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Habeas Corpus - Weekly Review 11/16-20/09

By Habeas Corpus Blog
Dec 1, 2009

Featured in this week's Weekly Review (posted one day later than promised) - a habeas grant!

Not the biggest habeas grant of all time -- a new trial ordered on only a lesser count -- but a habeas grant nonetheless.

Interestingly, the Westlaw issue popped up with this case -- the case appeared on LEXIS long before it appeared on Westlaw. But there does appear to be a pattern emerging -- the last three times it has happened the district court has granted relief (either a habeas grant or a COA) to the petitioner. Very odd.

1. Robinson v. Graham, 07-CV-01107, 2009 WL 4034817 (NDNY Nov. 18, 2009) (JKS)

  • Habeas Granted in Part, Denied in Part
  • Issues: (1) IAC; (2) right to be present violation; (3) statement to the police was involuntary; (4) insufficient evidence; (5) prosecutorial misconduct; and (6) he was denied a fair trial and due process based on various errors at trial

ANALYSIS: Petitioner was convicted of various crimes, including attempted murder and first-degree assault based on a shooting. He was also convicted of a bribery based on allegations that he attempted to bribe a witness named Willian Sullivan. Before trial, petitioner allegedly approached someone named Elisha Kimbrough and offered Kimbrough money in exchance for him taking the rap for the shooting. Petitioner was not charged with any crime based on the alleged bribe to Kimbrough. Instead, the evidence was admitted on consciousness of guilt grounds. The court failed to give any limiting instruction, which allowed the jury to consider it as evidence of petitioner's propensity to commit bribery.

DJ agrees with petitioner that counsel was ineffective for failing to request the limiting instruction. DJ points out that the error was harmful to petitioner since the evidence of the other bribery was based on a single witness's testimony and the prosecution asked the jury in summation to use Kimbrough's testimony as evidence that he had committed the Sullivan bribery.

The relief on this one is pretty interesting. DJ orders a new trial on just the bribery count. But if the State fails to timely re-try him on the bribery, DJ orders that "Robinson's sentence . . . be redetermined without regard to the conviction on that count." The DJ only gives the aggregate sentence, so it is not clear how the sentence needs to be "redetermined." But the way this is phrased it could mean that the DJ believes that the existence of the bribery conviction had an influence on the sentence that the court imposed on the higher counts. What the DJ may be saying here is that, if the bribery conviction no longer exists, then the sentencing court should reconsider the sentence imposed on the top counts. If this is what the DJ meant, that's interesting. In my mind, that's the right relief in many situations where a lesser count is vacated, but you don't often see it.

2. Edwards v. State of New York, 08-CV-112, 2009 WL 4016412 (SDNY Nov. 18, 2009) (RJS) (JCF)

  • Habeas Denied
  • Issues: Department of Corrections Improperly Added Post-Release Supervision
  • Notes: Adopting R&R (attached)

ANALYSIS: DJ agrees with MJ that the petition was moot since petitioner was resentenced to term of post-release supervision by sentencing court.

The odd thing about this decision was the conclusion. The DJ denies a COA. Then it says that any appeal would not be taken in good faith. That means that the DJ has revoked the petitioner's in forma pauperis (poor person) status. If he wants to appeal, he will have to either pay the fee or move in the Second Circuit to proceed as a poor person. This happens all the time.

But then the DJ does something unusual. He says: "Moreover, as Petitioner's claims lack any arguable basis in law or fact, permission to proceed in forma pauperis on appeal is also denied. 28 U.S.C. § 1915(e)(2); see also In re Seimon, 421 F.3d 167, 169 (2d Cir.2005)."

Curious. I am not sure what the DJ intended with this sentence. The DJ had already stated that petitioner did not have permission to proceed IFP on appeal as the DJ just said that any appeal would not be brought in good faith. So, without more, this sentence is redundant.

The only other possibility here is that petitioner actually made an application before the DJ for permission to proceed IFP on appeal. If so, it is still redundant.

Federal Rule of Appellate Procedure 24(a)(1) states that IFP on appeal requires that such a request first be made in the district court. However, this motion only appears to be necessary if the petitioner had not yet been granted IFP status. Otherwise, subsection 24(a)(2) applies as it concerns "prior approval" of IFP status. This section states that, if IFP status has already been granted, then it will continue on appeal unless the district court revokes it by stating that any appeal will not be brought in good faith.

The remainder of the statute, specifically Rule 24(a)(4) and 24(b), makes clear that either the revocation of IFP status or the denial of an IFP motion is sufficient to trigger the next step -- an application to the circuit court for IFP motion on appeal. Only one action by the district court is necessary before a petitioner must move for IFP status in the circuit court. So if a court certifies that no appeal will be brought in good faith, that's the ends the matter in the district court. The DJ does not also need to deny a separate motion.

All of this means that, if petitioner did move for IFP on appeal before the DJ, then the DJ should have abstained from deciding the motion and informed petitioner that the motion should now be made in the circuit court.

Remaining cases below the fold . . .

3. Stewart v. Greene, 05-CV-566, 2009 WL 4030833 (SDNY Nov. 19, 2009) (WHP) (THK)

  • Habeas Denied
  • Issues: (1) IAC; (2) IAAC; (3) GJ issues; (4) Confrontation Clause violation; (5) insufficient evidence; (6) Brady violation; (7) in-court ID should have been suppressed
  • Notes: Adopting R&R (attached)

4. Daniel v. Walsh, 08-CV-2864,2009 WL 3837304 (EDNY Nov. 17, 2009) (JFB)

  • Habeas Denied
  • Issues: (1) a lesser count should have been vacated when Appellate Division vacated the manslaughter charge because manslaughter was the factual predicate establishing intent for the weapons charge; (2) Miranda violations; and (3) trial court deprived petitioner of a fair trial by (a) stating that the jury's case was “easier” because the death penalty did not apply and (b) improperly precluding evidence
  • Notes: DJ agrees that the trial court's comment about the death penalty should have been left unsaid, but that there was no prejudice from the comment

5. Williams v. Ercole, 05-CV-4242, 2009 WL 3837307 (EDNY Nov. 17, 2009) (JS)

  • Habeas Denied
  • Issues: (1) insufficient evidence; (2) denial of right to a jury from fair cross-section of the community; (3) imposed sentence was a “punishment” for Petitioner's exercise of his right to a jury trial; (4) IAC; (5) prosecutorial misconduct; (6) judicial misconduct; (7) actually innocence; and (8) IAAC.

6. Brown v. Purge, 05-CV-3631, 2009 WL 3837308 (EDNY Nov. 17, 2009) (JS)

  • Habeas Denied
  • Issues: (1) confessions should have been suppressed as involuntary and based on a right to counsel violation; (2) IAC; (3) IAAC; and (4) Sandoval violation.

7. Stephenson v. Ercole, 07-CV-3677, 2009 WL 3872358 (EDNY Nov. 17, 2009) (CBA)

  • Habeas Petition Dismissed as Time-Barred

8. Lockett v. Conway, 05-CV-6731, 2009 WL 3837790 (WDNY Nov. 16, 2009) (MAT)

  • Habeas Denied
  • Issues: (1) IAAC; (2) deprivation of right to be present; (3) evidentiary errors deprived him of a fair trial

9. Thompson v. Ercole, 08-CV-1083, 2009 WL 3837882 (NDNY Nov. 16, 2009) (FJS) (GHL)

  • Ordering Petition to File Amended Petition Demonstrating that Petition is Not Untimely or Setting Forth Evidence Showing That He Is Actually Innocent

10. Gonzalez v. Cunningham, 08-CV-8806, 2009 WL 4016477 (SDNY Nov. 16, 2009) (VM)

  • Habeas Denied
  • Issues: (1) Insufficient Evidence Disproving Justification; (2) Improper justification instruction; (3) IAC
  • Notes: To be published