Habeas Corpus Blog

Habeas Corpus - Martinez vs. Pinholster - Who wins?

By JK

Has the Ninth Circuit found another way around Pinholster?  Can a petitioner rely upon a Martinez argument in order to have a federal court review "new" evidence?  Boy, these pathways around Pinholster really are a hot topic in these parts.  

On Monday March 4, Judge Tallman, joined by many, if not all, of the other conservative judges on the Ninth Circuit, issued a published order dissenting from the denial of rehearing en banc in a capital habeas case called Schad v. Ryan.  

In an unpublished order, the three-judge panel in Schad remanded the case to the district court for that court to determine whether petitioner could rely upon Martinez to establish cause for a procedurally defaulted IAC claim.  Petitioner had raised an IAC claim based on counsel's failure to present mitigating evidence during the penalty phase.  In his habeas petition, petitioner was relying upon mitigating evidence that post-conviction counsel ("PCC") failed to present to the state courts.  While PCC had raised an IAC claim based on a failure to present mitigating evidence during the penalty phase, PCC had not presented this particular mitigating evidence to the state courts.*  This failure was the basis of the Martinez argument.

* Specifically, in state court, the claim focused on counsel's failure to investigate and present additional evidence regarding his tragic history of child abuse.  The new mitigating evidence in federal court was evidence of his mental illness as an adult.

This made these conservative judges angry.  In their mind, petitioner was using an improper way around Pinholster to have the federal court consider new evidence not presented to the state courts.  To them, this was not a "new" IAC claim.  In their eyes, petitioner was simply making the old claim prettier with fancy new evidence and then improperly arguing that Martinez allowed the federal court to consider that better-looking new evidence under a new IAC claim.

I find the dissenting judges' analysis a little hard to accept.  In my mind, these judges are simply unhappy with the logical consequences of Martinez.  I really don't think that there can be much of a debate that what the three-judge panel allowed here is fully consistent with Martinez -- petitioner was arguing cause based on post-conviction counsel's "errors" for failing to "properly present" an IAC claim.  Those are words quoted out of the first paragraph of Martinez.  

So Martinez has the upper hand in this round.  But the scorecard could change considerably after the en banc argument in Dickens.  Actually, reviewing the Schad unpublished order, it also appears that a Martinez argument is going to be addressed in the Detrich en banc as well.  Looks like there are going to be many battles up ahead over the reach of Martinez.

Habeas Corpus - Ninth Circuit Stays the Course

By JK

Soon after my move out here to the Ninth Circuit, I talked about a way that the Ninth Circuit has used to get around Pinholster.  Essentially, the Ninth Circuit will conclude that the highly deferential standard of review does not apply, and the court can conduct a de novo review and hear new evidence, where the state court's fact-finding was unreasonable. And one way in which a state court’s fact finding can be unreasonable is where the state court’s factual finding process was deficient.  More specifically, the Ninth Circuit has “held that the state court’s failure to hold an evidentiary hearing may render its fact-finding process unreasonable under § 2254(d)(2).” 

It's a lovely and creative way around the most problematic part of Pinholster.  But one problem with my prior post was that I did rely, in part, on a decision that subsequently went en banc, Detrich v. Ryan.  It means that the original panel decision is not binding law.  And that en banc rehearing remains sub judice.  The entire decision may end up getting completely vacated by the en banc court.

So I was pleased when the Ninth Circuit decided Hurles v. Ryan.*  In Hurles, the Ninth Circuit remanded a capital case for an evidentiary hearing on a judicial bias claim.  But to get there, the court had to find that the state court's fact finding process was deficient. Here's what the court said: "We have held repeatedly that where a state court makes factual findings without an evidentiary hearing or other opportunity for the petitioner to present evidence, the fact-finding process itself is deficient and not entitled to deference."  

* There seems to be a little bit of a convoluted history as to how this opinion got issued.  According to the summary, "The panel withdrew its opinion filed July 7, 2011, andpublished at 650 F.3d 1301 (9th Cir. 2011), filed a replacement opinion, denied a petition for rehearing and rehearing en banc as moot but allowed the parties to file a petition for rehearing and rehearing en banc with respect to the replacement opinion."  The instant opinion seems to be the one that was entered after rehearing.

Okay, it is not stated as clearly as it was in Detrich.*  But it really is the same principle: the federal courts can hear new evidence and/or hold an evidentiary hearing when the state fact-finding process was deficient.  And that includes when no evidentiary hearing was held in state court.  

* There they said that where the process was unreasonable, "we proceed to evaluate the petitioner’s claim de novo and may then consider evidence that was properly presented for the first time in federal court."

But I will point out that, I don't think it is just in the situations where a hearing was not held in state court (as the court stated in Hurles).  It must be where it was unreasonable for the state court not to have held a hearing.  In the court's defense, it's discussion in Hurles made clear that the state court was acting unreasonably throughout the fact-finding process.

Thus, the Ninth Circuit continues to offer this unreasonable-fact-finding-process as a way around Pinholster where the state court refuses to hold a hearing.  Let's hope that the en banc court in Detrich doesn't take it away.  

Habeas Corpus - Good News

By JK

I am happy to report that my powers of prediction were off!  And this is good news for habeas petitioners.

Last week, in my post about Johnson v. Williams, I stated that a likely casualty of Williams would be Pearson v. Winston.  As I mentioned previously, in that case, the Fourth Circuit concluded that, where the state court failed to develop the factual record with respect to petitioner's claims, there was no adjudication on the merits.  In that situation, there would be de novo review and the federal courts could consider new evidence.  It seemed like a likely candidate for a GVR after Williams.

But the good news is that the Court denied the State's cert. petition on Monday.  Here's a link to the order list.  Thank you relist watch on SCOTUSblog for pointing that out.

So Winston remains good law and, for now, offers a potential path around Pinholster.

Habeas Corpus - Sitting By Designation

By JK

Got a little bit of a backlog with recent Ninth Circuit habeas decisions.  Been a bunch.  I hate to group them all into a single post, so I plan on doing several relatively short ones.

Back on February 6, 2013, the Ninth Circuit issued its published opinion in Dyer v. Hornbeck.  The court affirmed the denial of habeas relief despite a Miranda violation.  

When I first saw the decision, I had to do a double take as the author of the opinion was Judge Robert Sack -- of the Second Circuit.  Looks like I was not the only one who headed West.  Of course, Judge Sack was only sitting by designation.  But it was nice to see a familiar name as I did argue a couple of habeas appeals before him.  I wanted to say, "Hey, Judge Sack, remember me?  You once complimented me and my adversary for doing a good job during an oral argument . . . (voice trailing off)"*

*Sorry to mention this type of ego-related thing, but it was a nice moment.  And it happened with both my former boss and my future wife in the audience.

In any event, you may have noticed that I said flatly "despite a Miranda violation."  Intentional.  The interesting part about the decision was the concurrence.  Judge Milan Smith explained that had this been a direct appeal, he would have found a Miranda violation.  However, since it was being decided under the deferential standard of review, relief had to be denied.  We've all seen this type of thing before. 

The frustration of that inspired me to create a new tag line for habeas review:

AEDPA - Tolerating Constitutional Violations Since 1996!

I'll use it when appropriate.  

 

 

 

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 - Undeserved Deference

By JK

Yesterday, the Supreme Court issued its long awaited decision in Johnson v. Williams.  The Court held that, for purposes of §2254(d), when a state court rules against a defendant in an opinion that rejects some of the defendant’s claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits.

I have to say that this decision has left me a little perplexed and a lot upset.  My inflammatory opinion is that the Court's current antipathy towards habeas has led it to issue an opinion that is simply divorced from any conceivable purpose of habeas corpus review.  While inflammatory, I believe that it is compltely justified.

Here's what I mean:  For various reasons, state courts often fail to address constitutional claims in their decisions even though defendants specifically raise them. To me, the whole point of the "adjudicated on the merits" language was a check on the state courts. It basically said to them, "you can have a tremendous amount of deference, but you need to actually adjudicate the claim to get it."  It encouraged the state courts to address constitutional claims.  It took some of the harshness out of the restrictions on habeas review wrought by the AEDPA because it was saying that you don't need habeas review because your constitutional rights will be protected in state courts.

Now, that's not true. The state courts have permission now to ignore the constitutional issue and still get deference. I think this is going to have a deleterious effect on constitutional rights. It creates an incentive for state courts to ignore them, knowing that a critical check in the system has been loosened.  It's not controversial to say that the original purpose of habeas review was to be a check on the state courts to make sure that constitutional rights were being adequately protected.  This decision is clearly contrary to what habeas was originally meant to be.

But it's not even consistent with the new purported purposes of habeas under the AEDPA.  This current Court has repeatedly stated that the purpose of the AEDPA was to make the state courts the primary forum for litigating constitutional claims and that habeas was just to prevent extreme malfunctions in that process.  Well, how is this decision consistent with that?  Under Williams, state courts don't even have to address constitutional claims and now there is a presumption that they are entitled to the super-high, "difficult to meet" deference of 2254(d).  What about that logic is consistent with having the state courts as the primary forum for litigating constitutional claims?  And, shouldn't the fact that the state courts failed to address a constitutional claim be evidence of a malfunction in the system?  Isn't that consistent with giving the federal courts more power to step in?  It's not logical.  It should be the opposite.

It's nothing more than antipathy for habeas guiding the result.

Oh wait, there's the irrebutable presumption.  Doesn't that make it better?  The most I can say for it is that it gives petitioner's a chance.  But I really have no idea how that's going to play out.  I mean, why isn't that overcome when the state specifically fails to address the constitutional issue? I really have no clue at this point what else the Court is asking a petitioner to do to overcome the presumption.

At this point, I think I'd like to break out the uncommon sense meter.  Try explaining to a layman that in habeas law there is a presumption that an issue was decided on the merits even though there was no actual decision on the merits on that issue.  Just try.  I dare you.  You are going to sound pretty crazy.  I think this may be a new high score on the meter.  And that says a lot.

But what's most depressing about all of this is that every judge on the Court agrees with the notion that silence=adjudicated on the merits.*  There is not a single judge on the Court right now that is willing to take a principled stand that federal courts should be stepping in when the state courts fail in their responsibility to address constitutional claims.  It's really, really sad.

*To note, Scalia would have gone even further and not had the presumption. 

One other likely casaulty of Williams is the Fourth Circuit's decision in Pearson v. Winston.  In that case, the Fourth Circuit concluded that, where the state court failed to develop the factual record with respect to petitioner's claims, there was no adjudication on the merits.  In that situation, there would be de novo review and the federal courts could consider new evidence.  It was a logical path around the unfairness of Pinholster.  I am not sure if this logic will be upheld after Williams.  The cert. petition in that case was being held by the Court.* I am guessing that it's going to be GVR'd after the next conference. 

*Actually, the hold in that case was what had originally gotten me worried about what was going to happen in Williams.  As I originally discussed, it did not appear from the argument in Williams that the Court was going to go this far with its opinion.  But there really wasn't a reason to hold Winston unless the Court was going to go in the direction that it did.  Now that it has gone this far, it has an impact on what happened in that case.

 

Habeas Corpus - Cert. Grant in Habeas Case

Last week, the Supreme Court granted cert. in A habeas case called Metrish v. Lancaster. It's a recipe for a reversal: it's a habeas grant coming out of the Sixth Circuit and cert. was granted to the State.

Here are the issues: 

(1) Whether the Michigan Supreme Court’s recognition that a state statute abolished the long-maligned diminished-capacity defense was an “unexpected and indefensible” change in a common-law doctrine of criminal law under this Court’s retroactivity jurisprudence, see Rogers v. Tennessee; and (2) whether the Michigan Court of Appeals’ retroactive application of the Michigan Supreme Court’s decision was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement” so as to justify habeas relief, see Harrington v. Richter.

The first issue is a little cryptic.  I believe that the State appears to be challenging the Sixth Circuit's conclusion that there was any type of constitutional violation at all.  It is framed as it would be on direct review.  That's a little different from the all too familiar question found in issue two: a lack of deference to the state court.  Not sure why it isn't framed in habeas terms.  Either way, the cert. grant portends bad news for the habeas petitioner.

In other apparently bad news, the Supreme Court issued opinions today, but did not issue one in Johnson v. Williams.  Just as a reminder, the question presented in that case is: 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.  From the argument, it appeared that the Court was going to avoid the question presented, which, if answered in the State's favor, will be an enormously horrible result for habeas petitioners.  

But if the Court was seeking to avoid the question presented, then it would have issued a short, simple opinion by now.  The longer it takes, the more I fear that this is going to be a split opinion with a terrible result.

Habeas Corpus - What A Relief!*

By JK

Last week, the Supreme Court announced that I don’t have to talk to my client’s anymore!*

* Anytime you see an asterisk (*) in this post, it means sarcasm. That means the title, too. Double asterisks (**) will mean footnotes.

It’s going to save all of us habeas litigators so much time and resources!*  No more travel to visit clients!* No more letter writing!* No more phone calls!*

In Ryan v. Gonzales, the Supreme Court held that a petitioner who is incompetent has no right to a stay of his habeas case during the period that he is incompetent. The Ninth Circuit had concluded that a capital habeas petitioner’s statutory right to counsel under 28 U.S.C. § 3599(a)(2) meant that he had to be competent so that he could communicate with his attorney and effectuate that relationship.**

The Supreme Court said that that's just crazy talk.  It stated that a statutory right to counsel in a habeas case did not give the habeas petitioner any right to provide input into the habeas litigation. Justice Thomas, speaking for a unanimous court, stated, “Attorneys are quite capable of reviewing the state-court record, identifying legal errors, and marshaling relevant arguments, even without their clients’ assistance.”

** The Sixth Circuit had provided a separate statutory justification for finding that incompetency compelled a stay. The Court dismissed it pretty summarily and it’s not really worth mentioning.

So there it is: once counsel is assigned to a case, the habeas case goes on with or without the petitioner. Who cares if the habeas petitioner has no capability of comprehending what’s going on? It’s not his case anymore. It’s the lawyer’s. Just because the petitioner has to face the consequences of the result does not mean he has the right to be competent to hear it.

I really have one word for this: cold. Ok, maybe two words: breathtakingly cold. I can even break out the uncommon sense meter on this one: try to explain to a layperson what this means: you are in prison on death row and you are challenging the conviction, but you don’t even have to be, essentially, a sentient human being while it all plays out in court. Even more, your attorney gets to litigate the case while you are away with absolutely no input from you.  Cold and contrary to common sense.

Of course, the result is not particularly surprising. In my mind (as I have discussed before), it flows from Jones v. Barnes (even though, surprisingly, that decision makes no appearance in Gonzales). A habeas case is record-based, like a direct appeal. So the attorney is the one who makes the decisions. Input from client would not technically be necessary.

That’s logically fine. But here is where the absence of a true liberal voice can be seen in the current Supreme Court. Justices Brennan and Marshall dissented in Jones (and Justice Blackmun agreed with Brennan and Marshall overall, but concurred in the result). Those two (+1) judges would not have found the Ninth Circuit’s reasoning to be crazy talk. Having counsel assigned to a case, even a record-based type of situation, does not mean that the defendant disappears from the case. In their eyes, the function of an assigned attorney (at least under the Sixth Amendment) should be “to protect the dignity and autonomy of” the defendant. Those judges considered these values “central to many constitutional rights,” including those under the Sixth Amendment. The right to counsel is not an “all-or-nothing right.” Counsel should be assisting the defendant, rather than doing everything on his or her own. While this view is not particularly practical, it certainly is far more empathetic and dignified.  

It’s safe to say that a true liberal judge would have seen similar concerns in Gonzales. It’s pretty depressing that not a single judge would voice any of these concerns.

Of course, no habeas practitioner would want to proceed like this. It’s both unethical and unprofessional to litigate a habeas case without input from the client. It really seems a bit shocking to me that the Supreme Court has now condoned such a practice, at least when the client is incompetent. The Court’s (apparently unanimous) disdain of habeas has now run so deep that it is willing to sacrifice some of the dignity of the legal profession** in furtherance of that contempt. 

** [insert joke here] - but, against all odds, I still believe in the dignity of the profession

I guess on the brightside the Court didn’t completely prevent federal judges from granting a stay based on incompetency. Federal judges still have the discretion to do it. But the Court indicated that this discretion really should be guided by the judges’ “docket[ ]” concerns. The Court did not suggest in any way that a judge should consider whether or not she felt comfortable with forcing a case to go forward while the petitioner has no current understanding of what’s going on.  In fact, the Court specifically precluded a stay in the extreme situation where the petitioner may never have any understanding of what’s going. And just when you thought the Court couldn’t get any colder . . .

COA Grant in Umali: Second Circuit To Consider Remedy for Burden-Shifting Jury Instruction

By Matthew B. Keller

Last week, HCB’s own Alan Lewis received a COA grant from the Second Circuit in Umali v. Heath, No. 12-3243 (2d Cir. COA granted Dec. 18, 2012).  Not one to toot his own horn, I will trumpet for him – a Circuit COA grant is rare enough these days that it’s important to keep track of all of them.  This one is particularly noteworthy  because it gives the Second Circuit a chance to consider one important, but largely ignored aspect of the Supreme Court’s Lafler v. Cooper opinion from last term – the boundary between the contrary to and unreasonable application clauses of AEDPA.

The case began as a New York State murder prosecution against Isaias Umali for killing Dana Blake during a 2003 fight at an East Village club.  Blake, a bouncer, was in the process of violently removing Umali’s friend, Jonathan Chan, from the club when Umali stabbed Blake in the thigh/groin, severing Blake’s femoral artery.  Surgery to repair the artery failed and Blake died the following day.

Following a trial, Umali was convicted of First Degree Manslaughter and sentenced to 17 years in prison.  In his state court appeals he raised several issues relating to his right to present a defense, the trial court’s exclusion of lay and expert witness testimony, as well as the issue on which the Second Circuit granted a COA – the court’s burden shifting instruction on justification. 

The Trial Court’s Justification Instruction

Umali ’s defense was that, at the time of the stabbing, he believed that Blake was using deadly physical force against Chan.  Both defense and prosecution witnesses testified that Blake (a much larger man than Chan) held Chan by the neck or throat and that Chan unsuccessfully tried to free himself from Blake’s grasp.  The defense argued that Chan could not breathe and was therefore in grave danger. 

In New York, deadly force can be justified where someone reasonably believes that another person is using or is about to use deadly physical force.  For those who haven’t cracked a NY Penal Law since the Bar Exam, you’ll recall that this defense has both  “subjective” and “objective” components: the defendant must subjectively believe at the time that he is acting to stop deadly physical force upon himself or another, and that belief must be objectively reasonable under the circumstances. 

Where this gets tricky is in the burden of proof.  Even though justification is raised by the defendant, in New York it remains the prosecutor’s burden to prove that a defendant was NOT justified in using deadly physical force.  And indeed, in Umali’s case, the court began by correctly instructing the jury that it was, “the burden of the prosecution to disprove [justification] beyond a reasonable doubt.”  (The court also mentioned that, in general, “the defendant has no burden of proof”).  However, the court ran into trouble when it broke down the burden of proof as to each prong (subjective and objective) of justification, stating:

If the evidence convinces you beyond a reasonable doubt that deadly force was necessary to prevent the imminent use – that the defendant believed that deadly physical force was necessary to prevent the imminent use of deadly physical force you must still find the second test, which is the objective test, were defendant’s beliefs reasonable under an objective standard.

If you didn’t catch it, the problem with this explanation is that, by suggesting that the jury had to be “convince[d] beyond a reasonable doubt that . . . the defendant believed that deadly physical force was necessary,” the court shifted the burden of proof on the subjective prong to the defendant.  Umali’s trial attorney (HCB’s Alan Lewis) caught it, and asked the judge to re-charge the jury and explain its previous error.  The court refused, maintaining that it “correctly said” the justification charge. 

A burden-shifting charging error is a big deal.  The criminal justice system relies on juries to give effect to major constitutional rights, including the one at issue here: the requirement that the State prove guilt beyond a reasonable doubt.  Rights don’t get much more fundamental to American justice than that.  Therefore, when a court gives a constitutionally defective instruction, the Supreme Court has held that it is not enough that other parts of the jury charge may have instructed correctly on the same subject.  Instead, the court is required to “explain” the defective instruction: “Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.” Francis v. Franklin, 471 U.S. 307, 322 (1985). 

Appellate Court and District Court Habeas Review

Umali took this argument to New York’s appellate courts, which rejected it.  The NY Court of Appeals agreed with Umali that the instruction on the subjective element of justification had impermissibly shifted the burden of proof onto him.  However, it also held that the trial court corrected its mistake by repeatedly referring to the correct burden of proof in reference to the overall justification defense and to the case in general.  “In light of these repeated references to the correct legal standard,” the Court of Appeals concluded, “the instructions as a whole could not have misled the jury regarding the applicable burden of proof. Thus, a supplemental charge explicitly disavowing the court’s single misstatement of law was not required in this case, although it certainly would have been preferable had the court realized that it misspoke.”

If you’re reading closely you might be asking yourself, “what about that Franklin case he just mentioned?  Doesn’t that require an explanation of the error?”  It sure seems to me that it does.  But you wouldn’t know that from reading the Court of Appeals’ decision.  Even though Umali emphasized the Franklin holding – it is literally the first case cited in Umali’s Court of Appeals’ brief – the opinion refers to Franklin ZERO times.  And neither of the two cases the Court of Appeals relied upon for its expression of the legal standard refers to Franklin. See People v Drake, 7 N.Y.3d 28 (2006); People v Fields, 87 N.Y.2d 821 (1995). 

Umali petitioned the SDNY for habeas review.  The petition was referred to a federal Magistrate Judge, who recommended that District Judge Rakoff deny it.  See Umali v. Heath, No. 10 Civ. 1787 (S.D.N.Y. Report & Recommendation filed Oct. 13, 2011) (Gorenstein, M.J.) (“R & R”).  Judge Rakoff adopted the R & R and also denied a COA. 

To answer the jury instruction question, the R & R applied a modified form of the three-part test of Jackson v. Edwards, 404 F.3d 612, 621 (2d Cir. 2005), asking the following three questions: (1) was the charge incorrect under state law?; (2) if so, was the giving of the faulty charge a denial of due process?; and (3) if so, did the state court’s contrary conclusion constitute an unreasonable application of clear Supreme Court law? 

Before getting to the answers, you have to wonder whether the Magistrate asked the right questions – particularly the third, applying AEDPA’s deferential standard of review under the unreasonable application prong.  Last term in Cooper, the Supreme Court held that state court decisions that fail to apply controlling Supreme Court precedent to a constitutional claim do not get AEDPA deference because they are “contrary to” clearly established federal law as opposed to an unreasonable application of that law. 132 S. Ct. 1376, 1390.  The state court decision at issue in Cooper failed to apply Strickland v. Washington to assess an ineffective assistance of counsel claim.  Here, there is no doubt that the New York Court of Appeals failed to apply Franklin to Umali’s jury instruction claim, because the court never mentioned the case.  So, whence AEDPA deference?  By asking the third question above, the district court simply assumed that AEDPA deference would apply.  A threshold question for the Circuit will be how to deal with the lower court’s unconsidered application of AEDPA deference in light of Cooper.

As for the first two questions, the Magistrate Judge answered yes and no, respectively.  The subjective prong language was incorrect under state law because it incorrectly shifted the burden on to the defendant.  However, the faulty charge did not result in a denial of due process because in the context of the entire charge it did not deny Umali of a fair trial.

Unlike the NY Court of Appeals, the Magistrate Judge applied Franklin; but then he distinguished it from Umali’s case.  Sure, the court said, under Franklin you cannot correct an erroneous burden-shifting instruction merely by using more “general [correct] instructions” on burden of proof to “contradict” the bad instruction on the subjective prong of justification.  But according to the district court, that’s not what happened here: the measures taken by Umali’s judge were much more thorough and “direct” than those taken in Francis. After parsing the language of the jury charge and the trial judge’s responses to jury questions, the Magistrate Judge found that the trial court, “twice made clear that it was the prosecution’s responsibility to prove the absence of [a justification] defense, which necessarily included both the subjective and objective prongs.”  Therefore, the Magistrate concluded, “[t]hese instructions thus constituted a far more direct correction of the incorrectly-given instruction than had occurred in Francis.”   

I’m not sure what Judge Rakoff – an excellent and thoughtful judge – was thinking when he denied COA on this.  It is a fair reading of Franklin that a trial court must correct an unconstitutional instruction by, at a minimum, referencing the bad instruction and then explaining why it is incorrect.  Clearly that did not happen here.  In addition, none of the judge’s correct instructions were as specific as the burden-shifting one.  That is, the burden shifting occurred in the only instruction in which the trial judge dealt specifically with the subjective element of justification. 

The reasoning behind the R & R seems to be that Umali’s case is different from Franklin because here the correct instructions on burden of proof related to a specific claim or defense (i.e. justification) and therefore it’s okay to expect a lay jury to reason that the correct instruction should override an erroneous instruction applying to an element of that claim or defense.  In Franklin, the correct instructions were given only in the abstract, and therefore it was not fair to expect a jury to apply them to override a contradictory instruction as to an element of a claim or defense.

I’m dubious.  As a legal matter, Franklin says that abstract or global instructions cannot override contradictory specific instructions.  Yet both the NY Court of Appeals and the Magistrate Judge specifically relied on such global instructions (as well as the “more specific” ones relating to justification) to defend the legitimacy of the overall charge.  That reliance was misplaced under any reading of Franklin. 

But even on a more basic level, the Magistrate’s reasoning makes an unwarranted assumption about the legal reasoning skills of lay jurors.  Trial judges should charge each jury as if it knows nothing about the law.  If a jury were made up entirely of lawyers (or even law students) it might be reasonable to assume that such a jury could easily reason from a defense to an element of that defense.  These are precisely the sort of reasoning skills that those in (or training for) the legal profession regularly employ.  But I’m not sure why this level of deductive reasoning is any easier for a lay jury than that deemed too difficult for a jury by the Supreme Court's Franklin opinion.

The Second Circuit did the right thing by granting COA.  That will enable it to consider the merits as well as the application of AEDPA deference in light of Cooper.  I’m hoping that Cooper begins a shift away from the sometimes unexamined assumption that every state court decision receives deference under AEDPA.  State court decisions that fail to apply the correct federal standard should not receive that (or any) level of deference.

Sotomayor Writes Amicus Brief to the District Court: Hodge v. Kentucky (front-end cert denial)

By Alexandr Satanovsky

I've been meaning to post about this for a while.  On December 3, 2012, the Supreme Court denied certiorari in Hodge v. Kentucky, a front-end capital case, seeking to review the Kentucky Supreme Court's denial of a penalty phase IAC claim. The underlying facts are all too common in capital practice: Hodge's trial counsel presented no mitigation during the penalty phase; the post-conviction team developed a significant amount of truly gruesome mitigation, which was presented in a state evidentiary hearing. The State even conceded that Hodge's trial counsel was objectively deficient under Strickland. However, the Kentucky Supreme Court denied relief, finding no prejudice.

The cert. petition arose from the Kentucky Supreme Court's questionable analysis underlying the conclusion that Hodge was not prejudiced. According to Hodge, the state court's conclusion rested on a legally required "nexus" between the mitigation and the facts of the crime. Now the State disagreed with this characterization. According to the State, the Kentucky Supreme Court simply found the evidence to be factually uncompelling, in light of the aggravated nature of the homicide. You can see for yourself at pages 5-11 of the short state court opinion.

Now, I suppose that it's possible for a state court to rely, in part, on a lack of nexus, without being contrary to established law. For example, if the state court explicitly acknowledges that there is no legal significance to a (lack of) nexus, it may then find that, as a matter of fact, the nexus-free mitigation was not compelling to show prejudice in light of the aggravated nature of the homicide.  In other words, I don't think there's anything remarkable about the notion that, all things equal, mitigation without a direct nexus to the facts of the crime may be less compelling than that which does bear on the facts of the crime. [Obviously, all things are never equal when trying to compare the strengths of gruesome childhood mitigation, versus, e.g., crime-specific mitigation]. More importantly, as a matter of clearly established law, a fact-finder cannot give anything like a legal presumption--a legal thumb on the scales--to "nexus" mitigation versus "non-nexus" mitigation.

After placing the case for three consecutive conferences, Justice Sotomayor penned a lengthy dissent from the denial of cert (longer than the entire reasoned state court opinion). To her, Hodge was right that the Kentucky Supreme Court's prejudice inquiry involved a legal nexus requirement. She would have summarily vacated and remanded this case to apply the proper legal standard, allowing the state court to re-do its prejudice determination without giving legal (in)significance to Hodge's powerful childhood evidence.

This sleeper dissent seems noteworthy to me for another reason. We often hear of circuit dissents as amicus briefs to the Supreme Court; well, here, it is Sotomayor who is essentially writing an amicus brief to the Kentucky federal district judge (who will hear this claim next), stating that 2254(d)(1)'s "contrary to" clause is satisfied by the state court's improper prejudice standard. She really minces no words: "[t]he Kentucky Supreme Court’s opinion is plainly contrary to these precedents [rejecting the "nexus" requirement for mitgiation evidence]," (slip op. at 8). In another paragraph, she notes that the state court's view "that in cases involving 'violent and cruel murders, it does not matter that the 'malefacto[r]' had a 'terrible childhoo[d]' . . . is contrary to our cases applying Strickland’s prejudice prong." (My emphasis).

This strikes me as an unusual occurrence. The universe of claims that have satisfied the onerous post-AEDPA 2254(d)(1) standard is relatively small, and from this it follows that those claims should be the strongest at the front-end cert. stage, and so most likely to have been the chosen issues in the front-end cert petition. Still, none of the high profile 2254(d)(1) grants that I have read, to my knowledge, involved written dissents from the denial of state court cert., assessing the same legal question without the additional (d)(1) deference. Justice Sotomayor's opinion, in other words, is my first encounter with a dissent from a denial of cert. on a front-end claim that necessarily will be relitigated in federal court, but now with the the added cloak of 2254(d)(1). And her dissent may prove quite imporant if Hodge gets through this cloak, and wins penalty phase relief in the Sixth Circuit.