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.