Habeas Corpus Blog

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 - Supreme Court today

Today, the Supreme Court will be hearing argument in the front-end case of Smith v. Cain (Brady violation) and the front-end Fourth Amendment case of United States v. Jones (is it unconstitutional for the government to use GPS tracking on a suspect without a warrant?).

Haven't covered these cases too much around here.  Particularly true about Jones since, under Stone v. Powell, habeas petitioners can't really raise Fourth Amendment claims in a habeas petition, except to the extent that the State gave them insufficient process to raise it or it was ineffective for counsel to raise the Fourth Amendment claim.  So it's twice removed from habeas as opposed to a front-end case, which is only once removed.

SCOTUSblog coverage of these cases can be found here (Smith) and here (Jones).

 

Habeas Corpus - Maxwell Relist - Updated

While I usually put up a relist post that reviews the SCOTUSblog post on the matter, I decided to be slightly more proactive this week.  But it's left me a little confused.

For the last conference on October 14, there were five relisted habeas cases: Cavazos, Maxwell, Dixon, Cross, and Buck.  The Court took no action on any of them, except for ordering the record in Maxwell.  But none of them were relisted for another conference.  That can still happen and I am guessing it probably will for all five.  The next conference is not until next Friday.  But as it stands they are all just in a holding pattern.

In the meantime, I read this really interesting article about the Maxwell case called "The Case You Go to Law School For."  That's a reference to a quote from Maxwell's attorney Verna Wefald.  Actually, in the full quote, the lawyer was trying to be funny, not simply poignant.  She said that, when she first started working on the case back in the late '80's, "I was young and thought this was the kind of case you went to law school for. About 10 years into it, I wished I had never gone."

Maxwell is a relatively well-known petitioner.  He was convicted of committing the "Skid Row" murders that occurred in Los Angeles in the 70's.  However, as the article states, the problem is that "in all likelihood, he’s innocent."  The main evidence against him was a jailhouse confession, which is a notoriously unreliable type of evidence.  The other evidence presented was really weak - a palm print on a public bench and some muddy footprints.  Maxwell was acquitted of several of the murders and only eventually convicted of three of the ten of which he was charged.  He was sentenced to life imprisonment.

Turns out that the prosecution failed to turn over that the jailhouse informant was given a deal for his testimony against Maxwell.  Pretty big deal, no?  Well, Maxwell had trouble obtaining relief on this significant Brady violation until he reached the Ninth Circuit.  The Ninth Circuit granted habeas, holding that (1) state court’s finding that jailhouse informant testified truthfully at petitioner’s trial was unreasonable determination of facts in light of evidence presented;  (2) perjury by informant deprived petitioner of his right to trial by jury; (3) details of informant’s deal were material for Brady purposes; (4) information regarding informant’s prior informant activities were material for Brady purposes; and (5) state court’s determination that prosecution’s failure to disclose impeachment evidence did not undermine confidence in petitioner’s trial was unreasonable application of Brady. 

Without seeing it, I am guessing that the state court decision here would rank pretty high on the "uncommon sense" meter.

And this obvious Brady violation does not just appear in a vacuum.  As alluded to above, there are significant reasons to believe that petitioner is innocent. To some academics, innocence is all that should matter.  So this really should be viewed as a case where the federal courts were getting it right.

But, of course, innocence is not what's important to the Court.  It's the AEDPA.  Here are the issues before the Court (from the SCOTUSblog page for Maxwell):

(1) Whether, under 28 U.S.C. § 2254, a federal court may grant habeas relief on a claim that the state-court conviction rested on perjured testimony absent proof that the prosecution knew that the challenged testimony was false and when the state post-conviction court deemed the testimony truthful; (2) whether, under 28 U.S.C. § 2254, a federal court may grant habeas corpus relief on a claim alleging suppression of exculpatory evidence when that evidence was unknown to law enforcement officials working on the case and without considering whether the state court might have rejected this claim.

Now that the Court has ordered the lower court record, we are looking at one of two probable outcomes: either a summary reversal or a dissent from a cert. denial.  Let's hope it's the latter.

It's always interesting for me to get a look behind the papers once awhile and learn more about some of these cases.  I felt the same way when Skinner was before the Court last term.  And Connick v. Thompson.  I know it can't be done for every case.  But I appreciate it when I do get the chance to get a bigger picture.

UPDATE: Actually, I neglected to mention Maples as one of those cases where we have learned more about the background of the case.  Of course, that was the case that inspired the "uncommon sense" meter, so I am disappointed in myself for leaving it out.

Habeas Corpus - District Court Review - An End to Discovery?

Back in February, I had written about the case of Quezada v. Brown (previously known as Quezada v. Smith).  It's a groundbreaking case in which the Second Circuit has already issued a published opinion interpreting several aspects of the second or successive 2244 statute for the very first time.

After the Second Circuit granted authorization to allow petitioner to bring a second or successive petition raising a Brady claim and a claim that the prosecution knowingly presented false evidence, petitioner made a request for discovery in the district court and the DJ granted it.  Discovery in the case proceeded forward.

While the parties were engaged in discovery, Pinholster was decided.  Relying upon that case, Respondent moved for reconsideration of the order granting discovery, arguing that Pinholster prevents any further discovery in a habeas corpus proceeding.  Their argument: if the 2254(d)(1) analysis is restricted to the record before the state court, then there is no need for discovery in federal court.

Petitioner responded that Pinholster was not a discovery case, so it was not a change in law justifying reconsideration.  In other words, Pinholster had not changed the standard for when discovery should be ordered.  He also argued that there were other reasons in a habeas case for ordering discovery beyond the question of whether or not petitioner had met the 2254(d)(1) standard, including (but, of course, not limited to) whether or not petitioner could establish a miscarriage of justice to overcome a procedural default.

The district court has yet to issue an opinion on the State's reconsideration motion. 

This is a really important question that has resulted in a split in the district courts around the country.  But it does make me really worried.  If Pinholster can be read as stifling discovery (especially in a case like Quezada where it just seems so clear from the smoke that there's a fire), it's just another way in which Pinholster has created inequity in habeas law.

Habeas Corpus - Supreme Court Stuff

Earlier this week, I mentioned the cert. grant in the habeas case of Gonzalez v. Thaler.  Next term is shaping up to be pretty interesting, and potentially scary for habeas petitioners.

I neglected to mention that the Court also granted cert. in a front end case, Smith v. Louisiana.  According to SCOTUSblog, here are the issues:

1) Whether there is a reasonable probability that the outcome of Smith’s trial would have been different but for Brady and Giglio/Napue errors; 2) whether the state courts violated the Due Process Clause by rejecting Smith’s Brady and Giglio/Napue claims.

As that blog notes, there is a long and ugly of history of Brady violations coming out of Orleans Parish in Louisiana.  The Court recently looked at those violations, in the context of a 1983 claim, in Connick v. Thompson, which was the really horrible decision in which the Court found prosecutors immune from liability despite serious bad faith.  Although the Court refused to hold the prosecutors responsible in Thompson, there is room for the Court to act in Smith.  Maybe the Court decided to take Smith to say, while a civil suit is not the way to stop the Brady violations, upsetting the criminal conviction may be.  We shall see.

In any event, I really need to update the Supreme Court Cases page.

SCOTUSblog also had a relist post the other day.  Nothing of note in habeas cases (except for Cavazos v. Smith, which clearly is going to be either a summary reversal or a dissent from a denial of cert).  However, the Court relisted two front-end capital cases.  Here's what SCOTUSblog said about these two cases:

And the Court relisted for the first time in two capital cases:  Russell v. California, 10-10201, on direct review from the Supreme Court of California, raises constitutional challenges to the exclusion of mitigating evidence from the penalty phase of a capital trial under a state’s hearsay rule.  The Court also relisted in Spencer v. Alabama, 10-9085, a capital case from the Alabama state courts, which involves a claim that the trial court erred by not instructing the jury that it could find the defendant guilty of a crime other than capital murder, and an Apprendi challenge to the state’s sentencing system.

Habeas Corpus - District Court Review - Habeas Granted!

I wished I had covered this earlier, but there was another habeas grant in WDNY on the same day as the big Jackson v. Conway opinion (actually, there has been another habeas grant out of the WDNY, but I'll cover that in another post).  In fact, it was the same judge who granted habeas in both cases (actually, it's the same judge in all three cases).

Here are the details of the other habeas grant from January 10, 2011:

Valentin v. Mazzuca, 05-CV-0298, 2011 WL 65759 (WDNY Jan. 10, 2011) (VEB)

• Habeas Granted
  
• Issue: Brady violation based on the prosecution's failure to disclose criminal record of one of a prosecution witness
• Notes: consented to proceed before MJ; pro se habeas grant

ANALYSIS: This case is a robbery where the prosecution called a single eyewitness to the robbery, John Kemp.  The prosecutor did not disclose that the eyewitness had a criminal background.  In fact, the prosecutor made a point at trial to inform the judge that he steadfastly refused to look into whether his witness had a criminal history.  Odd, in this day and age, for a prosecutor to make such a public display of refusing to follow his ethical obligations. 

Not surprisingly, the Appellate Division concluded that there was a Brady violation, but that it was not material, namely that there was no reasonable probability of a different result had the criminal background been disclosed.  The MJ concluded that the Appellate Division's decision on materiality was unreasonable.

There was a wacky aspect to this case: the conflicting stories from the eyewitnesses.  There were two eyewitnesses, Kemp and another man named McLaren.  Kemp said that petitioner was the gun man, while McLaren stated in the GJ that another man, Arroyo, was the gun man.  The indictment against Arroyo was dismissed because the identification evidence was unreliable.  At Valentin's trial, the prosecutor announced that McLaren was out of the jurisdiction and not available.  So only Kemp testified.

The MJ concluded that it was unreasonable to conclude that there was no reasonable probability that the impeachment material would not have had an effect on the outcome.  According to the MJ, the criminal history was not "insubstantial."  And while Kemp had other credibility issues, the prosecutor relied heavily on his testimony and used many tactics to bolster his credibility.  The MJ concluded that the impeachment material would clearly have had an impact.

Here's what the MJ stated:

Where, as here, the prosecution's case was more akin to a house of cards than a foundationally sound structure, it is more than reasonably possible that Kemp's criminal record could have been the card that toppled the house. It bears emphasizing that Kemp's testimony about Valentin having the gun and being the “lead robber” was not corroborated by any independent evidence. This Court finds, after reviewing the entirety of the record, that had the prosecution complied with its Brady obligations by disclosing Kemp's criminal record, his credibility would have been significantly more compromised. Non-disclosure of this non-cumulative impeachment evidence has seriously undermined my confidence in the outcome of Kemp's trial. Thus, I conclude that the information was “material,” and that Valentin has demonstrated a true Brady violation.

One final interesting thing to this decision: the relief.  Petitioner had already been released from custody and was serving time on parole.  The court ordered that "Respondent is accordingly directed to expunge Valentin's convictions for first degree robbery and second degree robbery and release him from parole supervision within sixty days. This judgment is not stayed pending completion of appeal proceedings, if any." 

Two notable things: the court did not order a new trial.  Instead, the court ordered basically a dismissal of the charges.  Even though he had finished serving his time in prison, I don't think that means that the convictions should necessarily get expunged.  The typical remedy would be a new trial.  Thinking about that remand in Ramchair last year (I am referring to the end of that long post), I wonder if the MJ should have done a more thorough job explaining why that particular relief was warranted.

As for the denial of a stay, that makes sense in the face of the relief that was ordered.  If the judge thinks that the convictions should be expunged, petitioner will suffer irreparable harm during the appeal.  But it is still notable that a stay was denied.  Doesn't always happen that way.

Habeas Corpus - DA Misconduct before the Supreme Court

I would be remiss if I didn't mention something about Connick v. Thompson, a case to be argued before the Supreme Court today. 

I didn't include it in the Pending Supreme Court Cases page because it is only tangentially related to criminal law and will have no effect on habeas cases.

Nonetheless, there are criminal law aspects to it, so I thought I would at least talk about it.

At its core, the case concerns a wrongful conviction from over 20 years.  The defendant filed a civil case against the DA's office, arguing that the office's failure to adequately train its prosecutors on their Brady violations entitled him to relief.  The question before the Supreme Court is whether a claim can be stated where there has only been on Brady violation as a result of the lack of training. 

It's definitely interesting, and it's criminal law-related, but it won't have a direct effect on the development of criminal law or habeas law.  I guess in a back door way it could.  If the Court says that this states a claim, it will increase the amount of Brady training.  Vice versa, if the Court says that it doesn't, then it may decrease the amount of training, as the DA Offices may just decide to risk it and not train their prosecutors, knowing that the odds of civil liability will only occur if there are multiple violations.

One other thing to note about the case, I guess that a book has been written about the underlying criminal case.  It's called, Killing Time: An 18-Year Odyssey from Death Row to Freedom, written by John Hollway and Ronald Gaultier.  SCOTUSblog notes that Hollway has an article on Slate about the case (I haven't read it yet).

Habeas Corpus - Amazing Opinion Today from the Second Circuit (Updated link)

Just a truly amazing opinion from the Second Circuit today.  A couple of weeks ago, I criticized the court for only giving lip service to innocence claims.  Well, shame on me.  Today's opinion shows just how far the court will go when it believes that there has been an unjust conviction.  Although the court does not grant habeas relief, the court goes out of its way to thoroughly question the reliability of the evidence against petitioner and calls upon both the state courts and the prosecutor to re-examine the conviction.  Truly amazing.

The case is Friedman v. Rehal and it's available here.  The opinion was written by DJ Korman (sitting by designation) and joined by Raggi and Pooler.  Raggi added a brief concurrence, which I'll discuss below.

Petitioner is Jesse Friedman, whose case was made famous in the great documentary Capturing the Friedmans, which documents the child abuse cases brought against petitioner and his father.  The movie goes into detail about the investigation into the case, which included a bunch of questionable investigatory techniques devised to obtain statements from the child victims.

However, the People never turned over this information about the investigation to petitioner.  After watching the movie, petitioner raised a Brady claim.  After losing in state court, the district judge dismissed the petition as untimely.

The Second Circuit agrees, showing that petitioner filed the petition three months out of time.  The court also goes on to address the underlying merits of the Brady claim and concludes that the investigatory techniques are really impeachment material and the failure to turn it over does not qualify as a Brady violation when the defendant pleads guilty -- as petitioner did here.  Additionally, the court believes that the Brady claim itself does not rely on clearly established law.

But the Second Circuit does not end the opinion there.  Here's what the court says: "While the law may require us to deny relief in this case, it does not compel us to do so without voicing some concern regarding the process by which the petitioner’s conviction was obtained."  The court then engaged in a lengthy discussion about the problems with the evidence.  

At the end of this discussion, the court expresses a deep concern about the conviction:

As such, this case is unlike other appeals which raise concerns about the quality of the
evidence and the guilt of the defendant. In those appeals, we defer to the judgment of the jury after the defendant has received a fair trial. We take comfort in “[t]he established safeguards of the Anglo-American legal system [which] leave the veracity of a witness to be tested by crossexamination, and the credibility of his testimony to be determined by a properly instructed jury.” Hoffa v. United States, 385 U.S. 293, 311 (1966). In this case, the quality of the evidence was extraordinarily suspect and never subjected to vigorous cross-examination or the judgment of a properly instructed jury.

The court notes, though, that, whether or not there exists a federal stand alone claim of actual innocence, that type of claim was not exhausted in state court, so it can't be addressed now.

And then here is where the opinion turns extraordinary.  The court suggests to both the state courts and the prosecution that it do something to re-examine what it believes to be a very likely wrongful conviction.

First, the court notes that an actual innocence claim may be available to petitioner in state court.  It adds, "Considering the facts of the case and the circumstances that caused him to plead guilty, this case may be one in which the New York courts may be particularly sympathetic to a proceeding seeking such relief."  Pretty strong suggestion there.

Next, the court turns to the prosecution and implores it to re-examine the case.  I am going to quote the entire part of this opinion because it is really amazing:

The focus on the impediment to legal relief, however, should not obscure the continuing ethical obligation of the District Attorney to seek justice. We refer here especially to New York Rules of Professional Conduct 3.8, Comment 6B, which explains that “[t]he prosecutor’s duty to seek justice has traditionally been understood not only to require the prosecutor to take precautions to avoid convicting innocent individuals, but also to require the prosecutor to take reasonable remedial measures when it appears likely that an innocent person was wrongly convicted.” N.Y. Rules Prof’l Conduct 3.8, cmt. 6B. In language particularly pertinent here, the Comment goes on to say:

[W]hen a prosecutor comes to know of new and material evidence creating a reasonable likelihood that a person was wrongly convicted, the prosecutor should examine the evidence and undertake such further inquiry or investigation as may be necessary to determine whether the conviction was wrongful. The scope of the inquiry will depend on the circumstances. In some cases, the prosecutor may recognize the need to reinvestigate the underlying case; in others, it may be appropriate to await development of the record in collateral proceedings initiated by the defendant. The nature of the inquiry or investigation should be such as to provide a “reasonable belief” . . . that the conviction should or should not be set aside. Id.

The record here suggests “a reasonable likelihood” that Jesse Friedman was wrongfully convicted. The “new and material evidence” in this case is the post-conviction consensus within the social science community that suggestive memory recovery tactics can create false memories and that aggressive investigation techniques like those employed in petitioner’s case can induce false reports. Indeed, it is not even clear from the record that Assistant District Attorney Onorato was aware of the suggestive questioning techniques that were used by the Nassau County police. More importantly, the record does not speak to whether the then–District Attorney of Nassau County whose principal role was administering and overseeing the activities of one of the largest such offices in the United States,11 was aware of the techniques used by the Nassau County detectives, who were not members of his staff.

Only a reinvestigation of the underlying case or the development of a complete record in a collateral proceeding can provide a basis for determining whether petitioner’s conviction should be set aside. We hope that, even if she continues to oppose relief in collateral legal proceedings, the current Nassau County District Attorney, who was not responsible for the investigation and prosecution of Jesse Friedman, will undertake the kind of complete review of the underlying case suggested in the Comment to Rule 3.8.

Wow. 

In her concurrence, Raggi questions whether the court should have engaged in the length discussion of the underlying facts in which it assumed the truth of the allegations against the police.  While she believes that further inquiry by the prosecution may be warranted, she is not ready to state that such an inquiry would be favorable to petitioner.

In the final section of the main opinion, the majority responded to the concurrence and explains why it engages in the lengthy discussion of the facts.  I am not sure I find the reason entirely persuasive.  Generally, the court says that it was done to try and convince the prosecutor to engage in the investigation despite the guilty plea.  Hmm.  It's not that I wouldn't want a court to do that.  But it does raise interesting questions about the purpose of a judicial opinion.  It's actually a great existential judicial-opinion-writing question.  The court kind of answers that question with its final line, which I'll quote here: 

In sum, an appellate court faced with a record that raises serious issues as to the guilt of the defendant and the means by which his conviction was procured, yet unable to grant relief, is not obligated to become a silent accomplice to what may be an injustice. 

A great ending to a truly remarkable opinion.