Habeas Corpus Blog

Habeas Corpus - JK's First Ninth Circuit Post

By JK

I was hoping that my first Ninth Circuit post was going to be more substantive.  Actually, I have been working on a broad-based substantive post, but it's not finished yet.

In the meantime, I wanted to briefly discuss an en banc decision from the Ninth Circuit the other day denying habeas relief in a death penalty habeas case, Carrera v. Ayers.  It's an odd decision that will pretty much have no impact whatsoever on the future of habeas law.  How can that be the case?  Well, for one thing, it is a pre-AEDPA case.  Not many of those left out there, I reckon.  But it's not just a pre-AEDPA case, it's a pre-Batson case.  And the issue in the case is whether counsel was ineffective for failing to challenge the prosecution's use of peremptory challenges in a racially discriminatory manner.  Due to its age, the Ninth Circuit had to analyze the case under the pre-Batson standards that existed in California.  So the case is only relevant to pre-AEDPA petitions raising pre-Batson racial discrimination claims out of California.  I would be surprised to learn that any of those still existed in habeasland.

If you are interested in learning why a case in such a procedural posture still exists, the district court's decision provides the procedural history (it's available at 2008 WL 681842).  I was hoping that it was going to be somewhat interesting, but it really isn't.  Just a lot of back and forth between federal and state court and what is best described as a piecemeal resolution of the habeas petition.  On the positive side, it does appear that the district court granted partial habeas relief back in 2004 and vacated the death sentence.  The only issues on appeal were guilt-phase claims.

Not much more to say about this other than I have found that there is something neat in the way that the Ninth Circuit publishes its opinions.  A published opinion often has a "Summary" at the beginning that, according to a footnote in the summary, "constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader."  That's new to me.  Obviously, when you go look at published opinions, they have the introductory paragraph that's not a part of the opinion.  But this is something a little different; it's more substantive. It's more like the syllabus at the beginning of a Supreme Court opinion.  Not as long and detailed as those, but it's definitely more than the typical introductory paragraphs I have seen out of the Second Circuit.  I'll post the summary below the fold so you can see what I am talking about.  I'll also include an introductory paragraph from a recent Second Circuit opinion to show the difference.

 

Habeas Corpus - Summary Order

Back on June 28, the Second Circuit issued a summary order in Watson v. Ricks, 10-2346-pr.  It's pretty fact-intensive, so there isn't much to write about.  As I stated in a previous post, this case is interesting because the MJ had issued a pretty novel conclusion that national origin discrimination is covered under Batson.  That issue was not present in the appeal, though.  The only issue in the appeal was factual: whether the prosecution used its peremptory strikes in a discriminatory fashion.  The Second Circuit held that the state court's conclusion that the strikes were non-discriminatory was not unreasonable.

Here are the details:

Watson v. Ricks, 10-2346-pr 

• Affirming Denial of Habeas; summary order here
• Argued 6/22/11; Decided 6/28/11
• Panel: Straub, Raggi, Wesley
• Lower Ct. Info: 05-CV-7288, 2010 WL 2346614 (SDNY June 02, 2010) (WHP) (JCF)
• In Circuit: District Court COA
• Issues: Batson violation 

Habeas Corpus - Second Circuit Preview - Week of June 20, 2011

Last week of the Second Circuit's August 2010 Term.  One habeas case to be argued.

Wednesday, June 22 at Court of International Trade

Watson v. Ricks, 10-2346-pr

• Status: Calendared for 6/22/11, A panel
• Panel: Straub, Raggi, Wesley
• Lower Ct. Info: 05-CV-7288, 2010 WL 2346614 (SDNY June 02, 2010) (WHP) (JCF)
• In Circuit: District Court COA
• Issues: Batson violation

Quick Note: The MJ had originally recommended that a reconstruction hearing be ordered since petitioner had established a prima facie case of discrimination based on national origin.  The prosecutor had struck five out of five jurors who were of West Indian descent, the same national origin as petitioner.  The DJ agreed with the recommendation and sent it to state court.  At the reconstruction hearing, the state court concluded that the challenges were not done in a discriminatory fashion.  The DJ concluded that the decision was not unreasonable.

So, the current appeal is not as interesting as the original R&R, which was quite interesting.  The MJ did break some ground in concluding that Batson covered discrimination based on national origin. Here's an article I found about the original R&R.  Here's the concluding paragraph:

While at first blush it may seem axiomatic that peremptory challenges should not be permitted based on discriminatory intent of any kind, particularly when made by the prosecution in criminal matters, the Watson v. Ricks case demonstrates this issue to be more complex, and less straightforward, than it may otherwise appear. Just as race, ethnicity, and gender are inappropriate vehicles for shaping a jury based on peremptory challenges, Magistrate Judge Francis provides a compelling statement that discrimination based on national origin should not be permitted in the juryselection process.

Habeas Corpus - Inequality in Habeasland

While I was away, the Second Circuit issued a published habeas opinion on Thursday in which it affirmed the denial of a habeas petition.  The decision demonstrates how unequal habeas law can be.

The name of the case is Garraway v. Phillips, 07-2302-pr, available here.  The panel was Jacobs, Walker and Leval and the opinion was written by Chief Judge Jacobs.

The question in the case is whether the prosecutor's failure to offer race-neutral reasons for a peremptory challenge of a juror represents a Batson violation, requiring a new trial.

During jury selection, petitioner raised a Batson challenge after the prosecutor struck seven African-
American jurors.  The prosecutor offered reasons for striking six of them, but failed to offer a reason as to the seventh.  Despite this omission, the court denied the Batson challenge.  Defense counsel never pointed out to the court that the prosecutor failed to offer a reason for one of the jurors.

I am going to skip ahead to the Second Circuit decision.  In a novel ruling, the court holds that, as a matter of federal Batson law, "by failing to advise the prosecutor or the court that explanations were offered as to fewer than all of several challenged strikes, the defendant has forfeited his Batson claim."

The court offers a couple of practical reasons for this conclusion.  It also distinguishes (pretty weakly in my mind) a prior decision that granted relief in a similar circumstance.  All of this is well and good.

But it has to be pointed out that there is some real inequality at work here.  The Second Circuit denied a petition here based on newly established federal law.*  We know (because I talk about it a lot) that, under the statute, a petitioner cannot get relief in a habeas petition unless the law is clearly established.  So, this means that a federal court can deny a petition based on a new rule of federal law, but it is statutorily barred from doing that in order to grant a petition.  Seems pretty unequal to me.  But that's life in habeasland -- inequality is built into the law.

*One could argue, I guess, that this was simply an application of clearly established law.  To be honest, if the shoe was on the other foot, I probably would.  But if the shoe was on the other foot, we know that the troubling trend known as Musladin would be for the federal court to say that this was not an application of clearly established law, but to say that the legal principle was not clearly established.  In any event, it's pretty clear from the decision that this was a novel ruling, so I feel comfortable in my analysis.

Habeas Corpus - Summary Order

UPDATED

Interesting summary order today from the Second Circuit that demonstrates just how tricky habeas litigation can be.

Myers v. Phillips, 07-3692-pr, link, Sept. 15, 2009, Calabresi, Cabranes, Lynch, DJ

• Affirming Denial of Habeas
• Issues: whether state court unreasonably applied Batson when it concluded that the defendant had failed to establish a prima facie case of discrimination after the prosecutor challenged every black Jamaican prospective juror
• Notes: Same panel from the Summary Order last week that also dealt with a step one Batson claim

ANALYSIS: As I mentioned, this case demonstrates how tricky habeas litigation can be.  In state court, petitioner had argued that the prosecution had improperly challenged all Jamaicans on the panel.  The state court rejected it. The DJ and MJ concluded that this was not an unreasonable application of clearly established law since there was no clearly established law from the Supreme Court stating that national origin can be the basis of a Batson motion.  Before the Second Circuit, petitioner argued that the DJ and MJ got it wrong and that the claim was not a national origin challenge, but a race-based challenge.  Specifically, petitioner stated that the claim was that the jurors were challenged because of their "racial 'subcategory.'"  However, the Second Circuit played gotcha with petitioner and stated that this was not the claim before the state courts, so the claim is unexhausted and procedurally barred.

Pretty harsh.  Petitioner's litigation strategy can't really be faulted.  I think it's true that the Supreme Court has never stated that Batson applies to national origin claims.  I think it's pretty obvious that it should.  So the claim had to be characterized as a race-based challenge.  And I think that's a fair way to characterize a claim that all Jamaicans have been improperly challenged.  The population of Jamaica is overwhelmingly black.  According to Wikipedia, it's 91.2% black.  And I am guessing the record makes it pretty clear that all of these challenged Jamaicans were black.  But, at the same time, the state court claim can easily be categorized as a national origin challenge.  So it is difficult to criticize the Second Circuit's conclusion here. 

So this case shows that the habeas procedural rules really can restrict a petitioner's options when it comes to litigation strategy.

UPDATE:  It has been brought to my attention that there is a ongoing habeas case that is similar to Myers. The case is Watson v. Ricks, 05 Civ. 7288, 2008 WL 490610 (SDNY Feb. 22, 2008) (WHP) (JCF). 

In that case, the magistrate judge concluded that national origin is a cognizable group under Batson and recommended that habeas be granted to the extent that the case be sent back to the state courts for a further hearing on the Batson issue. 

But what makes the case different from Myers is that the district judge actually concluded that it was not a national origin challenge, but an "ethnic origin" case.  The Supreme Court has stated that "ethnic origin" does fall under Batson.  The DJ does say that the line between national origin and ethnic origin is blurry, but the state judge in Watson clearly saw the issue as an ethnic origin case. 

So my comments about Myers don't apply to Watson.  According to how the Second Circuit described Myers, it was exclusively litigated as a national origin case in state court.

But I should make clear that when I said in my original post about Myers that there is no clearly established law that national origin falls under Batson, what I am saying is that, under the troubling trend started in Musladin, I believe that courts (such as the Second Circuit) would find that the lack of any Supreme Court precedent directly on point would mean that the law is not clearly established on the issue.

Of course, my personal opinion is that it would be an unreasonable application of Batson to find that national origin is not covered.  This was the MJ's conclusion in Watson.  Unfortunately, that R&R is not published.  But you can find it through PACER.  And, of course, the DJ did not need to address that part of the R&R since he found that it was actually an ethnic origin claim covered under Batson.

So what it means is that, technically, it is still an open question in the Second Circuit whether or not, in habeasland, pure national origin discrimination can state a claim under Batson.  I am concerned about the Musladin effect on that one, but maybe the MJ's analysis in Watson will carry the day.

Habeas Corpus - Summary Order

Butler v. Fischer, 08-4657-pr, Sept. 8, 2009, available here, Calabresi, Cabranes, Lynch, DJ

• Denial of Habeas Affirmed
• Issues: Improper denial of Batson motion
• Notes: Not much here, but reading between the lines, it appears that the Appellate Division's analysis was problematic; the question was whether the defendant had established a prima facie case of discrimination; the Second Circuit seems to acknowledge that the Appellate Division may not have utilized the proper Batson terminology in rejecting the claim; but, notwithstanding the Appellate Division's improper language, the court concludes that there was no merit to the underlying Batson claim