Habeas Corpus Blog

Habeas Corpus - Supreme Court Catch-Up - Updated

By JK

 

 

I know I am jumping into this a little late, but thought it was a good idea to at least put something up about the current Supreme Court term.  Overall, it’s not a very active term on the habeas front (unlike the past two years, which were quite memorably active). There are only three cases on the docket, two of which present the same issue.  And the Court has already heard oral argument on all three cases.

 

 

There are some front-end cases out there (I’ll wait for the decisions to mention them individually) and a quasi-habeas case that could have a huge impact on the criminal justice system (that’s the Chaidez case, which asks whether Padilla v. Kentucky applies retroactively).  And, of course, similar to last term, the Court could issue some summary reversals in habeas cases.  And there is time for more cert. grants for the current term. But overall, slow habeas term.

 

 

Turning to the three habeas cases themselves, the two cases heard together back on October 9, 2012 – Ryan v. Gonzales and Tibbals v. Carter – garnered the most pre- and post-argument attention (you can read about them here, here, and here).  The issues are whether a habeas petitioner must be “competent” during the pendency of the habeas proceeding and, if incompetent, how broad is the district court’s discretion to stay the proceedings until the petitioner becomes competent.  

 

 

I think it is an interesting question, not just from a substantive point of view, but also an ethical one. It’s stuff that I used to focus on with my students (notice the past tense there, no longer an active professor after the move out West).  The question is: whose appeal is it anyway?  The Supreme Court has stated that appellate attorneys are the ones who get to make the ultimate call on what issues to raise.  And I think that this ethical logic can get extended to the habeas post-conviction attorneys.  In both situations, the substantive arguments to be raised are (typically) record-based.  So input from the defendant or petitioner is not absolutely necessary.  And it’s even less once the petition/appeal gets filed and the attorney is left to litigate everything.  But as a matter of legal ethics and good client representation, client input should always be taken into account.  Should it really be that an attorney should be allowed to make the decisions and then litigate the case in a vacuum with no client input whatsoever?  That’s what the consequences would be if the Court says that habeas petitions can go on with an incompetent client.  I don’t think the Supreme Court should condone such a situation as a matter of legal ethics, despite the current Court’s distaste for almost all things habeas.  The transcripts of the argument in the cases can be found here and here.

 

 

The final habeas case is Johnson v. Williams.  It’s got an impressive sounding AEDPA-focused issue: Whether a habeas petitioner’s claim has been “adjudicated on the merits” for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim (copied from SCOTUSblog).  But from the argument, which occurred back on October 3, 2012 (transcript here), it appears that the Court is going to sidestep the issue and find the State court actually did address the federal-law basis for the claim.  End result will be a remand to the Ninth Circuit for that court to apply the 2254(d) standard of review.

 

 

What’s interesting about this case is that, at the argument, the State attorney refused to take the signals from the Judges that she was going to win on the narrow issue and repeatedly pressed on her broader argument (and I’m paraphrasing here) that if a state court sneezes, it has made a merits-based decision on every federal claim before it.  There were conflicting opinions over at SCOTUSblog as to whether this was an appropriate oral argument strategy.  Lyle Denniston believed, and once again this is paraphrasing, that the attorney was being needlessly inflexible and/or stubborn, at best, or maybe even obtuse, at worst.  But Tom Goldstein believed (written here paraphrasingly) that it was a conscious strategy – she could see she was going to win, so why not go for the broadest ruling possible.  Tough to know for sure.  My take: inflexibility may have simply been the strategy.

Habeas Corpus - Second Circuit Updates

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

The most notable update is that, after a review of the upcoming calendars, a case has been added.  It's called Carncross v. Lempke,11-435-pr.  It's one of those unpublished district court COA's.  But it's even more frustrating than the typical one that gets missed.  This was a 30-page opinion denying habeas in which the DJ granted a COA.  Further, this was a relatively infamous case as it got some media attention (petitioner was convicted of aggravated manslaughter after he led the police on a high speed car crash during which an officer crashed into a tree and died) and was reviewed by the New York State Court of Appeals (People v. Carncross).  It makes no sense to me that this would go unpublished.

Here are the details:

Carncross v. Lempke, 11-435-pr 

• Status: To be argued 11/17/11, A panel
• Lower Ct. Info: 10-CV-522 (NDNY  Jan. 20, 2011) (LEK) (unpublished order)
• In Circuit: Dist. Ct. COA
• Issues: whether the trial court wrongfully deprived petition of his right to utilize counsel of his choice in the related criminal action

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 - Around the U.S. - Part I

Some stuff I've seen:

A preview of the upcoming Supreme Court arguments from the North Country Gazette.

Speaking of Lafler v. Cooper, the Buffalo News had an article about the arrest of a man who obtained habeas relief in WDNY back in 2006 based on IAC during plea negotiations in a drunk driving prosecution in which he had struck and killed some people while drunk driving.  He was arrested for leaving the scene of a car accident that injured three people.

An article from Erwin Chemerinsky about the need for empathy on the Supreme Court.  One situation he points to is what happened in Maples.

More Troy Davis/anti-AEDPA coverage here.  The article indicates that, back in 2009, Rep. Hank Johnson from Georgia introduced legislation called the Effective Death Penalty Appeals Act (I guess it would be called "EDPAA," pronounced as a word the same as "AEDPA").  It received 17 co-sponsors, was referred to a sub-committee, but never obtained a hearing.  Here's the text of the statute.  The only change it would have made would have allowed a court to grant habeas relief in capital cases if petitioner could show that he was innocent.  Significant, but does not really address most of the complaints about the AEDPA.  Or at least it does not address my complaints.

Blood boiling time: two lawyers, one of whom served in the Reagan and Bush I Justice Departments, give a full-throated endorsement of the death penalty in response to the criticism from people upset over the Troy Davis case.  In their mind, the only problem with the death penalty in this country is that people are wasting everyone's time complaining about it.  I wish that was an unfair oversimplification of their position, but it really isn't.  A reader responds, what if the person executed is innocent?  Their response (and I really am not making an unfair oversimplification here) -- too bad.  They say that you can't have "perfect justice, which is impossible.  But the administration of the death penalty in the United States is as close to perfect as it gets."  A footnote adds that three times a day, the writers remove their heads from the sand in order to eat. 

Habeas Corpus - Good Lawyers, Bad Judges - Updated

Seen some stuff recently about lawyers who have done work on habeas cases.  I have also seen a post about a judge who hasn't really done any work on habeas cases.

On the lawyer side, a few weeks ago, the St. Louis Beacon had a profile of an attorney who has worked on habeas matters: "Lawyer Sean O'Brien champions the wrongly convicted."  The article says that Mr. O'Brien is a "criminal defense lawyer with a national reputation, O'Brien could have no shortage of clients. For more than 20 years, he has worked to get innocent people out of prison. And he has successfully argued to reduce the sentences of some on death row."  One recent victory was in the case of Dale Helmig.  According to the article:

Helmig had been convicted in 1996 of murdering his mother, Norma Dean Helmig. Beginning in 1998, after he agreed to take Helmig's case, O'Brien argued post-conviction appeals and habeas corpus claims in state and federal courts in Hermann, Jefferson City, Kansas City, Maysville and St. Louis. Finally a judge ruled last year that Helmig was innocent, had not received a fair trial and should be set free.

Yesterday, I read about the passing of a Philadelphia lawyer, Maureen Rowley, who was a long-time public defender and created the capital habeas unit at the federal defenders' office in Philadelphia.  The obituary in the Philadelphia Inquirer/Daily News was called: Maureen Rowley, 57, defender of justice.  It's a really nice article.  UPDATE: Another article about her can be found here.

On the judge side, I have written about Judge Percy Anderson before (he is the judge who has sat for years on R&R's that recommend a grant of habeas), but his name came up again in a post at a website called allgov.com entitled, "Most Unpopular Judges in the United States."  Apparently, he has received the most negative ratings on the site The Robing Room, where attorneys can post anonymous complaints about judges.  Personally, I try to stay away from that site.  There's something about it that just doesn't feel right to me.

Habeas Corpus - Quick Items

Just a few quick items today.

First, I read a really interesting discussion from earlier this week over at Prawfsblag called "Bifurcating Habeas" about how "habeas corpus" has become splintered, at least for teaching purposes, into two separate areas: (i) review of executive detention, which would be taught in constitutional law or federalism-type courses; and (ii) review of criminal convictions, which would be taught in criminal procedure type courses.  Obviously, that split is seen in full effect on this blog, as I have only written a single post about executive detention (I believe it was during the first week of the blog).  That's because the day to day experience of review of executive detention is not relevant to 2254.  In fact, this blog slices up habeas even more by excluding 2255 -- federal review of federal criminal judgments.  As I have stated before, in most ways, 2255 is not really even "habeas corpus" review and much of it is not relevant to 2254 cases.  In any event, it's an interesting discussion and that refers to the comments as well.

Second, as a result of the Supreme Court denying cert. to a habeas petitioner who lost his petition before the Ninth Circuit, Idaho has set a date for the first execution to be carried out in that State since 1994.

Finally, on Tuesday, the New York Court of Appeals affirmed the conviction of Christopher Porco, who was convicted of killing his father and dismembering his mother with an ax.  At the time of his murder, his father was the law clerk for the presiding justice of the Third Department.  Porco had argued that there was a Crawford violation when the prosecution was allowed to submit evidence that his mother nodded affirmatively to an officer when asked at "her bedside" whether her son was responsible.  The court concluded that, even if there was a constitutional violation, the error was harmless.  Mr. Porco's attorney has stated that, if the Supreme Court denies cert., he will be filing a habeas corpus petition in federal court.  So I guess I could be writing more about this case someday.  A news report about the case is available here.

Habeas Corpus - Long Interview with Judge Chin

The New York Times today has an article covering a long interview that it had with Second Circuit Judge Chin.  As the article states, it's rare for a sitting federal judge to grant such an interview.  In the interview, Judge Chin discusses his sentencing decisions while he was a district court judge.  I have to say, it's pretty interesting.

Just to note, since it's just about his criminal cases, no habeas cases are covered in the article.  But I do follow the federal bench in New York, so there's a place on the blog for a link to the article.

Habeas Corpus - District Court Review - Habeas Denial in the News

Yesterday, the New York Law Journal had an article about a habeas denial in WDNY.  Apparently, the New York Law Journal's website is no longer subscription only.  Instead, they seem to be going to the other extreme and encouraging traffic by allowing readers to personalize the way the content on the site is presented.  I wonder if this is a temporary experiment or permanent.

In any event, the title of the article is: "Anti-Abortion Activist's Fair Trial Claims, Habeas Bid Are Rejected."  It covers the habeas denial of the petition filed by James Kopp, the anti-abortion activist who was convicted of murdering a doctor who performed abortions. 

He raised a Sixth Amendment conflict-of-interest issue.  It's a little interesting since the same conflicts that were not enough to disqualify the lawyer in state court were apparently the same conflicts that were used to disqualify that attorney in Kopp's federal court criminal case. 

But the DJ found nothing wrong with this.  According to the article, "Western District Judge Michael A. Telesca in Rochester held that any negative consequence resulting from Mr. Kopp's choice of attorneys, or his decision to grant an interview to the Buffalo News that amounted to a pretrial confession, were purely and solely the result of the defendant's own decisions."

The opinion itself can be found here.  The DJ did not grant a COA.

Habeas Corpus - Capital Habeas In the News

Capital habeas corpus has popped up in the national news this past week. 

First, on a really sad note, Georgia announced that it had set September 21 as the execution date for Troy Davis.  I followed that actual innocence habeas case very closely around here.  I am guessing I wrote more posts about that case than any other single case. 

Second, the Supreme Court ordered a stay in a death penalty habeas case out of Texas, Buck v. Thaler.  The main issue in the case is race-related -- at the penalty stage of the trial, a psychologist told jurors that black criminals were more likely to pose a future danger to the public if they are released.  It's an interesting issue, as there were other cases in Texas that had the same problem, but Buck was the only one of those cases in which the State of Texas did not agree to a new trial.  So Buck stands out.

But there is a problem.  And it appears to be a pretty big one.  Buck, obviously, is a habeas case.  And in its most recent decision, the Fifth Circuit concluded that the petition raising this race-related claim issue was second or successive.  It is this decision upon which Buck is going to have to seek cert.  Reviewing that decision, I am not sure if I see a ground on which Buck could obtain cert -- either substantively or procedurally.  So I think the odds that Buck obtains cert, even though there are serious issues in his case, are not looking good.

Habeas Corpus - Habeas Getting Some Attention

Although I haven't blogged much this summer, I have been making an attempt to keep track of stuff going on in habeasland. 

One thing I noticed was that, over the past couple of months, there were at least three articles in high-profile places that focused (at least in part) on habeas.

First, I saw an article by Emily Bazelon in the New York Times magazine about the most recent Supreme Court term.  One of the points she was making was that Sotomayor and Kagan are becoming the foundation of the Court's liberal wing.  I don't agree with that, at least when it comes to habeas.  And the point that Bazelon makes here with respect to habeas is not logical:

In the 29 opinions Sotomayor wrote as a district and appeals court judge, she never once granted relief to a prisoner petitioning for a writ of habeas corpus, the appeal of last resort for the convicted. Yet this year, Sotomayor took the rare step of publicly opposing the court’s decision not to hear the petition of a Louisiana prisoner who stopped taking his H.I.V. medication to protest a prison transfer and sued for being punished with hard labor in 100-degree heat. She actually pulled this petition out of a stack of thousands that prisoners submit without lawyers, making a cause célèbre of a humble plea. With this, Sotomayor set herself up to be the court’s hard-charging liberal — à la Marshall, who liked to take his shots, diplomatic maneuvering be damned.

I agree with the first part: Sotomayor never wrote an opinion granting habeas as a lower court judge.*  However, the counter example that Bazelon used was not a habeas corpus case -- it was a prisoner civil rights case, a completely different animal.  So it is kind of mixing apples and oranges, among other logical problems with the sentence.  I also think it's a tough sell to compare Sotomayor to Marshall. 

*I wrote extensively about that during the confirmation hearings.  As I showed in those posts, Bazelon's statement is true.  I actually wonder if Bazelon got that info from those posts (which is okay by me; that's why I put it up). 

But I am happy that somebody out there with some level of influence is encouraged by Sotomayor's decisions.  I was feeling positive about her direction up through the first half of OT2010, but I was not a big fan of her work in the second half of the last term.  For example, she joined the majority in Richter and then had that horrible majority opinion in  Michigan v. Bryant.  On the other hand, she did have a great dissent in Pinholster.

Then I saw that Linda Greenhouse had a lengthy discussion about AEDPA in a column back in July.  It was done in the context of comparing Norway's reaction to homegrown terrorism vs. this country's reaction to the Oklahoma City bombing, which led to the passage of AEDPA.  Here's the relevant discussion about AEDPA, it's pretty interesting:

[AEDPA] has transformed habeas corpus practice for garden-variety crimes. Its restrictions on the jurisdiction of the federal courts were sufficiently severe that the Chief Justice William H. Rehnquist and his most conservative allies felt the need to act with remarkable speed to affirm the law’s constitutionality. In May 1996, just nine days after AEDPA was signed into law, and after the court’s regular argument sessions for the term had concluded, the justices scheduled a special sitting to hear a case on whether the law’s all-but-total elimination of an inmate’s right to file more than one habeas corpus petition amounted to an unconstitutional “suspension” of habeas corpus.

Four dissenting justices (John Paul Stevens, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer) objected that the court was intervening with “unseemly haste.” But less than a month after the June 3 argument in the case, Felker v. Turpin the court ruled unanimously that the new restrictions were permissible because, despite the obstacles placed on access to the lower federal courts, the Supreme Court itself retained the right to exercise its own authority to grant an “original” habeas corpus petition. This was largely a fiction: the court had in fact not granted such a petition for 71 years before this decision, and has not granted one since, although inmates continue to file them regularly.

The Felker decision addressed only one aspect of the complicated law. There have been dozens of Supreme Court decisions since then, parsing other sections. One of the most far-reaching provisions is a section that bars federal judges from granting a habeas petition unless the state court decision that is being challenged “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States.” It did not take the Supreme Court long to interpret this section as meaning that it isn’t enough for the state-court decision to be wrong; it has to be unreasonably wrong, a high bar indeed. 

Finally, the LA Times discussed the Supreme Court's antagonism towards the Ninth Circuit in an article back in July.  The article focuses, in part, on Judge Stephen Reinhart, who wrote the Ninth Circuit opinions in both Richter and Premo v. Moore (which were reversed on the same day). 

I like this quote from the article: "The Supreme Court's conservative majority has been changing the law in habeas corpus and other constitutional protections . . . ."  I obviously share that opinion.  Although that sentence was not presented in the article as a direct quote from Reinhardt, I believe that is something that Reinhardt said in his defense when he was being interviewed by the person who wrote the article.