Attorney General's office totally mishandles habeas case

This is an embarassing decision for the New York Attorney General's office, which blew a deadline and waived its right to a sure-fire challenge to an inmate's otherwise successful habeas corpus petition.

The case is Stevens v. Miller, decided on April 10. After he was convicted of robbery, Stevens was convicted as a persistent felony offender. He brought a habeas petition in federal court, arguing that the New York persistent felony offender law ran afoul of the Supreme Court's Apprendi and Blakely decisions and was therefore unconstitutional. The magistrate judge denied the petition, but Stevens' lawyer asked the court to stay the deadline to challenge that adverse ruling until the Second Circuit decided a different case that similarly argued that the felony offender law was unconstitutional. The Circuit eventually struck down the felony offender law in Besser v. Walsh, 601 F.3d 163 (2d Cir. 2010). At that point, the Attorney General's office advised the district court that the Besser case might be heard en banc by the Second Circuit and asked that the district court hold off on deciding Stevens until the Circuit issued a definitive decision on the constitutionality of the felony offender law.

Are you with me so far? What happened next was that an en banc Second Circuit overruled itself in Besser, saving the felony offender law and completely undercutting Stevens' constitutional challenge to his sentence. Here is where the Attorney General's office blew it. First, it did not tell the district court in Stevens that the Second Circuit had decided to re-hear the Besser case en banc. Second, at around this time, citing Besser, the district court granted Stevens' habeas petition. For some reason, the district court did not send a copy of the ruling to the Attorney General's office, which did not independently check the docket sheets (as required by the rules) to see if a decision had come down. The AG's office therefore never filed a notice of appeal. Little more than a year later, citing the en banc ruling in Besser, the AG's office filed a Rule 60(b)(6) motion to vacate the judgment granting Stevens' habeas petition. The district court said no and the Second Circuit (Wesley, Parker and McLaughlin) also says no.

If you are a Rule 60(b) junkie, then read the decision for a good summary of what that rule means and why portions of it are mutually exclusive. For the rest of us, Rule 60(b) lets you re-open a case under special circumstances. None apply here. The Second Circuit says the AG's Rule 60(b) motion is an end-run around the one-year deadline to reopen the judgment. The Circuit decision is written with some measure of disgust for the AG's negligence. It refers to one of the AG's arguments as "silly" and repeatedly lambastes it for its neglect. Let's face it: someone was asleep at the switch. (The district court ruling is even more disparaging on the AG's negligence). The state could have won its challenge to Stevens' habeas petition, but instead Stevens wins even though the Court of Appeals has rejected the legal predicate for that petition in the en banc ruling in Besser. Of interest to me is that the court reminds us that lawyers are required to check the electronic docket sheets to make sure nothing is happening in the case. Do people really do this? Or do they simply wait for the ECF notification? I think you know the answer. But it's not a bad idea to check the docket sheets on those slow-moving cases. A decision might come down behind your back.