Habeas Corpus Blog

Habeas Corpus - Habeas Win in Supreme Court

Hooray!

There was a rare habeas win in the Supreme Court this past Wednesday.  It happened in Maples v. Thomas.  In an opinion by Ginsburg that was joined by six other judges, the Court concluded that petitioner, who had basically been abandoned by his attorneys at a critical stage of the state court proceedings, had established cause for a procedural default, namely the failure to file a timely notice of appeal from a state court denial of a collateral motion.

This was obviously the right result.  And I have said that for a long time.  In fact, I created my "Uncommon Sense Meter"* as a result of Maples. 

*Rating cases on the scale of how much it defies common sense that a procedural rule led to an obviously unfair result.

But I couldn't have said it any better than Ginsburg did in her opinion:

In these circumstances, no just system would lay the default at Maples’ death-cell door.

Scalia and Thomas dissented and would have been perfectly comfortable with holding the default against Maples.  So following Ginsburg's logic, these two judges simply do not believe in a just system.  Hey, I am not the one who said it.

Unfortunately, I am guessing that the good times won't last long.  The Court only concluded in Maples that there was cause for the default.  The case was remanded to the 11th Circuit to determine whether there was prejudice.  And this part is dripping with unfair irony: it will now be extremely hard for Maples to prejudice because Pinholster has rendered the system unfair. 

In Maples, the state court rejected Maples' IAC claim in state court without holding a hearing.  In fact, according to Ginsburg, the state court simply signed a pre-made order that the State had submitted in opposition to Maples' state collateral motion.

It is pretty safe to say that it will be very difficult, if not impossible, for Maples to establish prejudice with respect to his IAC claim without a detailed factual record to support the claim.  And, because the State refused to allow Maples to create that record -- even if that decision was completely arbitrary -- Pinholster now establishes that the state court's decision denying a hearing has preclusive effect on federal courts.  Petitioner now has no opportunity to make the necessary factual record to establish the IAC claim.  It's going to make it very hard to establish prejudice.

As I have said many times before, it is completely unfair to give state courts preclusive authority on such a decision.  I only wish the standard in habeas cases was "no just system could tolerate the result."  It would make the Court want to reconsider what they did in Pinholster (well, except for Thomas and Scalia).

Habeas Corpus - Cert Grant in Habeas Case

Last Friday, the Supreme Court granted cert in another habeas case, Cavazos v. Williams. 

This is the issue:

Whether a habeas petitioner’s claim has been “adjudicated on the merits” for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim

The State had sought cert. on the underlying substantive issue, but cert. was only granted on the procedural issue quoted above.

Just to make it more clear, here is what we are talking about.  And I'll use the facts of Williams.  Petitioner raises a claim in state court based on the trial court's dismissal of a juror during deliberations.  Petitioner argues that the court's actions violated a bunch of different things, including petitioner's federal constitutional right to a jury trial.  The state court addressed nearly all of petitioner's arguments, but did not expressly rule on the federal constitutional claim.  The state court did not mention it in any way.  In other words, the state court simply did not make a specific adjudication on the merits of the federal constitutional claim, even though it was presented to the court.

As with most cert grants in habeas cases these days, this one has me worried.  Greatly worried.  This issue had been settled in the Circuits in petitioner's favor prior to Richter.  But now, at least one circuit (the 11th) has concluded that Richter's holding that summary decisions are presumptively adjudications on the merits expanded the definition of adjudication on the merits to include basically every merits based state court decision, regardless of whether the state court decision addressed the consitutional claim that is being pursued in federal court. 

Apparently, it may be that any silent denial is now presumptively on the merits.  I don't see how Richter can be read that broadly, but apparently that is the new reality.  I guess my problem is that I just don't see the Richter "presumption" anywhere in the statute.  How can it now apply to every state court decision?  In my mind, reading this presumption into 2254 for every state court decision (not just the summary kind) would not be consistent with the idea of comity upon which all of these habeas procedural rules were created.  Petitioner gave the state court the opportunity to rule on the claim, but the state court chose not to do it.  Why should there be deference?  It's not logical.

Let's just hope that I am getting worked up over nothing.  But I fear that this really is where the Court is going to go with this.   

Habeas Corpus - The Good, The Bad, The Summary Reversal

There are three relevant Supreme Court decisions from the past couple of months that I have yet to cover.  They are in order of release: Hardy v. Cross, Cash v. Maxwell, and Perry v. New Hampsire.  So, just to make sure I put something up about them, I thought I'd stick them all in the same post.

There isn't a theme that connects all three.  But they aren't completely disconnected, either.  There was some great work from Sotomayor in Maxwell (in an opinion respecting the denial of cert.) and Perry (in dissent).  In both cases, she shined a light on two of the greatest causes of wrongful convictions: misidentification and jailhouse informants.  It's sad that, in the DNA era of wrongful convictions, not a single other judge joined her opinions or expressed any concerns about these problems in the criminal justice system.

I'll start with the front-end case of Perry.  In an opinion by Ginsburg, the Court holds that only identifications procedures arranged by the police are subject to pretrial suppression hearings to determine the reliability of the identification.  Those procedures that are not police arranged, such as where a civilian convinces another person in some manner that the defendant is the perpetrator, cannot be the subject of a pretrial hearing to determine  reliability.  So, even though an identification could have been made under extremely suggestive circumstances, it remains completely reliable evidence that a jury is free to hear and use to convict someone, so long as the police did not arrange it.  Let me repeat, Ginsburg wrote that.  Sotomayor dissented. 

I expressed my outrage about where the Court was going with the case back at the time of the argument.  As I said then, the disjunction between the Supreme Court and where society is at on these matters is striking and tragic.  As everyone around the country acknowledges, we should be doing more to protect against misidentifications, not less.  Only Sotomayor in her dissent showed any acknowledgement of the problem.

Back when the Supreme Court issued its opinion in the prison overcrowding case Brown v. Plata, there was a hyperbolic line in Scalia's dissent in which he stated "terrible things (were) sure to happen as a consequence of this outrageous order."  Let me be equally hyperbolic: terrible injustices are certain to happen as a consequence of the misguided Perry decision.  Innocent people will be wrongfully convicted and maybe even sentenced to death and executed as a result of Perry.  The Supreme Court had a chance to take a small step to make the system more fair.  Instead, they basically went backwards.*

*Once again, in an opinion by Ginsburg, a member of the alleged "liberal wing" of the Supreme Court.  Of course, that isn't going to stop pretty much every commentator from describing her (and Kagan and Breyer who joined her opinion) as liberal.  Tragic on many levels.  

On the other hand, Maxwell actually was a bright spot in habeasland.  The main issue in Maxwell focused on the reliability of a jailhouse informant.  The particular informant who had testified against Maxwell, Sidney Storch, was an infamous liar who had repeatedly testified in criminal cases as a jailhouse informant in order to gain personal advantages.  As I discussed in a prior post, outside of the unreliability of the jailhouse informant, the evidence of guilt was nearly non-existent.  There were compelling reasons to believe that an innocent man had been wrongfully convicted and sent to prison for life.

In Maxwell's case, the state courts premised its denial of relief on the factual finding that there was “no credible or persuasive evidence Sidney Storch lied at [Maxwell’s] trial in 1984.”  The Ninth Circuit had granted habeas relief, "meticulously set[ting] forth an avalanche of evidence demonstrating that the state court’s factual finding was unreasonable."*

*Quotes are from Sotomayor's opinion, discussed more below.

After relisting the case numerous times, the Supreme Court finally denied cert.  That was welcome news.  It also probably means that Maxwell won't be retried and will eventually be released.

Sotomayor issued an opinion respecting the denial of cert., stating that the Ninth Circuit properly did its job -- both procedurally and substantively -- in concluding that the state court's factual finding was unreasonable.  Although not directly, her opinion does raise some awareness about the problem of jailhouse informants in detailing the ways that Storch used alleged jailhouse confessions to get personal benefits.  And Storch is far from the only problematic jailhouse informant out there.

Scalia, joined by Alito, dissented from the denial of cert.  He makes the same old complaint that the Ninth Circuit didn't show enough deference to the state court.  His analysis isn't very persuasive, as he relied upon evidence that even the state courts found to be ludicrous.  As Sotomayor points out, Scalia's argument boils down to this: although there was evidence showing that Storch lied almost every time he opened his mouth, he miraculously told the truth about Maxwell's jailhouse confession.  It's pretty ridiculous.  At bottom, it appears that Scalia was simply taking another opportunity to criticize the Ninth Circuit -- a standard conservative legal dog whistle.

Finally, Hardy v. Cross was another entry in the Supreme Court's expanding "summary reversal based on a lack of deference" jurisprudence (Maxwell obviously escaped that fate).  The full Court concludes that the Seventh Circuit was not sufficiently deferential to the state court's conclusion that the prosecution made a good faith effort to find an unavailable witness. 

The opinion is short and there really isn't much in it.  My sense is that the Seventh Circuit cut through the b.s. and understood that the prosecution's claim of good faith was empty, as the prosecution made the most minimal effort to find the witness.  But I am constrained to agree that the law basically says that the minimal effort that was made there was all that's necessary.  Of course, as I am sure the Seventh Circuit understood, if the prosecution or the police really wanted to find the witness (for example, if they wanted to arrest her), it would have taken them probably about an hour to do it.  But that's not the standard.  So it's hard to say that the state court acted unreasonably.  But that is not to say that this was fair.  Just not (apparently) unreasonable.

Habeas Corpus - Gonzalez and Smith

Yesterday, the Supreme Court issued its opinions in the habeas case of Gonzalez v. Thaler and the front-end case Smith v. Cain.

Gonzalez concerned two issues: whether certain requirements about the content of a COA were jurisdictional and when the time period began to run for the one-year statute of limitations when petitioner did not seek review from the highest state court from which review was possible.  Both issues are pretty dull.

Sotomayor wrote the opinion and concluded that the content requirements were not jurisdictional.  The only jurisdictional requirement of a COA is that a court must issue one.  It's the obvious result.  As I explained before, the entire issue was laughable.  Truly.  Eight judges agreed. 

For some reason, Scalia dissented.  I mean, I read his dissent.  And he certainly believes that the contents of the COA should be jurisdictional from his take on the statute and the Court's past jurisdictional jurisprudence.  But it's certainly not a better reading of the statute or the prior cases.  And from a practical point of view, it's pretty absurd.  And Sotomayor said why, but not directly enough -- it is a court that issues the COA.  When a court messes something up in an order, a court typically has the power to fix it.  We saw the Second Circuit do that recently with respect to a deficient COA.  Just send it back to the issuing judge to fix it.  It is ridiculous -- truly -- to think that either a federal district court judge or a circuit court judge can deprive the federal courts of jurisdiction based on a mistake that a federal judge made in a COA order.  This whole thing was such a waste of the Court's resources.

As for the other issue, the Court reads the language of the statute literally and says that the limitations period begins to run when the time to seek discretionary review in the highest available court expires.  It's the obvious result.  But the situation in Gonzalez is not that simple.  Petitioner had argued that the time should run from when the intermediate appellate court issued its mandate, which starts the clock to run in state court as to when the petitioner can file a state habeas corpus petition.  So the mandate has significance in state court.  But the habeas statute really doesn't contemplate such procedural subtleties.  Sotomayor suggests that, if a mandate is being overly delayed, the petitioner should file his habeas petition in federal court and ask for a stay.  I don't think that's a particularly credible option.  But now that it has been suggested by the Supreme Court, hopefully federal courts will follow it and allow stays in situations where the state courts have more compicated procedural rules that may interfere with a literal application of the one-year time requirements.

Turning to Smith, it's a nice little decision.  As SCOTUSblog noted, it's power is in its brevity.  It's an obvious Brady violation that must result in the reversal of the conviction.  It's just shocking that it had to get all the way up to the Supreme Court for that to happen.

For some reason, Thomas dissented.  I read his dissent.  He is fundamentally wrong.  It is simply ludicrous to think that the defendant here did not meet the Brady standard -- this was suppressed, favorable impeachment evidence of the main witness against the defendant.

And here is where Thomas's silence at oral argument has an impact.  From all media reports, this was a brutal oral argument for the State.  From what I remember, Kagan asked the State's attorney whether they had thought about conceding.  That's extreme.  And from what I remember, no judge spoke up in defense of the state court's decision.  So the story here was that the State really didn't have a leg to stand on and their fight to uphold this conviction was nearly in bad faith.  At the very least, in severe bad taste.

Of course, Thomas remained silent.  No questions of the defendant's attorney about why the conviction should be considered reliable.  No helpful questions for the State seeking to explain to the world, under intense media scrutiny, as to why the criminal justice system should accept a criminal convicion under these circumstances. 

And then he issued a dissenting opinion.  How can anybody who is paying attention see that as credible?  It's why oral argument matters, at least in the Supreme Court.  It's really a time for the world to get a visual and oral picture of what's going on in this case.  The world got to see that this conviction stinks.  If Thomas wanted to get the world to see it his way, he should have tried to make that case at oral argument when at least one crucial chapter of the story gets written.  Now, nobody who is paying attention is going to agree with him.  They saw with their own eyes and heard with their own ears that there was something egregiously wrong here.

Habeas Corpus - The Good

I had mentioned that there was both good and bad during my break from blogging.  I already talked about the really, really bad.

Let's shift to the good.  The Second Circuit granted a habeas petition back on December 1 in Cornell v. Kirkpatrick.

The issue actually is pretty simple.  IAC based on counsel's failure to object based on venue grounds.  Petitioner was charged with two rapes.  Only one of the rapes occurred in the county in which he was tried.  The prosecutor acknowledged this in his opening and closing, and, according to the Second Circuit, the evidence established that one of the rapes did indeed occur in a different county.  The prosecutor had proceeded under the "automobile exception" to the venue statute.  But the Court of Appeals had strictly limited that exception to situations where it was literally "impossible" to determine the actual county.  It is pretty clear (or at least clear enough) that this happened in the county that housed Rochester and its environs -- not the county in which the case was prosecuted.

One other note: the court only granted relief on the conviction for the rape that took place in the other county.  The court determined that this error had no spill over effect on the rape case that was prosecuted in the appropriate county.

Honestly, this seems like a pretty easy case to me.  It really is an issue that should have been resolved back in state court.  But when faced with a situation like this -- a winning, purely legal issue, where relief should be granted even though the evidence of guilt in a highly inflammatory case is strong -- state courts are often hesitant to do what's right.  One reason why federal habeas relief remains so vital to the system.  Such a shame that the Supreme Court seems so dead set on rendering it powerless.

I read a nice discussion of the Cornell decision here.

Here are the details:

 Cornell v. Kirkpatrick, 10-561-pr 

• Reversing Denial of Habeas; Habeas Granted on
• Argued: 8/23/11; Decided 12/1/11; Published Opinion by Straub
• Panel: Newman, Cabranes, Straub
• Lower Ct. Info: 06-CV-0734, 2010 WL 161429 (WDNY Jan. 13, 2010) (MAT)
• In Circuit: Circuit Ct. COA
• Issue: (1) whether appellant was prejudiced by counsel's failure to object to venue in Ontario County; (2) whether counsel was ineffective for failing to request that a venue charge be delivered to the jury

 

Habeas Corpus - Second Circuit Matters

I have added a couple new cases to the Pending Second Circuit Cases page.

First, in lieu of doing a separate post covering the Second Circuit orders for the past two months (November and December 2011), I'll just mention here that there were zero COA's in November and only one in December.  The numbers continue to dwindle.

Here's the COA from December:

Munson v. Rock, 11-2943-pr (L); 11-3516-pr (Con)

• Status: Counsel Assigned, Form D filed
• Lower Ct Info: 09-CV-6655, 2011 WL 2516499 (WDNY June 23, 2011) (MAT)
• In Circuit: Circuit Ct. COA
• Issues: Whether petitioner is entitled to a writ of habeas corpus based on his claim that he received ineffective assistance of counsel when counsel advised him that he faced consecutive sentences of up to 50 years in prison

After reviewing the upcoming calendars, I noticed a case that does not appear on the Pending Cases page.  Not sure how I missed the order as it was issued back in February 2011.  In any event, here it is:

Green v. Walsh, 10-3353-pr

• Status: Calendared for 2/2/12
• Lower Ct. Info: 03-CV-3606, 2010 WL 3037000 (EDNY Aug. 3, 2010) (RJD)
• In Circuit: Circuit Ct. COA
• Issues: whether the district court properly dismissed Green’s challenges as “beyond the scope of Rule 60(b)” when (1) Appellant’s sentence, subsequent to the district court’s denial of his petition filed pursuant to 28 U.S.C. § 2254, but prior to the filing of his Rule 60(b) motion, had been vacated and reimposed by the New York state courts, and (2) Appellant’s Rule 60(b) motion attacked the district court’s previous resolution of his claims on the merits

Habeas Corpus - Second Circuit Preview - Week of January 9, 2012

First Preview of the new year.  Still playing catch up, both at work and on the blog.  Priority is to catch up on the Second Circuit stuff.

One habeas case to be heard this week:

Wednesday, January 11

Hubrecht v. Artus, 10-3610-pr  

• Status: Calendared for 1/11/12, B Panel
• Panel: Jacobs, Wesley, Carney
• Lower Ct. Info:  05-CV-5861, 2010 WL 3187233 (SDNY Aug. 13, 2010) (RJH) (FM)
• In Circuit: Circuit Ct. COA
• Issues: whether the trial court violated appellant's constitutional rights to a fair trial and to present a defense by failing to: (1) charge a justification defense; (2) permit appellant to introduce evidence to support a justification defense, and (3) permit Appellant to introduce his exculpatory statements that he had shot the victim in self-defense, while allowing the State to introduce testimony that might imply that appellant had made no statements to that effect