Habeas Corpus Blog

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.

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 - Second Circuit Matters

I have added a couple new cases to the Pending Second Circuit Cases page.

First, in lieu of doing a separate post covering the Second Circuit orders for the past two months (November and December 2011), I'll just mention here that there were zero COA's in November and only one in December.  The numbers continue to dwindle.

Here's the COA from December:

Munson v. Rock, 11-2943-pr (L); 11-3516-pr (Con)

• Status: Counsel Assigned, Form D filed
• Lower Ct Info: 09-CV-6655, 2011 WL 2516499 (WDNY June 23, 2011) (MAT)
• In Circuit: Circuit Ct. COA
• Issues: Whether petitioner is entitled to a writ of habeas corpus based on his claim that he received ineffective assistance of counsel when counsel advised him that he faced consecutive sentences of up to 50 years in prison

After reviewing the upcoming calendars, I noticed a case that does not appear on the Pending Cases page.  Not sure how I missed the order as it was issued back in February 2011.  In any event, here it is:

Green v. Walsh, 10-3353-pr

• Status: Calendared for 2/2/12
• Lower Ct. Info: 03-CV-3606, 2010 WL 3037000 (EDNY Aug. 3, 2010) (RJD)
• In Circuit: Circuit Ct. COA
• Issues: whether the district court properly dismissed Green’s challenges as “beyond the scope of Rule 60(b)” when (1) Appellant’s sentence, subsequent to the district court’s denial of his petition filed pursuant to 28 U.S.C. § 2254, but prior to the filing of his Rule 60(b) motion, had been vacated and reimposed by the New York state courts, and (2) Appellant’s Rule 60(b) motion attacked the district court’s previous resolution of his claims on the merits

Habeas Corpus - District Court Review - Straight Up COA!

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

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

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

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

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

Here are the details:

Marte v. Berkman 

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

Habeas Corpus - Wednesday's Transcripts

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

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

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

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

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

 

Habeas Corpus - Gonzalez v. Thaler - 11/2

Tomorrow, the Supreme Court will hear argument in the habeas case of Gonzalez v. Thaler.  There are two issues in the case:

(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”?

From SCOTUSblog's preview, I see that the parties spent a good deal of their time debating the COA issue.  The debate is over whether the Fifth Circuit's COA order was jurisdictionally deficient in that it did not mention whether reasonable jurists could debate whether petitioner had stated a valid underlying constitutional claim. The Solicitor General weighed in on this issue as well, arguing that the problems with the COA are jurisdictional.

On a certain level, this debate is fine with me.  I was more worried about whether the Court would overrule its prior precedent allowing a COA on a procedural issue.  That does not appear to be a legitimate fear.

The debate reminds me of the cannon to shoot a fly Second Circuit decision from the other day about the required specificity of a certificate of appealability.  I have no problem with courts having to be more exact with COA's and, if they are not, forcing them to be more exact. 

But jurisdictional?  That's a little nutty.  If it is purely a jurisdictional error, then the State would be allowed to move to dismiss based on the insufficient COA order.  But under that logic, the Fifth Circuit deprived itself of jurisdiction when it issued an imprecise order.  I don't see how a court can deprive itself of jurisdiction like that.

Rather, I would think that a court has the power under the federal rules to correct its own orders to address such a mistake (maybe FRAP 40?).  If there is a deficiency in the COA order, then the court should simply be asked to fix it.  For example, here, the State could seek reconsideration of the COA grant and argue that the appellate court shouldn't consider the case unless that's fixed.  I guess in that way it would be "quasi-jurisdictional."  The court can look at the case again and see whether or not the standard has been met.  If not, then they can dismiss the appeal that way.  But that's how it should go.  If the State doesn't raise this procedural defense, then it would be waived and there is nothing wrong with the court considering the case.

And if the district court didn't issue a specific enough order, then like Blackman from the other day, the case would just get remanded for it to get fixed.

But jurisdictional?  That's nutty.

Assuming the court gets past this procedural hiccup, I'll just cut and paste what I stated about the statute of limitations issue back in the preview, in which it was ranked sixth out of the eight habeas cases:

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).

Habeas Corpus - Published Opinion from Second Circuit

Very brief per curiam* opinion from the Second Circuit today in Blackman v. Ercole.  It's actually quite odd.  It's more of an internal administrative oversight opinion concerning the method for deciding COA's in the district court, more than a real procedural decision.  And it may (I emphasize may) help to solve a perpetual gap in knowledge with respect to when DJ's grant COA's.

*I always want to spell this as "curium," probably because it's how "curiam" is pronounced (or maybe I am just pronouncing it wrong).  To note, I did some research to see if "curium" was actually a word.  It is (and maybe with an unofficial minor in chemistry I should have known that).  Curium is a "silvery metallic synthetic radioactive transuranic element. Its longest lived isotope is Cm 247 with a half-life of 16.4 million years. Atomic number 96; melting point (estimated) 1,350°C; valence 3."  I guess that opens up a potential blog post title of "Curium Per Curiam," should a per curiam opinion somehow be described as radioactive.

In Blackman, the EDNY DJ denied habeas relief.  Afterwards, the EDNY clerk's office sent the DJ a form to indicate, among other things, whether a COA had been granted.  The order denying the petition did not mention this.  The judge was asked to check either Yes or No.  The DJ checked Yes.  But there is nothing on the form to indicate the issue on which a COA was granted.

This upset the Second Circuit.  Rather than go after the DJ (whose name was not mentioned at all in the opinion, which is pretty unusual), the Second Circuit attacks the clerk's office for its sloppiness in allowing a DJ to simply check a box.  it says, "This does not appear to have been an isolated error, but rather, an oversight triggered by the practice of the Clerk’s Office to notify district judges of requests for COAs using a form that solicits only a 'Granted' or 'Denied' response." 

The court says that it does not have the resources to figure out which issue the DJ intended to issue a COA.  Apparently, other circuits have had the same problems with its district courts.  Thus, the court concludes, "Accordingly, we join our sister circuits that have considered and remanded similarly deficient COAs for specification of issues certified for appeal."

First, let me just say that, in this particular case, I don't think it was too hard to figure out what the issue was on which the COA was granted.  The right to remain silent issue was the only issue addressed on the merits in the opinion.  The others were clearly procedurally defaulted.  And the DJ engaged in a lengthy analysis on the right to remain silent issue.  So, I don't think that there was a danger of any resources getting wasted here.

It also feels odd to me that the Second Circuit would do this in a published opinion, rather than as an internal administrative matter.  The chief judge could just get on the phone with the different clerk's offices and tell them to stop.  An e-mail or memo could have the same effect.  Obviously, a published opinion will have the greatest effect, but it's a little like using a cannon to shoot a fly.  But this opinion should do the trick.

Despite these quasi qualms I have about the opinion, the upshot, to me, is that this may inspire more judges to either put the COA decision in the order denying the petition (most do, but some do not) or issue a substantive order when granting a COA.  If a more substantive order is issued, there is a stronger likelihood that it will end up on Westlaw.  This could go towards closing the perpetual gap in knowledge that I have about COA's grants from the district courts that are not a part of the order denying the petition.  There aren't many of them, but this case shows that they still do exist. 

Here are the details for Blackman:

Blackman v. Ercole, 10-205-pr

• Remanded for Dist. Ct. to Specify Issue on Which COA Was Granted
• Submitted 10/18/11; Decided: 10/27/11 per curiam opinion
  
• Panel: Miner, Cabranes, Livingston
• Lower Ct. Info: 06-cv-855, 2009 WL 4891767 (EDNY Dec. 17, 2009) (SLT)
• In Circuit: Dist. Ct. COA
• Issues: Improper comments on petitioner's post-arrest silence (probably)

 

Habeas Corpus - District Court Review - Habeas Grant and COA!

I feel like there have been more habeas grants than COA's this calendar year in the district courts.  I guess I probably should have kept better track.  Nonetheless, assuming that feeling is correct, it just surprises me.  There should be more COA's than grants.  Kind of obvious, right?  A COA is a lower standard than a habeas grant.  But the DJ's have been pretty stingy this year with the COA's.

Setting that aside for a moment, for the second time this year, a DJ granted habeas and a COA in the same case!  That's pretty remarkable.  I guess it won't do anything to close the gap between COA's and grants this past year.  Still pretty exciting though.

The name of the case is Cardoza v. Rock and the issue is IAC on the habeas grant and IAC/conflict of interest on the COA.  More specifically, the court concluded that counsel was ineffective for failing to convey a plea offer to petitioner, who had been charged with participating in a drug conspiracy.  Petitioner was found guilty after a trial and was sentenced to a longer sentence than the one that was available in the plea offer.  The DJ ordered that the state court impose the sentence offered in the plea (since petitioner has sworn that he would have taken it had he known about it).  As for the conflict of interest issue, petitioner argued that his counsel had a conflict for two reasons: (1) he represented two co-conspirators; and (2) the attorney himself may have been involved in the drug conspiracy.  Crazy stuff.

One thing to note: as I discussed in my Supreme Court preview, the Court is going to hear two cases that raise these IAC issues - Lafler v. Cooper and Missouri v. Frye (to be argued on 10/31).  The Court could potentially conclude that this is not even a viable IAC claim or that the relief that the DJ ordered here is not an appropriate remedy.  So those cases could have a huge impact here.  Maybe I should have ranked those cases higher on the list of most interesting cases this term (they came in as number 4).

In any event, here are the details:

Cardoza v. Rock

• Habeas Granted; COA Granted
• 08-CV-8210, 2011 WL 4472030 (SDNY Sept. 27, 2011) (PAC) (RLE)
• Issues: Habeas Grant: IAC based on counsel's failure to advise petitioner of plea offer; COA: IAC/conflict of interest based on allegations that attorney had participated in same drug conspiracy and had represented two co-conspirators
• Notes: Adopting R&R (available at 2010 WL 7597717)

Habeas Corpus - Updates

Just finished a global update of the Pending Second Circuit Cases page.

Some things to note.  First, the following case was removed since petitioner was resentenced in trial court, which I guess rendered the habeas petition moot.

McGuire v. Walsh, 10-3862-pr 

• Lower Ct. Info: 09-CV-464, 2010 WL 3420629 (EDNY Aug. 26, 2010) (ARR)
• In Circuit: Dist. Ct. COA
• Issues: (1) the nine years the trial court took to decide his 440.10 motion violated due process; (2) IAC based on counsel's failure to conduct an adequate investigation

Second, I recently discussed a DJ's decision on a Rule 60(b) motion in which the DJ stated that if a COA was necessary for a decision on a Rule 60(b) motion, he would be inclined to grant one.  As I pointed out in that prior post, a COA is necessary in that situation.  So, if the DJ thought one was appropriate, he should grant one.  As it stands, I don't think that what the DJ did is enough to actually say that a COA was issued.

Nevertheless, I liked what counsel did in that case.  He filed a notice of appeal and, in the notice, he stated that the DJ held "that were a Certificate of Appealability required for a Rule 60(b) motion to be appealed it would be granted."  The case was only docketed in the Second Circuit a few days ago.  Let's see what the court does with the case.  It could either agree that a COA was essentially issued and let the case go forward.  Or it could put the brakes on the appeal and tell petitioner to get an official COA from the DJ (which I am sure the DJ will grant).

So, at this point, I think it's worthwhile to add it to the Pending Second Circuit Cases page.  Here are the details:

Graves v. Phillips, 11-4023-pr

• Denying Rule 60(b) Motion
• Lower ct. Info: 02-CV-6550, 2011 WL 4347881 (EDNY Sept. 15, 2011) (JBW)
• In Circuit: Dist. Ct. COA (kind of)
• Issues: Brady violation based on prosecution's failure to disclose criminal history of witness

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]