Habeas Corpus Blog

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]

 

Habeas Corpus - Summary Order

Persad v. Conway, 08-1289-pr, March 8, 2010, available here

• Affirming Denial of Habeas
• Panel: Jacobs, Walker, Livingston
• Issues: Whether the trial court improperly marshaled the evidence during the jury charge
• Preview here

Notes: Very short summary order.  Second Circuit concludes that the state court's charge was unbalanced in violation of New York law.  If I remember correctly, the MJ had concluded that the charge was improper, but the DJ rejected that conclusion.  So that is a victory for petitioner.  However, it's only a consolation prize since the court concludes that the error did not so infect the trial as to deprive petitioner of due process.

Habeas Corpus - Habeas "Win" in Summary Order

Extended summary order yesterday from Second Circuit vacating lower court denial of habeas and remanding for further proceedings.  That makes it a "win" in technical terms but as you will see in the analysis below, it won't lead to a habeas grant, at least in the district court.

Bell v. Ercole, 08-3539-pr, March 4, 2010, available here

• Vacating Denial of Habeas
• Panel: Leval, Straub, Wesley
• Argued: January 25, 2010 (preview here)
• Issues: Juror misconduct; evidentiary rulings; prosecutorial misconduct

ANALYSIS: Kind of an unusual summary order.  Second Circuit vacates the district court denial of habeas because it was "unsatisfied" with the district court's analysis in its order denying the evidentiary rulings.  The Second Circuit stated that it found it very hard to review the decision and it wanted the court's reasoning to be stated more explicitly to allow for appellate review.

But this is why it is only a "win" in the technical sense.  Yes, the district court's denial was vacated.  But it was basically vacated with instructions to deny it again, only this time, do a better job.

I guess there is a chance that, on remand, the district court will change its decision once it engages in a more careful analysis of the claims. 

And the Second Circuit did open the door a little for a reconsideration of the harmless error analysis.  The court pointed out that, in the district court's harmless error analysis, it relied on a confession of an accomplice.  The court noted that it really would be improper under Bruton and the Sixth Amendment for this type of evidence to be admitted against the defendant.  The Second Circuit questioned whether this type of evidence actually had been admitted against petitioner.  So it asked the district court to explain a bunch of things about this supposed "accomplice confession."  One, whether it was appropriate for the district court to consider the accomplice confession since it was inadmissible hearsay.  Two, whether the court considered this confession on habeas review because petitioner failed to object to the district court considering it.  And three whether the accomplice confession linking petitioner to the crime had been implicitly admitted at trial without objection from petitioner.

Maybe, upon reconsideration, the district court will conclude that this confession should not play a role in the harmless error analysis and find that the evidentiary errors are not harmless.  Seems like the only possible course for habeas relief in the district court at this point.