Habeas Corpus Blog

Habeas Corpus - Supreme Court Stuff, Day 2

In my post yesterday about the Supreme Court, I neglected to mention the other big news from the day:  Justice Stevens last day.  Not quite sure how I could forget to mention that since his retirement is going to be a big blow for habeas petitioners.  A sad day in habeasland.

Further sad news from yesterday was that Justice Ginsburg's husband, Martin Ginsburg, died over the weekend.  Justice Ginsburg bravely sat on the bench yesterday and the Chief Justice paid tribute to her husband at the beginning of yesterday's session. 

And today is day two of the Kagan hearings.  At the hearing yesterday, the Republicans' apparent strategy was to demonize Kagan for admiring Justice Thurgood Marshall, for whom she clerked.  It's an odd strategy, to say the least.  Actually, I am thinking of a different "o" word -- offensive.  Let's see if the Republicans can top that today.

Habeas Corpus - Summary Order (from awhile ago)

Sorry for taking so long to post this one, but I wanted to read through it again before talking about it, and then I never got around to it until now.  It's a wacky one:

Pignataro v. Poole, 09-1396-pr, June 18, 2010, Winter, Hall, Cedarbaum, DJ, decision here

• Affirming Denial of Habeas
• Lower Court Info: 07-CV-431 (WDNY Mar. 27, 2009) (HBS) (unpublished)
• Issues: (1) that Appellant`s plea was involuntary because he was not informed of a mandatory  term of post release supervision ("PRS"); (2) that he received ineffective assistance of appellate counsel; and (3) that his plea was involuntary, as he was under the influence of psychotropic medication when pleading guilty.  In addition to any other arguments they may choose to raise in their briefs, the parties are instructed to brief the following issues: (1) whether appellate counsel`s failure to perfect the direct appeal provided cause for the procedural default as to the first claim or for the  failure to exhaust the psychiatric medication claim; (2) whether Appellant suffered any prejudice sufficient to excuse the procedural default, establish ineffective assistance of appellate counsel, and excuse the failure to exhaust the medication claim, even if the sentencing court did not impose a PRS term, because the State may seek to resentence Appellant pursuant to N.Y. Correctional Law 601-d and People v. Sparber, 10 N.Y. 3d 457 (2008); and (3) whether Appellant`s 28 U.S.C. 2254 motion was ripe in light of the fact that he is not currently serving a PRS term

ANALYSIS: This was a really strange opinion.  The court concludes that, because post-release supervision ("PRS") was not a direct consequence of the guilty plea, the guilty plea was not involuntary where the court failed to mention during the guilty plea that petitioner would have to serve a PRS term.

On the merits, I think that is wrong.  But the strange part is the court's analysis.

Petitioner pled guilty and at his guilty plea, there was no mention of PRS.  Then, at sentencing, the PRS term was not orally imposed by the court.  Petitioner argued that his guilty plea was not voluntary because the court did not tell him about the PRS at the guilty plea.

Preliminarily, petitioner did not raise the voluntariness issue in state court.  In fact, his appellate counsel did not bring an appeal at all.  So, the voluntariness issue was procedurally defaulted.  Petitioner argued that his appellate counsel was ineffective for failing to raise it and that represented cause for the default.

The court says that ineffectiveness can represent cause.  But petitioner also must show prejudice for the court to review the claim.  And the court concludes that there was no prejudice.

Here's the first strange part.  The court concludes that, to show prejudice, petitioner must show that, under federal law, the plea was involuntary.  In one sense, that appears to be true.  If the ineffectiveness claim can only be used to get over the procedural default, then, yeah, prejudice can only be shown if the underlying federal constitutional claim is meritorious.  Okay.

But why can't the ineffective assistance of appellate counsel claim be its own independent claim?  I don't see any reason why it can't.  It was exhausted.  And, as the court acknowledges, there was prejudice here since New York courts have concluded that PRS is a direct consequence of a guilty plea under the New York State constitution.  So if it had been raised on direct appeal, petitioner would have won.  This seems like constitutional ineffectiveness to me.

Maybe this was never raised as an independent claim.  The COA suggests that it was.  But this was a pro se litigant, so maybe something got lost in translation.  I don't know.  Seems like he should have won on that.

Here's the second strange part.  The court finds that PRS was not a direct consequence of the guilty plea because, even though it was clearly mandatory and the court had to impose it, the Legislature later passed a law that allowed for PRS not to be imposed if the sentencing court failed to impose it at the original sentencing proceeding.  If the absurdity of that isn't obvious on its face, then I am not sure if I can make it more clear. 

Okay, one try:  like petitioner's case, many, many courts screwed up this PRS stuff.  There has been a lot of litigation over it and it has created a lot of havoc in the system.  The Legislature decided to come up with a way to try and mitigate the damage.  So the Legislature passed this law so that the guilty pleas that were entered without the court mentioning the PRS term could remain in place.  The court says that because this law exists then PRS wasn't automatic.  And it's true that, as a result of the law, some people didn't have to serve it.  But these people didn't have to serve it only because the original sentencing judge screwed it up.  Without the mistakes, the judges were still required to impose it and the defendant was still required to serve it.  Everything being equal, it is still an automatic consequence of a guilty plea.  It always will be.  Strange, strange analysis.

 

Habeas Corpus - Supreme Court Stuff

Obviously, the two big stories today are the McDonald gun rights decision and the confirmation hearing for Kagan. 

To be honest, both don't hold too much interest for me at this point.  It's way too early for the McDonald case to have any impact on habeas.  I have read in other places that gun challenges in criminal cases post-Heller have been uniformly unsuccessful.  So I am not sure whether McDonald will change anything in criminal law in the States.  And its impact on habeas, if any, is basically light years away.  So, for now, just a curiousity in habeasland.

And I am really kind of sad at how little interest I have for the Kagan hearing.  Her nomination has been so below the radar that I can't imagine that anything of interest will happen at the hearing.  I am sure she will say all the right things and, no matter what she says, most republicans will vote against her and delegitimize her as much as they can.  They know how to play these things.

And I never came across much of anything to show how she will be on habeas and/or criminal stuff.  It's a really "who knows?"  I would also guess that this was not an area that concerned Obama much when selecting a nominee.

Otherwise, no cert. grants in any habeas cases today.  I am eventually going to compile a list of the habeas cases in the Court for the next term.  I guess I have a pretty long list of to-do things around here.

Habeas Corpus - Weekly Review 5/31-6/4/10 - UPDATED

I meant to post this earlier in the week.  Been way too busy.

This weekly review covers what was a pretty slow week due to the Memorial Day holiday.  But, once again, there was another COA.  I'll collect all the COA's for the year in the near future and create a page for them.

But let's talk about the COA from the week: 

1. Watson v. Ricks, 05-CV-7288, 2010 WL 2346614 (SDNY June 02, 2010) (WHP) (JCF)

• Habeas Denied
• Issues: Batson violation
• Notes: counseled; rejecting R&R recommending habeas grant; hearing held; COA granted
  

ANALYSIS: State trial judge had concluded that petitioner, who was of West Indian descent, had not made out a prima facie case that the prosecutor had discriminated against people of West Indian origin.  MJ issued an R&R recommending that the petition be granted as a result of a Batson violation and the case remanded to the state court for a reconstruction hearing to allow for the prosecutor to provide his reasons for striking the challenged jurors.  DJ adopted the recommendation and sent the case back to the state court. 

The state court held the hearing and the case returned to the DJ.  Citing to the Supreme Court's recent decision in Wood, DJ notes that, "The relationship between §§ 2254(d)(2) and 2254(e)(1) is not clearly established."  But DJ decides that it need not address that question since petitioner had not met either standard. 

Nevertheless, DJ decides to grant a COA because the claim was sufficient enough for the judge to order the hearing.

Remaining cases below the fold . . .

Habeas Corpus - Magwood = Huh? (Updated)

Court decides Magwood.  And it's another habeas win!  And, as I predicted, it was a 5-4 result.

But the breakdown is one of the oddest lineups I have ever seen in a habeas case.  Truly.

Here's the holding: the defendant's habeas application is not a "second or successive" petition because it challenges a new judgment for the first time.

That's the result I was hoping for as I thought that it really was the most reasonable reading of the habeas statute.  And it did not implicate federalism concerns.

But, to my surprise, Thomas wrote the opinion.  Let me repeat that, Thomas wrote an opinion in favor of a habeas petitioner.  And he was joined by Scalia, as well as Stevens, Breyer, and Sotomayor.

And here's who dissented: Kennedy, CJ Roberts, Ginsburg, and Alito.

Wow.  That's a crazy breakdown.  I can't wait to see the opinion.

UPDATE: The opinion can be found here. 

Habeas Corpus - Quick Post

Sorry for the lack of activity around here.  Going to try to catch up over the next couple of days.

Today is another decision day from the Supreme Court.  Monday came and went without any decision in Magwood.  Could be today . . .

If anything happens, I'll put up an announcement right away and provide a more in depth discussion at another point. 

Habeas Corpus - Second Circuit Preview - Week of June 21, 2010

No habeas cases to be heard this week.  And the court is on vacation next week for an extended pre-fourth of July break, so no preview next week.

After last week's post about Gideon's Trumpet, I started thinking this week about lmy favorite egal books that were turned into movies.  The first one that leaped out in my mind was An American Tragedy.

I was always fascinated with the central legal question in the book (and this is kind of a spoiler, so if you haven't read it, don't read on): whether Clyde Griffiths should be guilty of a crime when he sets up the circumstances to murder someone, and then changes his mind and decides not to do it, but then kills the person by accident.  Sounds hard to believe, but the book sets it up nicely.  What is the person's culpability in that situation?  It's a great question.  And the book also has some appellate law parts to it, so that's always fun for me to read.

The well-known movie made from the book, A Place in the Sun, was a bit of a disappointment, as are most movies after you have read the book.  It doesn't spend too much time on the legal stuff; that part felt kind of rushed from what I remember.  Nevertheless, here is the amazing trailer for the movie -- three flaming young stars!:

In my mind, the best movie that was sort of based on the book was Woody Allen's Match Point.  True, it's not actually based on the book.  But it's essentially the same central plot, even though some of the themes are slightly different (in particular, how much luck plays into things, as discussed in the scene below).  I remember walking out of the theater feeling exhilarated after the movie, and that rarely happens.  Here's a scene from the movie.  Enjoy:

Preview to return the week of July 5.  And that will be a big preview.

Habeas Corpus - Troy Davis Update

Checked in on the Troy Davis case yesterday.  And there has been news.  The evidentiary hearing is now set to begin on June 23.  

As a reminder, this is the case in which there is a potential for an actual innocence claim to be established under the federal constitution.  You can follow this link for a two-minute discussion of the case from Atlanta's public radio.

Habeas Corpus - Carney Nomination

I haven't spoken much about the nomination of Susan Carney to the Second Circuit.  It doesn't appear that she has much, if any, experience with habeas law, or even criminal law for that matter.  Makes it pretty hard to offer any predictions in that regard.

But there has been a couple of interesting articles in the Connecticut Law Tribune discussing  the nomination.  One writer questions the choice because she has no litigation experience.  It's similar to complaints over Kagan's lack of judicial experience.  Another writer supports the choice, pointing out that in-house counsel at a university provides a diverse legal experience.

Interesting debate.  My feelings are that, while I would like to see judges with litigation experience, I don't think a lack of litigation experience is a problem.  As for the job as in-house counsel at a university, it seems a little hard to believe that it provides someone with a particularly diverse experience. But that doesn't really matter to me either.  I'll take someone who's intelligent, thoughtful and fair even without a litigation background or a diverse legal experience.*  Hopefully, Carney meets those requirements.  Of course, it's tough to know whether someone will meet those requirements.  Just got to hope that these things were important to the people who nominated her.

*Of course, I would also love someone who thinks that habeas corpus is the cat's meow, but that's probably expecting a little too much of any nominee.

Speaking of tough to know these things, I am enjoying how the Kagan nomination is completely bedeviling the press.  As Linda Greenhouse stated the other day, since there is so little to discover from Kagan's legal background, the media is pretty bored with it.  It's pretty refreshing actually.  It is preventing a lot of the typical b.s. from the right.

And speaking of b.s. from the right, the rhetoric over Judge Chatigny is getting a tad overheated.  I particularly liked this article that started out by saying that Joran Van Der Sloot represents the epitome of today's amoral man and then concludes by "arguing" that Judge Chatigny is a link in the chain that will lead to America's amoral decline.  Or something feverish like that.  It's a bit weird.  There are others that are taking it to the next level, too (here, here, here).  It's truly a coordinated attack. 

Have to give the right credit.  They know how to ratchet up the rhetoric.  If this vote ever happens, I can't wait to read where else they can go with the evil talk.  I mean, they can't call him the anti-christ, can they?  Wasn't that designation reserved for Obama?  Can there be two anti-christs?!?!  Is Judge Chatigny the real anti-christ while Obama was just a poseur?  I can't wait for the truth to be revealed.

[One sentence edited for clarity]

Habeas Corpus - Decision Day from Supreme Court

There is one more pending habeas case before the Supreme Court: Magwood v. Patterson -- the tricky little case that concerns whether an issue raised at a resentencing can be raised in a habeas petition filed after the judgment of resentencing, even though the issue could have been raised at an earlier time in the case. 

Today was a decision day from the Supreme Court, but no Magwood.

There are only three scheduled decisions day for the Court: the next two Mondays and next Thursday.  More days could be added.

The longer we wait for Magwood, the more it leads me to believe that it will live up to my prediction that it will be a close decision.