reversing four of eight counts in an indictment,

Willette v. Fischer, No. 06-1422
Grant of habeas petition, reversing four of eight counts in an indictment, is remanded for entry of a modified judgment that vacates only three counts, where punishments for those counts was unconstitutionally imposed.

there is a clearly established federal due process protection against a trial court's reliance on materially false information at sentencing;

Stewart v. Erwin, No. 05-4635
Denial of a petition for a writ of habeas corpus in a sexual battery case is reversed and remanded to supplement the record or grant the writ as: 1) although there is no clearly established federal constitutional right to full disclosure of all information used by a trial judge in determining a defendant's sentence; 2) there is a clearly established federal due process protection against a trial court's reliance on materially false information at sentencing; and 3) it was not possible to ascertain whether such a violation might have occurred here, where a portion of the materials used in determining the sentence have been withheld from federal court review, and where the limited record suggested a reasonable possibility that at least some of the sentencing information might have been errone

Rare Confrontation Clause Winner

Vasquez v. Jones, No. 04-2274
Denial of a petition for a writ of habeas corpus is reversed and remanded with instructions to grant the petition where: 1) petitioner established that the state court violated his Confrontation Clause right to impeach a witness' credibility with his criminal record; 2) the state court's resolution of this claim represents an unreasonable application of Supreme Court Confrontation Clause jurisprudence; and 3) the error was not harmless under the Brecht standard

Rule 60 (b) is not a habeas petition

Zakrzewski v. McDonough, No. 06-12804
Denial of motion seeking post-judgment relief under rule 60(b), Fed. R. Civ. P., where motion was made on the ground that former habeas counsel perpetrated a fraud on the court, is vacated as petitioner's Rule 60(b) motion was not a second or successive habeas petition as construed by the district court

CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE, HABEAS CORPUS, HEALTH LAW, SENTENCING

Panetti v. Quarterman, No. 06-6407
Denial of a petition for a writ of habeas corpus brought by a prisoner convicted and sentenced to death in a Texas state court is reversed where: 1) the Supreme Court has statutory authority to adjudicate the claims raised in the habeas application; 2) a state court failed to provide the procedures to which petitioner was entitled under the Constitution; and 3) a federal appellate court employed an improperly restrictive test when it considered petitioner's claim of incompetency on the merits.

Attorney failed to file appeal as instructed

CRIMINAL LAW & PROCEDURE, HABEAS CORPUS, SENTENCING

US v. Poindexter, No. 05-7635, 05-7636
Denial of motion to vacate sentence under 28 U.S.C. section 2255 is vacated and remanded as an attorney renders constitutionally ineffective assistance of counsel if he fails to follow his client's unequivocal instruction to file a timely notice of appeal, even though the defendant may have waived his right to challenge his conviction and sentence in the plea agreement

Death Penalty, mental retardation

Simpson v. Norris, No. 06-2823
In a death penalty case, denial of a petition for a writ of habeas corpus is vacated and remanded where the district court erred in holding that petitioner had defaulted an eighth amendment claim under Atkins that his mental retardation made him ineligible for the death penalty. Re

habeas winner

US v. Guerrero, No. 05-3299
Dismissal of defendant's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. section 2255 is vacated and remanded where: 1) a timely, amended ineffective assistance claim was included only in an unverified memorandum, and thus failed to comply with the procedural requirements of section 2255 Rule 2(b); but 2) defendant should have an opportunity to conform his motion to Rule 2(b)'s procedural requirements.

Procedural bar exceptions

Kuenzel v. Allen, No. 06-11986
Denial of habeas petition is vacated and remanded where the district court has not addressed the issue of whether petitioner has satisfied the exceptions to the procedural bar announced in Siebert v. Allen, 455 F.3d 1269 (11th Cir. 2006), and where the district court erred in holding that the intervening authority of Pace v. DiGuigliemo, 125 S. Ct. 1807 (2005), effectively overruled the decision in Siebert

amended ineffective assistance claim was included only in an unverified memorandum

US v. Guerrero, No. 05-3299
Dismissal of defendant's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. section 2255 is vacated and remanded where: 1) a timely, amended ineffective assistance claim was included only in an unverified memorandum, and thus failed to comply with the procedural requirements of section 2255 Rule 2(b); but 2) defendant should have an opportunity to conform his motion to Rule 2(b)'s procedural requirements.

state court's application of the Strickland standard for a defense counsel's duty

Ramonez v. Berghuis, No. 06-1852
Denial of a petition for a writ of habeas corpus challenging a conviction for home invasion, assault with intent to do great bodily harm, and aggravated stalking is reversed where a state court's application of the Strickland standard for a defense counsel's duty to investigate was unreasonable in regard to his failure to investigate and call three witnesses to the alleged crime.

Pro-se Habeas winner

Ogle v. Johnson, No. 06-11074
Dismissal of federal habeas petition is reversed where a pro se petitioner fairly presents his claim to a state habeas court when he makes a bare allegation of ineffective assistance of appellate counsel in his state habeas petition and then describes in briefs and testimony in later proceedings several instances of alleged ineffective assistance

DNA Winner

In McKithen v. Brown, Judge Calabresi opens his decision as follows:"Eighty-four years ago, Judge Learned Hand observed that '[o]ur procedure has been always haunted by the ghost of the innocent man convicted,' but posited, optimistically, that '[i]t is an unreal dream.' United States v. Garrison, 291 F. 646, 649 (S.D.N.Y. 1923). Today, with the advance of forensic DNA technology, our desire to join Learned Hand's optimism has given way to the reality of wrongful convictions -- a reality which challenges us to reaffirm our commitment to the principle that the innocent should be freed."The case involves an attempt by a prisoner to a post-conviction constitutional right to access to DNA testing, which, he asserts, might exonerate him. The District Court dismissed the action, citing the Rooker-Feldman doctrine, but the Second Circuit reversed. The decision can be found here.

CRIMINAL LAW & PROCEDURE, EVIDENCE, HABEAS CORPUS

Howard v. US Bureau of Prisons, No. 06-3315
In an inmate's pro se habeas corpus proceedings claiming that, during two disciplinary proceedings against him for assaulting another prisoner and possessing drug paraphernalia, federal penitentiary officials violated his due process rights, dismissal of the habeas petition is affirmed in part, but vacated in part where petitioner was denied the opportunity to present potentially exculpatory evidence at one of his hearings

dna

In McKithen v. Brown, Judge Calabresi opens his decision as follows:"Eighty-four years ago, Judge Learned Hand observed that '[o]ur procedure has been always haunted by the ghost of the innocent man convicted,' but posited, optimistically, that '[i]t is an unreal dream.' United States v. Garrison, 291 F. 646, 649 (S.D.N.Y. 1923). Today, with the advance of forensic DNA technology, our desire to join Learned Hand's optimism has given way to the reality of wrongful convictions -- a reality which challenges us to reaffirm our commitment to the principle that the innocent should be freed."The case involves an attempt by a prisoner to a post-conviction constitutional right to access to DNA testing, which, he asserts, might exonerate him. The District Court dismissed the action, citing the Rooker-Feldman doctrine, but the Second Circuit reversed.The decision can be found here.

For the foregoing reasons, the district court’s judgment is VACATED, and the case is REMANDED to the district court, for it to consider whether there exists a constitutional right on the basis of which Plaintiff-Appellant might be able to obtain the relief he requests, and if there is such a right, whether, once the district court defines the contours of that right, Plaintiff- Appellant’s claim is collaterally-estopped by the earlier state court decisions.

George martorano

McKeever v. Warden Sci-Graterford, No. 05-2492
Grant and stay of a habeas petition challenging a conviction for drug-related charges, which included two counts arising under the Pennsylvania Corrupt Organizations Act (PACOA), is affirmed where: 1) because the PACOA charges, which defendant was actually innocent of, were not an essential part of an agreed exchange, rescission of his plea was not necessary; and 2) thus, the district court did not err in granting the writ of habeas corpus and leaving the remedy to the commonwealth.

habeas corpus winner

Nara v. Frank, No. 05-4779
Plain error review is appropriate where a party fails to timely object to a magistrate judge's report and recommendation (R&R) in habeas corpus cases. Grant of a petition for habeas relief in a murder case is affirmed where: 1) plain error review applied; 2) petitioner properly exhausted his incompetency claim; 3) the district court correctly found that the commonwealth failed to show petitioner defaulted his claim; and 4) there was no plain error in a finding that petitioner was incompetent when he pleaded guilty to murdering his wife and mother-in-law.

A motion for leave to file a successive federal habeas application in a death penalty case is granted

In re Mathis, No. 06-20806
A motion for leave to file a successive federal habeas application in a death penalty case is granted where movant made a prima facie showing of mental retardation for purposes of his Atkins claim.

writ of habeas corpus is granted where:

Fleming v. Evans, No. 06-6110

Sufficiently egregious misconduct on the part of a habeas petitioner's counsel may justify equitable tolling of the Antiterrorism and Effective Death Penalty Act (AEDPA) limitations period. In a domestic abuse, assault, and battery case, an application for a certificate of appealability (COA) from a denial of a petition for a writ of habeas corpus is granted where: 1) there was jurisdiction to review the petition; 2) reasonable jurists would find it debatable whether the district court abused its discretion with respect to equitable tolling and timeliness rulings; and 3) reasonable jurists could debate whether the petition stated a valid constitutional claim of the denial of a constitutional right.

district court erred in finding that the petition was untimely

Pierson v. Dormire, No. 06-2545

Denial of a petition for a writ of habeas corpus, which challenged a conviction for robbery and armed criminal action, is reversed where the district court erred in finding that the petition was untimely. Under Nichols v. Bowersox, 172 F.3d 1068 (8th Cir. 1999), a Missouri state prisoner's judgment becomes final within the meaning of 28 U.S.C. section 2244(d)(1)(A) exactly ninety days after his conviction is affirmed on direct appeal, even if he has not filed a motion for transfer to the Missouri Supreme Court.

Bad Cases Make Good Law

Smith v. Texas, No. 05-11287

In a first-degree murder and death penalty case in which sentencing took place in between the two Penry decisions of the Supreme Court, denial of relief on collateral review is reversed where a state court's errors of federal law regarding preservation of a Penry claim could not be the predicate for requiring him to show egregious harm, and petitioner appeared to be entitled to relief under the applicable state harmless-error framework. Read more...

claim of mental retardation is granted

Ochoa v. Sirmons, No. 06-6349
In a death penalty case, a motion to file second or successive petition for writ of habeas corpus setting forth an Atkins claim of mental retardation is granted where, although the pendency of an appeal from the denial of a first petition does not obviate the need for authorization of newly raised claims, petitioner made the prima facie showing required for authorization to proceed under section 2244(b)(2)(A).

Winning habeas

Owens v. US, No. 05-1784
Denial of a petition for habeas corpus is reversed in part and remanded for further proceedings where the district court's decision to deny evidentiary hearings was an abuse of discretion since: 1) defendant's allegations of ineffective assistance of counsel were not implausible; 2) closure of jury selection to the public for an entire day without meeting the strict Waller requirements would violate a defendant's right to a public trial; 3) failure to object to such a closure might constitute ineffective assistance of counsel; and 4) denial of a public trial is structural error and prejudice must be assumed. The denial of habeas relief is affirmed on all other points.

Brady violation

Trammell v. McKune, No. 06-3316

In a criminal case in which habeas petitioner was accused of stealing a service station tow truck and using it to steal another vehicle, his petition for habeas corpus is granted and his convictions vacated where the prosecution's failure to disclose physical evidence linking another individual to the tow truck theft, when it knew petitioner's defense was that the other man committed the theft, constituted a violation of petitioner's due process rights under Brady

testimony of an informant represented the only evidence against petitioner

Barajas v. Wise, No. 06-15494 (9th Cir. March 23, 2007)
Clearly established federal law requires the prosecution to provide reasons specific to the case in litigation if it declines to disclose the names and addresses of key witnesses. Grant of habeas relief in a drug-related case is affirmed where the testimony of an informant represented the only evidence against petitioner, and the state provided no reasons specific to the case for why it should not disclose the requested information.
http://caselaw.lp.findlaw.com/data2/circs/9th/0615494p.pdf

Denial of petition for writ of habeas corpus is reversed

Miller v. Vannatta, No. 05-3978 (7th Cir. March 15, 2007)
Denial of petition for writ of habeas corpus is reversed and remanded with instructions to grant the petition where the Indiana Court of Appeals unreasonably applied federal law in concluding that defense counsel's decision to stand mute at defendant's sentencing hearing did not amount to ineffective assistance of counsel.
http://caselaw.lp.findlaw.com/data2/circs/7th/053978p.pdf

death penalty case moved pro se to waive further federal proceedings

Comer v. Schriro, No. 98-99003 (9th Cir. March 15, 2007)
In proceedings arising when habeas petitioner in a death penalty case moved pro se to waive further federal proceedings, to terminate representation by his habeas counsel, and for dismissal of his appeal, the motions are granted and the appeal is dismissed where petitioner was competent and had voluntarily decided to waive further proceedings.
http://caselaw.lp.findlaw.com/data2/circs/9th/9899003p.pdf

The COA inquiry asks only if the District Court’s decision was debatable.

SUPREME COURT OF THE UNITED STATES

No. 01—7662
THOMAS JOE MILLER-EL, PETITIONER v. JANIE
COCKRELL, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL
DIVISION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT

[February 25, 2003]

Justice Kennedy delivered the opinion of the Court.

In this case we once again examine when a state prisoner can appeal the denial or dismissal of his petition for writ of habeas corpus. In 1986 two Dallas County assistant district attorneys used peremptory strikes to exclude 10 of the 11 African-Americans eligible to serve on the jury which tried petitioner Thomas Joe Miller-El. During the ensuing 17 years, petitioner has been unsuccessful in establishing, in either state or federal court, that his conviction and death sentence must be vacated because the jury selection procedures violated the Equal Protection Clause and our holding in Batson v. Kentucky, 476 U.S. 79 (1986). The claim now arises in a federal petition for writ of habeas corpus. The procedures and standards applicable in the case are controlled by the habeas corpus statute codified at Title 28, chapter 153 of the United States Code, most recently amended in a substantial manner by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). In the interest of finality AEDPA constrains a federal court’s power to disturb state-court convictions.


To secure habeas relief, petitioner must demonstrate that a state court’s finding of the absence of purposeful discrimination was incorrect by clear and convincing evidence, 28 U.S.C. § 2254(e)(1), and that the corresponding factual determination was “objectively unreasonable” in light of the record before the court. The State represents to us that petitioner will not be able to satisfy his burden. That may or may not be the case. It is not, however, the question before us. The COA inquiry asks only if the District Court’s decision was debatable. Our threshold examination convinces us that it was.

The judgment of the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

CIVIL RIGHTS, CONSTITUTIONAL LAW, CRIMINAL LAW & PROCEDURE, HEALTH LAW

Whitington v. Ortiz, No. 06-1362 (10th Cir. January 03, 2007)
Dismissal without prejudice of pro se prisoner's section 1983 action involving officials' denying him access to free hygiene products, for failure to exhaust administrative remedies as required by the Prison Litigation Reform Act (PLRA), is reversed and remanded where plaintiff properly exhausted the detention facility's grievance process before seeking judicial review. [To view the full-text of cases you must sign in to FindLaw.com.] http://laws.lp.findlaw.com/10th/061362.html