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Habeas Corpus - Weekly Review - 7/26-30/10 - UPDATED

By Habeas Corpus Blog
Aug 20, 2010

Slow Weekly Review. About an average number of cases, but nothing super interesting.

I am pulling one case above the fold since I don't think that, procedurally, it was decided correctly. It took me awhile to figure out what was wrong, but I think I have it.

The breakdown ended up being longer than I expected:

1. Batista v. Boucaud, 09-CV-4800, 2010 WL 3069638 (SDNY July 30, 2010) (NRB)

  • Habeas Denied
  • Issues: (1) IAC; (2) involuntary plea

ANALYSIS: Court concludes that both claims are unexhausted, but treats them differently. As to the second claim, court says that it is procedurally barred and denies the claim after finding no cause and prejudice. The court also goes on to say that it has no merit.

However, the court says that claim 1 is unexhausted and tells petitioner to go back to state court with it. It does not say that the claim has no merit. It simply stops at the point where it says that the claim is unexhausted.

This means that it is a "mixed" petition. It contains both exhausted and unexhausted claims. But even though the petition is mixed, the court denies the entire petition.

There are now three options for a court when faced with a mixed petition.

  1. Dismiss the petition without prejudice to allow for exhaustion. Actually, this is the default position. A mixed petition is supposed to be dismissed.
  2. Dismiss a mixed petition with prejudice where the court concludes that unexhausted claim has no merit. This was an option created by the AEDPA.
  3. The final option is the "stay and abeyance." A court can stay the petition and allow petitioner to go back to state court to exhaust the unexhausted claim.

Why does this third option exist? Isn't it the same as dismissing a mixed petition without prejudice?

The answer to that is -- see the statute of limitations. When a court dismisses a "mixed petition" (as opposed to staying it), the one-year time limit begins to run again. In fact, the statute of limitations has been running the whole time that the petition has been pending! The filing of a habeas petition does not toll the time period.

Thus, the consequences of this are pretty dire for the petitioner. It means that, not only does the statute of limitations begin to run again after the dismissal, the time while the habeas petition has been sitting in federal court now gets SUBTRACTED from the one year. This means that there is a very good chance that, by the time the petition is dismissed as mixed, the full one year time period has expired. Crazy unfair, but true. In that situation, when the petitioner seeks to refile the petition after exhausting every claim, the entire petition, including the previously exhausted claims, is now untimely. Federal review is lost.

Due to that drastic consequence, courts developed the stay and abeyance procedure. However, the Supreme Court drastically limited that procedure in Rhines v. Weber, 544 U.S. 269 (2005). A court can grant a stay where petitioner can show good cause for failing to exhaust. Honestly, I don't really know what that means. But that's the standard.

Since a stay is difficult to obtain, and if a court does not want to address the merits of the unexhausted claim, then the only option left is to dismiss without prejudice. However, the Supreme Court has stated that, before dismissing the petition, a court is supposed to ask a petitioner whether he wants to drop the unexhausted claims in order to preserve federal review of the exhausted ones.

Okay. I hope everyone was able to follow that. Took me awhile to get it all straight in my mind.

Now back to this particular case. The court did not follow the three available options. The DJ denies a stay. So that option was rejected. The only two that were left were dismissal without prejudice or dismiss with prejudice on the ground that the unexhausted claim has no merit.

The court does not do either. At least not explicitly. It simply denies the entire petition with prejudice and tells petitioner to go back to state court on this claim. That's not an available option.

However, in a footnote, the court says some interesting things:

Having indicated that Batista may still pursue his Counsel Claim in state court, we wish to emphasize that Batista should not expect to return to federal court once he exhausts that claim. The one-year time limit for habeas claims under the Antiterrorism and Effective Death Penalty Act (AEDPA) generally is not tolled while federal habeas petitions are pending. See 28 U.S.C. § 2244(d). Furthermore, it would be inappropriate to stay this petition to allow Batista to exhaust his claim in state court because he has not shown “good cause” for his failure to exhaust. Rhines v. Weber, 544 U.S. 269, 277 (2005).

In addition, our exhaustion ruling is not meant as a comment on the merits of Batista's Counsel Claim. Indeed, even if Batista could establish that recent and relevant Supreme Court rulings apply retroactively to his case, see Padilla v. Kentucky, 130 S.Ct. 1473 (2010), he may still face an uphill battle with respect to this claim.

So let's break this down. The court basically says that the IAC claim is untimely and it cannot be raised in federal court after it has been presented to the state court. Can this be read as a denial under the AEDPA provision that allows the denial of unexhausted claims? No. That provision (2254(b)(2)) only allows a dismissal for a claim on the merits (which the court notes later on in the decision when it discusses the other claim). So the court clearly is not pursuing that option, especially since the court says that it is making no comment on the merits.

Nevertheless, despite what the court says, in the end, what is really going on here is that the court has granted a hypothetical stay. It has said, okay, go back to state court, but you can't come back since your claim will be untimely. So we are granting a stay, but immediately vacating it, since you can't come back anyways. That really is the most generous way of reading what the court is doing here. That is the only way for the court to have preserved federal review of the other (deemed exhausted) claim by allowing the petition to remain filed.

Well, it's either that or the court has erred by failing to choose an available option. If it wasn't going to grant a stay, or wasn't going to deny the IAC claim as meritless, it's only other option was to dismiss the petition as mixed (or at least asked petitioner whether he would like to remove the unexhausted claim). If this is the case, then procedural error has occurred.

I am not saying that a COA is appropriate here based on that error. Petitioner probably got the best possible outcome he could possibly expect (at least from a procedural point of view). But maybe the Second Circuit should explain the Rhines procedures a little bit. That case leaves just a little bit to be desired when it comes to clear guidance on how to handle mixed petitions.

Remaining cases below the fold . . .

2. Leon v. Conway, 09-CV-5760, 2010 WL 3001709 (SDNY July 30, 2010) (RPP)

  • Habeas Denied
  • Issues: (1) prosecutorial misconduct; (2) Crawford violation at persistent violent felony offender hearing; (3) Apprendi violation based on persistent violent sentence
  • Notes: Disclosure/Disclaimer: I represented petitioner in state court

3. Reyes v. Connolly, 07-CV-2468, 2010 WL 3036766 (EDNY July 30, 2010) (NGG)

  • Habeas Denied
  • Issues: (1) improper admission of evidence; (2) improper Allen charge; (3) excessive sentence

4. Montgomery v. Wood, 04-CV-6474, 2010 WL 3001603 (WDNY July 30, 2010) (VEB)

  • Habeas Denied
  • Issues: (1) insufficient evidence; (2) IAC; (3)
  • Notes: To be published; parties consented to proceed before MJ

5. Diggs v. Conway, 09-CV-8219, 2010 WL 3069641 (SDNY July 30, 2010) (NRB)

  • Habeas Denied
  • Issues: (1) court improperly refused to charge lesser included count; (2) improper admission of evidence; (3) excessive sentence

6. Delston v. New York, 07-CV-4373, 2010 WL 3004591 (EDNY July 29, 2010) (JFB)

  • Habeas Denied
  • Issues: (1) 4th Amend. violation; (2) illegal sentence; (3) improper admission of evidence; (4) insufficient evidence

7. Ayuso v. Rock, 08-CV-1360, 2010 WL 3001426 (NDNY July 28, 2010) (JKS)

  • Habeas Dismissed as Time-Barred

8. Graves v. Cunningham, 09-CV-5837, 2010 WL 2985473 (SDNY July 27, 2010) (RMB) (THK)

  • Habeas Denied
  • Issues: (1) prosecutorial misconduct; (2) IAC; (3) conflict of interest
  • Notes: Adopting R&R (available at 2010 WL 2942614)

9. Moreno v. Smith, 06-CV-4602, 2010 WL 2975762 (EDNY July 26, 2010) (KAM)

  • Habeas Denied
  • Issues: (1) Confrontation Clause violation; (2) unconstitutional sentence; (3) IAC based on counsel's failure to advise petitioner on his maximum sentence exposure
  • Notes: counseled; DJ held a hearing on IAC claim

10. Jackson v. Rock, 10-CIV-2528, 2010 WL 2990106 (EDNY July 26, 2010) (BMC)

  • Habeas Dismissed as Time-Barred

11. Hanson v. Moss, 10-CIV-3199, 2010 WL 2990110 (EDNY July 26, 2010 (BMC)

  • Habeas Dismissed without Prejudice as Premature

12. Haberer v. Napoli, 07-CV-799, 2010 WL 2998665 (WDNY July 26, 2010) (MAT)

  • Habeas Denied
  • Issues: (1) indictment/GJ issues; (2) insufficient evidence; (3) prosecutorial misconduct; (4) IAC; (5) juror bias; (9) excessive sentence

UPDATE -- Case Added:

13. Maine v. Ricks, 08-CV-01250, 2010 U.S. Dist. LEXIS 77318 (NDNY July 30, 2010) (JKS)

  • Habeas Denied
  • Issues: (1) speedy trial violation; (2) jury charge issues; (3) right to present a defense violation