Habeas Corpus Blog

Habeas Corpus - What A Relief!*

By JK

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Habeas Corpus - The Rumors of Habeas's Demise Have Been Greatly Exaggerated (By Me)

By JK

Following up on Alan’s first post from the other day, I do want to make a little bit of noise around here about several good results in habeas cases in the circuit courts over the past six weeks (since around mid-September).

There have been habeas grants out of the:

Second Circuit: Young v. Conway (see Alan's post for details)

Third Circuit: Garrus v. Secretary of Dep't of Corr. - Apprendi violation

Seventh Circuit: Harris v. Thompson - right to present a defense and IAC

Ninth Circuit: Cudjo v. Ayers - violation of right to present a defense; Stankewitz v. Wong - IAC during sentencing phase of death penalty case

There may have been others; these are just those that I have seen.  And I am sure there will be more.  But I have expressed a lot of doom and gloom around here over the past two years (ever since Richter).  So I do think it’s worthwhile to acknowledge when the good things happen.  And if you have time please read the Seventh Circuit’s decision.  It’s looong, but it's pretty great.  It kind of feels like the court was convinced of petitioner's innocence, and this belief ends up being the motivating force behind the analysis. 

And the Third Circuit’s decision is pretty cool, too.  It’s an en banc decision on an Apprendi issue – the scope of the “prior conviction” exception to the Apprendi rule.  Two things of note (at least related to the blog): the majority has a great footnote (#8) that criticizes the dissent for reading the unreasonable application/clearly established law part of the 2254(d) standard in such a narrow way that it basically turns it into the “contrary to” clause.  I have been yelling about court’s doing that since nearly the inception of this blog (that post was written in July 2009; I started the blog in April 2009).  So glad to see a court say it.

At the other end, the dissent points out that the majority did not give enough deference under the standard of review and gives lists of all of the times that the Supreme Court (i) granted cert. on the issue; and (ii) reversed on this ground (both summary reversals and after merits briefing).  These lists are long.  The lack of deference summary reversal was the subject of my most recent article (part of my recent doomistry* and gloomery*).  And it does serve as a reminder that, even with the good stuff, there are still reasons to be concerned about the future of habeas.  

*Not actual words.

Habeas Corpus - The Good, The Bad, The Summary Reversal

There are three relevant Supreme Court decisions from the past couple of months that I have yet to cover.  They are in order of release: Hardy v. Cross, Cash v. Maxwell, and Perry v. New Hampsire.  So, just to make sure I put something up about them, I thought I'd stick them all in the same post.

There isn't a theme that connects all three.  But they aren't completely disconnected, either.  There was some great work from Sotomayor in Maxwell (in an opinion respecting the denial of cert.) and Perry (in dissent).  In both cases, she shined a light on two of the greatest causes of wrongful convictions: misidentification and jailhouse informants.  It's sad that, in the DNA era of wrongful convictions, not a single other judge joined her opinions or expressed any concerns about these problems in the criminal justice system.

I'll start with the front-end case of Perry.  In an opinion by Ginsburg, the Court holds that only identifications procedures arranged by the police are subject to pretrial suppression hearings to determine the reliability of the identification.  Those procedures that are not police arranged, such as where a civilian convinces another person in some manner that the defendant is the perpetrator, cannot be the subject of a pretrial hearing to determine  reliability.  So, even though an identification could have been made under extremely suggestive circumstances, it remains completely reliable evidence that a jury is free to hear and use to convict someone, so long as the police did not arrange it.  Let me repeat, Ginsburg wrote that.  Sotomayor dissented. 

I expressed my outrage about where the Court was going with the case back at the time of the argument.  As I said then, the disjunction between the Supreme Court and where society is at on these matters is striking and tragic.  As everyone around the country acknowledges, we should be doing more to protect against misidentifications, not less.  Only Sotomayor in her dissent showed any acknowledgement of the problem.

Back when the Supreme Court issued its opinion in the prison overcrowding case Brown v. Plata, there was a hyperbolic line in Scalia's dissent in which he stated "terrible things (were) sure to happen as a consequence of this outrageous order."  Let me be equally hyperbolic: terrible injustices are certain to happen as a consequence of the misguided Perry decision.  Innocent people will be wrongfully convicted and maybe even sentenced to death and executed as a result of Perry.  The Supreme Court had a chance to take a small step to make the system more fair.  Instead, they basically went backwards.*

*Once again, in an opinion by Ginsburg, a member of the alleged "liberal wing" of the Supreme Court.  Of course, that isn't going to stop pretty much every commentator from describing her (and Kagan and Breyer who joined her opinion) as liberal.  Tragic on many levels.  

On the other hand, Maxwell actually was a bright spot in habeasland.  The main issue in Maxwell focused on the reliability of a jailhouse informant.  The particular informant who had testified against Maxwell, Sidney Storch, was an infamous liar who had repeatedly testified in criminal cases as a jailhouse informant in order to gain personal advantages.  As I discussed in a prior post, outside of the unreliability of the jailhouse informant, the evidence of guilt was nearly non-existent.  There were compelling reasons to believe that an innocent man had been wrongfully convicted and sent to prison for life.

In Maxwell's case, the state courts premised its denial of relief on the factual finding that there was “no credible or persuasive evidence Sidney Storch lied at [Maxwell’s] trial in 1984.”  The Ninth Circuit had granted habeas relief, "meticulously set[ting] forth an avalanche of evidence demonstrating that the state court’s factual finding was unreasonable."*

*Quotes are from Sotomayor's opinion, discussed more below.

After relisting the case numerous times, the Supreme Court finally denied cert.  That was welcome news.  It also probably means that Maxwell won't be retried and will eventually be released.

Sotomayor issued an opinion respecting the denial of cert., stating that the Ninth Circuit properly did its job -- both procedurally and substantively -- in concluding that the state court's factual finding was unreasonable.  Although not directly, her opinion does raise some awareness about the problem of jailhouse informants in detailing the ways that Storch used alleged jailhouse confessions to get personal benefits.  And Storch is far from the only problematic jailhouse informant out there.

Scalia, joined by Alito, dissented from the denial of cert.  He makes the same old complaint that the Ninth Circuit didn't show enough deference to the state court.  His analysis isn't very persuasive, as he relied upon evidence that even the state courts found to be ludicrous.  As Sotomayor points out, Scalia's argument boils down to this: although there was evidence showing that Storch lied almost every time he opened his mouth, he miraculously told the truth about Maxwell's jailhouse confession.  It's pretty ridiculous.  At bottom, it appears that Scalia was simply taking another opportunity to criticize the Ninth Circuit -- a standard conservative legal dog whistle.

Finally, Hardy v. Cross was another entry in the Supreme Court's expanding "summary reversal based on a lack of deference" jurisprudence (Maxwell obviously escaped that fate).  The full Court concludes that the Seventh Circuit was not sufficiently deferential to the state court's conclusion that the prosecution made a good faith effort to find an unavailable witness. 

The opinion is short and there really isn't much in it.  My sense is that the Seventh Circuit cut through the b.s. and understood that the prosecution's claim of good faith was empty, as the prosecution made the most minimal effort to find the witness.  But I am constrained to agree that the law basically says that the minimal effort that was made there was all that's necessary.  Of course, as I am sure the Seventh Circuit understood, if the prosecution or the police really wanted to find the witness (for example, if they wanted to arrest her), it would have taken them probably about an hour to do it.  But that's not the standard.  So it's hard to say that the state court acted unreasonably.  But that is not to say that this was fair.  Just not (apparently) unreasonable.

Habeas Corpus - Second Circuit Preview - Week of November 7, 2011

Posting this a little later than I planned, but still before the one habeas case to be heard this week.

Wednesday, November 9

Robles v. Dennison, 10-4480-pr 

• Status: To be argued 11/9/11
• Panel: Pooler, Parker, Lohier
• Lower ct. Info: 05-CV-428, 2010 WL 4026814 (WDNY Oct. 13, 2010) (VEB)
• In Circuit: Dist. Ct. COA
• Issues: (1) whether Corr Law s. 213 applies to petitioner's case; (2) did 213 create a liberty interest in parole; (3) whether inmates have a due process right not to be denied parole for arbitrary or impermissible reasons, and to be protected from flagrant and unauthorized action by the Parole Board; and if so, (4) was petitioner denied parole for arbitrary or impermissible reasons; and (5) is the available process in New York for reviewing parole denials ineffective to protect the rights of the habeas applicant and therefore futile for purposes of exhaustion

Habeas Corpus - District Court Review - Habeas Grant!

There's been a habeas grant out of EDNY!  The name of the case is Evans v. Fischer and habeas was granted on a due process violation based on the admission of a vast amount of hearsay evidence at the trial.   

The DJ does a great summary right at the beginning of the opinion, so I'll just quote it:

The focus of the petition is the admission at petitioner's trial of an unsworn, highly detailed seven-page hearsay narrative, penned by the state's key trial witness, containing the most damaging evidence and nearly the entirety of the state's case. Admitted for its substance without a limiting instruction, the document was touted by the prosecutor during summation and furnished to the jurors, upon their request, at the outset of deliberations. Petitioner claims that the document's effect, as well as the state's objective in offering it, was essentially to supplant the witness's poor performance on the stand, and to nullify his primary defense, which consisted of a compelling impeachment of that testimony. He argues that he was denied due process because his conviction rests principally on this hearsay rather than the trial testimony.

The state appellate court held that the trial court's decision to admit the hearsay document was error in three distinct ways and not reconcilable with any extant evidentiary theory, but the appellate court nonetheless rejected petitioner's claim that the ensuing unfairness was of constitutional magnitude. Under the unique circumstances and considerations addressed below, however, I conclude that the state appellate court unreasonably applied controlling Supreme Court holdings, which have long embodied the principle that the fundamental fairness guarantee of the Due Process Clause prohibits the state from obtaining a criminal conviction in the manner in which the State secured petitioner's. As this Memorandum explains, the record reveals manifest trial error of enormously prejudicial consequences, indeed a very thwarting of the trial as a trial. Mindful of the strict limits of my jurisdiction under AEDPA, I am compelled to conclude that the state appellate court's rejection of the due process claim on these facts was not merely error but objectively unreasonable, and I accordingly grant the petition.

Really interesting stuff.  Here are the specific details:

Evans v. Fischer

• Habeas Granted
• Lower Ct. Info: 06-CV-5919, 2011 WL 4434058 (EDNY Sept. 22, 2011) (RJD)
• Issues: Due process violation based on the admission of hearsay evidence

It's been added to the Pending Second Circuit Cases page.  I am assuming that the State will appeal (they haven't yet, though).  I'll just remove it if they don't.

Habeas Corpus - Published Opinion - Habeas Does Not Lie For Deficiencies in State Court Collateral Proceedings

Last Friday, the Second Circuit issued a published opinion in a case in which the petitioner had made a request for authorization to file a second or successive petition.  The decision is Word v. Lord, 11-111-op. 

Petitioner sought to pursue a claim that her due process rights were violated when the Appellate Division denied her error coram nobis petition.  Oddly, she had previously raised a similar claim in 2004 and authorization was granted, but the district court denied the petition concluding that her challenge concerned only state post-conviction proceedings and therefore was not subject to federal habeas review.

In a short per curiam, the Second Circuit came to the same conclusion as the DJ in the earlier petition.  The court held that, consistent with the majority of Circuit Courts to address the issue, that "errors in state post-conviction proceedings do not provide a basis for redress under § 2254."  This is based on the recognition that "the Constitution does not compel states to provide post-conviction proceedings for relief."

 

 

Habeas Corpus - District Court Review - Habeas Granted Outside of WDNY! - CORRECTED

So far this year, there have been four habeas grants in the district courts in New York.  And all four were from the same judge in WDNY.

I am happy to report that there has been another habeas grant in the district courts and this one was from outside of WDNY.  It happened in EDNY.  And for some reason this one made me very happy. 

Actually, I know the reason: the state court undermined a basic concept in the system.  As a criminal defense attorney at the appellate level, there are certain pillars on which you base your representation.  One of those is that, if we pursue a client's legal remedies on appeal (or in a collateral proceeding) and challenge the legality of the sentence, that client won't end up with a worse sentence.  Of course, there are exceptions, and attorneys should always be sure to advise a client of a foreseen risk.  But in a typical case, appellate attorneys feel comfortable telling a client not to worry.  A win will not put him in a worse position.

It's based on the due process concept that any increase in a sentence after a defense victory is presumptively vindictive.  This was established in the Supreme Court case of North Carolina v. Pearce, 395 U.S. 711 (1969).  One of the main policies behind it is that a defendant should not be punished for pursuing his legal rights.  There are limited circumstances where an increase in sentence would not be considered vindictive.  One important situation is where new facts that were not available at the original sentencing proceeding come to light at the resentencing (e.g. defendant committed bad acts after original sentencing or prior criminal conduct that nobody knew about at the original sentencing).  But, all things being equal, a sentence should not go up if a defendant is successful in utilizing his post-conviction remedies in challenging his sentence.

Unfortunately, that's what happened to petitioner here.  And I simply cannot believe that the state courts allowed this to happen.

First, here are the details:

Somerville v. Hunt

• Habeas Granted; Resentencing Ordered before Different Judge
• Lower Ct. Info: 08-CV-1307, 2011WL 795073 (EDNY Feb. 28, 2011) (NGG)
• Issue: whether petitioner's increase in sentence after his original sentence was vacated as illegal was presumptively vindictive

I anticipate that this will be a long post, so I'll drop the analysis under the fold . . .

 

Habeas Corpus - Summary Orders

The Second Circuit issued two summary orders this week in the cases that they heard last week.  Not too much going on in them.  Here are the details:

Jones v. Poole, 09-4887-pr 

• Affirming Denial of Habeas (order here)
• Argued: 12/14/10
• Panel: Jacobs, McLaughlin, Leval
• Lower Court Info: 07-CV-6587, 2009 WL 2633669 (SDNY Aug. 26, 2009) (LAP) (JCF)
• Issues: Improper Jury Instruction; IAC

LaValle v. Artus, 09-4685-pr

• Affirming Denial of Habeas (order here)
  
• Argued: 12/13/10
• Panel: Leval, Livingston, CJJ, Berman, DJ
• Lower Court Info: 06-CV-2538, 2009 WL 3761995 (EDNY Nov. 9, 2009) (JS)
• Issues: whether the trial court infringed Petitioner's Sixth Amendment right to represent himself

Notes:  One quick note.  In Jones, the Second Circuit registered its "disapproval" of the so-called "two inferences" charge.*  The court also concluded that the trial court's instructions on factfinding** were "'confusing'" and "'undesirable.'"  Nevertheless, despite the problematic instructions, there was no due process violation.

* The two inference charge (as given in Jones' case) went: "where two factual inferences may be drawn from the evidence,... one factual inference consistent with guilt and the other factual inference consistent with innocence, any defendant is entitled to the inference of innocence."

** As described by the Second Circuit, the problematic factfinding charge was: "when the jury 'finds a fact, it has to be done fifty-one to forty-nine' and the standard of 'beyond a reasonable doubt' applies only to elements of the charged crimes and to facts on which guilt 'hinges' or which are 'crucial' to establishing guilt or innocence."

Habeas Corpus - Habeas GVR

Thanks to reader DB I see that I missed a Supreme Court GVR in a habeas case back on October 12.

The case is called Doody v. Schiro, 596 F3d 630 (9th Cir. 2010).  In the decision, the Ninth Circuit granted habeas relief based on Miranda and voluntariness grounds.  In other words, there was a Miranda violation and, notwithstanding the Miranda violation, the statement itself was involuntary under the due process clause.

The Supreme Court GVR'd the case on the basis of Florida v. Powell, a decision from earlier this year in which the Court basically held that a Miranda violation does not necessarily occur when the cops don't get the Miranda warnings exactly right.  That's a slight oversimplification, but mostly true.  Looked at another way, in Powell, the question was not whether they were misleading, or ambiguous, or confusing, but simply whether they were adequate.

But that's not the issue in Doody.  There, the question was whether the warnings were clear and understandable.  And they were a complete mess.  Here's how the court described them:

During his administration of the warnings, Detective Riley emphasized that Doody should not “take them out of context,” and implied to a juvenile, who had never heard of Miranda, that the warnings were just formalities. This misdirection was coupled with repeated assurances that the detectives did not necessarily suspect Doody of any wrongdoing. Most significantly, in informing Doody of the right to counsel, Detective Riley deviated from the form containing the juvenile Miranda warnings, and ad libbed that Doody had the right to counsel if Doody was involved in a crime. Indeed, Detective Riley instructed Doody that he had the right to counsel “if you were involved in it ... but if you were, then that's what that would apply to[.]” The implication from this improperly qualified, unclear, and confusing warning was that Doody only had the right to counsel if he were involved in a crime. In such a circumstance, the invocation of one's right to counsel would be tantamount to admitting one's involvement in a crime. Overall, the fact that Detective Riley's explanation of a one-page Miranda warning form consumed twelve transcribed pages of text is a testament to the confusion generated by the detective's obfuscation.

So I am not quite sure I can agree with the GVR here.  Powell seems to have nothing to do with the situation here.  Oh well.

Getting back to Doody, the dissent in that case took issue with the paragraph quoted above, believing that the court did not follow its AEDPA responsibilities - a common complaint against the 9th Circuit.  As DB predicted in his e-mail to me, I got a big kick out of the majority's response:

Our colleagues in dissent chastise us for reaching these conclusions, accusing the majority of “once again pay[ing] mere lip service to AEDPA and then proceed [ing] as though it did not exist.” See Dissenting Opinion, p. 663. The dissent would prefer that we simply parrot the findings made during the state court proceedings and call it a day. However, if we succumb to the temptation to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat rubber stamp, pucker up, and kiss The Great Writ good-bye.

Judge Kozinski in his concurring opinion also took on the AEDPA standard and said, "I write separately because I believe that deference is neither a blindfold nor a bandana."  Interesting.  I must admit when I first read it, I thought he had written "banana."  That would have made no sense, but it would have been far more interesting to try and explain.  "Bandana" fits a little better.

Shifting back to the GVR, it seems inappropriate for a different reason.  Setting aside the Miranda issue, the 9th Circuit also concluded that the statement was involuntary as a matter of due process.  So, even if the 9th Circuit is wrong about Miranda, Powell has no impact on the voluntariness argument.

Based on the questionable GVR, I am guessing we will see the 9th Circuit stick to its prior decision.

Habeas Corpus - Second Circuit Opinion from Monday

On Monday, the Second Circuit issued a published opinion in the cases of Mannix v. Phillips and Archer v. Fischer.  The court affirmed the denial of habeas in both cases, rejecting the argument that the New York depraved indifference statute -- as it used to be interpreted before the big change in the law that happened in the 00's -- was unconstitutionally vague.  The opinion was written by Wesley and joined by Raggi and Hall.

This issue has been bubbling up for awhile.  And, to be honest, I am not too familiar with the "void-for-vagueness" doctrine or the arguments as to why the statute was unconstitutionally vague.  I have the vague understanding that the argument was based, in part, on the fact that the depraved indifference statute had been interpreted in such a way that it was difficult to distinguish it from reckless manslaughter.  But I am not really sure if that does a good job of capturing the essence of the argument.  I would tend to guess that it is far more complex than that. 

And the problem is that, after reading the decision, I have this nagging feeling that the Second Circuit did its best to avoid the complexity of the issue.  The opinion just seems to travel too easily on a direct line from point A to point B in rejecting the claim.  I get the sense that it simply can't be that simple.

Granted, the void for vagueness doctrine does not seem to be an easy standard to meet.  So maybe it is that simple.  I could be completely off-base with my speculation here.

But there are reasons for this nagging feeling that this was a far more complex claim.  It's this line that kind of jumps out at me: "Contrary to the assertions of petitioners this change in construction is of little import in evaluating these petitions for habeas corpus relief based on vagueness, for on habeas review, we must look to New York law as it existed when [the] convictions became final."

I don't really understand that.  If petitioners were saying that under the law as it is now interpreted, they were entitled to relief, that would be one thing.  But they aren't saying that.  My sense is that the  change in law is important here because, in changing the law, the Court of Appeals had issues with the prior interpretation and had to explain what those issues were.  So, petitioners weren't relying on the change in the law, they were relying on what the Court of Appeals said about how the statute had previously been interpreted and applied.  Or something like that.

But, as can be seen above, the Second Circuit tries, at first, to completely brush it aside. But later the court does address it a little more directly, but rejects it in various offhand ways.  None of which are particularly convincing (indeed, the court goes the easy route and says that some ambiguity is constitutionally tolerable).  And the court wraps it all up with the odd conclusion that, even under the new interpretation, these guys are guilty.  That seems pretty irrelevant since the court has just reiterated through out the opinion that the new interpretation doesn't matter. 

So not a completely fulfilling opinion.  My intuition tells me that there should have been more here.

[EDITED for clarity]