if I necessarily agree with that.  I think a due process violation can potentially lie in there somewhere.  What caught my attention about this, though, is that the Second Circuit stated that it had previously held that this was simply a matter of state law.  It then cited to two cases from 1959.  Not that cases that old are no longer good precedent, but they seem a little ancient to me.  Maybe a published opinion would have been more appropriate in order to update an ancient holding.

But King also had an interesting procedural paragraph.  I am not quite sure I understand it though.  The question is whether 2254(d) deference should apply to petitioner's IAC claim which was based on counsel's failure to object to improper comments during the prosecutor's summation:

As an initial matter, the parties dispute whether AEDPA requires that we afford deference to the county court’s decision denying King’s motion to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10. While it is true that the county court rejected King’s ineffective assistance of counsel claim on the merits, it is not clear that deference is appropriate under AEDPA because King’s ineffective assistance of counsel claim was at least partially predicated on claims that New York’s highest court declined to reach on direct review. People v. Anonymous, 96 N.Y.2d 839, 840 (2001) (concluding that King’s claims regarding the prosecutor’s allegedly improper comments were not preserved for appellate review, but noting that it did “not condone” the prosecutor’s summation). In Cotto v. Herbert, 331 F.3d 217 (2d Cir. 2003), we noted that we were “inclined to conclude that the Court of Appeals’ holding that [petitioner’s claim] was unpreserved mean[t] that the claim was not ‘adjudicated on the merits’ in the state courts,” and thus that we should not defer to the lower court decisions addressing the merits of the claim. Id. at 231. Of course, in that case, we did not definitively resolve the issue as we proceeded to “assume without deciding that there was an ‘adjudication on the merits’ in the state courts,” and held that the state court’s merits adjudication failed even under AEDPA’s deferential standard of review. Id. at 231, 252-53. In this case, we also need not reach whether AEDPA deference is warranted because we conclude that King’s claim fails even under de novo review.

So, I understand the concept of what they are talking about: even if a lower court addresses the merits of a claim, if the last reasoned state court opinion does not address the merits of a claim, then potentially there should not be deference.  Habeas review focuses on the last reasoned decision. 

But I am not sure how that applies here.  The 440 decision came after the Court of Appeals' decision.  I would think that, because the state court addressed the IAC claim on the merits (probably in a completely summary fashion), then deference would apply to the IAC claim.  That would be true even if a state court failed to separately address the merits of the underlying deficient performance component when it was raised as its own claim.  Am I making sense?  I guess I shouldn't pick it apart too much since there is a potential benefit to petitioners.  But I just am having a hard time following the logic.

The details:

Carncross v. Lempke, 11-435-pr

• Affirming Denial of Habeas
• Argued: 11/17/11; Decided: 11/30/11; summary order
  
• Panel: Jacobs, Cabranes, Livingston
• Lower Ct. Info: 10-CV-522 (NDNY  Jan. 20, 2011) (LEK) (unpublished order)
• In Circuit: Dist. Ct. COA
• Issues: whether the trial court wrongfully deprived petition of his right to utilize counsel of his choice in the related criminal action

Saracina v. Artus, 10-3898-pr 

• Affirming Denial of Habeas
• Argued: 12/15/11; Decided: 12/20/11; summary order
• Panel: Calabresi, Katzmann, Parker
• Lower Ct. Info: 04-CV-521, 2010 WL 3529339 (WDNY Sept. 08, 2010) (MAT) (JWF)
• In Circuit: Dist. Ct. COA
• Issues: whether petitioner's claim that he was improperly adjudged a PFO based on a non-qualifying, out-of-state conviction is cognizable on habeas review.

King v. Greiner, 10-480-pr 

• Affirming Denial of Habeas
• Argued: 12/14/11; Decided: 12/23/11; summary order
• Panel: Sack, Katzmann, Parker
• Lower Ct. Info: 02 Civ. 5810, 2009 WL 2001439 (SDNY July 8, 2009) (DLC) (AJP)
• In Circuit: Dist. Ct. COA
• Issues: IAC based on counsel's failure to object to prosecutor's summation comments

Habeas Corpus - Summary Orders

Over the past week, the Second Circuit issued a couple of straightforward summary orders in Robles v. Dennison and Marrant v. Cuomo.  I am just going to give the details (although I found the Robles decision interesting as it concerns federal review of parole decisions, which doesn't come up a lot).

 Robles v. Dennison, 10-4480-pr

• Affirming Denial of Habeas
• Argued: 11/9/11; Decided: 11/23/11; summary order
• Panel: Pooler, Parker, Lohier
• Lower ct. Info: 05-CV-428, 2010 WL 4026814 (WDNY Oct. 13, 2010) (VEB)
• In Circuit: Dist. Ct. COA
• Issues: (1) whether Corr Law s. 213 applies to petitioner's case; (2) did 213 create a liberty interest in parole; (3) whether inmates have a due process right not to be denied parole for arbi
• trary or impermissible reasons, and to be protected from flagrant and unauthorized action by the Parole Board; and if so, (4) was petitioner denied parole for arbitrary or impermissible reasons; and (5) is the available process in New York for reviewing parole denials ineffective to protect the rights of the habeas applicant and therefore futile for purposes of exhaustion

Marrant v. Cuomo, 10-2347-pr 

• Affirming Denial of Habeas
• Argued: 9/20/11; Decided: 11/21/11; summary order
• Panel: Pooler, Parker, Chin
• Lower Ct. Info: 09-CV-4964, 2010 WL 1962914 (SDNY May 17, 2010) (LTS) (MHD)
• In Circuit: Circuit Ct. COA
• Issues: whether, as a result of the short time that counsel was given to prepare for trial, petitioner was deprived of his rights to a fair trial, to present a defense, and to the assistance of counsel

 

 

Habeas Corpus - Bell v. Ercole

Around the time that I did my global update to the Pending Second Circuit Cases page, I added another case to the page.  The name of the case is Bell v. Ercole.  

I have blogged about the case before.  Back in March 2010, the Second Circuit issued a summary order that remanded the case to the district court.  As I said in the prior post, the Second Circuit was "unsatisfied" with the district court's analysis in its order denying the evidentiary rulings.  The Second Circuit stated that it found it very hard to review the decision and it wanted the court's reasoning to be stated more explicitly to allow for appellate review.

The DJ has finally issued the order seeking to clarify things.  It's a really long and ornery opinion.  The DJ clearly was not happy that he had to make his reasoning more clear.  At various times in his opinion, he criticizes the remand order.  And, while I expressed a hope that maybe, on remand, the DJ would reconsider the habeas denial, that didn't happen.

Now the case is sent back to the Second Circuit.  I am guessing that the case probably should go back to the same panel.  I would think that further briefing will be necessary.  But I am not sure whether there will be another oral argument.  For this reason, I have put the case in the "Argued" section of the page.  I am not going to give periodic updates on the case because it is a pre-2010 docket number, so it will be relatively costly to keep looking at the docket sheet ($0.80 as opposed to $0.16 for the post-2010 docket sheet).  If I see it pop up on the calendar, I will add the info.  Otherwise, I will just wait for the decision.

Here are the details on the case:

Bell v. Ercole, 08-3539-pr

• Status: Request to Restore Case to Panel
• Panel: Leval, Straub, Wesley
• Prior Decision: Summary Order Remanding Case
• Issues: Juror misconduct; evidentiary rulings; prosecutorial misconduct; harmless error

 

Habeas Corpus - Summary Order

The Second Circuit issued a summary order today in Burchard v. Cuomo.  The allegations in this case were interesting: a conflict of interest based on defense counsel's position as campaign manager for the district attorney.  The court concludes that, even assuming that this position was "representation," there is no indication that there was any active conflict (as the campaign ended four years earlier) and there was no showing of any divergance of interest.

The one thing I found interesting was that the court renamed the case Burchard v. Schneiderman, who, under FRAP 43(c0(2), gets automatically substituted as the named Attorney General. However, the order says that Scheiderman was replacing former Attorney General Eliot Spitzer.  What happened to Cuomo?  He had already been substituted for Spitzer in the Second Circuit appeal.  That is what happened at the time of the COA grant.  I looked at the rule and it would appear that Cuomo should have been considered the party on appeal for the purpose of this substitution.   

None of this matters, obviously.  I just thought it was weird that Cuomo was made to disappear here.  My only guess is that maybe the parties' briefs used the name Spitzer instead of Cuomo in the caption.  I am losing interest in all of this as I write it.

In any event, here are the details:

Burchard v. Cuomo, 10-1045-pr 

• Affirming Denial of Habeas
• Submitted: 10/26/11; Decided: 11/04/11; summary order
• Panel: Walker, Katzmann, Wesley
• Lower Ct. Info: 07-CV-0124, 2010 WL 681258 (WDNY Feb. 24, 2010) (MAT)
• In Circuit: Circuit Ct. COA
• Issue: IAC based on his trial counsel's alleged conflict of interest

 

Habeas Corpus - Summary Order from Friday

The Second Circuit issued a summary order on Friday in Munoz v. Burge.  It's a relatively short summary order that goes directly to the merits of the IAAC issue.  It's pretty fact-intensive, so there's not much to say about it.

But I will point out this: the Second Circuit says, without citation, "we consider the law as it existed at the time of the appeal for the purpose of Munoz’s ineffective assistance claim." In Munoz, the issue was whether appellate counsel should have raised a particular claim, even though it wasn't fully preserved.  Apparently, at the time of the appeal, the relevant Appellate Division had concluded that preservation was necessary (even though it wasn't necessary in the original Court of Appeals decision establishing the particular legal claim).  After the appeal, the Court of Appeals held (again, in my mind) that preservation was not necessary.  In the Second Circuit's mind, the state of the law at the time of the appeal was that preservation was necessary, so no IAAC.*

*As an aside, I am not saying I necessarily agree or disagree with that logic.  I am just accepting it on its face for the purpose of this post.

If only that concept was applied consistently.  In a post I am currently drafting about depraved indifference cases (obviously no link yet), one argument that the federal courts rejected in order to overcome a procedural default was a "futility" claim.  It goes something like this: based on the law at the time, defense counsel had no ground to raise an insufficiency argument, so the failure to raise it was justified.  To the federal courts, that was not good enough. 

But that is absolutely no different than what the Second Circuit just stated in Munoz.  Once again, here's the quote from Munoz; I'll just exchange "trial" for "appeal" and "futility" for "IAC": "we consider the law as it existed at the time of the [trial] for the purpose of Munoz’s [futility] claim."  See?  Consistency is a lot of fun and it sounds great here.  But as is often the case in habeasland, consistency does not matter.

In any event, here are the details:

Munoz v. Burge, 10-3834-pr 

• Argued 9/20/11; Decided 10/14/11; Summary Order
• Panel: Pooler, Parker, Chin
• Lower Ct. Info: 02-CV-6198, 2010 WL 3394696 (EDNY Aug. 20, 2010) (NGG) (LB)
• In Circuit: Dist. Ct. COA
• Issues: IAAC based on counsel's failure to raise claims that the trial court impermissibly delegated judicial responsibility and did not disclose jury notes to the defense.

Habeas Corpus - Summary Order from Last Friday

Last Friday, the Second Circuit issued a summary order affirming the denial of habeas in Harris v. Fischer.  It's a long summary order with two interesting parts to it.

But first the details:

Harris v. Fischer, 10-795-pr 

• Affirming Denial of Habeas
• Argued: 8/26/11; Decided: 9/9/11 Summary Order
• Panel: Chin, Lohier, Korman, DJ
• Lower Ct. Info: 05-CV-0160, 2010 WL 681061 (WDNY Feb. 19, 2010) (MAT)
• In Circuit: Circuit Court COA
• Issue: (1) whether the district court erred in finding Appellant’s claim that he had established the affirmative defense to felony murder, pursuant to New York Penal Law § 125.25(3), procedurally barred; and (2) whether Appellant’s claim raises a federal constitutional issue for purposes of relief under 28 U.S.C. § 2254

ANALYSIS:  On the positive side, the Second Circuit agreed with petitioner that he had fully exhausted his affirmative defense claim.  The question was whether a catch-all statement request in a leave application to the Court of Appeals to review all of the claims presented to the Appellate Division was sufficient to exhaust a claim. 

Taking a quick step back, a criminal defendant will often limit the number of issues that he presents in a leave application in order to have the judge considering the application focuse on those that are the most "leave-worthy."  The Second Circuit has repeatedly held that, in such a situation, a defendant will not have abandoned the remaining claims that were presented to the Appellate Division so long as he asks the Court of Appeals in a catch-all provision to review all of the claims presented to the Appellate Division.

That's what happened here.  And the language that petitioner used in his leave application was very similar to the language that the Second Circuit had previously approved as sufficient.  So in ruling in petitioner's favor on this issue, the Second Circuit was simply following its own precedent.  It's actually quite surprising that the DJ concluded that the claim was unexhausted.

On the down side, the Second Circuit concluded that the affirmative defense claim was not cognizable on habeas.  Here's the relevant paragraph:

[T]he Due Process Clause of the Fourteenth Amendment protects a defendant only with respect to the sufficiency of evidence establishing the elements of an offense. Jackson v. Virginia, 443 U.S. 307, 315 (1979) (quoting In re Winship, 397 U.S. 358, 364 (1970)). Harris's burden of proving his affirmative defense to felony-murder in New York, N.Y. Penal Law § 125.25(3)(a)-(d) (McKinney 2009), however, did not in any way "detract" from the State's burden of proving any element of the offense at trial beyond a reasonable doubt. See Caldwell v. Russell, 181 F.3d 731, 740 (6th Cir. 1999) (citing Jackson, 443 U.S. at 315).

What's interesting to me about that is that the citation to a Sixth Circuit suggests that this was a novel conclusion for the Second Circuit.  Typically, a novel legal conclusion like that would appear in a published opinion.  The court did, in the alternative, address the merits of the claim and rejected it.  That could be why the court decided against a published opinion.  

Habeas Corpus - Summary Order

Second Circuit issued a summary order today in Bumpus v. Warden, Clinton Correctional Facility.  It was argued back in early March, making it the oldest outstanding habeas case that had been argued but not yet decided (at least among the ones I know about).

But, unfortunately, the petitioner has died.  So the appeal has been dismissed moot.  It's too bad since this was a really interesting constitutional issue (see below).

In any event, the details:

Bumpus v. Warden, Clinton Corr. Fac., 10-1513-pr 

• Appeal Dismissed as Moot (summary order here)
• Argued: 3/9/11; Decided: 7/13/11
  
• Panel: Walker, Parker, Livingston
• Lower Ct. Info: 97-CV-1791, 2010 WL 1330323 (EDNY April 06, 2010) (ENV)
• In Circuit: District Court COA
• Issues: due process and equal protection violations where Court of Appeals denied leave to petitioner but granted leave to co-defendant and subsequently reversed conviction on a ground that also applied to petitioner's situation

Habeas Corpus - Summary Order

Back on June 28, the Second Circuit issued a summary order in Watson v. Ricks, 10-2346-pr.  It's pretty fact-intensive, so there isn't much to write about.  As I stated in a previous post, this case is interesting because the MJ had issued a pretty novel conclusion that national origin discrimination is covered under Batson.  That issue was not present in the appeal, though.  The only issue in the appeal was factual: whether the prosecution used its peremptory strikes in a discriminatory fashion.  The Second Circuit held that the state court's conclusion that the strikes were non-discriminatory was not unreasonable.

Here are the details:

Watson v. Ricks, 10-2346-pr 

• Affirming Denial of Habeas; summary order here
• Argued 6/22/11; Decided 6/28/11
• Panel: Straub, Raggi, Wesley
• Lower Ct. Info: 05-CV-7288, 2010 WL 2346614 (SDNY June 02, 2010) (WHP) (JCF)
• In Circuit: District Court COA
• Issues: Batson violation