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Habeas Corpus - Weekly Review 11/9-13/09

By Habeas Corpus Blog
Nov 22, 2009

Welcome to the Weekly Review!

Only a couple of cases of note this week. Get to those in a second.

Although there weren't too many interesting cases, there was one fascinating aspect to this week's case. And I am referring to "M." No, not the James Bond character. I am referring to the fact that, of the 11 habeas decisions this week, seven (!) of the petitioners have last names that begin with the letter M. And for the other four, one of the Respondent's last names begins with M. And don't forget there was Muhammad v. Kelly from the Supreme Court, Warney v. Monroe County from the Second Circuit. That's a whole lotta M. I regret to say that I have no theories why.

Let's hit on some habeas:

1. McCloud v. Superintendent of Wende Correctional Facility,09-CV-4787, 2009 WL 3816473, (EDNY Nov. 13, 2009) (SLT)

  • Transferred to the Second Circuit

ANALYSIS: In an application to the district court, Petitioner sought to file a second or successive petition. However, the habeas statute requires that all requests to file a second or successive petition be filed in the circuit courts. Following established procedure, DJ does not comment at all on the merits of the application and transfers it up to the Second Circuit.

As is always the case around here, issues show up around here in bunches. The cert. grant this past Monday concerned a question related to second or successive habeas petitions. I noted then that I had not yet talked about second or successive petitions on the blog yet and that I will put something up about it as the argument approaches in the new case. Now, lo and behold, it comes up again in the same week. Funny how that happens. But as I was writing that, I remembered that this issue had popped up around here once before. In Cole v. Vance, the Second Circuit granted authorization to bring a second or successive petition. Here's what I mentioned at the time:

Now on to the habeas proceeding. From the outset, the DJ clearly is hostile. She refers to this petition as petitioner's third habeas petition. That's true, as she mentions that the first two were basically consolidated and then dismissed as time-barred. However, it's not particularly relevant or compelling as she later notes that the Second Circuit granted petitioner authorization to bring the petition. So who cares how many he has filed? He has met the standard to bring another. And that should have been right up there in the intro. In fact, it's a big deal when the Second Circuit grants authorization. It rarely happens. Instead, this really important fact is buried at the end of the factual discussion. One would think a DJ would be excited to get such an interesting case.

Since that really doesn't say much, I think a separate post is necessary.

2. Mathis v. Conway, 05-CV-6727, 2009 WL 3785692 (WDNY Nov. 12, 2009) (MAT)

  • Habeas Denied
  • Issues: (1) IAC; (2) double jeopardy; (3) material evidence was not allowed at trial; (4) verdicts were repugnant; and (5) the sentence was excessive
  • Notes: Counseled

ANALYSIS: The IAC claim here is stronger than most. It's a sexual assault case where petitioner's DNA was not found on the vaginal swab taken from the victim. Petitioner alleged that counsel made several errors as to the DNA evidence, the most important of which was that while questioning the defense expert, counsel asked a question that led the expert to agree with the People's theory that one would expect petitioner's DNA to be absent from the swab if the incident occurred as the victim said it did (sodomy - intercourse - oral sodomy -ejaculation). Of course, that undermined the defense theory which had relied very heavily on the absence of DNA evidence on the swab to undermine the victim's testimony.

Everyone -- including the state courts -- agreed that counsel was ineffective based on action #1. But then every court, including the DJ, concluded that there was no prejudice. Here's what the DJ says here:

[I]n that petitioner openly admitted to having sexual contact with the victim, the fundamental issue at trial was credibility, and the jury chose to believe the victim's version that the encounter was forcible and nonconsensual. Therefore, the Court does not find the doctor's testimony sufficiently prejudicial in light of the evidence of petitioner's guilt.

It's not much analysis, but it's hard to challenge the conclusion. I think that the DJ does find that this was prejudicial (using the words "sufficiently prejudicial" does suggest some prejudice). Only that it did not meet the "but for" Strickland prejudice requirement. I think that's probably accurate. Nevertheless, it is a close call. Maybe a COA would have been appropriate. When there is an error and some prejudice and the main question is the level of prejudice, I think a COA is appropriate if the DJ denies the petition.

Remaining cases below the fold . . .

3. Morgan v. Ercole, 06-CV-3716, 2009 WL 3805309 (EDNY Nov. 12, 2009) (CBA)

  • Habeas Denied
  • Issues: (1) Insufficient evidence; (2) excessive sentence; (3) IAC
  • Notes: One part of IAC claim concerned counsel's failure to properly litigate a 4th Amendment claim; DJ points out that, under Supreme Court precedent, to show prejudice on such a claim, petitioner must show both that the 4th Amendment violation is meritorious and that the outcome of the trial would have been different. Seems obvious, but I have to admit that I had never seen that language from that Supreme Court decision before. It's from Kimmelman v. Morrison, 477 U.S. 365, 375 (1986).

4. Davis v. Farrell, 07-CV-5920, 2009 WL 3817401 (SDNY Nov. 12, 2009) (BSJ) (DFE)

  • Request for Subpoena Denied
  • Notes: Order from MJ; MJ denies petitioner's request to order City College to allow someone to come in and take pictures of where the incident occurred; MJ says that if City College allows it on its own, then MJ will look at the photos; the interesting part is that MJ tells petitioner to get them to him by December 10 since MJ expects to write the R&R in late December or early January; it's odd for an MJ to be so explicit about when he or she will be writing an opinion, but it makes sense here since we know that this MJ is retiring in January

5. Mobayed v. Boucaud, 09-CV-4790, 2009 WL 3762297 (EDNY Nov. 10, 2009) (RRM)

  • Directed to Submit Affidavit to Explain Why Petition Should Not Be Dismissed as Time-Barred

6. Mattia v. Fisher, 07-CV-899, 2009 WL 3762301 (EDNY Nov. 10, 2009) (CBA) (JA)

  • Habeas Denied
  • Issues: IAC
  • Notes: Counseled; Adopting R&R (attached)

7. Suphal v. Marshall, 08-CV-4398, 2009 WL 3762679 (EDNY Nov. 10, 2009) (JG)

  • Habeas Denied
  • Issues: (1) IAC; (2) IAAC
  • Notes: Counseled

8. Moore v. Conway, 08-CV-6390, 2009 WL 3764129 (WDNY Nov. 10, 2009) (CJS)

  • Petitioner's Motion for Stay Denied; Motion for Extension of Time and Permission to File Oversized Traverse Granted
  • Notes: DJ liberally interprests stay application as request to amend petition to add IAAC claim; however, DJ orders petitioner to explain why the claim is not untimely and how it relates back to the earlier petition (see here for rules on amending a petition)

9. Moye v. Corcoran, 05-CV-0391, 2009 WL 3735393 (WDNY Nov. 09, 2009) (VEB)

  • Habeas Denied
  • Issues: (1) Statements should have been suppressed; (2) Insufficient Evidence; (3) IAC; (4) erroneous denial of missing witness charge
  • Notes: To be published; Consent to proceed before MJ

10. D'Antuono v. Conway, 05-CV-0437, 2009 WL 3762428 (WDNY Nov. 09, 2009) (MAT)

  • Habeas Denied
  • Issues: (1) IAAC; (2) Denial of Right to confront witnesses against him; (3) 4th Amendment violation

11. Harris v. Poole, 2009 WL 3762643, W.D.N.Y., November 09, 2009 (NO. 06-CV-0122) (MAT)

  • Habeas Denied
  • Issues: (1) IAC; (2) IAAC