Habeas Corpus Blog

Habeas Corpus - Bell v. Ercole

Around the time that I did my global update to the Pending Second Circuit Cases page, I added another case to the page.  The name of the case is Bell v. Ercole.  

I have blogged about the case before.  Back in March 2010, the Second Circuit issued a summary order that remanded the case to the district court.  As I said in the prior post, the Second Circuit 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.

The DJ has finally issued the order seeking to clarify things.  It's a really long and ornery opinion.  The DJ clearly was not happy that he had to make his reasoning more clear.  At various times in his opinion, he criticizes the remand order.  And, while I expressed a hope that maybe, on remand, the DJ would reconsider the habeas denial, that didn't happen.

Now the case is sent back to the Second Circuit.  I am guessing that the case probably should go back to the same panel.  I would think that further briefing will be necessary.  But I am not sure whether there will be another oral argument.  For this reason, I have put the case in the "Argued" section of the page.  I am not going to give periodic updates on the case because it is a pre-2010 docket number, so it will be relatively costly to keep looking at the docket sheet ($0.80 as opposed to $0.16 for the post-2010 docket sheet).  If I see it pop up on the calendar, I will add the info.  Otherwise, I will just wait for the decision.

Here are the details on the case:

Bell v. Ercole, 08-3539-pr

• Status: Request to Restore Case to Panel
• Panel: Leval, Straub, Wesley
• Prior Decision: Summary Order Remanding Case
• Issues: Juror misconduct; evidentiary rulings; prosecutorial misconduct; harmless error

 

Habeas Corpus - District Court Review - Habeas Grant Reinstated!

Earlier this week, I had discussed how the DJ had withdrawn the grant of habeas in Harrison v. Cunningham in order to allow petitioner's trial attorney to submit an affidavit explaining why he was not ineffective.

I strenuously complained about that action, saying that Pinholster has to be read to prevent the consideration of the affidavit.

Fortunately, in the end, it didn't matter.  The attorney submitted his affidavit and the DJ rejected his explanations for why he did not call the two alibi witnesses.  I have uploaded the court's order: Download Harrison_v_Cunningham (you can also download it through Pacer for free).

Nevertheless, my complaints about what the court did still stand.  Pinholster has to be read both ways: if a habeas court cannot consider new evidence to grant a petition, a court also should not be able to consider new evidence in order to deny a habeas petition.

Habeas Corpus - Summary Order from Wednesday - The Unfairness of Pinholster

Second Circuit issued a summary order the other day in a habeas case.  It's called Ridgeway v. Zon, 09-4789-cv.  I originally missed it since it did not have the customary "pr" after it.  However, I looked closely at the titles of the list of summary orders, just in case, and the name just seemed familiar.  It was not a case that appeared on the Pending Second Circuit Cases Page.  That's because it was a Second Circuit COA grant with a pre-2010 docket number.  In other words, a pre-ECF case, so no ability to search for the COA order.

Fortunately, my familiarity with the name of the case was because I wrote about the district court's decision (back when I was covering every district court decision that came out -- in retrospect, I can't believe I had the time to do that).  You can read the DJ's decision here.  This was a case where I thought the DJ's reasoning was completely unpersuasive on the IAC claim.  The IAC claim was based on counsel's failure to consult an expert on vague evidence of sexual abuse.  The Second Circuit has held, on several occasions, that counsel can be considered ineffective for this very reason.  Nevertheless, the DJ did not grant a COA, but the Second Circuit did.

And the Second Circuit agreed with me that the IAC claim was "not without force."  However -- and this really made my blood boil to the extreme -- the court concluded that its hands were tied because of Cullen v. Pinholster.  Essentially, because the state court did not hold an evidentiary hearing to review the IAC claim, there was not enough facts in the state court record to conclude that the state court got it wrong, even though there are reasons to believe that further factual inquiry would show that counsel was ineffective.

And the Second Circuit appearred to voice some distaste with this situation.  Here's what they say:

Ridgeway's appeal from his conviction under New York Criminal Procedure Law § 440.10 was decided on the merits by the Niagara County Court. The record in that court is sparse, to say the least, see Res. Br. 7-8 (discussing the state court record on appeal), and failed to establish conclusively that Ridgeway's counsel had not consulted a medical expert or ignored Ridgeway's request to call his relatives. To be sure, additional information proffered before the District Court appears to lend some credence to Ridgeway's claims. As in other cases, see Eze v. Senkowski, 321 F.3d 110, 135-36 (2d Cir. 2003), we might have remanded the cause to give Ridgeway's counsel an opportunity to explain behavior that does not appear to have been the product of "appropriate strategic considerations," Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (finding that attorney's decision not to prepare a defense because he believed that the trial court would grant his motion to dismiss was "not the sort of conscious, reasonably informed decision made by an attorney with an eye to benefitting his client"). However, the Supreme Court has now apparently foreclosed that avenue for us here. See Cullen, 131 S. Ct. at 1413 (Sotomayor, J., dissenting) ("[n]ew evidence adduced at a federal evidentiary hearing is now irrelevant to determining whether a petitioner has satisfied § 2254(d)(1).").

As I have said before, this is a real, real problem.  It renders the system entirely unfair.  There is now a huge loophole in the law.  This case shows it.  When faced with a decent claim that requires more factfinding, an uninterested state court can simply immunize a denial of relief from habeas review by failing to hold a hearing.

This is completely untenable.  The AEDPA needs to be amended.

Habeas Corpus - GVR from Yesterday

In its order list yesterday, the Supreme Court issued a GVR in a habeas case, Ryan v. Detrich, pursuant to Cullen v. Pinholster.

I looked up the lower court's decision in Detrich, and there is no surprise as to why it happened.  In that case, the Ninth Circuit considered evidence in support of an IAC claim -- a psychological report establishing a mitigating factor relevant to whether the death penalty should be imposed -- that the state court refused to consider, even though petitioner had diligently presented it to the state courts.

Last week, I covered the problems with this, namely giving the state courts preclusive authority to determine the facts that can be considered in analyzing a constitutional claim.  As I said last week, this current gap in the AEDPA renders the system completely unfair.  To steal the language from the other nightmarish habeas opinion from this term, Richter, all fairminded people would agree that this gap in the habeas statute is inequitable.  This gap needs to be addressed.

Habeas Corpus - Williams v. Hobbs

The Supreme Court issued an order list today.  No cert. grants in any habeas cases.

And one very notable denial.  It occurred in Williams v. Hobbs.  Sotomayor dissented from the denial of cert. in an opinion joined by Ginsburg. 

I had previously talked about Williams here as it was one of the Relisted cases and it had the amicus filed by the Scholars of Habeas Corpus Law.  As I mentioned in the prior post, the issue in the case was whether it was appropriate for the 8th Circuit to raise a procedural defense sua sponte that the State did not raise in the district court?  The procedural defense was whether it was appropriate to order an evidentiary hearing.  The State did not object to the hearing in the district court, and the district court held one.  The district court then granted habeas relief after the hearing.

In my prior post, I was trying to think of a way that the relist could possibly mean a summary reversal -- the Eighth Circuit's ruling seemed pretty absurd to me.  But even there I had my doubts.  So the cert. denial is not surprising, but it is still very, very disappointing.

Sotomayor's dissent is a pleasure to read.  She effectively takes down the Eighth Circuit's reasoning and credibly shows that the State made a strategic decision in going forward with the hearing.  Essentially, the State thought the hearing would help them show that habeas relief should not be granted.  They ended up being wrong.  But only after taking that risk and losing did the State say that the hearing shouldn't have been held in the first place.  She concluded that the State should not be allowed "to manipulate federal habeas proceedings to their own strategic advantage at an unacceptable cost to justice."  Strong words -- and her opinion backs them up.  Her opinion is so effective that I find it really surprising that she couldn't get four votes for cert. (I am looking at you Breyer and Kagan).

While this cert. denial smarts a little for habeas petitioners (at least for those in the Eighth Circuit), it is nice to see Sotomayor coming out so strongly, once again, in favor of the habeas petitioner/criminal defendant. 

Habeas Corpus - Pinholster Argument Review

I am beginning to believe that the State simply does not want to win this case.

In my second preview of the case, I had mentioned that the State buried their strongest argument under a bunch of illogical and unnecessary arguments.

Then at the argument it got worse.  During argument, the State introduced an entire new argument.  They argued that the issue here wasn't the new facts, but that the new facts actually created a brand new unexhausted claim.  As Justice Kennedy stated when Petitioner got up to argue, "Now, the [State], unaccountably, has told us a few minutes ago that this is a new claim, which I think changes the whole question." 

Raising a brand new argument during oral argument is just not an effective way to present your case.  And the whole thing does not make sense since they had a facially valid argument at the start -- whether it constitutes essentially a procedural default for petitioner to rely upon facts in federal court that were not presented to the state court, even though they could have been.  In fact, not much of the State's argument focused on this question.  I just find that incomprehensible.

Instead, apart from the new argument, the State advanced their illogical statutory interpretation claim.  After questioning the logic of it and hearing counsel say that their position was logical, Sotomayor offered this gem:  "Counsel, I can tell you the one thing you've said that makes no sense. There is nothing logical about this statute, or clear about this statute, as the legion of cases that the lower courts have addressed in trying to interpret it, and as the legion Supreme Court cases that have dealt with this statute."

Unfortunately for petitioner, despite the State's lack of desire to focus on the real issue, the Court was well aware of it.  As Justice Kennedy stated, "And in that case, we go back to Justice Scalia's opening question to you: Was that the court relied on different evidence, evidence that was not in the State hearing. And that's the question, whether or not they can do that, if this evidence could have been presented."

Of course, petitioner argued that this question does not need to be addressed since the Ninth Circuit in its opinion stated that relief would be granted even without the new facts developed in federal court.  Justice Breyer's response was, if that's the case then "[w]hy are we all here?"  Laughter ensued.  But it did eventually become a focus of the argument as Petitioner's counsel and the judges wrestled over whether the opinion could be read that way.

Overall, the procedural default question did take center stage in petitioner's argument.  Counsel was asked to try and unwind the "conundrum" of how to reconcile the ineffectiveness argument (that counsel should have pursued facts at the capital sentencing) with 2254(e)(2) language that the claim could not have been developed in state court.  Petitioner had a good response to this -- "The factual predicate that could not be discovered was the evolution of the mental health testimonies as it moved from affidavit to live testimony, and the state gave for the first time specific notice of how it was going to attack the presentation in state court. And all of the arguably new mental health theories were in response to the changes in the -- that the state itself had made in Federal court."

The State did not fair any better in rebuttal.  The State eventually conceded that certain evidence actually was a part of the state court record -- even though, in the main argument, the State said that it was new evidence in federal court.  Oh boy.

Not a good showing for the State of California.  I wonder if it will have any impact on the judges' attitude towards the case.  And more existentially: Should a party win a case where its lawyers were so off-the-mark?  The result of this case may give us an answer.

Habeas Corpus - Pinholster Preview Part II

On Tuesday, the Supreme Court will hear argument in the habeas case of Cullen v. Pinholster.

The procedural issue presented in the case is whether a federal habeas court can conclude that a state court’s rejection of a claim was unreasonable by relying on facts that an applicant could have, but never alleged in state court proceedings.

I have previously mentioned (in a prior post entitled Pinholster Preview) that the case could be a potentially dangerous one for habeas petitioners.  The question presented sounds, on its face, like a strong procedural default argument.  If the State was successful on such an argument, it would essentially mean that evidentiary hearings in habeas cases would be limited to an exploration of only those facts that were asserted in state court, but the state court chose not to hold a hearing on.  It's an argument that could have been pretty strong for the State.

But the State messed it up really bad in their brief.  As I mentioned in the prior post, the State went much broader in the brief and they seem to argue that a federal court can never grant relief on facts developed in a federal evidentiary hearing that were never considered by the state court.  But the argument itself is a bit unfocused and rambles into unnecessary arguments.  They also make a crazy argument that a petitioner must show entitlement to relief under 2254(d)(1)standard of review before a hearing can even be ordered. 

I really don't understand what their goal was here.  They took a potentially strong position and muted it with some pretty outlandish arguments.

It opened up the opportunity for petitioner to hit back strongly.  Reader AS, who originally pointed out to me how broad the state had gone with their argument, pointed out this persuasive paragraph from petitioner's brief:

The State argues that “when examining whether a state-court rejection of a claim was objectively unreasonable under § 2254(d)(1), a federal court must confine itself to only those facts presented to the state court in support of the claim.” This argument is contrary to the plain text of § 2254(d)(1), renders § 2254(e)(2) (AEDPA’s evidentiary hearing provision) and the exhaustion doctrine superfluous, and is contrary to this Court’s cases interpreting § 2254(d) and (e). Similarly flawed is the State’s argument that a habeas petitioner must prove a state court decision unreasonable under § 2254(d) in order to obtain a federal evidentiary hearing. If a habeas petitioner could show without any further fact development that the state-court denial of his claim was unreasonable, what need would he have for a federal evidentiary hearing? The habeas petitioner would be entitled to relief on the state-court record.

Of course, this is not to say that the Supreme Court won't get it and realize that the issue here is one of "procedural default" and not an overarching question of how far the AEDPA went to limit habeas.  But the State really did obfuscate the main issue here.  Maybe that will work to petitioner's advantage.

Habeas Corpus - Pinholster Preview

Just came across this comprehensive preview of the upcoming Supreme Court case of Cullen v. Pinholster.  The argument is scheduled for November 9.

On my Pending Supreme Court Cases page, I have stated the question presented on the procedural issue in a very narrow way.  Here is how I have stated it:  Whether a federal habeas court can conclude that a state court’s rejection of a claim was unreasonable by relying on facts that an applicant could have, but never alleged in state court proceedings.  In other words, it seems kind of like a procedural default question.

However, reader AS has pointed out to me that, in their brief, the State has approached it far more broadly.  They seem to be arguing that a federal court cannot grant relief based on facts that were never developed in state court proceedings. 

And this particular preview also seems to approach the question presented in that broad way.  Initially, they state the question presented in the same way I have.  But then they analyze it in a much broader way.  In their analysis section, this is how they frame the question here:  "the Court will consider whether, in an application for habeas corpus relief, a federal court may consider facts presented during a federal evidentiary hearing when those facts were not presented to the state courts in earlier proceedings."  That is far broader than the procedural default type question above. 

I am worried.  Is the question really this broad?  If the Court goes here and answers the question with a no, it would pretty much end the possibility of evidentiary hearings for a number of habeas petitioners.  Obviously, that would not make me happy.

I'll try and write more once I have read the briefs.  But this is a case that I am going to have to watch very closely.