Policano v. Herbert, Docket No. 04-5518-pr (2d Cir. June 21, 2006) (Pooler, Sack, Garaufis (by desig’n) (per curiam)): In the original panel opinion (issued November 2005), Policano v. Herbert, 430 F.3d 82 (2d Cir. 2005) (click here for our discussion), Judge Sack granted the habeas writ to Policano after concluding that the evidence at trial was insufficient to sustain his conviction for depraved-indifference murder under N.Y. Penal Law § 125.25(2), since the evidence showed that if Policano was the shooter, he intentionally murdered the victim but did not “recklessly create a risk of [his] death,” as required by current New York law on depraved-indifference murder. See People v. Payne, 3 N.Y.3d 266 (2004); People v. Gonzalez, 1 N.Y.3d 464 (2004). Neither party petitioned for rehearing or rehearing en banc of the panel’s decision.
Nonetheless, the panel has withheld the mandate in the case because (as we now learn) several active members of the Circuit sua sponte sought en banc rehearing of the panel’s decision. To resolve this disagreement, a majority of the active judges has voted to deny rehearing en banc (over a vigorous dissent by Judge Raggi (click here), joined by Judges Walker, Jacobs, Cabranes, and Wesley (who also dissents separately, and more gently)) and the original panel (via per curiam) has agreed to certify several questions to the New York Court of Appeals seeking guidance as to the state of New York law on depraved-indifference murder in March 2001, when Policano’s conviction became final on direct appeal. Certification is appropriate because Policano can prevail on his habeas petition only if the evidence was insufficient to sustain his depraved-indifference conviction in March 2001, and because it is unclear whether Payne and Gonzalez create new law or simply apply long-settled New York law to new facts.
Regardless of the ultimate outcome, the opinions issued yesterday are interesting for revealing a serious rift in the Circuit. Judge Raggi and the dissenters, on the one hand, use strong language criticizing Judge Sack’s original panel opinion and believe that certification is unnecessary because, in their view, Payne and Gonzalez clearly create new law and because the New York courts did not act unreasonably in affirming Policano’s conviction on direct appeal in 2001. The panel’s per curiam response (in the course of certifying the questions) similarly reveals irritation with the dissenters, emphasizing for instance that because neither party has sought rehearing, “this case is, and has been since it was first assigned to this three-judge panel, before this panel alone.” Op. 4.
The panel also takes the dissent to task for its “The sky is falling!” claim that the Judge Sack’s original opinion “may well unleash a rash of habeas challenges by other convicted New York State murderers.” Op. 7. This Blog shares the panel’s skepticism: “More than a year and a half after the district court’s opinion and judgment in this case, and more than six months after this panel’s opinion was published, the dissent cites no authority for that proposition beyond five petitions for habeas corpus, not one of which was granted. [And] [a]s the time period before Payne and Gonzalez fast recedes, the asserted flood of cases is, judging by what we and the dissenters have been able to discover, scarcely a drop in the bucket.” Op. 7.
Is this all much ado about nothing? Only time will tell for certain, but this Blog suspects that it is, since cases like Policano’s are likely rare and AEDPA’s one-year statute of limitations (along with other procedural hurdles) will further close the courthouse door to most of that already small pool.