No. 20-8164

Michael Mosley v. John Rich, Superintendent, Elmira Correctional Facility

Lower Court: Second Circuit
Docketed: 2021-05-27
Status: Denied
Type: IFP
Response WaivedIFP
Tags: actual-innocence circumstantial-evidence confrontation-clause due-process habeas-corpus herrera-v-collins ineffective-counsel schlup-v-delo sixth-amendment
Latest Conference: 2021-09-27
Question Presented (from Petition)

In this wholly circumstantial case where the Petitioner has alibi, and after trial presents: 1) substantial new exculpatory witnesses and evidence showing that two other men actually committed the crime, 2) new forensic experts who proved that the prosecutor and her experts misrepresented the ONLY evidence connecting the Petitioner to the crime, and 3) new fact witnesses and evidence proving that the prosecutor's unsupported claims of motive, opportunity and consciousness-of-guilt were completely false and fabricated, does all of this new credible and compelling evidence, combined with the alibi, constitute a "truly persuasive showing of actual innocence" pursuant to Herrera v Collins sufficient to warrant freestanding habeas relief?

Did the District Court commit error in not reviewing Petitioner's Actual Innocence claim under the Schlup v Delo "gateway" standard, in order to review two Ineffective Counsel claims it found to be procedurally defaulted, so that ALL of counsel's errors, ALL of the evidence and the credibility of the trial witnesses could be considered as a whole and re-weighed, in order to ensure that a Constitutional violation did not result in the conviction of an innocent man?

Does defense counsel violate the requirements of Strickland by failing to present any of the substantial exculpatory witnesses or evidence showing that two other men actually committed the crime, where his decision not to present it was not based on strategic reasons, but was based on his "mistaken belief" that all of the exculpatory witnesses lied in order to get deals for themselves, and on his "legal misunderstanding" that he had to prove the two men's guilt to the jury?

When defense counsel in an entirely circumstantial case is indisputably given ADVANCE NOTICE that his primary defense will likely be unsuccessful because the prosecutor is presenting experts who's conclusions are adverse to the defendant and will directly contradict his testimony and innocent explanation for the only evidence connecting him to the crime, does counsel have "a duty" under Strickland to at least consult with an expert in order to make an informed decision as to whether he can challenge the State's experts conclusions, corroborate the defendant's testimony, or support the defense he is presenting?

Is Due Process and the Confrontation Clause of the 6th Amendment violated when jurors make "quite a reaction" to a prosecutor's impermissible, inference to the jury that a non-testifying eyewitness saw the defendant at the crime scene, and is counsel ineffective for failing to object to or correct this critical misstatement and Constitutional violation, when he admittedly knew it was false?

Was counsel ineffective for knowingly allowing the prosecutor to present false and unsupported claims of motive, opportunity and consciousness-of-guilt, when he had available witnesses and evidence that clearly proved the prejudicial claims were false and fabricated?

Are a defendant's 5th and 14th Amendment rights violated when the police impermissibly use a court-ordered search warrant for his palm prints as a ploy in order to seize and interrogate him without proper Miranda warnings, and is counsel ineffective for failing to even try to suppress the defendant's statements on these Constitutional grounds?

Was counsel Ineffective for failing to bring it to the Judge's attention that the Petitioner had refused to answer police questions during the interrogation, because his previous lawyer had legally advised him not to answer any questions about the crime, or to, at least, ask for limiting instructions for the Petitioner's attorney-advised silence, so that an adverse inference for his silence could be avoided?

Was counsel ineffective for allowing the prosecutor to directly violate this Court's rules announced in Do

Question Presented (AI Summary)

Whether the new credible and compelling evidence of actual innocence, combined with the alibi, constitutes a 'truly persuasive showing of actual innocence' sufficient to warrant freestanding habeas relief

Docket Entries

2021-10-04
Petition DENIED.
2021-07-01
DISTRIBUTED for Conference of 9/27/2021.
2021-06-30
Waiver of right of respondent John Rich to respond filed.
2021-05-20
Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due June 28, 2021)

Attorneys

John Rich
Dennis A. Rambaud Jr.New York State Office of the Attorney General, Respondent
Michael Mosley
Michael Moseley — Petitioner