Habeas Corpus Blog

Habeas Corpus - Pretty Good Term for Habeas

Yesterday, the Supreme Court issued its opinion in the final outstanding habeas case this term, Wood v. Milyard.  And it was another habeas win! 

The Court (via Ginsburg) held that, while a circuit court can sua sponte raise the statute of limitations defense, the court can only do that when the State forfeited the claim in the district court (i.e. failed to preserve) and only then in exceptional circumstances.  It cannot be raised sua sponte when the State affirmatively waives the claim. 

That's not the best holding that could have happened (best=statute of limitations cannot be raised sua sponte in any situation), but it's still pretty good.  In particular, the Court seems to give "exceptional circumstances" a pretty restrictive meaning.  So it's not as if the circuit courts have carte blanche to go around sua sponte'ing the statute of limitations everywhere.  And in Wood's particular case, the Court concluded that the circuit court abused its discretion in raising the defense sua sponte since the State waived it in the district court.  Nice little win.

And the decision was (mostly) unanimous.  At least unanimous in result.  Thomas concurred (joined by Scalia).  These two Justices, furthest to the right, would have gone even further than the majority and held that the defense cannot be raised sua sponte at all -- even when it was forfeited.  Thomas offers a very literal reading of the rules and says that they prevent the defense from being raised sua sponte. That's pretty consistent with his judicial philosophy generally -- elevating text above all else.  At least he's (ostensibly) consistent.

But it's funny.  Someone mentioned this to me today -- the rules are typically the rules unless they are being applied to habeas cases.  Then all bets are usually off.  The holding here is a good example.  As Ginsburg mentioned in her main opinion, there is no way that a circuit court would be allowed to get away with raising a defense sua sponte in a civil case.  But habeas is different.  The Court felt pretty comfortable carving out an exception to that rule in a habeas case.  Because habeas is different. 

But even with that, it still counts as a habeas victory.  By my count, that's four habeas victories (including a habeas grant!) this term.  There was Maples (excusing a procedural default when counsel essentially dropped the ball), then Martinez (excusing a procedural default based on IAC in a collateral proceeding), then Lafler (IAC in plea negotiations - the habeas grant), and now Wood.  And even though there were several big losses (Greene comes immediately to mind), that's still a pretty good term in habeas, especially compared to the last term (which I view as potentially the absolute nadir in the history of habeas law -- at least post-AEDPA). 

I have yet to put up a post about Lafler.  I am thinking that it's probably going to have a pretty big impact, so I hope to share my thoughts on that one at some point soon.

Habeas Corpus - Huge Habeas Win in Supreme Court

I apologize for the lack of activity around here over the past two months.  Too busy to blog, basically.  But I have been keeping track of things.  I do intend to catch up on habeas stuff from the past few months.  Probably going to be awhile for all of that to happen.

But I could not resist blogging about today's huge habeas win in Martinez v. Ryan.  I listed Martinez as the most anticipated habeas case of the term.  And it did not disappoint.  Here's the holding, courtesy of Justice Kennedy:

Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.

What does that mean?  Well, according to Kennedy, it does not mean that a criminal defendant now has a constitutional right to the effective assistance of counsel at an initial-review collateral proceeding.*  But a habeas petitioner can now argue that an attorney's ineffectiveness at such a proceeding can represent the excuse for a federal court to review the merits of an IAC claim related to trial counsel that was not raised in state court.  Get it?

*Kennedy defines initial review collateral proceeding as a collateral proceeding (in NY we are talking about 440's) which provide the first occasion to raise a claim of ineffective assistance of counsel.  Most States relegate IAC claims to collateral proceedings.  New York does this too, for the most part.

I know it's a morass inside of a labyrinth of complicated habeas issues.  I find it difficult to break it down any more simply without going back to square one of habeas law and mapping it all out.  I'll just say, it's a big deal. 

Why is it a big deal?  One may ask.  Does it change anything?  Two may ask.  Will it change anything?  Three may ask.  I think that Three asks the most pertinent question.  And, in my mind, the answer to Three's question is definitely yes. I think, as Scalia lamented in his cutting dissent, it will lead to States assigning attorneys in most, if not all, initial-review collateral proceedings. 

What's interesting is that, while Kennedy tries to keep the holding narrow, the rationale behind the holding is really broad.  In fact, Kennedy does a great job of explaining why an attorney is necessary in these types of proceedings.  Here's what he says:

    Where, as here, the initial-review collateral proceeding is the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial, the collateral proceeding is in many ways the equivalent of a prisoner’s direct appeal as to the ineffective-assistance claim. This is because the state habeas court “looks to the merits of the clai[m]” of ineffective assistance, no other court has addressed the claim, and “defendants pursuing first-tierreview . . . are generally ill equipped to represent themselves” because they do not have a brief from counsel or an opinion of the court addressing their claim of error. . . .

    Without the help of an adequate attorney, a prisoner will have similar difficulties vindicating a substantial ineffective-assistance-of-trial-counsel claim. Claims of ineffective assistance at trial often requireinvestigative work and an understanding of trial strategy. When the issue cannot be raised on direct review, moreover, a prisoner asserting an ineffective-assistance-of-trialcounsel claim in an initial-review collateral proceeding cannot rely on a court opinion or the prior work of an attorney addressing that claim. . . . To present a claim of ineffective assistance at trial inaccordance with the State’s procedures, then, a prisoner likely needs an effective attorney.

    The same would be true if the State did not appoint an attorney to assist the prisoner in the initial-review collateral proceeding. The prisoner, unlearned in the law, may not comply with the State’s procedural rules or may misapprehend the substantive details of federal constitutional law. . . . While confined to prison, the prisoner is in no position to develop the evidentiary basis for a claim of ineffective assistance, which often turns on evidence outside the trial record.

So, there are really logical and highly equitable reasons for providing an attorney to help a defendant litigate that type of claim.  Of course, those reasons were around before Martinez and, sadly, are not what's going to motivate the States to assign counsel. 

Rather, the States are going to start assigning attorneys because it will provide them cover when they go to federal court.  It will essentially nip the cause argument in the bud.  The State will assign an attorney and when they get to federal court they will stand behind the attorney's actions, which will be given a great deal of deference under the IAC standard.  It is the most prudent action for the State to pursue, as opposed to taking the risk of having to litigate the merits of all of the underlying IAC-trial related claims in federal court.

I am guessing that a lot more needs to be (and will be) said about Martinez over the next couple of months.  I am going to process it some more and see if there is an easier way to break it down.  But for today, I'll just be happy about the habeas win. 

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 - 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 Really, Really Bad

As I mentioned in my return post, there was some good and bad during my absence.  And I'd register one recent Second Circuit decision as really, really bad.  I thought I'd start with that since a reader asked about it in a comment to my return post.

Last Friday, in an opinion that left me absolutely speechless, the Second Circuit reversed itself on the habeas grant in Rivera v. Cuomo. The original opinion in Rivera granted habeas based on insufficient evidence of depraved indifference.  It really was one of those situations where the lack of evidence to establish that crime was clear.  While a habeas grant, the court wasn't really going out on a limb in making that conclusion.  I have just re-read it.  It was a point-blank shooting!  There is no way, particularly under the facts of Rivera, that such an act can constitute depraved indifference.  It was just one of those cases where the state courts refused to do what was right legally, probably because of the disproportionately favorable consequences of such a decision for the criminal defendant.

But now the Second Circuit has reversed itself.  And the court did it in a really troubling fashion.  In an exceedingly brief opinion, the court does not even acknowledge it got anything wrong about the analysis. No, here's the entire reasoning why they are reversing itself:

Respondents filed a petition for panel rehearing or rehearing en banc, and the United States Supreme Court decided Cavazos v. Smith, which strongly reasserted "the necessity of deference to state courts in § 2254(d) habeas cases." 132 S. Ct. 2, 5 (2011). In light of Respondents' petition and the Supreme Court's guidance in Cavazos, we have revisited our original decision to ensure that we had afforded the state courts and the jury the full extent of the deference they are owed under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 112 Stat. 1214. See Cavazos, 132 S. Ct. at 3 (emphasizing the double deference owed in § 2254(d) habeas cases). After much reflection, we now reverse course. Applying the law as it existed after Rivera's conviction became final in July 2004, we find that although evidence of "significantly heightened recklessness," People v. Sanchez, 98 N.Y.2d 373, 380 (2002), was slim, at best, giving the state courts and the jury the utmost deference, we cannot find that the evidence was so completely lacking that no rational jury could have found Rivera guilty of depraved indifference murder. See Cavazos, 132 S. Ct. at 1-5; Renico v. Lett, 130 S. Ct. 1855, 1862 (2010).

I have absolutely no connection to this case, but even I felt that proverbial punch to the stomach.

Sorry, but this just doesn't smell right.  There is nothing in Cavazos that has an impact on this case.  Sure, Cavazos was a legal insufficiency case.  But the facts of that case were completely different.  That had to do with a federal court wrongly evaluating the impact of expert testimony.  The stuff about deference for a legal insufficiency claim was well established before that case.  I just re-read the Second Circuit's opinion (again) and I think the court made perfectly clear that the facts in Rivera's case, no matter how they could possibly be interpreted, cannot support a depraved indifference conviction.  It was legally impossible.  That was the court's point.

So there is something weird going on here.  But I really don't know what it is.  Clearly, the panel lost the confidence of their conviction that appeared in the original opinion.  But the reasons they give don't explain it.  Not even close.  Were they worried that the decision in Rivera would open the floodgates in other depraved indifference cases? (I am guessing no).  Were there whispers among the judges that an en banc was going to happen, and these judges did not want to be embarrassed by a reversal? (Slightly more likely). Has the Supreme Court's philosophical change on habeas that began last term and has continued into this term with a string of condescending summary reversals that directly insults the lower court panel scared the circuit courts? (Also, slightly more likely).

No matter what the explanation, this is a real nadir for habeas in the Second Circuit.

Habeas Corpus - District Court Review - Straight Up COA!

In the past couple of District Court Reviews, I had been lamenting the fact that district court judges have been overly stingy with the COA's this year.

Well, a district court judge finally granted one last month.  It was in a case called Marte v. Berkman on a double jeopardy claim.  It has an interesting procedural posture, as petitioner was seeking a stay in the state court criminal proceedings based on the double jeopardy claim.  Since there was no criminal judgment, the DJ considered the petition as brought under 2241.  There appears to be authority for doing that.  What's interesting about that is that it is not clear what the standard of review would be in such a situation.  Additionally, a federal petitioner does not typically need a COA to appeal the denial of a 2241 to the Second Circuit.  It's an open question in the Second Circuit as to whether a state petitioner in a 2241 petition needs to get a COA.  So those are interesting issues.

Without getting too much into the specifics of the underlying double jeopardy claim, the question was whether the trial court's declaration of a mistrial was a manifest necessity at the time the court ended the jury's deliberations and excused the jury.  The state judges -- both in the Appellate Division and in the Court of Appeals -- were all over the place on whether or not there was a manifest necessity. 

The DJ denies the petition, but granted a COA.  Here's what the DJ said in granting the COA:

The petition[er]'s path through the state court system alone demonstrates that reasonable jurists could disagree with this Court's rejection of the double jeopardy argument; in fact, an Associate Justice of the New York Supreme Court, Appellate Division, an Associate Judge of the New York Court of Appeals, and the Chief Judge of the New York Court of Appeals already have. Additionally, the seemingly open question regarding the appropriate standard of review and the necessity of a certificate of appealability weigh in favor of appellate review.

Here are the details:

Marte v. Berkman 

• Habeas Denied; COA granted
• Lower Ct. Info: 11-CV-6082, 2011 WL 4946708 (SDNY Oct. 18, 2011) (JFK)
• Issues: (1) double jeopary violation - whether the trial court's declaration of a mistrial was a manifest necessity at the time the court ended the jury's deliberations and excused the jury; (2) standard of review on a 2241 petition; (3) is a COA necessary when appealing a 2241 denial

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 - Another Summary Reversal- Oh Boy - Updated

Update: I edited this a little for clarity.  And I completely forgot to include the "Oh Boy" video.  I can't believe I neglected to do that, considering that's why I used "Oh Boy" in the title.  That's now at the bottom of the post.

Today, the Supreme Court issued another per curiam summary reversal.  It was in the previous relisted case of Bobby v. Dixon.  Unlike last week's, this one is unanimous. 

But this one is causing me a great deal of concern.  I have previously written how I believe that the decision from last term in Harrington v. Richter was a game changer.  Here is where we see just how profound that impact is.  But it's not necessarily in the result in this case.  It's hard to say that Richter was outcome determinative in this summary reversal.  It looks as if the Sixth Circuit didn't do a great job justifying their opinion.

But the language that the Court uses here builds upon Richter in a really troubling way.  As we all know by now, in order to get relief under 2254(d)(1), a petitioner must show that the state court's decision was an "unreasonable" application of clearly established law.  Although the Court had previously stated that "unreasonable" was difficult to quantify and qualify, the Court last term in Richter changed that and gave it a precise meaning.  To show that something is "unreasonable" a petitioner must show "that the state court’s ruling onthe claim being presented in federal court was so lackingin justification that there was an error well understoodand comprehended in existing law beyond any possibility for fairminded disagreement."  When I read this, it felt to me like this standard was nearly impossible to meet.

And now the entire Supreme Court -- and I mean all 9 judges -- is saying just that.  The Court says that, to meet this standard, the state court's error must be "grievous." 

Definition of grievous: flagrant; outrageous; atrocious.

Synonyms (from same link): deplorable, lamentable, calamitous, heinous, flagitious, dreadful, shameful, iniquitous.

Later, the Court says that the state court's error must be "egregious."

Definition of egregious:  extraordinary in some bad way; glaring; flagrant.

Synonyms (from same link): gross, outrageous, notorious.

I wish I was making a joke here, but what happened to "unreasonable"?  Grievous and egregious?  They are not even synonyms for unreasonable.  It's a step up from unreasonable.

That's the impact of that new standard in Richter.  It has moved the needle so far to the right that the showing is no longer "unreasonable."  The burdensome Richter standard has created the space for the Court to use descriptive words that go beyond "unreasonable."  Now, a petitioner must show that the state court's decision was extraordinarily or outrageously bad.  Of course, that is not what the statute says.  But, unfortunately, that is now the test.  Just mindblowing to me. 

Really, here is the new standard:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted  . . . unless the adjudication of the claim -

(1) resulted in a decision that was an outrageously or extraordinarily wrong application of clearly established Federal law as determined by the Supreme Court of the United States . . .

Not quire sure what comes next.  Seriously, what adjective is worse than "grievous" or "egregious"?  Actually, wait, don't answer that question.  I am worred that the Court will consider using it in the next summary reversal.

Update: Here's the "Oh Boy" video.  It captures my sentiments here:

 

Habeas Corpus - Wednesday's Transcripts

The transcript in Gonzalez is available here.  And the one in Perry is available here.

Unfortunately, I haven't yet had a chance to read either.  But I did read through SCOTUSblog's review of the Perry argument and the New York Times article on the argument.  Wow.  Just wow.  I was skeptical that the Court would take the identification issues seriously, but I had no idea it would be that bad.  Beyond not really even caring much about the new research on the unreliability of eyewitness identifications, it appears as if some of the judges would like to cut back on the current safeguards. 

The logic seems to be that jurys are capable of sifting through all the factors that could potentially lead to an unreliable identification.  But that's precisely the point.  The research has shown that jurys believe eyewitness identification despite all of the reasons not to.  And that has led to more and more wrongful convictions. 

It's all so troubling.  Society's view on these matters seems to be going in one direction while the Supreme Court seems to be going in the other.  What's sad is that the Court used to lead on matters of fairness in the criminal justice system.  Now, it seems completely out of touch with the acknowledged problems facing the system.  It's a disturbing disjunction.

As for Gonzalez, from the SCOTUSblog review, it looks like the Court intends to focus on the COA issue and a majority of the Court does not seem ready to conclude that it is a jurisdictional requirement.  In other words, these judges seem to believe that a defect in a COA order can be cured.  As I said before, I just find the whole thing a little nutty.

 

Habeas Corpus - Gonzalez & Perry - Reminder

Just as a reminder, the Supreme Court will be hearing oral argument today in the habeas case of Gonzalez v. Thaler and the front-end case of Perry v. New Hampshire.

The issues in Gonzalez are: (1) was the order granting a COA sufficient; and (2) for the one-year statute of limitations, what date is used to determine the end of review in state court.

The issue in Perry is: does a non-police-arranged unduly suggestive identification procedure require suppression of an in-court identification?

For more on Gonzalez, see here.

For more on Perry, see here.