Habeas Corpus Blog

Habeas Corpus - Decision in Greene - Oh Boy Reprise

The Supreme Court issued its opinion today in Greene v. Fisher.  And as I expected (or is feared the better word?), the Court concluded that "clearly established law" is the law in place at the time of the relevant state court merits adjudication.  It was unanimous.  It's available here.

It's a short, pretty straightforward opinion.  Basically, it comes down to the language of the statute.  The Court believes that the language of the statute compels the result.  While the Court makes it seem like this is such a no-brainer, it really isn't.  If it was, then this would have been decided years ago.  Not to overstate it, but I think it does alter a common understanding of habeas law.

And this decision will have ripple effects throughout habeas law.  In particular on retroactivity and, in my mind, exhaustion.

As for retroactivity, the Court states that "clearly established law" and retroactivity are two different concepts.  But they are completely intertwined.  This decision is going to necessarily overrule parts of Teague.  It is going to be interesting (and probably a little frustrating) to see how this plays out.

This decision reinforces the idea of preclusive effect of state court decisions that I wrote about.  Once again, the Court uses the term "relitigation bar" as it did in Richter.  The state courts now decides what the clearly established law is.  Here's an example: Let's say that an intermediate appellate court issues its decision.  While the defendant is seeking review from the State's highest court, the Supreme Court issues an opinion favorable to petitioner.  The State's highest court then decides not to review the case.  In that situation, even though the state courts had the opportunity to correct the problem, the courts decided (in kind of a retroactive fashion) that clearly established law should be the earlier date.  They get to decide that the intermediate appellate court decision gets preclusive effect.  That's problematic.*

*Certainly, a defendant in that situation could (and I emphasize could) seek review from the Supreme Court.  But there is absolutely no guarantee that the Supreme Court would grant cert. to the defendant in that situation.  The Court in Greene seems to believe it's a GVR is a certainty.  But we saw after the decision in Melendez-Diaz that it's not a certainty. The Court held many petitions, but did not grant all of them.  For example, it denied cert. in Rawlins but Rawlins was right on point with Melendez-Diaz.  So seeking cert. is not a certainty.  It also now has no effect on the clearly established law date.  It also has no effect on exhaustion, as seeking cert. is not part of that process.

And, in my mind, Greene has an impact on exhaustion.  First of all, this decision is inconsistent with the exhaustion requirement.  The idea of exhaustion was to give state courts the first crack at a constitutional violation.  Now a denial of discretionary review is absolutely meaningless to habeas review.  Why force a petitioner to seek discretionary review if that step will in most cases have no impact on federal review?  It shifts the equities.  A petitioner may want to seek review from the higher state court, but it shouldn't be required to in order to obtain habeas relief.

So the Court has continued down the path of placing even greater restrictions on habeas review.  Not unexpected, but very troubling.

 

Habeas Corpus - Articles

I had two habeas-related articles published recently. 

The first is called “Actual Innocence after Friedman v. Rehal: The Second Circuit Pursues a New Mechanism for Seeking Justice in Actual Innocence Cases.”  It was published back in July in Pace Law Review. 

The decision in Friedman really is one of my all-time favorite decisions.  I wrote about it a lot when it first came out.  I looked at it as kind of like a perfect storm of pop culture, politics, and law.  Actually, in that particular post, I asked the following question:

Finally, on the law side, there is the nagging question in my mind of whether the judges should have delved into the innocence question.  It is safe to say that this was highly, highly unusual.  We may see something like this in a concurring opinion, or maybe a dissent.  But the majority opinion from a circuit court?  Exceedingly rare, if not one-of-a-kind.  I discussed this on the day the opinion came out.  I am not saying that I wouldn't want a court to do this. But the question remains:  did the court overstep proper judicial opinion-making boundaries in discussing their opinion of petitioner's innocence and pushing the DA to reinvestigate the case?

I kind of, sort of, as best I could, tried to answer that question in the article.  Actually, the question I answered was less about "proper judicial opinion-making boundaries" and more about whether a federal court in a habeas case should have done what the Second Circuit did.  I also cover other stuff and suggest that the Friedman decision can be used as a model for other federal courts to follow when faced with compelling claims of innocence on habeas review.  Warning: it's a long article.  You can read it here.

The second article was published last week in the Criminal Law Reporter.  I often write about the Toxic Twin opinions from the Supreme Court's last term, namely Richter and Pinholster.  I finally put my thoughts together and down on paper as to why those two opinions have really altered habeas law.  This article is not as long as the other.  Nevertheless, it goes into some depth on the issue.  You can download it here: Richter/Pinholster Article.

Habeas Corpus - Habeas Delay

A couple of months ago, I had read about a really interesting sounding academic article focusing on the "widespread and growing problem of delay in the resolution of habeas petitions in the federal courts."  The article itself is called, "The Hidden Costs of Habeas Delay" and it was written by Marc Falkoff, a professor at Northern Illinois University College of Law.  The author has informed me that a revised version of the article will be coming out in the University of Colorado Law Review later this year. 

I can say, from my office's experience, that we have definitely seen long delays in a good number of our habeas cases.  So this is a real issue in my mind.  The article should definitely be worth checking out.

Here's the full abstract:

Because habeas petitioners seek a court order for liberty rather than compensation, judges have a duty to decide habeas petitions promptly. Increasingly, however, the federal courts have failed to keep current with their heavy habeas dockets, with the result that many petitions – some proportion of which are meritorious – remain undecided for years. First, this Article makes the normative and historical argument that speed must be, and always has been, central to the function of habeas. Second, it analyzes newly compiled Administrative Office data on more than 200,000 habeas petitions and demonstrates empirically for the first time that there is a widespread and growing problem of delay in the resolution of habeas petitions in the federal courts. Third, the Article offers a specific and concrete remedy for the habeas delay problem, recommending that the Judicial Conference require judges to identify publicly all habeas petitions that have been pending in their chambers for more than six months, just as the Civil Justice Reform Act requires them to do for all other civil motions.

Habeas Corpus - More Push Back in Defense of Habeas

In the National Law Journal today, John Blume, Sheri Johnson, and Keir Weyble -- the three Cornell professors who penned the academic article in opposition to King and Hoffman's attack on habeas -- have an article entitled, "The gutting of habeas for state defendants."

It focuses mostly on the damage that the AEDPA has done to habeas corpus over the past 15 years.  But it also fights back against King and Hoffman. 

It's a good read.  Highly recommended. 

Habeas Corpus - Various Items

A few habeas-related things I have seen lately:

Further defense of habeas in response to King and Hoffman at a Ohio-focused blog called Gamso - For the Defense.  It's long but good.  And I joked about this before, but now The End of Habeas is a movie, or at least a youtube video.

An en-banc Ninth Circuit reaffirmed a prior grant of habeas relief to a "teen mass murderer" in Doody v. Ryan.  The court had previously granted habeas relief on the grounds that the petitioner had not been properly advised of his Miranda rights.  The Supreme Court GVR'd the case in light of Florida v. Powell.  However, on remand, the Ninth Circuit held that Powell did not change its conclusion that habeas should be granted.

At the other end, the Fourth Circuit reversed a grant of habeas in Jackson v. Kelly.  The district court had held an evidentiary hearing and then granted habeas relief based on IAC during the penalty phase of petitioner's case.  In the new extraordinarily restrictive post-Richter and post-Pinholster habeas landscape, the Fourth Circuit held that, based on the evidence that was before the state court, its decision was not unreasonable.

Freakonomics reports that a recent study to be published shows that initial sentences handed down to minority defendants convicted of killing white victims were as much as 9 percent more likely to involve errors that had to be reversed than were those in cases involving a minority defendant killing a minority victim.  According to the summary of the study, "This result holds strong both for the cases that reach the final stage of revisions and appeal, the Habeas Corpus stage in Federal Courts, and for the full sample of cases in the first appeal stage, called Direct Appeal."

An interview with Laura Moye of Amnesty International about the Troy Davis case.

The Atlantic has a short post by Wendy Kaminer entitled, When Justice Becomes a Mere Technicality.  Using the Second Circuit case of Rosario v. Griffin as an example, the writer states that, under our current system, "as long as the state observes all procedural niceties (or technicalities), it is empowered to execute people* who, on second thought, seem innocent. The state is not required to entertain such inconvenient second thoughts."

*Kaminer acknowledges in her analysis that Rosario has actually been sentenced to 25 years to life, not the death penalty. Nevertheless, her logic stays the same -- the State won't reconsider the question of petitioner's innocence even though he faces a maximum term of life in prison.

 

Habeas Corpus - Push Back - UPDATED

I am beginning to see even more push back on the internets against the King and Hoffman op-ed advocating the end of habeas corpus as we know it.

First, there was this column by Andrea Lyon over at Huffington Post.

Second, there were these letters (warning - NYT link)* at the New York Times.

*Fine, New York Times, you got me.  I am relaxing my policy about linking based on their new digital subscription policy.  I guess I'll just have to include a warning that it is a New York Times link.  And, just to avoid any appearance of unfairness, here is a link to the King and Hoffman op-ed (warning - NYT link), which I did not link to under my old policy.

Maybe I'm a dreamer, but I do not seem to be the only one who's pretty upset about King and Hoffman's assault on habeas.

UPDATE: Not a full-throated push back against King and Hoffman, but still some effective opposition can be found over at White Collar Crime Prof Blog.

Habeas Corpus - The End of Habeas, Ad Infinitum - Updated

First, it was a law review article.  Then it was a book.  Then, this weekend, it became an op-ed in the New York Times.*  And now it is a website.

*I am going to continue my previous stated policy of not linking to the Times due to their new digital subscription format.

I'll say this, these guys really know how to get their message out there.

I wish I had the time and the energy to give a more academic/formal opposition to the "Let's End Habeas Corpus"* argument.  I probably should since their position undermines the very existence of this blog.  Hopefully I can do that someday.  At least we have those professors at Cornell that made a go of it.  I guess I can link once again to My Very Bloggy Opposition from when the law review article came out.

*Yes, I know they are advocating a drastic reduction, as opposed to a complete end, to habeas.  But, in my mind, their suggestions would pretty much represent an end to habeas for non-capital state prisoners.

But I'll just add (or maybe repeat) this: the claim that habeas is somehow broken is really disingenuous. The only reason that habeas can be considered broken or ineffective is due to a concerted effort from the right, for many years, to break it and make it ineffective.  It now allows people to step in and say, "Hey look it's broken!"  I guess it's mission accomplished for the right.  It's similar to their strategy on the government: drain the goverment of money to make it ineffective and then say, "Hey look everybody government is ineffective."  Mixing malapropisms, I guess it's won't get fooled again all over again.

As a big fan of the availability of habeas corpus for state prisoners, I really hope that momentum doesn't build for ending habeas.  Habeas corpus review for state prisoners is an exceptional and admirable part of our criminal justice/federalism system.  It is completely consistent with our country's long-time commitment to liberty from unconstitutional restraint.  As I have stated before, rather than ending it, we should be making it stronger and more effective.    

I should work on a pithy catch-phrase for each time this comes up.  Something like the "Mend it, Don't End it" catch-phrase that was used for welfare reform.  But I'll try and think of something original, maybe like "Habeas is Great, Let's Make it Greaterer!"

Yep, definitely needs some work.  Of course, suggestions are welcome.

UPDATE: First, please look at some of the suggested catch-phrases in the comments.  They are fun. 

Second, I did notice this nice column defending habeas in the Wisconsin Law Journal.  Thought I'd share it.   

Habeas Corpus - In Defense of Non-Capital Habeas

About six months ago, I mentioned the academic debate over whether or not non-capital habeas should be abolished.  There had been an article recommending its abolition with a shift in resources to increasing the quality of representation at trial.   At least I think that's what it was.  I read it a long time ago.  I posted about it here. And then there was a response by three Cornell Law Professors advocating that habeas be kept in place with some tweaks.  As you would expect, I enjoyed the article.

Thanks to CrimProf Blog, I see that the article in defense of habeas has now been officially published in the Cornell Law Review.  It can be found here: In Defense of Non-Capital Habeas: A Response to Hoffman and King

I previously thought that it had already been published.  Oh well, it's such a relevant debate to the issues that I cover around here that it doesn't hurt to post about it again.

Habeas Corpus - The End of Habeas, Part II

SCOTUSblog has a post up this morning about an academic debate over whether habeas should be abolished, at least to the extent that it allows individuals in custody to file a habeas petition.  The post points to an article in favor and an article in opposition to such a proposal.

The article recommending abolition is not new, at least in the internets.  I talked about it in August 2009.  As you can expect, I was not in favor of abolishing it.  That post was probably the most impassioned post I did around here.

I haven't yet made it through the article in response.  Sounds like it covers somewhat similar territory as I discussed in my post, but I am positive it does it in a less bloggy, more academic way.  It also seems to be a little old (seems like it was published in February). I'll read it when I get the chance and post my thoughts.

Habeas Corpus - Clearly Established Law

In my mind, one of the greatest dangers facing habeas petitioners is the Supreme Court's decision in Carey v. Musladin, in which the Court began to constrict what can be considered "clearly established law."  It's what I have often referred to as a the "troubling trend" in the wake of Musladin.

So I was very happy to read a recent article by Ursala Bentele* in the Lewis and Clark Law Review that does a fantastic job of breaking down the problems with the Supreme Court defining "clearly established law" to mean solely the holdings of prior Supreme Court cases.

*She is a professor of law at Brooklyn Law School.  D/D: I am an adjunct clinical professor there.

The article is entitled, "The Not So Great Writ: Trapped in the Narrow Holdings of Supreme Court Precedents."  You can get it here.

There are two parts of the article I particularly enjoyed.  First, she argues that the Supreme Court has not been consistently applying this concept.  She convincingly shows that, if the Supreme Court had strictly applied Musladin in ineffective assistance of counsel cases, then the results in several cases in which the Court granted relief would have gone the other way. 

Second, she also points out that the concept of "clearly established law" is not new, but has been around for a long time in the qualified immunity context under 1983 claims.  However, the Supreme Court has defined it differently for habeas than it has for 1983 claims.  This is something I had never thought about it.  It's fascinating to me.  After reading it, I started thinking: While the Supreme Court is free to do something like that, it seems odd that they would essentially ignore how they have defined this concept in a separate area of law.  It's almost as if they viewed it as a novel concept when they defined it in habeas cases in Williams v. Taylor.  But it wasn't.  

Check out the article if you get a chance.