By Matthew Keller
In the months since I last posted I have been trying to keep tabs on the many interesting Circuit Court habeas decisions that have been coming down. The idea that I would eventually combine them all into one massive post has, at this point, moved from "starry-eyed aspirational" into "outright delusional" territory. Hence, the first of (hopefully) a series in what has been going on around the Circuits over the past few months.
In last Term’s Johnson v. Williams decision, SCOTUS held that federal habeas courts “must presume [a] federal claim was adjudicated on the merits” even where “there is no explicit discussion of the articulated federal constitutional issue amidst the discussion of issues in the state court opinion.” Just before the New Year, the First Circuit sent forth the word that Johnson meant what it said.
Hodge was convicted of second-degree murder, and sentenced to life, for his involvement in the murder of Jones on a Boston public bus. Prior to trial, his codefendant (Francis) told his lawyer that he (Francis) had shot Jones after he wrested a gun away from Jones’ associate and saw Jones point a gun at Hodge. Francis also told the lawyer that Hodge left the bus before Jones was shot.
Hodge naturally sought to introduce Francis's statement as evidence that Francis, not Hodge, was the shooter. The trial court denied admission, reasoning that the statement was not corroborated by circumstances indicating its trustworthiness. On appeal in the state courts, Hodge claimed that failure to admit the statement denied him a due process right to present a complete defense under Chambers v. Mississippi (1973) and Holmes v. South Carolina (2006) where “the evidentiary rule against hearsay [was used] to gut the petitioner's only available defense, by excluding a powerfully exculpatory and corroborated eyewitness exoneration in a weak inculpatory case. . . .” The Massachusetts appellate court (MAC) affirmed, but made no express mention of the federal due process argument. Rather, the MAC simply cited a state case that rejected a federal due process argument on identical grounds.
The district court granted Hodge’s § 2254 petition, holding that "[u]nder the circumstances, the exclusion of the evidence appears to present the kind of fundamental unfairness against which the constitutional right to a defense is intended to protect." The district court did not grant AEDPA deference to the state court decision because "the substance of petitioner's federal claim was never addressed by the state courts."
The Circuit reversed, holding that the MAC reached the merits of Hodge’s due process claim by citing a state case “which discussed Chambers expressly.” Accordingly, it held, the state court decision was an adjudication on the merits entitled to deference and, under that tougher standard, its decision was reasonable.
The Circuit also added a “final word” about the effect of Last Term’s Johnson decision:
"The Supreme Court decision in Johnson noted that state appellate courts carrying heavy caseloads have adopted many mechanisms to handle their case load expeditiously, including short opinions. Federal habeas courts are required to keep in mind the burdens faced by those courts, including the MAC. "[F]ederal courts have no authority to impose mandatory opinion-writing standards on state courts."
. . . including, apparently, the "standard" that a court must actually adjudicate a claim on the merits in order to adjudicate a claim on the merits.
Here, the Fifth Circuit reversed a district court habeas grant finding that a mentally retarded defendant was ineligible for execution under Atkins v. Virginia (2002). The state court had denied the defendant funds to develop his Atkins claim prior to sentencing. However, once the case arrived in federal court, the Federal Public Defender Board provided expert funding to develop the claim. After reviewing the additional evidence produced by the expert during a six-day Atkins hearing, the district court granted Brumfield’s petition on the ground that he is mentally retarded. Key to the district court’s ruling was its finding that the state court decision was not entitled to AEDPA deference because the state court had not provided expert funding for the Atkins issue.
The Fifth Circuit reversed, finding that “no Supreme Court decision has held that prisoners asserting Atkins claims were entitled to expert funds to make out a prima facie case.” Rather, the Supreme Court in Atkins left “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [the] execution of sentences.” Therefore, the Circuit held, it was not error for Louisiana to deny capital defendants asserting Atkins claims expert funds to develop the record. The Circuit also rejected the district court’s conclusion that, under § 2254(d)(2), the state court decision that Brumfeld was not mentally retarded was unreasonable in light of the evidence presented.
Once AEDPA deference kicked in, the district court could not rely on the new evidence that the expert funding had allowed Brumfeld to develop for the first time in federal court. This is because of Cullen v. Pinholster's (2010) limitation of habeas review under § 2254(d) to “the record that was before the state court that adjudicated the claim on the merits.” Covering its bases, however, the Circuit dropped a footnote that, “[e]ven if we were to consider the new evidence presented to the district court, we likely would hold that Brumfield failed to establish an Atkins claim.”
Another author on this blog has explained the tragedy of Pinholster: it freezes the factual development of a case at “the time that the state court makes a decision on the merits of the case.” This is so even where, apparently, that state factual record was stunted by the Southern states’ already-low indigent defense budgets. Through Pinholster, the Supremes are expressly disincentivising state legislatures from adequately funding indigent defense programs. After all, why fund defense lawyers to develop their clients constitutional claims when that will just give some high-falutin federal court more to pick apart on habeas review. Unbelievable.
Coleman provides a useful analysis of what is required for plausible actual innocence claims, especially in the wake of McQuiggin v. Perkins, decided last year. That decision clarified that “tenable actual-innocence gateway pleas are rare: ‘[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.’”
Coleman was convicted in 1983 for the murder of a Chicago drug dealer. In the ensuing decades, he continued to present the courts with new evidence and problems with the state’s evidence at trial. In 2010, the Seventh Circuit reversed a district court’s denial of Coleman’s first habeas petition and remanded for an evidentiary hearing to determine whether Coleman could potentially avoid a procedural bar by demonstrating his actual innocence.
During the ensuing hearing, the district court considered four categories of new evidence: (1) a codefendant’s (Barnes) testimony that Coleman was not involved in the murder; (2) testimony from Barnes’ attorney that Barnes professed Coleman’s innocence to him during the trial; (3) alibi corroboration from Coleman’s ex-girlfriend and her mother; and (4) evidence that certain witnesses could not identify Coleman as being at the scene on the day of the murder.
After a two day hearing, the district court concluded that Coleman had not satisfied the actual innocence standard, and the Seventh Circuit affirmed. As for the first three categories of new evidence, the Circuit noted that these witnesses “all suffer from profound credibility and reliability problems that most likely would not persuade a reasonable juror of Coleman’s innocence.” The Circuit viewed the fourth category as Coleman’s “best hope” for an actual innocence claim, because those witnesses had no reason to lie for Coleman. In the end, however, the Court concluded that the failure of the eyewitnesses to place Coleman at the scene “was not enough to overcome the testimony of two [trial] eyewitnesses who identified Coleman as the perpetrator and another who implicated Coleman in the murder.” “In short,” the Court held, “Coleman’s is not ‘the extraordinary case’ of actual innocence that warrants excusal of the procedural default rule.”
Chavarria, a legal permanent resident since 1982, was convicted of cocaine trafficking in federal court in 2009. After the Supreme Court decided Padilla in 2010, Chavarria moved to vacate his conviction under § 2255, arguing that his attorney had told him that immigration authorities “said they were not interested” in deporting Chavarria.
While the habeas motion was pending, the Seventh Circuit decided that Padilla was not retroactive under Teague and, last Term, the Supreme Court affirmed that decision in Chaidez. The disctrict court thereafter dismissed the § 2255 motion, and the Seventh Circuit affirmed.
This decision is unremarkable but for the the persistence and ingeneuity of Chavarria’s lawyer. Stuck with a case that was crumbling quickly after Chaidez, she tried to stay afloat by relying on dictum in Chaidez distinguishing between omissions (a lawyer who provides no advice on immigration consequences) and affirmative misrepresentations (lawyer provides bad advice). According to her argument, Padilla’s new rule addressed the former situation, while the latter might have made out Strickland ineffectiveness even prior to Padilla.
Unfortunately, the Circuit pointed out that "Padilla was itself about an affirmative misrepresentation,” and therefore “this distinction, which is thin on its own terms, fails on Padilla’s facts.”
Way to keep kicking till the end, though.
The rare white-collar case on HCB, Convington confirms that, rich or poor, your lawyer has little to fear from sentencing errors once you plead guilty.
Covington, a former local agency head in the town of Nixa, Missouri (pop. 19,000), was indicted in connection with a long-running scheme in which he and others created fake companies and then used state and federal funds to pay for nonexistent goods from those entities. He pleaded guilty pursuant to a written plea agreement in which the parties agreed that § 2C1.1 was the appropriate Guideline. That Guideline is reserved for frauds involving “the intangible right of honest services of a public official.” Using this Guideline, the district court sentenced Covington to 108 months.
In his § 2255 motion, Covington argued that trial counsel was ineffective at plea negotiation and at sentencing because § 2C1.1 was not the appropriate Guideline. The Circuit court did not bother itself with whether counsel was deficient for missing this argument. Instead the Court went straight to prejudice: Covington did not argue that he would have demanded a trial had he known § 2C1.1 did not apply, nor did he show that going to trial would have resulted in a lower sentence.
This case demonstrates one of the more subtle – but no less pernicious – consequences of the virtually omnipotent power federal prosecutors wield over what and when to charge. Here, they gathered evidence over several years and when they were ready, charged Covington and his confederates under a fifty-one count Indictment, with each count carrying a maximum penalty of at least five years. Faced with a mountain of evidence and potentially decades in jail, Covington was obviously going to seek a plea deal allowing him to plead guilty to something less than the full Indictment. And indeed, his plea agreement allowed him to plead to just four counts; the remaining forty-seven were dismissed. Under these circumstances (present in many, if not most, federal fraud/conspiracy prosecutions) a defendant accepting a plea deal will never be able to show Strickland prejudice, no matter how deficient the attorney’s performance in connection with the plea and sentence.
Courts should keep this in mind as they develop the area of plea-related ineffectiveness claims after Frye and Lafler.