Habeas Corpus Blog

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 - February Calendar

By JK

The Supreme Court released its calendar for it's February sitting.  

And there is going to be a habeas day! This time, it's February 25, 2013!  The two most recent habeas cert. grants, McQuiggin v. Perkins and Trevino v. Thaler, are both calendared for that day.

For more on those cases, please read Matt's post about McQuiggin and Alex's post about Trevino. 

McQuiggin v. Perkins: The Due Diligence / Actual Innocence Showdown

By MK

A few weeks back, Jonathan posted the Supreme Court's cert grant in McQuiggin v. Perkins, No. 12-126.  The case will not be argued until early 2013.  But this week an article appeared about the case by Times court-watching superstar Adam Liptak, so I figured it would be a good time to start following it here. 

The underlying case is fairly simple.  Three men leave a party: two return, the third is found dead.  One of the two (Perkins) is put on trial - he says the other guy did it.  "Other guy" testifies that Perkins did it.  The jury believes Other guy and Perkins is sentenced to life.  Over the following five years, Perkins obtains affidavits from three people casting suspicion on Other guy (including one from a local dry-cleaner who remembers Other guy dropping off heavily bloodstained clothes around the tiime of the murder).  Perkins then waits ANOTHER six years to file his 2254 petition. 

The case deals with a question that has divided the Circuits for several years: whether a late-filing habeas petitioner seeking equitable tolling of AEDPA's 1-year limitations period needs to demonstrate his due diligence in bringing his claim even when he makes a bona fide (or "gateway") claim of actual innocence.  Or, as the Question Presented puts it: "Whether there is an actual-innocence exception to the requirement that a petitioner demonstrate that "he has been pursuing his rights diligently."

The issue is superficially procedural, but the case is very important for three reasons.  The one-year bar imposed by AEDPA in 1997 still catches many prisoners unawares, so equitable tolling cases come up fairly often.  And the law in this area is still fluid: one of AEDPA's ironies is that a limitations period designed to cut the habeas workload of the federal courts in practice spawned an entirely new habeas subspecialty dealing with exceptions to the one-year bar. 

Most importantly though, the issue invokes a deep tension running through postconviction law in general.  On the one hand, no lawyer (and certainly no Supreme Court Justice, except maybe J. Scalia) is comfortable with the idea of tossing a credible claim of innocence simply because it was filed late.  As the pace of exonerations grows, so too does this discomfort.  On the other hand, a broad "actual innocence exception" credibly threatens to swamp the general rule of due diligence.  As the amicus brief of ten states bluntly puts it: "unscrupulous prisoners falsely claim that they are innocent all the time.”  Even more would do so in order to get their late claims heard under the proposed exception.

Given the importance of the issue, it's not surprising the Supreme Court decided to hear it.  And the Court likely wants to provide some consistent guidance.  It's prior discussions of actual innocence are hardly consistent.  In House v. Bell, 547 U.S. 518 (2006), the Court suggested that gateway actual innocence claims are not subject to any "additional requirements.”  Other cases, such as Holland v. Florida, 130 S. Ct. 2549 (2010), and Pace v. DiGuglielmo, 544 U.S. 408 (2005), indicate that "those seeking equitable tolling must, in general, pursue their claims with reasonable diligence.”

Liptak raises an interesting possibility: the Court could find that Perkins actually was dilligent.  The State points out in its cert petition that Perkins "has never argued that he was diligent in waiting six years . . . until filing his habeas petition."  But Liptak refers to district court filings in which Perkins contends that he was hampered in his efforts when prison staff destroyed his personal property "following petitioner’s involvement in inciting a riot."  Perkins also contended that he "was denied access to the law library and law materials while he was held in solitary confinement" for almost five years.

I don't think the Court will go this route.  It is true that the evaluation of due diligence must not “ignore the reality of the prison system,” Easterwood v. Champion, 213 F.3d 1321 (10th Cir. 2000).  But Perkins has had many chances to substantiate his due diligence claims and yet has apparently not done so.  More importantly, it is unlikely that the Supreme Court will avoid settling the Circuit split.  A finding of due diligence would make any answer to the QP obiter dictum. 

More to come on this interesting case. . . .

 

Habeas Corpus - New Cert. Grants

Just last week, I mentioned that the Supreme Court doesn’t have much on its habeas plate this term. Well, that changed a little Monday.  The Court granted cert. in two habeas cases:

(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

There is a circuit split on the primary issue in McQuiggin, which truly surprises, and disappoints, me.  Seems like a no-brainer to me: it is an exception to every other procedural default.  Why treat the statute of limitations any differently?  Particularly in a situation where equitable tolling is already allowed.  While the cert. grant makes me nervous, I actually think that it could go as much as 7-2 in favor of the actual innocence exception (hope I don’t have to eat those words).  

The diligence issue is a much closer call. Oddly, the McQuiggin case only dealt with the diligence issue; the Sixth Circuit had previously held that the exception existed.  The Sixth Circuit held in McQuiggin that there was no diligence requirement, which actually makes a lot of logical sense in this context – the whole reason why the exception is necessary is because the petitioner wasn’t diligent in filing the petition.  A diligence requirement would nullify the exception in many circumstances.*  The court's language actually was: "[W]e find that such a reading [which would require reasonable diligence] would render the concept of equitable tolling nugatory."

*That's a small oversimplification.  I guess it could be that a habeas petitioner may not have been diligent in filing the habeas petition, but was diligent once he obtained new evidence.  The only problem with such a distinction is that several courts, including the Ninth Circuit, have held that "new evidence" under the actual innocence exception does not require newly discovered evidence, but simply "newly presented" evidence (i/o/w evidence that may have always been known, but was not presented at trial).  In that situation, the lack of diligence in timely filing the petition would apply equally to the actual innocence claim.  If I have to guess, I'd say that this situation has the potential to pop up much more often than a "newly discovered evidence" actual innocence claim. 

I am worried about the Trevino case.  It will either provide reinforcement and strength to the Martinez rule (hope, hope, hope) or it will painfully limit it down to a very narrow set of circumstances.  Really hard to predict at this point.  The oral argument will provide a very good indication of where this is going.  But my sense is that the Court will have to apply Martinez to this type of situation, or else it would give the States too big an out to avoid the effects of Martinez.

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 - Around the U.S. - Part I

Some stuff I've seen:

A preview of the upcoming Supreme Court arguments from the North Country Gazette.

Speaking of Lafler v. Cooper, the Buffalo News had an article about the arrest of a man who obtained habeas relief in WDNY back in 2006 based on IAC during plea negotiations in a drunk driving prosecution in which he had struck and killed some people while drunk driving.  He was arrested for leaving the scene of a car accident that injured three people.

An article from Erwin Chemerinsky about the need for empathy on the Supreme Court.  One situation he points to is what happened in Maples.

More Troy Davis/anti-AEDPA coverage here.  The article indicates that, back in 2009, Rep. Hank Johnson from Georgia introduced legislation called the Effective Death Penalty Appeals Act (I guess it would be called "EDPAA," pronounced as a word the same as "AEDPA").  It received 17 co-sponsors, was referred to a sub-committee, but never obtained a hearing.  Here's the text of the statute.  The only change it would have made would have allowed a court to grant habeas relief in capital cases if petitioner could show that he was innocent.  Significant, but does not really address most of the complaints about the AEDPA.  Or at least it does not address my complaints.

Blood boiling time: two lawyers, one of whom served in the Reagan and Bush I Justice Departments, give a full-throated endorsement of the death penalty in response to the criticism from people upset over the Troy Davis case.  In their mind, the only problem with the death penalty in this country is that people are wasting everyone's time complaining about it.  I wish that was an unfair oversimplification of their position, but it really isn't.  A reader responds, what if the person executed is innocent?  Their response (and I really am not making an unfair oversimplification here) -- too bad.  They say that you can't have "perfect justice, which is impossible.  But the administration of the death penalty in the United States is as close to perfect as it gets."  A footnote adds that three times a day, the writers remove their heads from the sand in order to eat. 

Habeas Corpus - Around the U.S. (Abridged Version) - Corrected

Just a couple of things I've seen lately.

There was a somewhat recent habeas grant out of the Western District of Pennsylvania based on prosecutorial misconduct.  According to this article, "the prosecutors relied almost entirely on the testimony of a single witness who claimed to have witnessed Munchinski rape and shoot the two victims. However, the federal court judge said in her ruling that the alleged witness's story changed so often 'that one wonders whether he witnessed the murders at all.'"

The MJ who decided the petition also granted petitioner's request to be released from custody pending a new trial.  Petitioner had been in prison for 25 years.  The name of the case is Munchinski v. Wilson.

A really interesting habeas case out of Michigan referred to as the "Mother's Day Murder."  According to this article and video, a 7 Action News reporter in Detroit found a new eyewitness for the defense.  On Mother's Day 1999, a woman was shot while parked in a minivan with her three children aboard.  She later died.  Turns out the police never interviewed (at least) one of the children in the car.  This reporter found this child (who is obviously much older now) and he says that he could identify the shooter and his description of the shooter does not seem to match the description of either person who was convicted of the crime.  Most troubling to me was that it appears that the main evidence against the two people convicted of the crime were witnesses who claimed to hear the two defendants talk about the murder.  Those people later recanted saying that the police threatened them to implicate the defendants.

The habeas angle: the case is currently at the habeas stage in federal court.  The DJ assigned to the case has granted a stay to allow petitioner Justly Johnson to pursue the newly discovered evidence issue in state court.

Finally, on October 31 November 2, the Supreme Court is going to hear argument in the habeas case of Gonzalez v. Thaler.  Appeal and Habeas has a preview.

Habeas Corpus - AEDPA in the Spotlight

As a result of the Troy Davis execution last week, there has been a lot written about the death penalty.  And one of the focuses has been on the unfairness of the AEDPA.  For example, I liked this discussion about the Davis case that mentions the AEDPA.  Here's what it says about the AEDPA:

Compounding the effects of a hostile Supreme Court, in 1996 President Bill Clinton signed the Anti-Terrorism and Effective Death Penalty Act,which further reduced the ability of potentially innocent defendants to assert their rights in federal court. A post-Oklahoma City bombing response that followed the common pattern of using a horrible tragedy as a pretext for pushing through pre-existing priorities, the AEDPA made it much more difficult for prisoners who—like Davis— were presenting new evidence rather than claiming clear violations of federal law.

Good stuff.  But while there definitely is a lot of shame to be spread around in the Davis case, I have been wondering how much of it should be attributed to the AEDPA and its original adherents (such as President Clinton -- I have no idea how what he says here is relevant to the Davis case).*

*Clinton also seems to have a little bit of buyer's remorse with the AEDPA as we previously saw with Bob Barr.  They have nobody but themselves to blame for its unfairness.

Of course, it's no secret how much I dislike the AEDPA.  There is no doubt that it causes a significant amount of plain old unfairness.  It has some fundamental problems that fairness dictates must be fixed (assuming we can't get rid of the statute altogether).

Setting that aside though, did the AEDPA result in unfairness in the Davis case?  I guess I'd have to go back and look through the lower court decisions to see for sure.  If I had to guess, I am sure the AEDPA limited Davis in his federal habeas petition as much as it limited the average petitioner.  That's a bad thing, obviously, and it should get the much needed attention that it seems to be getting.

But with respect to the actual innocence part of the Davis case, the AEDPA hatred can only go so far.  Despite the AEDPA, Davis was allowed to bring the actual innocence claim.  And he was given a full evidentiary hearing on it -- something that the AEDPA (post-Pinholster) now almost otherwise forbids.  Certainly, if Scalia had his way in Davis, the AEDPA would have cut Davis off.  But a majority of the Court gave Davis the chance. 

Don't get me wrong, I am not saying that it was the finest day for habeas.  It is sad that it had to take the extraordinary remedy of an original writ in the Supreme Court for the hearing to happen (and of course I am not missing the irony that the original writ had to be filed as a result of the extreme restrictions in the AEDPA).  But the hearing did happen and the AEDPA didn't prevent it. 

I guess that what I am saying is that I am happy that new light is getting shed on the unjust AEDPA.  There is a lot of basic unfairness in the statute.  I am just not sure that the Davis case shows how unfair the statute really is. 

But at the same time I do believe that, unfortunately, there will be a case where the AEDPA is fully to blame for an unfair result that, like Davis, will result in an execution of someone who has shown significant reasons to believe he is innocent.  While Davis may not have been the example of that, we should not have to wait for that to happen before the unfairness in the statute is addressed.

Let me sum it up like this: AEDPA = unfair.  AEDPA not the biggest problem in the Davis case.  But that should not stop a reevaluation of the fairness of the statute to prevent a future injustice.

Habeas Corpus - Capital Habeas In the News

Capital habeas corpus has popped up in the national news this past week. 

First, on a really sad note, Georgia announced that it had set September 21 as the execution date for Troy Davis.  I followed that actual innocence habeas case very closely around here.  I am guessing I wrote more posts about that case than any other single case. 

Second, the Supreme Court ordered a stay in a death penalty habeas case out of Texas, Buck v. Thaler.  The main issue in the case is race-related -- at the penalty stage of the trial, a psychologist told jurors that black criminals were more likely to pose a future danger to the public if they are released.  It's an interesting issue, as there were other cases in Texas that had the same problem, but Buck was the only one of those cases in which the State of Texas did not agree to a new trial.  So Buck stands out.

But there is a problem.  And it appears to be a pretty big one.  Buck, obviously, is a habeas case.  And in its most recent decision, the Fifth Circuit concluded that the petition raising this race-related claim issue was second or successive.  It is this decision upon which Buck is going to have to seek cert.  Reviewing that decision, I am not sure if I see a ground on which Buck could obtain cert -- either substantively or procedurally.  So I think the odds that Buck obtains cert, even though there are serious issues in his case, are not looking good.

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.