Habeas Corpus Blog

Habeas Corpus - Weekly Reviews = District Court Review

I haven't done a Weekly Review for a few weeks now.  I have been reading the district court decisions each week, but I just haven't had time to sit down and put the lists together.  They take some time and setting aside that time is often difficult when there is nothing of note in the reviews and they just end up as lists. 

That's what has happened during the stretch of time between Halloween and Thanksgiving.  No habeas grants.  No COA's.  I didn't even see a denial that I found particularly interesting.

So it's been really tough to set aside the time to put together those lists.  I recently questioned the utility of the list of cases. And those questions still linger in my mind.  And they are now becoming even more weighty due to an expected spike in work coming up (i.e. start of the Spring semester at school).

As much as I hate to do it, I have decided to scale back the Weekly Reviews.  I am still going to do the research involved in the Weekly Reviews, but I am not going to put up a comprehensive list of cases.

The Weekly Reviews will now show up under the title District Court Review.  I'll put up a post every so often that talks about things going on in district court cases.  Not sure how often they are going to appear.  I am not sure whether I will put one up once a week, every other week, or only when something of note happens.  I am just going to have to see.  It could be that abandoning the list will allow me to post more often about district court cases.

In any event, all other features on the habeascorpusblog will continue as they did before. 

 

Habeas Corpus - Weekly Review - 10/25-29/10

Only one case deserves above-the-fold treatment.  Nothing too significant, just wanted to point out a procedural error.

But first, a couple of notes:

(1) Here's something I'll put down in the category of things I should have known:  Back in August 2010, Stephen Robinson, who was a SDNY district court judge appointed by Bush II, left the bench to join a law firm. 

This week saw a lot of decisions in his old cases that got transferred to at least one other judge.  That includes the one with the procedural problem.

(2) After promising last week to try and provide links to decisions, many of this week's decisions were not available on Google Scholar.  Oh well, best laid plans and all.

Let's start with the case with the procedural problem:

In Allen v. LeClair, 07-CV-11525, 2010 WL 4258856 (SDNY Oct. 27, 2010) (RO) (LMS), the MJ recommended that the petition be dismissed "as an improperly filed second and successive habeas petition which is also untimely."  The DJ accepted that recommendation and dismissed the petition.

It should not have been done that way.  If the MJ and the DJ believed that this was a second petition, the proper step is to transfer the petition to the Second Circuit for that court to consider in the first instance whether authorization should be granted to file a second successive petition.  See Liriano v. United States, 95 F.3d 119 (1996). 

Further, I am not sure whether the statute of limitations would apply to a second or successive petition.  From the language of 2244(d), I'd say it's probable.  But it's a secondary matter.  If this is a second or successive petition, the district court has no jurisdiction to consider it.  It has to be shipped over to the Circuit.  In fact, the authorization process under 2244(b) does not consider timeliness.  So I don't think timeliness is an issue that the court should have addressed. 

List of cases below the fold . . .

Habeas Corpus - Weekly Review - 10/18-22/10

Another slow week in the district courts.  So slow that I did not even see any above the fold cases.

Instead, I am going to talk about a non-dispositive decision.  It's in a case called Gee v. Conway. I'll get to it in a second.

But first, let me mention something I found on the internets.  It's called Google Scholar.  It seems to be publishing every decision that gets published on Westlaw.  It's even better than that leagle.com site I recently discovered.  Where available, I am now just going to provide links there (except for this week since I had already done the lower court info).  If I can't find a link, then I'll give the lower court info as well as the Westlaw cite. 

I think the new structure will be:

If there's something interesting, I will put it above the fold and give more details.  Obviously, that will include habeas grants, COA's, habeas denials where MJ recommended a grant, habeas denials of interest, etc.

Below the fold, I will split the habeas denials into categories: Habeas Denied; Habeas Denied - Adopting R&R; Habeas Dismissed as Untimely. 

This new system won't necessarily provide links to the below the fold R&R's.  Those can still be obtained through the main Westlaw cite or by looking at PACER. 

I will also include notes on the below the fold cases, where appropriate.

I hope this new structure won't do too much to compromise the Weekly Reviews.  Feedback is always welcome.

Back to Gee, it's one of those federal-judges-doing-the right-thing-for-a-petitioner type cases.  Here, in a rare step, an MJ granted a petitioner's request to reopen the time to file a notice of appeal.

The original petition was counseled.  While the case was pending, petitioner elected to relieve his attorney and go pro se.  However, in October 2009, when the DJ issued its opinion denying habeas relief, the decision was only sent to the attorney, not petitioner.

In February 2010, petitioner's attorney was "terminated" as counsel.  It is not clear why this particular event was entered on the docket at this time.  But the MJ says it was.

At that point, the DJ sent the previous decision to the pro se petitioner.  Petitioner then sent a notice of appeal to the court. That notice of appeal was obviously untimely. 

On September 17, 2010, the Second Circuit deferred a ruling on petitioner's  motion for a COA and remanded the case with directions to construe petitioner's  notice of appeal as a motion to reopen the time to file an appeal and to decide whether such motion should be granted .

Apparently, once back in the district court, the motion was assigned to the MJ, who issued a dispositive decision on the motion.  I am not sure how he would have that power, but he does issue a dispositive decision, not an R&R.  He concludes that the time should be reopened.

Under Federal Rules of Appellate Procedure 4(a)(6), there are three factors that a court must consider when reopening this time period:

(A) the court finds that the moving party did not receive notice under Federal Rule of Civil Procedure 77(d) of the entry of the judgment or order sought to be appealed within 21 days after entry;

(B) the motion is filed within 180 days after the judgment or order is entered or within 7 days after the moving party receives notice under Federal Rule of Civil Procedure 77(d) of the entry, whichever is earlier; and

(C) the court finds that no party would be prejudiced.

The MJ concludes that each were met: (1) no notice; (2) the motion was filed 144 days after the judgment; and (3) no prejudice to Respondent (who did not even submit papers).

Federal judge doing the right thing.

List of cases below the fold . . .

Habeas Corpus - Weekly Review - 10/11-15/10

Slow week for the Weekly Review.  But there was a COA!  It's an unusual case.

Here it is:

1. Robles v. Dennison, 05-CV-428, 2010 WL 4026814 (WDNY Oct. 13, 2010) (VEB)

• Habeas Denied; COA granted
• Issues: issues related to denial of parole
• Notes: To be published; parties consented to proceed before MJ; counseled

ANALYSIS: I don't know much about this area, namely the issues that arise out of a parole hearing and which of those issues can be raised on habeas. 

This is a really long and pretty remarkable opinion covering a lot of the different issues that pop up as a result of a denial of parole.  In the end, MJ strongly criticizes the parole board for acting arbitrarily and irrationally for failing to grant parole to petitioner, but concludes that he simply does not have the power to correct the wrong.  It's a fascinating analysis that I highly recommend checking out.

MJ grants a COA on the following five issues:

(1) whether Correction Law section 213 applies to petitioner's case; (2) did Correction Law section 213 create a liberty interest in parole; (3) whether, as some district courts and Circuit courts have held, inmates have a due process right not to be denied parole for arbitrary 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

I am going to come back to all of this in a separate post someday.  It deserves a detailed discussion.

Remaining cases below the fold . . .

Habeas Corpus - Weekly Review - 10/4-8/10

Busy week in the district courts.  Late September-early October seems to represent one of the peak seasons for habeas cases.

The biggest news is that there was a COA!  That's above the fold.  Two other cases brought up the fold are somewhat interesting depraved indifference cases. 

Here they are:

1. McClary v. Conway, 06-CV-2064, 2010 WL 3928563 (EDNY Oct. 04, 2010) (ENV)

• Habeas Denied; COA granted
• Issues: (1) prosecutorial misconduct; (2) IAC; (3) excessive sentence

ANALYSIS: DJ issues a COA on the IAC claim.  The specific claim is whether counsel was ineffective for failing to move to suppress petitioner's confession, which was the only evidence admitted against him at trial.

Facts were that counsel moved to suppress on 5th Amendment grounds, but not 4th Amendment grounds.  Counsel did not renew after counsel learned that petitioner was arrested in his home without a warrant and on the basis of two confidential informants.

DJ has analysis is a little odd.  DJ concludes that "defense counsel's failure to pursue the Dunaway motion in these circumstances was not objectively unreasonable."  Neverthless, DJ says that there is some potential merit to the underlying 4th Amendment claim.  But DJ says that, even if petitioner could show both prongs, the DJ was going to defer to the state court's ruling that there was no ineffectiveness.  Honestly, it's tough to tell how the DJ actually feels about the claim, the analysis is a little all over the place.  Good thing he granted a COA.

2. Melendez v. Kirkpatrick, 06-CV-6416, 2010 WL 3928697 (WDNY Oct. 08, 2010) (VEB)

• Habeas Denied
• Issues: (1) Insufficient evidence to support depraved indifference conviction; (2) IAC
• Notes: To be published; parties consented to proceed before MJ; 

ANALYSIS: Although there are some potential procedural defaults in the case, MJ goes straight to merits in interest of judicial economy. MJ concludes that facts support depraved indifference -- these include fact that petitioner pulled gun in scuffle, held it close to victim's face while other people were standing around and petitioner stated to police that he did not mean to kill person with gun, but was only trying to scare him.

3. Ortega v. Brown, 09-CV-5604, 2010 WL 3945669 (SDNY Oct. 08, 2010) (DLC) (DF)

• Habeas Denied
• Issues: (1) insufficient evidence to support depraved indifference conviction; (2) IAC
• Notes: counseled; adopting R&R, but not available online

ANALYSIS: Although there are some potential procedural problems, DJ goes straight to merits. The facts were that after a violent struggle in their apartment, petitioner pushed his girlfriend out of the window and she fell to her death.  Petitioner's argument was a little different than standard depraved case.  He argued that the evidence was insufficient to show reckelessness and that evidence only showed that it was an accident.

Remaining cases below the fold . . .

 

Habeas Corpus - Weekly Review - 9/27-10/01/10

Many cases this week, but only a couple caught my interest.

Here's what you will see: a harsh ruling on a equitable tolling question; and a weird analysis on a COA denial. 

There are also some notes on a couple cases below the fold.

On to the above-the-fold cases:

1. Williams v. Ercole, 09-CV-5169, 2010 WL 3785523 (SDNY Sept. 28, 2010) (DAB) (RLE)

• Habeas Dismissed as Untimely
• Notes Adopting R&R in part, rejecting in part (available at 2010 WL 3785521)

ANALYSIS: MJ found that petition was untimely, but concluded that the time period should be equitably tolled based on the fact that there was a delay in the state court notifying petitioner of the denial of his 440 application and the facility would not let petitioner into the law library right before his time was about to run out.  DJ rejects these grounds as a basis for equitable tolling since petitioner apparently waited eight months into his one-year before filing the 440 motion. 

That's harsh.  I mean really, really harsh, especially considering that the petition was filed TWO days late.  DJ makes no ruling on a COA.  I think one is appropriate here on account of the disagreement between the two judges.  I'll try to keep an eye on this one.

2. Gutierrez v. Smith, 06-CV-4939, 2010 WL 3855225 (EDNY Sept. 27, 2010) (SJF)

• Habeas Denied
• Issues:(1) insufficient evidence; (2) IAC; (3) depraved indifference is unconstitutionally vague
• Notes: counseled 

ANALYSIS: DJ rejects the miscarriage of justice exception to excuse a procedural default, rejecting the Petronio decision's conclusion that it could (see the post on that case here).

It's the DJ's failure to issue a COA that really confounds me here.  The DJ says that petitioner has met the COA standard as to whether or not the miscarriage of justice exception should apply.  That should be the end of it, right?  No.  DJ says that "since the constitutional claims petitioner raises in his petition have been consistently rejected, jurists of reason would not find it debatable that petitioner has established a valid constitutional violation."  I guess that would be acceptable if the DJ had actually shown that the underlying claims were meritless.  But DJ didn't do that as to the insufficiency claim -- the most important claim in the petition.  The DJ offered no opinion or analysis at all on that claim.  So I don't really understand this reasoning.  I don't see why a COA should have been denied here.

Remaining cases below the fold . . .

Habeas Corpus - Weekly Review - 9/20-24/10 - Updated

Weekly Review delivers this week -- a habeas grant! (only available on Lexis Westlaw cite added)  It's a Besser grant.  Which is nice.  That is Besser grant number three, I believe.

Otherwise, I will say that one other thing got my attention.  A single MJ released four opinions this week in which the parties consented to proceed before the MJ and all four of the opinions are going to be published in the federal reporter.  Soon after I started the blog, I had a long post about opinions getting published in the federal reporter.  Basically, it doesn't matter too much anymore overall.  But I did find it striking that all four of these, which I can't say are particularly important opinions, are gonna take up some of the sacred ground in the federal reporter.  A little odd, particularly when it does not appear that the habeas grant is going to be published.

1. Stevens v. Spitzer, 05-CV-10819, 2010 WL 3958845, 2010 U.S. Dist. LEXIS 107698 (SDNY Sept. 23, 2010) (LAK) (FM)

• Habeas Granted
• Issues: Persistent felony offender sentence is unconstitutional
• Notes: Counseled; Rejecting R&R

ANALYSIS: MJ had recommended that it be denied, but that R&R came out before Besser.

One other important note, DJ concludes that the error was not harmless.  DJ says, "the error here obviously was not harmless.  Absent the unconstitutional PFO determination, petitioner could not have been sentenced to more than seven years."  I like that analysis.

Remaining cases below the fold . . .

Habeas Corpus - Weekly Review - 9/13-17/10

Come and get it! A generous helping of Weekly Review!

Two cases above the fold.  Habeas grant that has been previously noted around here.  And an interesting Miranda issue, but no COA.  It is the lack of a COA that I am going to discuss.

And I do want to mention that there are a couple of below-the-fold cases with detailed notations.

On to the cases:

1. Petronio v. Walsh, 09-CV-341, 2010 WL 3564269 (EDNY Sept. 14, 2010) (ADS)

• Habeas Granted
• Issues: whether there was legally insufficient evidence to support petitioner's conviction for depraved indifference murder
• Notes: To be published

ANALYSIS: Prior post here.  As noted in my prior post, there are some very interesing procedural issues raised in this case.  It probably should be heard with at least one other case currently pending before the Second Circuit that raises similar issues.

2. Morgan v. Rock, 08-CV-0650, 2010 WL 3703697 (WDNY Sept. 16, 2010) (MAT)

• Habeas Denied
• Issues: (1) improper admission of evidence; (2) insufficient evidence; (3) improperly precluded from questioning prospective jurors; (4) Miranda and right to counsel violation; (5) IAC; (6) excessive sentence

ANALYSIS: Interesting Miranda issue.  The allegations were that petitioner murdered his girlfriend, who had previously gone missing.

An officer responded to a fight outside petitioner's home.  The officer learned that there was an outstanding warrant for petitioner and took him into custody.  While petitioner was handcuffed in the back of a car, the officer questioned petitioner. First, he asked whether he had identification.  He didn't, so the police officer asked to escort him inside to get ID.  Petitioner said that he was not going to take him inside the home.  The officer then asked petitioner when was the last time he had seen the victim, and he said that he had seen her the prior week when she had a doctor's appointment.  The officer asked to go into the house, and petitioner said no and he would not give permission for it.  The officer then asked for the doctor's name, and petitioner said he wouldn't answer any more questions.

The Supreme Court in a case called Quarles has stated that there is an "emergency exception" to Miranda when questions are necessary to secure the officer's safety or that of the public.  Actually, it's kind of similar to the Davis v. Washington test back before the Supreme Court.

The New York Court of Appeals broadly interpreted Quarles in a case called Krom from 1984.  It said that, so long as a victim is missing, officers can question a suspect, even if he asserts his Miranda rights.  Did I say broad?  I should have said read Miranda right out of existence.

The state court upheld the questioning under Krom.

Here, the DJ assumes, without deciding, that Krom is an unreasonable application of Quarles.  But decides that the error was harmless.  No COA.

This particular DJ is very stingy with COA's.  He usually issues 3 to 4 habeas opinions a week, and over the last year and change, he has only granted one COA -- and that was when an MJ recommended it.  Notably, according to my Pending Second Circuit Cases page, the Second Circuit has granted COA's in three of his cases this year.  That's more than any other DJ.  So it would not be unreasonable to say that this DJ should be granting more COA's than he is currently doing.*

*I won't even begin to say how much it bugs me that this DJ also certifies -- in every single one of his habeas denials -- that an appeal would not be brought in good faith.  That is a complete misuse of that statute.  Particularly when the petition is counseled.  He is basically accusing the lawyer of misconduct.  But this is a more involved post/complaint for another day.

Now, I am not saying that this is a great candidate for a COA.  But it's a pretty good one.  The DJ suggests that a long-standing New York Court of Appeals decision may be an unreasonable application of a Supreme Court decision.  That's COA-worthy.  And I have previously stated that if a court shifts to a harmless error analysis after finding a constitutional violation, that's another potential area for a COA. 

And in looking at the court's harmless error analysis, I am not fully convinced.  The DJ says that the statement was not completely inculpatory, was similar to what he had said to the victim's family members, and the evidence of guilt was "compelling." 

These grounds are supported by the record, but they don't give the reader complete confidence that the error was 100% harmless (or let's say 95% harmless).  I think the statement was inculpatory enough.  And statements to a police officer -- admitted as official admissions -- are qualitatively different than similar statements made to civilians.  And while compelling is a strong word, it is not the strongest that can be used when looking at the strength of the evidence.  Here is the evidence that the court cites (WARNING, it's grisly):

Petitioner, who had allegedly been subject to physical abuse at the hands of his former girlfriend, admitted to dismembering the victim's body after her death. He actively concealed her death at the house that he shared with her, and attempted to dispose of her body parts by cooking them, freezing them, and flushing them down the toilet. While petitioner was incarcerated, he admitted that he killed the victim.

Strong, but mostly circumstantial.  And I think it is always questionable to rely on jailhouse confessions.  I think that it could be reasonably argued that even this not-completely-inculpatory statement could have had a real effect here. 

It's not a bad candidate for a COA.  Do I think the Second Circuit will grant one?  No.  But that's because they don't grant many.  The DJ's grant the higher percentage of COA's and are tasked to do it in every case (sometimes the Second Circuit never gets to answer that question).  So I think it is more appropriate to question when a DJ does not grant one.

Remaining cases below the fold . . .

Habeas Corpus - Weekly Review - 9/6-10/10

Very, very slow week.  I only found TWO cases (plus a couple of R&R's, but those no longer appear in these Weekly Reviews).  Lowest total ever.  But it was a post-holiday week after all.

Despite the low total, there was a COA!  And yet, it's pretty tragic.  Let's get right to it:

1. Saracina v. Artus, 04-CV-521, 2010 WL 3529339 (WDNY Sept. 08, 2010) (MAT) (JWF)

• Habeas Denied; COA granted
• Issues: (1) persistent sentence violated Apprendi; (2) persistent sentence is improper; (3) IAC; (4) IAAC
• Notes: Adopting R&R (available at 2010 WL 3529352)

ANALYSIS: COA was granted on the issue of 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.

You may be asking, why this issue and not the Apprendi issue?

It's truly tragic.  His state court challenges became final on June 23, 2004 -- one day before Blakely was decided!  The original panel decision in Besser (which apparently came out the same day as the R&R) has made clear that Blakely is the cut off point.  There is simply nothing petitioner could do about it.  As the MJ stated here, "As unfair as it may seem, Saracina may have missed the benefit of today's Besser decision by one day."

Remaining case below the fold . . .

Habeas Corpus - Weekly Review - 8/30-9/3/10

A decaffeinated Weekly Review this week. 

Only eight cases, and not much of interest.  I am bringing one up above the fold, just to note that a certain DJ has, for the second time now, used an improper analysis on a depraved indifference claim.

Here's the case:

1. Campbell v. Walsh, 07-CV-5433, 2010 WL 3463194 (EDNY Aug. 30, 2010) (SLT)

• Habeas Denied
• Issues: (1) insufficient evidence; (2) improper admission of evidence

ANALYSIS: Another depraved indifference case.  Here, the conviction became final -- meaning the direct appeal ended -- after the decision in Feingold (the case that ultimately changed the depraved indifference standard).  This means that Feingold applies to this case.

The DJ questions whether that is the case.  She says that Feingold is not retroactive and the date of conviction pre-dates Feingold.  So she doesn't believe that Feingold should apply.

That's wrong.  I explained all of that here.  And the Second Circuit issued a COA to review that case, most likely because the DJ got it wrong.  It's Rivera v. Cuomo, case 14 on the Pending Second Circuit Cases page.

Alas, the improper analysis doesn't affect the outcome of this case since the DJ concludes that, in any event, the facts of the case could support a depraved indifference conviction under the Feingold standard. 

Remaining cases below the fold . . .