Habeas Corpus Blog

Habeas Corpus - Martinez vs. Pinholster - Who wins?

By JK

Has the Ninth Circuit found another way around Pinholster?  Can a petitioner rely upon a Martinez argument in order to have a federal court review "new" evidence?  Boy, these pathways around Pinholster really are a hot topic in these parts.  

On Monday March 4, Judge Tallman, joined by many, if not all, of the other conservative judges on the Ninth Circuit, issued a published order dissenting from the denial of rehearing en banc in a capital habeas case called Schad v. Ryan.  

In an unpublished order, the three-judge panel in Schad remanded the case to the district court for that court to determine whether petitioner could rely upon Martinez to establish cause for a procedurally defaulted IAC claim.  Petitioner had raised an IAC claim based on counsel's failure to present mitigating evidence during the penalty phase.  In his habeas petition, petitioner was relying upon mitigating evidence that post-conviction counsel ("PCC") failed to present to the state courts.  While PCC had raised an IAC claim based on a failure to present mitigating evidence during the penalty phase, PCC had not presented this particular mitigating evidence to the state courts.*  This failure was the basis of the Martinez argument.

* Specifically, in state court, the claim focused on counsel's failure to investigate and present additional evidence regarding his tragic history of child abuse.  The new mitigating evidence in federal court was evidence of his mental illness as an adult.

This made these conservative judges angry.  In their mind, petitioner was using an improper way around Pinholster to have the federal court consider new evidence not presented to the state courts.  To them, this was not a "new" IAC claim.  In their eyes, petitioner was simply making the old claim prettier with fancy new evidence and then improperly arguing that Martinez allowed the federal court to consider that better-looking new evidence under a new IAC claim.

I find the dissenting judges' analysis a little hard to accept.  In my mind, these judges are simply unhappy with the logical consequences of Martinez.  I really don't think that there can be much of a debate that what the three-judge panel allowed here is fully consistent with Martinez -- petitioner was arguing cause based on post-conviction counsel's "errors" for failing to "properly present" an IAC claim.  Those are words quoted out of the first paragraph of Martinez.  

So Martinez has the upper hand in this round.  But the scorecard could change considerably after the en banc argument in Dickens.  Actually, reviewing the Schad unpublished order, it also appears that a Martinez argument is going to be addressed in the Detrich en banc as well.  Looks like there are going to be many battles up ahead over the reach of Martinez.

Habeas Corpus - Ninth Circuit Stays the Course

By JK

Soon after my move out here to the Ninth Circuit, I talked about a way that the Ninth Circuit has used to get around Pinholster.  Essentially, the Ninth Circuit will conclude that the highly deferential standard of review does not apply, and the court can conduct a de novo review and hear new evidence, where the state court's fact-finding was unreasonable. And one way in which a state court’s fact finding can be unreasonable is where the state court’s factual finding process was deficient.  More specifically, the Ninth Circuit has “held that the state court’s failure to hold an evidentiary hearing may render its fact-finding process unreasonable under § 2254(d)(2).” 

It's a lovely and creative way around the most problematic part of Pinholster.  But one problem with my prior post was that I did rely, in part, on a decision that subsequently went en banc, Detrich v. Ryan.  It means that the original panel decision is not binding law.  And that en banc rehearing remains sub judice.  The entire decision may end up getting completely vacated by the en banc court.

So I was pleased when the Ninth Circuit decided Hurles v. Ryan.*  In Hurles, the Ninth Circuit remanded a capital case for an evidentiary hearing on a judicial bias claim.  But to get there, the court had to find that the state court's fact finding process was deficient. Here's what the court said: "We have held repeatedly that where a state court makes factual findings without an evidentiary hearing or other opportunity for the petitioner to present evidence, the fact-finding process itself is deficient and not entitled to deference."  

* There seems to be a little bit of a convoluted history as to how this opinion got issued.  According to the summary, "The panel withdrew its opinion filed July 7, 2011, andpublished at 650 F.3d 1301 (9th Cir. 2011), filed a replacement opinion, denied a petition for rehearing and rehearing en banc as moot but allowed the parties to file a petition for rehearing and rehearing en banc with respect to the replacement opinion."  The instant opinion seems to be the one that was entered after rehearing.

Okay, it is not stated as clearly as it was in Detrich.*  But it really is the same principle: the federal courts can hear new evidence and/or hold an evidentiary hearing when the state fact-finding process was deficient.  And that includes when no evidentiary hearing was held in state court.  

* There they said that where the process was unreasonable, "we proceed to evaluate the petitioner’s claim de novo and may then consider evidence that was properly presented for the first time in federal court."

But I will point out that, I don't think it is just in the situations where a hearing was not held in state court (as the court stated in Hurles).  It must be where it was unreasonable for the state court not to have held a hearing.  In the court's defense, it's discussion in Hurles made clear that the state court was acting unreasonably throughout the fact-finding process.

Thus, the Ninth Circuit continues to offer this unreasonable-fact-finding-process as a way around Pinholster where the state court refuses to hold a hearing.  Let's hope that the en banc court in Detrich doesn't take it away.  

Habeas Corpus - En Banc'ed - Updated/Edited

In January 2013, the Ninth Circuit granted a petition for rehearing en banc in a capital habeas case called Dickens v. Ryan.  According to the Ninth Circuit's en banc page, the en banc argument will be calendared the week of June 24 in Seattle, Washington.

This case poses a really interesting situation.  Petitioner lost on his main claim, that the death penalty could not be imposed on him because he was not a major participant in the murder, but obtained a remand to the district court for that court to consider a Martinez cause argument based on a procedurally-defaulted IAC claim.

Petitioner was the one who sought and obtained rehearing en banc. (ed. - see below) Petitioner's petition sought rehearing on the "major participant" issue.  The Martinez issue was not mentioned at all in the petition or even in the State's opposition (ed. - but see below).

The order granting the petition states: 

The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit.

It's standard.  But what now happens to the Martinez issue?  (ed. - see below) Is that part of the panel decision no longer binding?  (ed. - yes - see below) Is everything now up for grabs on rehearing?  (ed. - yes - see below) Can the State ask the en banc court to revisit the Martinez claim? (ed. - yes - see below) 

I don't know the answer to these questions. (ed. - Well, the update gives answers to these questions, see below)  It would be a shame for a petitioner to get rehearing on an issue on which he lost, and then have the en banc court take away the relief on the issue on which he won.  (ed. - that would be a shame, but not applicable here) Particularly where the State did not even seek rehearing on that issue.  Is this a risk that a petitioner takes when he seeks en banc review?  I am really curious about this.

UPDATE/EDIT:  I did not have all of the information about the en banc rehearing when I wrote the post.  I guess that I should not have relied exclusively on the Ninth Circuit's en banc page which only linked to the habeas petitioner's en banc petition.  

It turns out that the State separately sought rehearing on the Martinez issue.  Although the order granting en banc doesn't specify, it would appear that both petitions were granted.  So the whole thing is getting reviewed.  I guess that answers most of the questions I had above.  One question does remain unanswered (does a petitioner face the risk of giving up a partial win when seeking en banc review on the parts on which he lost). But that only applies to the hypothetical situation where both sides don't seek rehearing en banc in a "split" decision.  I am still curious about that, but it's just not relevant here.

Habeas Corpus - Good News

By JK

I am happy to report that my powers of prediction were off!  And this is good news for habeas petitioners.

Last week, in my post about Johnson v. Williams, I stated that a likely casualty of Williams would be Pearson v. Winston.  As I mentioned previously, in that case, the Fourth Circuit concluded that, where the state court failed to develop the factual record with respect to petitioner's claims, there was no adjudication on the merits.  In that situation, there would be de novo review and the federal courts could consider new evidence.  It seemed like a likely candidate for a GVR after Williams.

But the good news is that the Court denied the State's cert. petition on Monday.  Here's a link to the order list.  Thank you relist watch on SCOTUSblog for pointing that out.

So Winston remains good law and, for now, offers a potential path around Pinholster.

Habeas Corpus - Habeas Granted!

By JK

Further chopping away at the backlog, one big (or should I say "long") habeas decision recently was the 45-page published opinion in Cannedy v. Adams.  The Ninth Circuit affirmed a grant of habeas on the ground that trial counsel was ineffective for failing to present evidence that the victim had made a potentially exculpatory statement supporting the defense theory that the victim had a motive to fabricate the allegations.

What's unusual about it is that the district court granted habeas relief after holding an evidentiary hearing.  The Ninth Circuit, per Judge Susan Graber, decided that, after Pinholster, it could not consider any of the evidence from the evidentiary hearing. Rather, it concluded that habeas relief should be granted solely based on the evidentiary record in the state court.  Take that, AEDPA!  (I know, the taunting of the AEDPA doesn't make much sense here.  I just really wanted to say it.)

But the grant was issued over dissent.  Judge Andrew Kleinfeld stated that there was nothing unreasonble about the state court's rejection of the claim, particularly under the impossible to meet standard of Richter.

One interesting thing to note is that the majority and dissent battled over which of the state court decisions it should review under 2254(d).  The intermediate appellate court had issued a reasoned decision while the state Supreme Court had summarily denied the appeal.  Should a federal court "look through" the summary denial and review the reasoned decision?  The importance of this is that, if a federal court looks at a reasoned decision, it can review the actual reasoning of the state court to see if the decision was reasonable.  If it is a summary denial, the federal court could conceivably consider any hypothetical reason in existence for concluding that the state court decision was reasonable.  The majority concluded that a "look through" was appropriate.

And about the only really good thing to come out of Williams was that the Supreme Court validated the majority's approach.  It's in footnote one of the decision.  Small victory, but as can be seen here, it will have a practical effect.  

Habeas Corpus - En Banc Rehearing Granted

By JK

On February 25, 2013, the Ninth Circuit granted a habeas petitioner's request to rehear his case en banc in a case called Frost v. Van Boening.  

Over dissent, the Ninth Circuit had originally affirmed the denial of habeas relief based on petitioner's claim that the restrictions placed on his attorney's arguments during summation violated his right to counsel.  Here's how the dissenting judge characterized what happened:

"Ladies and Gentlemen of the jury, there are two separate and distinct reasons why you should find my client not guilty. Unfortunately, I may explain only one reason to you. (And a silent p.s.: I wish I could argue reasonable doubt to you, but I can't!)." This hypothetical summation mimics the extraordinary circumstances of Frost's closing argument, the legal equivalent of counsel having one hand tied behind his back. Due to a misunderstanding of state law, the trial judge forced Frost to "opt for one or the other" legitimate defense— arguing duress or putting the government to its burden of proof. This undisputed denial of the constitutional right to present proper argument on alternative defense theories created a Hobson's choice that violated Frost's Sixth Amendment Right to Counsel and his Fourteenth Amendment Due Process rights.

Should be a really fascinating en banc argument.

Habeas Corpus - Sitting By Designation

By JK

Got a little bit of a backlog with recent Ninth Circuit habeas decisions.  Been a bunch.  I hate to group them all into a single post, so I plan on doing several relatively short ones.

Back on February 6, 2013, the Ninth Circuit issued its published opinion in Dyer v. Hornbeck.  The court affirmed the denial of habeas relief despite a Miranda violation.  

When I first saw the decision, I had to do a double take as the author of the opinion was Judge Robert Sack -- of the Second Circuit.  Looks like I was not the only one who headed West.  Of course, Judge Sack was only sitting by designation.  But it was nice to see a familiar name as I did argue a couple of habeas appeals before him.  I wanted to say, "Hey, Judge Sack, remember me?  You once complimented me and my adversary for doing a good job during an oral argument . . . (voice trailing off)"*

*Sorry to mention this type of ego-related thing, but it was a nice moment.  And it happened with both my former boss and my future wife in the audience.

In any event, you may have noticed that I said flatly "despite a Miranda violation."  Intentional.  The interesting part about the decision was the concurrence.  Judge Milan Smith explained that had this been a direct appeal, he would have found a Miranda violation.  However, since it was being decided under the deferential standard of review, relief had to be denied.  We've all seen this type of thing before. 

The frustration of that inspired me to create a new tag line for habeas review:

AEDPA - Tolerating Constitutional Violations Since 1996!

I'll use it when appropriate.  

 

 

 

Habeas Corpus - Supreme Court Action 2/25

By JK

Looks like Habeas Day brought out a lot of laughter at the Court today.  I counted at least six times between the two arguments where the transcript reads (Laughter.).  But all the laughter appeared to stop once Justice Kennedy shamed the other judges into taking capital cases a little more seriously.  At least, that's how I read the transcript.  Here's the relevant exchange (from pages 41-42 of the Trevino transcript):

JUSTICE BREYER: I'm being sarcastic there but I don't mean to be. I mean, you see what I'm trying to get to.

JUSTICE SCALIA: It was the nose of the camel, which is what Martinez was -- which is what the dissent said, actually.

(Laughter.)

JUSTICE BREYER: Yes, the dissent said that.

(Laughter.)

JUSTICE KENNEDY: This is very amusing in a capital case.

Here are my quick takes on the two cases from the argument (gonna use some short cuts, sorry for the lack of context):

Perkins - seems to be at least five judges willing to say that actual innocence can be used to get an untimely petition into court, but that there will be some kind of diligence requirement.  Not sure what that will eventually look like though.

Trevino - the argument was a mess.  The parties seemed to argue most over what the Texas law actually says.  The judges seemed a little exasperated by all of it.  But it does appear as if there are at least five judges that seem willing to expand Martinez (or "clarify" Martinez to include State's beyond Arizona).

The transcript for Perkins is here.  The transcript for Trevino is here.

The other big news at the Court today was cert grants in a habeas case and a front-end criminal case.  They are:

Burt v. Titlow, 12-414

(1) Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in holding that defense counsel was constitutionally ineffective for allowing respondent to maintain his claim of innocence; (2) whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea; and (3) whether Lafler v. Cooper always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.

Kansas v. Cheever, 12-609

(1) Whether, when a criminal defendant who affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, the state violates the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant; and (2) whether, when a criminal defendant testifies in his own defense, the state violates the Fifth Amendment by impeaching such testimony with evidence from a court-ordered mental evaluation of the defendant.

A cert. grant in a Sixth Circuit case in which habeas relief was granted probably means that a reversal is on the way.  But, even with these elements present, I am not sure whether that is automatic for this one -- Lafler is just too new.  There could be a chance that the Court just wants to give helpful guidance in those cases.  Yeah, that's probably wishful thinking. It seems more likely that a cert. grant to the State means that the Court wants to take the habeas grant away.  

Habeas Corpus - Habeas Day 2/25

By JK

I have to admit, the decision in Williams has left me so upset that it has dulled my enthusiasm for Habeas Day next Monday, 2/25.  Why should I get excited for a Supreme Court habeas case when the Court seems to bludgeon every habeas petitioner that comes before it?  Okay, that's not true.  There were a couple of favorable habeas decisions last term (e.g. Martinez, Lafler).  Nevertheless, Williams was pretty painful; I am still feeling the sting.

But I really should look forward, and not obsess over the (recent) past.  And doing that, we have these two cases to be heard on Monday. And I guess that there is plenty of room for optimism:

(1) McQuiggin v. Perkins, 12-126

Issue: Whether, under the Antiterrorism and Effective Death Penalty Act of 1996, there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition, and if so, whether there is an additional actual-innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.

(2) Trevino v. Thaler, 11-10870 

Issue: Whether Martinez v. Ryan applies when a State court system allows a defendant, in some circumstances, to bring an IAC claim on appeal as opposed to requiring all IAC claims to be brought in a post-conviction proceeding

Let's hope for the best.

I can't help myself and I must turn back to Williams for a second.  After living with it for a day now, I have convinced myself that I must stop worrying about rebuttable presumptions and just learn to love them.  The Supreme Court seems to think highly of them in habeas cases.  They recently popped up in Holland and then in Richter and now in Williams.  I was thinking that, as a habeas litigator, maybe I should try and incorporate them more into my life.  The most appropriate place would probably be as a parent.  I'll just establish the edict with my kid that there is a rebuttable presumption that everything I say is correct.  I actually think that it's good/fair parenting.  The kid has to presume that I am right about everything (time to go to bed, McDonald's is bad for you, cats are better than dogs, etc.), but the child is given a chance to show that I am wrong.  I guess it could open up a can of worms, but it is pretty fair though.  On the other hand, it would probably be easier to just stick to the Scalia way, as discussed in his concurring opinion: everything I say is correct and there is no way to challenge it. 

 

Habeas Corpus - Undeserved Deference

By JK

Yesterday, the Supreme Court issued its long awaited decision in Johnson v. Williams.  The Court held that, for purposes of §2254(d), when a state court rules against a defendant in an opinion that rejects some of the defendant’s claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits.

I have to say that this decision has left me a little perplexed and a lot upset.  My inflammatory opinion is that the Court's current antipathy towards habeas has led it to issue an opinion that is simply divorced from any conceivable purpose of habeas corpus review.  While inflammatory, I believe that it is compltely justified.

Here's what I mean:  For various reasons, state courts often fail to address constitutional claims in their decisions even though defendants specifically raise them. To me, the whole point of the "adjudicated on the merits" language was a check on the state courts. It basically said to them, "you can have a tremendous amount of deference, but you need to actually adjudicate the claim to get it."  It encouraged the state courts to address constitutional claims.  It took some of the harshness out of the restrictions on habeas review wrought by the AEDPA because it was saying that you don't need habeas review because your constitutional rights will be protected in state courts.

Now, that's not true. The state courts have permission now to ignore the constitutional issue and still get deference. I think this is going to have a deleterious effect on constitutional rights. It creates an incentive for state courts to ignore them, knowing that a critical check in the system has been loosened.  It's not controversial to say that the original purpose of habeas review was to be a check on the state courts to make sure that constitutional rights were being adequately protected.  This decision is clearly contrary to what habeas was originally meant to be.

But it's not even consistent with the new purported purposes of habeas under the AEDPA.  This current Court has repeatedly stated that the purpose of the AEDPA was to make the state courts the primary forum for litigating constitutional claims and that habeas was just to prevent extreme malfunctions in that process.  Well, how is this decision consistent with that?  Under Williams, state courts don't even have to address constitutional claims and now there is a presumption that they are entitled to the super-high, "difficult to meet" deference of 2254(d).  What about that logic is consistent with having the state courts as the primary forum for litigating constitutional claims?  And, shouldn't the fact that the state courts failed to address a constitutional claim be evidence of a malfunction in the system?  Isn't that consistent with giving the federal courts more power to step in?  It's not logical.  It should be the opposite.

It's nothing more than antipathy for habeas guiding the result.

Oh wait, there's the irrebutable presumption.  Doesn't that make it better?  The most I can say for it is that it gives petitioner's a chance.  But I really have no idea how that's going to play out.  I mean, why isn't that overcome when the state specifically fails to address the constitutional issue? I really have no clue at this point what else the Court is asking a petitioner to do to overcome the presumption.

At this point, I think I'd like to break out the uncommon sense meter.  Try explaining to a layman that in habeas law there is a presumption that an issue was decided on the merits even though there was no actual decision on the merits on that issue.  Just try.  I dare you.  You are going to sound pretty crazy.  I think this may be a new high score on the meter.  And that says a lot.

But what's most depressing about all of this is that every judge on the Court agrees with the notion that silence=adjudicated on the merits.*  There is not a single judge on the Court right now that is willing to take a principled stand that federal courts should be stepping in when the state courts fail in their responsibility to address constitutional claims.  It's really, really sad.

*To note, Scalia would have gone even further and not had the presumption. 

One other likely casaulty of Williams is the Fourth Circuit's decision in Pearson v. Winston.  In that case, the Fourth Circuit concluded that, where the state court failed to develop the factual record with respect to petitioner's claims, there was no adjudication on the merits.  In that situation, there would be de novo review and the federal courts could consider new evidence.  It was a logical path around the unfairness of Pinholster.  I am not sure if this logic will be upheld after Williams.  The cert. petition in that case was being held by the Court.* I am guessing that it's going to be GVR'd after the next conference. 

*Actually, the hold in that case was what had originally gotten me worried about what was going to happen in Williams.  As I originally discussed, it did not appear from the argument in Williams that the Court was going to go this far with its opinion.  But there really wasn't a reason to hold Winston unless the Court was going to go in the direction that it did.  Now that it has gone this far, it has an impact on what happened in that case.