Habeas Corpus Blog

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 - Cert. Grants from Yesterday

The Supreme Court issued an order list yesterday and granted cert. in two front end cases (that had previously been relisted), Jackson v. Hobbs and Miller v. Alabama, both raising the issue of whether it is cruel and unusual punishment to impose a term of life without parole on a juvenile who is convicted of murder.  The cases will be argued "in tandem."

The Supreme Court Cases - Current Term page will (eventually) get updated.

Habeas Corpus - Cert. Grant in Front End Case

Supreme Court issued an order list from last Friday's conference.  No cert grants in habeas cases, but there was a cert grant in a front-end case called Blueford v. Arkansas.  Here's the issue (from SCOTUSblog):

Whether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars the reprosecution of a greater offense after a jury announces that it has voted against guilt on the greater offense.

Just to explain a little, in Blueford, the jury was asked to consider capital murder, and, if the jury concluded that defendant was not guilty, then to consider first-degree murder and, if the jury concluded that the defendant was not guilty of that count, then to consider manslaughter.  The jury indicated to the court that it had reached a unanimous conclusion of not guilty on the top two counts but was hung on manslaughter.  The court refused to take a partial verdict on the top two counts, ordered a mistrial, and, over the defense's double jeopardy objection, granted the State permission to retry the defendant on the top counts.

This result conflicted with the other States that allow what is known as an "acquittal first" or "hard-transition" verdicts.  It does not appear that New York has specifically decided this issue, but there is a reason for that (assuming that I understand what all of this "hard-transition" stuff is all about).  The Criminal Procedure Law allows for partial verdicts.  So it is a true "hard-transition" state, which means that this issue actually won't pop up here (unless something unusual happens).

This decision from Arkansas really seems to be an outlier.  It's something that ranks relatively high on the "uncommon sense" meter.  It simply just doesn't feel right, on a gut level, to let the State retry this guy on the top counts after a jury has already unanimously concluded that he was not guilty.  Let's hope that the "good" facts in this case (i.e. the jury's unanimous findings of not guilty on the top counts) make good law.

In any event, Blueford will get added to the Supreme Court cases page soon.

Habeas Corpus - Relist List - Edited

Just in time for today's conference, I am going to link to SCOTUSblog's recent relist post discussing the cases that were relisted after last week's long conference.  And consistent with the overall theme of this Court's term, it is very habeas heavy.

A couple of the relists were cases that were on that site's Petitions to watch:  Bobby v. Dixon and Cash v. Maxwell.

Another relisted case is Buck v. Thaler.  That's the capital case in which the Court recently granted a stay.  I have previously stated that I can't see the Court granting cert. in that case.  I'd be happy to be wrong about that.

Then there are Adams v. Thaler and Rocha v. Thaler, both of which seem to concern the independent and adequate state law ground doctrine.  I guess there still is a little bit left there for the Supreme Court to chip away at.

Then there are two habeas grants, Ryan v. Doody and Harvey v. Cross, where the State was arguing that the Circuit Courts weren't deferential enough to the state courts.  It supports my prior claim that "it's safe to say that there are certain members of the Court who think that any habeas grant under the AEDPA  . . . is questionable."

In a prior post, I had previously covered the petitions to watch for the long conference.  One petition that was relisted, but not mentioned in the SCOTUSblog post was Cavazos v. Smith.  That one's been relisted many,  many times (nine to be exact).  So I am guessing it was just an oversight.  It's still on their petitions to watch page.

And a GVR was granted in one of the cases, Allison v. Diaz, in light of Richter.  That's obviously bad news for the habeas petitioner.

I must have misread the SCOTUSblog petitions to watch page and thought that every petition that they were watching was going to be submitted to the long conference.  That turns out not to have been the case.  But unlike before, that page of petitions is now broken up into conferences.  Which means that many of the cases I mentioned before actually are going to different conferences.

For today's conference, in addition to the relisted cases mentioned above, these petitions to watch will be considered: Harrison v. Gillespie and Wetzel v. Abu-Jamal.

[Edit - there were a couple extra words at the end here that should have been deleted before the original post was posted]

 

Habeas Corpus - Welcome Back, Supreme Court! - Term Preview - Edited

The Supreme Court's October 2011 Term begins this week.  And it's going to be a very active one for habeas cases.  There are already eight cases on the Court's docket.  I am really excited about a couple of those.  I also dread what the outcome is going to be in a couple others.  And at least one I don't really have much of an idea as to what it's all about.  There are also a couple front-end criminal cases of note.  So it's going to be a big term in habeasland. 

And remember, Habeas Day at the Court will be this Tuesday, when the Court intends to hear three (Maples, Martinez, Howe) of the eight.

Since I love lists, here is a list, in descending order, of this Term's habeas cases on the scale of "what I find most interesting" (in other words, 1=most interesting; 8=least interesting)  I'll note my feeling about the outcome of the case as either (a) excited; (b) dread; or (c) uninterested.

The List:

(1) Martinez v. Ryan (to be argued on 10/4)- Excited

Issue: whether a criminal defendant has the right to counsel at a state post-conviction proceeding in order to raise claims (mainly IAC) that can't be raised on appeal

I hate to swim with the current on this one, but it's hard to argue that this isn't the most interesting (and important) habeas case on the Court's docket this year.  It certainly has the greatest potential impact on criminal law.  Not as big as something like Gideon v. Wainwright (right to counsel in criminal cases) or Douglas v. California (right to counsel on appeal if indigent), but it will be the next biggest thing.  No matter which way it goes, it's going to be a fun opinion.  I'd love to see a split court here as the question may come down to how each individual Justice views the role of counsel in the criminal justice system.  Fun, fun, fun.

(2) Greene v. Fisher (to be argued on 10/11) - Dread/Excited

Issue: when is the temporal cut-off for clearly established law under 2254(d)(1)

For such a simple issue, it does seem odd that I would rank it so high.  But this case is going to have the biggest day-to-day impact on habeas cases.  And it raises abstract questions about the interplay between the AEDPA and the retroactivity rules of Teague v. Lane (i.e., whether those latter rules still exist or will the Court's interpretation of 2254(d)(1) in Greene supersede them).  Which makes me excited for this case.  But I have larger feelings of dread about it as I expect a very anti-petitioner decision here. And you can read more about my feelings of dread about this case in this article that I wrote over the summer.

(3) Maples v. Thomas (to be argued on 10/4) - Excited

Issue: whether there was cause for petitioner's procedural default based on (essentially) attorney and state court negligence

The issue in this case is not really that interesting, but the underlying facts are.  This is the case where the Big City law firm dropped the ball on petitioner's case and the state courts did absolutely nothing to straighten out the problem.  And there was so much unfairness to petitioner that it led multiple national news outlets to take up his cause.  And, around here, it led me to create (the little used, but still enjoyable) "uncommon sense meter" -- the rates cases on the scale of whether it defies common sense that some ridiculous procedural rule can allow a court to overlook an obviously unfair result.  This is a case where good facts could chip away at what otherwise is bad law for petitioners.

(4) Lafler v. Cooper (to be argued on 10/31; being heard with Missouri v. Frye)- Dread

Issue: whether a petitioner who was convicted after a trial can argue IAC based on counsel's failure to give proper advice during the plea bargaining stage of the case

This is also a case with a big potential impact on the criminal justice system.  There is plea bargaining in every case and in almost every case that eventually goes to trial, a plea offer was made at some point in the case.  Counsel is supposed to both communicate that offer to the defendant and give advice on it.  The question here is whether petitioner should be able to get any relief when counsel messes that up.  And, if so, whether any relief is available after the defendant is convicted after trial or does that conviction somehow moot out the deficient performance in the plea bargaining stage.  The fairest result here would be that a petitioner should still be able to raise the claim even after a jury verdict.  But, based on the Court sua sponte adding this particular issue to the Frye case, I have a bad feeling about where this is going.

(5) Howes v. Fields (to be argued on 10/4) - Excited

Issue: whether a prisoner, who is excluded from the prison population and questioned, is always "in custody" for Miranda purposes

I am excited about this case since it is a real substantive law habeas case.  Lafler is too, but that substantive law could be extinguished based on where the case goes.  Not this case.  It is a basic up or down vote.  I have searched my memory and I simply can't remember the last up vote on a habeas case in the Supreme Court where the final decision ended up as a grant for the petitioner.  I don't see that as the most likely outcome here.  But there is a chance for that, which gets me excited.  On the other hand, it is a cert. grant from the Sixth Circuit, and that typically means . . . bad news for the Sixth Circuit.*

*I forced my wife to watch the original Bad News Bears again the other day.  I think that is my second favorite movie of all time.

(6) Gonzlez v. Thaler (to be argued on 11/2) - Dread/Uninterested

Issue: (i) was a COA appropriate on a habeas procedural issue? and (ii) something about what date to use to determine when a petition is timely under the statute of limitations

This case kind of scares me a little.  The Court sua sponte added the COA question.  I am not sure why since the Court has already held that a COA would be appropriate in this situation.  Maybe the Court was not satisfied that the circuit court properly followed the rule in determining whether to issue a COA on a procedural issue.  I should probably look at the briefs for some guidance on that.  But there is a potential that this case could place a further restriction on habeas law.  As for the other issue, I re-read the lower court decision and I still don't get it.  It seems very state-specific as to what date should be used as the end date of the appeal.  And each one is a totally legitimate way of looking at it.  Does the Supreme Court need to step into that mess and say that it needs to be the same date in all cases, regardless of the state's individual procedure?  It seems like a waste of time.  State law should control on that question in my mind.  States' rights!  (That's tongue in cheek -- secessionist talk is best left to southern governors with presidential aspirations)

(7) Wood v. Milyard (recent cert. grant) - Dread

Issue: can a circuit court raise statute of limitations defense sua sponte*

*There's those words again.  I talk about how much I love the term sua sponte about midway through this post.

I really dislike the statute of limitations.  To be fair, a statute of limitations isn't the worst thing ever.  But the one-year one is truly oppressive.  I wish it would go away or get ameliorated (like turned into a two or three year limitations period).  But my personal feelings aren't relevant.  I don't think the federal courts dislike it too much.  And, even though it is a defense that the State can use and not a jurisdictional bar, I worry (in the extreme) that the Supreme Court will uphold a circuit court's power to do this.  In a fair world, they won't.  I mean it's typically frowned upon for an appellate court to go around raising defenses sua sponte where a litigant hasn't relied on it below.  But, of course, everything is skewed in habeasland.

(8) Martel v. Clair (to be argued 12/6) - Uninterested/Excited(?)

Issue: can court-appointed habeas counsel be replaced in a capital habeas proceeding

This case appears to boil down to a statutory interpretation issue.  And it's a statute that I am not too familiar with.  So my interest level is not high.  But maybe, just maybe, the opinion could branch out into issues that I am more interested in.  If the Court's opinion could potentially be applicable to the question of replacement of court-appointed counsel in a non-capital case (i.e. when a court grants a petitioner's motion for assignment of counsel under the "likely merit" standard), I'd be interested in that.  And, because the issue presented seems broad (although I don't think in the end that it is), there is a small chance that the Justices could once again veer off into the more abstract concept of an attorney's role in the criminal justice system.  Which could be fun.  But I won't get my hopes up.

[edited the Gonzalez paragraph for clarity]

Habeas Corpus - New Cert. Grant

The Supreme Court issued an orders list today and granted cert. in a habeas case.  It's entitled Wood v. Milyard, 10-9995.  The issues (taken from the order list) are:

1) Does an appellate court have the authority to raise sua sponte a 28 U.S.C. §2244(d) statute of limitations defense? 2) Does the State’s declaration before the district court that it “will not challenge, but [is] not conceding, the timeliness of Wood’s habeas petition,” amount to a deliberate waiver of any statute of limitations defense the State may have had?

It will be added to the Supreme Court page shortly.

Habeas Corpus - Cert. Granted in Front-End Case

Old news, but last week the Supreme Court granted cert. in a front-end case.  The name of the case is Williams v. Illinois.  The issue is similar to the one that was just decided in Bullcoming v. New Mexico, but with a twist.  In Bullcoming, the issue was whether one expert could testify about the results of another expert.  The Court said that that is improper under the Confrontation Clause.  The issue in the new case is whether another expert can offer an independent opinion relying upon the results of a non-testifying expert (at least that appears to be the issue based on the lower court's decision).  The actual statement of the issue from the cert. petition is:

Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause.

Seems kind of like a sleight of hand to me.  It still allows the non-testifying expert's testimony into evidence without the ability to confront the expert.  But, in Bullcoming, Sotomayor seemed to suggest that this may not represent a Confrontation Clause violation.  She stated, "We would face a different question if asked to determine the constitutionality of allowing an expert witness to discuss others’ testimonial statements if the testimonial statements were not themselves admitted as evidence."  I guess now they are facing it.

I will, eventually, update the Supreme Court Cases page.  That's going to take some time.  I hope to get to it before the end of the summer.

Habeas Corpus - Cert. Grant in Habeas Case

Supreme Court issued an order list today and granted cert. in a habeas case.  The case is called Martel v. Clair. 

It's an unusual case.  Here's the question presented from the cert. petition:

Whether a condemned state prisoner in federal habeas corpus proceedings is entitled to replace his court-appointed counsel with another court-appointed lawyer just because he expresses dissatisfaction and alleges that his counsel was failing to pursue potentially important evidence.

It appears to be more of a federal procedure-type question, rather than a pure habeas issue.  Reading the lower court's decision, the question is not whether the habeas petitioner is entitled to counsel or even the effective assistance of counsel.  Since it is a capital case, petitioner has a statutory right to counsel and the Supreme Court has held that counsel must be effective in that situation.

It really is more about a petitioner's right to counsel of his choosing.  This appears to be a novel question.  As the lower court indicated, habeas courts have discretion to replace appointed counsel in a non-capital case.  In other words, federal courts have the power to appoint counsel in non-capital habeas cases where the petitioner has shown that the petition has "likely merit."  The statute that grants that authority also grants the court discretion to replace the appointed counsel where justice requires.

On the other hand, the statute mandating counsel in capital habeas cases does not explicitly grant the court similar discretionary power to replace the assigned attorney.  The lower court concluded that the habeas court had to have that power.  Here's what the court said:

Given the importance that it placed on “quality legal representation” for capital habeas defendants, Congress must have intended to provide such petitioners with at least as much opportunity to replace counsel with whom they are dissatisfied as it provides noncapital habeas petitioners who have no statutory entitlement to counsel. Accordingly, when faced with Clair’s request for new counsel, the district court was required at a minimum to ascertain whether the interests of justice required that the request be granted.

So it really is a three-part question here: (1) does a federal court have the power to substite assigned counsel in capital cases (I would guess yes, but who knows with this Supreme Court); and (2) what is the standard; and (3) was that standard applied correctly here.

Just to note, this case will have no relevance to New York as there aren't any capital habeas petitioners.

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 - Cert. Grant in Habeas Case

Earlier today, the Supreme Court granted cert. in the habeas case entitled, Gonzalez v. Thaler.  I never got around to putting up a post focusing on the relist cases from last week's conference.  But in that post, the writer at SCOTUSblog predicted that this case was headed for a grant.  He was right on with the prediction.

According to the order list, here are the two issues:

1. Was there jurisdiction to issue a certificate of appealability under 28 U.S.C. §2253(c) and to
adjudicate petitioner’s appeal?

2. Was the application for a writ of habeas corpus out of time under 28 U.S.C. §2244(d)(1) due to “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review”?

Honestly, I am not sure what those mean.

So I looked at SCOTUSblog's statement of the issues.  They are a little more detailed:

1) Whether the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) - which establishes a one-year statute of limitations for a state prisoner to file a federal habeas petition, running from "the date on which the judgment [of conviction] became final by the conclusion of direct review or the expiration of the time for seeking such review" - dictates a single federally prescribed point in time when all state direct-review processes are deemed to have concluded;

2) whether AEDPA's "conclusion of direct review" occurs upon issuance of an intermediate appellate court's mandate, expiration of the time for seeking discretionary review in the state's highest court, or issuance of the intermediate appellate court's decision; and

3) whether “expiration of the time for seeking [direct] review” under AEDPA includes the ninety-day period for filing a petition for a writ of certiorari with the Supreme Court even when the petitioner forewent discretionary review in the state's highest court.

Slightly more insight, but I was still not sure what's going on here. 

So I looked at the lower court's decision, and it really is all about question 2 in SCOTUSblog's statement of issue.  If the finality date is the issuance of the mandate, the petition is timely.  If the finality date is the date upon which time to seek discretionary review ended, it is untimely.  There is a split in the circuits on that issue.

At the same time, I didn't see anything of note in the lower court's decision about the COA issue on which cert. was granted.  Here's what the lower court said as to the COA:

[W]e granted a certificate of appealability (COA) on the question of "whether [one of the court's prior decisions] has been overruled by Lawrence [v. Florida, 549 U.S. 327, 331-35 (2007)] and, if so, whether [Gonzalez’s] habeas application was timely filed.

Not sure why they can't issue a COA on that ground.  Under Slack v. McDaniel, 529 U.S. 473, 484 (2000), a COA can be granted on a procedural question under the following test:

When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. 

So I don't know what question (1) is all about.  Is the Court going to overrule its prior precedent in Slack?  I would typically say no, but last term shows that the Court is shifting the playing field to the right in habeas cases.  If the State is going to be seeking that Slack be overruled, then this case will be elevated to a critically important habeas case next term.

We shall know more from the briefs . . .