Habeas Corpus Blog

Habeas Corpus - Martinez vs. Pinholster - Who wins?

By JK

Has the Ninth Circuit found another way around Pinholster?  Can a petitioner rely upon a Martinez argument in order to have a federal court review "new" evidence?  Boy, these pathways around Pinholster really are a hot topic in these parts.  

On Monday March 4, Judge Tallman, joined by many, if not all, of the other conservative judges on the Ninth Circuit, issued a published order dissenting from the denial of rehearing en banc in a capital habeas case called Schad v. Ryan.  

In an unpublished order, the three-judge panel in Schad remanded the case to the district court for that court to determine whether petitioner could rely upon Martinez to establish cause for a procedurally defaulted IAC claim.  Petitioner had raised an IAC claim based on counsel's failure to present mitigating evidence during the penalty phase.  In his habeas petition, petitioner was relying upon mitigating evidence that post-conviction counsel ("PCC") failed to present to the state courts.  While PCC had raised an IAC claim based on a failure to present mitigating evidence during the penalty phase, PCC had not presented this particular mitigating evidence to the state courts.*  This failure was the basis of the Martinez argument.

* Specifically, in state court, the claim focused on counsel's failure to investigate and present additional evidence regarding his tragic history of child abuse.  The new mitigating evidence in federal court was evidence of his mental illness as an adult.

This made these conservative judges angry.  In their mind, petitioner was using an improper way around Pinholster to have the federal court consider new evidence not presented to the state courts.  To them, this was not a "new" IAC claim.  In their eyes, petitioner was simply making the old claim prettier with fancy new evidence and then improperly arguing that Martinez allowed the federal court to consider that better-looking new evidence under a new IAC claim.

I find the dissenting judges' analysis a little hard to accept.  In my mind, these judges are simply unhappy with the logical consequences of Martinez.  I really don't think that there can be much of a debate that what the three-judge panel allowed here is fully consistent with Martinez -- petitioner was arguing cause based on post-conviction counsel's "errors" for failing to "properly present" an IAC claim.  Those are words quoted out of the first paragraph of Martinez.  

So Martinez has the upper hand in this round.  But the scorecard could change considerably after the en banc argument in Dickens.  Actually, reviewing the Schad unpublished order, it also appears that a Martinez argument is going to be addressed in the Detrich en banc as well.  Looks like there are going to be many battles up ahead over the reach of Martinez.

Sotomayor Writes Amicus Brief to the District Court: Hodge v. Kentucky (front-end cert denial)

By Alexandr Satanovsky

I've been meaning to post about this for a while.  On December 3, 2012, the Supreme Court denied certiorari in Hodge v. Kentucky, a front-end capital case, seeking to review the Kentucky Supreme Court's denial of a penalty phase IAC claim. The underlying facts are all too common in capital practice: Hodge's trial counsel presented no mitigation during the penalty phase; the post-conviction team developed a significant amount of truly gruesome mitigation, which was presented in a state evidentiary hearing. The State even conceded that Hodge's trial counsel was objectively deficient under Strickland. However, the Kentucky Supreme Court denied relief, finding no prejudice.

The cert. petition arose from the Kentucky Supreme Court's questionable analysis underlying the conclusion that Hodge was not prejudiced. According to Hodge, the state court's conclusion rested on a legally required "nexus" between the mitigation and the facts of the crime. Now the State disagreed with this characterization. According to the State, the Kentucky Supreme Court simply found the evidence to be factually uncompelling, in light of the aggravated nature of the homicide. You can see for yourself at pages 5-11 of the short state court opinion.

Now, I suppose that it's possible for a state court to rely, in part, on a lack of nexus, without being contrary to established law. For example, if the state court explicitly acknowledges that there is no legal significance to a (lack of) nexus, it may then find that, as a matter of fact, the nexus-free mitigation was not compelling to show prejudice in light of the aggravated nature of the homicide.  In other words, I don't think there's anything remarkable about the notion that, all things equal, mitigation without a direct nexus to the facts of the crime may be less compelling than that which does bear on the facts of the crime. [Obviously, all things are never equal when trying to compare the strengths of gruesome childhood mitigation, versus, e.g., crime-specific mitigation]. More importantly, as a matter of clearly established law, a fact-finder cannot give anything like a legal presumption--a legal thumb on the scales--to "nexus" mitigation versus "non-nexus" mitigation.

After placing the case for three consecutive conferences, Justice Sotomayor penned a lengthy dissent from the denial of cert (longer than the entire reasoned state court opinion). To her, Hodge was right that the Kentucky Supreme Court's prejudice inquiry involved a legal nexus requirement. She would have summarily vacated and remanded this case to apply the proper legal standard, allowing the state court to re-do its prejudice determination without giving legal (in)significance to Hodge's powerful childhood evidence.

This sleeper dissent seems noteworthy to me for another reason. We often hear of circuit dissents as amicus briefs to the Supreme Court; well, here, it is Sotomayor who is essentially writing an amicus brief to the Kentucky federal district judge (who will hear this claim next), stating that 2254(d)(1)'s "contrary to" clause is satisfied by the state court's improper prejudice standard. She really minces no words: "[t]he Kentucky Supreme Court’s opinion is plainly contrary to these precedents [rejecting the "nexus" requirement for mitgiation evidence]," (slip op. at 8). In another paragraph, she notes that the state court's view "that in cases involving 'violent and cruel murders, it does not matter that the 'malefacto[r]' had a 'terrible childhoo[d]' . . . is contrary to our cases applying Strickland’s prejudice prong." (My emphasis).

This strikes me as an unusual occurrence. The universe of claims that have satisfied the onerous post-AEDPA 2254(d)(1) standard is relatively small, and from this it follows that those claims should be the strongest at the front-end cert. stage, and so most likely to have been the chosen issues in the front-end cert petition. Still, none of the high profile 2254(d)(1) grants that I have read, to my knowledge, involved written dissents from the denial of state court cert., assessing the same legal question without the additional (d)(1) deference. Justice Sotomayor's opinion, in other words, is my first encounter with a dissent from a denial of cert. on a front-end claim that necessarily will be relitigated in federal court, but now with the the added cloak of 2254(d)(1). And her dissent may prove quite imporant if Hodge gets through this cloak, and wins penalty phase relief in the Sixth Circuit.

Habeas Corpus - Detrich En Banc Argument

By JK

I wish I had caught this before it happened, but the Ninth Circuit reheard the capital habeas case of Detrich v. Ryan en banc on Tuesday (12/11).  I discussed Detrich a little bit in this post.  The issues in the case, according to the rehearing petition, are:

1. Did the panel err by substituting its judgment for that of the state post-conviction court and concluding that the state court unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984)?

2. Did the panel err by considering evidence that was not presented in state court notwithstanding the United States Supreme Court’s directive in Cullen v. Pinholster, 131 S. Ct. 1388 (2011), that federal review of a claim addressed on the merits in state court is limited to the evidence presented in state court?

Obviously, I care more about the second question than the first.  I am guessing the en banc court will focus more on it as well.  

To note, here's the panel: Kozinski, Pregerson, Reinhardt, Graber, W Fletcher, Gould, Bea, Murguia, Christen, Nguyen, Watford.  As I have discussed before, there is no guarantee that any of the original panel members sit on the en banc panel.  And, indeed, only one of the original members, Pregerson, is sitting on the en banc panel.  He was in the majority, which granted the habeas petition. 

Here is the 55-minute video of the en banc argument.  Haven't watched it yet, but I will. And here's the audio if you just want to listen to it.  Gotta love the Ninth Circuit for making these available (yes, I am looking right at you, Second Circuit).

 

Habeas Corpus - JK's First Ninth Circuit Post

By JK

I was hoping that my first Ninth Circuit post was going to be more substantive.  Actually, I have been working on a broad-based substantive post, but it's not finished yet.

In the meantime, I wanted to briefly discuss an en banc decision from the Ninth Circuit the other day denying habeas relief in a death penalty habeas case, Carrera v. Ayers.  It's an odd decision that will pretty much have no impact whatsoever on the future of habeas law.  How can that be the case?  Well, for one thing, it is a pre-AEDPA case.  Not many of those left out there, I reckon.  But it's not just a pre-AEDPA case, it's a pre-Batson case.  And the issue in the case is whether counsel was ineffective for failing to challenge the prosecution's use of peremptory challenges in a racially discriminatory manner.  Due to its age, the Ninth Circuit had to analyze the case under the pre-Batson standards that existed in California.  So the case is only relevant to pre-AEDPA petitions raising pre-Batson racial discrimination claims out of California.  I would be surprised to learn that any of those still existed in habeasland.

If you are interested in learning why a case in such a procedural posture still exists, the district court's decision provides the procedural history (it's available at 2008 WL 681842).  I was hoping that it was going to be somewhat interesting, but it really isn't.  Just a lot of back and forth between federal and state court and what is best described as a piecemeal resolution of the habeas petition.  On the positive side, it does appear that the district court granted partial habeas relief back in 2004 and vacated the death sentence.  The only issues on appeal were guilt-phase claims.

Not much more to say about this other than I have found that there is something neat in the way that the Ninth Circuit publishes its opinions.  A published opinion often has a "Summary" at the beginning that, according to a footnote in the summary, "constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader."  That's new to me.  Obviously, when you go look at published opinions, they have the introductory paragraph that's not a part of the opinion.  But this is something a little different; it's more substantive. It's more like the syllabus at the beginning of a Supreme Court opinion.  Not as long and detailed as those, but it's definitely more than the typical introductory paragraphs I have seen out of the Second Circuit.  I'll post the summary below the fold so you can see what I am talking about.  I'll also include an introductory paragraph from a recent Second Circuit opinion to show the difference.

 

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 - Huge Habeas Win in Supreme Court

I apologize for the lack of activity around here over the past two months.  Too busy to blog, basically.  But I have been keeping track of things.  I do intend to catch up on habeas stuff from the past few months.  Probably going to be awhile for all of that to happen.

But I could not resist blogging about today's huge habeas win in Martinez v. Ryan.  I listed Martinez as the most anticipated habeas case of the term.  And it did not disappoint.  Here's the holding, courtesy of Justice Kennedy:

Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.

What does that mean?  Well, according to Kennedy, it does not mean that a criminal defendant now has a constitutional right to the effective assistance of counsel at an initial-review collateral proceeding.*  But a habeas petitioner can now argue that an attorney's ineffectiveness at such a proceeding can represent the excuse for a federal court to review the merits of an IAC claim related to trial counsel that was not raised in state court.  Get it?

*Kennedy defines initial review collateral proceeding as a collateral proceeding (in NY we are talking about 440's) which provide the first occasion to raise a claim of ineffective assistance of counsel.  Most States relegate IAC claims to collateral proceedings.  New York does this too, for the most part.

I know it's a morass inside of a labyrinth of complicated habeas issues.  I find it difficult to break it down any more simply without going back to square one of habeas law and mapping it all out.  I'll just say, it's a big deal. 

Why is it a big deal?  One may ask.  Does it change anything?  Two may ask.  Will it change anything?  Three may ask.  I think that Three asks the most pertinent question.  And, in my mind, the answer to Three's question is definitely yes. I think, as Scalia lamented in his cutting dissent, it will lead to States assigning attorneys in most, if not all, initial-review collateral proceedings. 

What's interesting is that, while Kennedy tries to keep the holding narrow, the rationale behind the holding is really broad.  In fact, Kennedy does a great job of explaining why an attorney is necessary in these types of proceedings.  Here's what he says:

    Where, as here, the initial-review collateral proceeding is the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial, the collateral proceeding is in many ways the equivalent of a prisoner’s direct appeal as to the ineffective-assistance claim. This is because the state habeas court “looks to the merits of the clai[m]” of ineffective assistance, no other court has addressed the claim, and “defendants pursuing first-tierreview . . . are generally ill equipped to represent themselves” because they do not have a brief from counsel or an opinion of the court addressing their claim of error. . . .

    Without the help of an adequate attorney, a prisoner will have similar difficulties vindicating a substantial ineffective-assistance-of-trial-counsel claim. Claims of ineffective assistance at trial often requireinvestigative work and an understanding of trial strategy. When the issue cannot be raised on direct review, moreover, a prisoner asserting an ineffective-assistance-of-trialcounsel claim in an initial-review collateral proceeding cannot rely on a court opinion or the prior work of an attorney addressing that claim. . . . To present a claim of ineffective assistance at trial inaccordance with the State’s procedures, then, a prisoner likely needs an effective attorney.

    The same would be true if the State did not appoint an attorney to assist the prisoner in the initial-review collateral proceeding. The prisoner, unlearned in the law, may not comply with the State’s procedural rules or may misapprehend the substantive details of federal constitutional law. . . . While confined to prison, the prisoner is in no position to develop the evidentiary basis for a claim of ineffective assistance, which often turns on evidence outside the trial record.

So, there are really logical and highly equitable reasons for providing an attorney to help a defendant litigate that type of claim.  Of course, those reasons were around before Martinez and, sadly, are not what's going to motivate the States to assign counsel. 

Rather, the States are going to start assigning attorneys because it will provide them cover when they go to federal court.  It will essentially nip the cause argument in the bud.  The State will assign an attorney and when they get to federal court they will stand behind the attorney's actions, which will be given a great deal of deference under the IAC standard.  It is the most prudent action for the State to pursue, as opposed to taking the risk of having to litigate the merits of all of the underlying IAC-trial related claims in federal court.

I am guessing that a lot more needs to be (and will be) said about Martinez over the next couple of months.  I am going to process it some more and see if there is an easier way to break it down.  But for today, I'll just be happy about the habeas win. 

Habeas Corpus - Habeas Win in Supreme Court

Hooray!

There was a rare habeas win in the Supreme Court this past Wednesday.  It happened in Maples v. Thomas.  In an opinion by Ginsburg that was joined by six other judges, the Court concluded that petitioner, who had basically been abandoned by his attorneys at a critical stage of the state court proceedings, had established cause for a procedural default, namely the failure to file a timely notice of appeal from a state court denial of a collateral motion.

This was obviously the right result.  And I have said that for a long time.  In fact, I created my "Uncommon Sense Meter"* as a result of Maples. 

*Rating cases on the scale of how much it defies common sense that a procedural rule led to an obviously unfair result.

But I couldn't have said it any better than Ginsburg did in her opinion:

In these circumstances, no just system would lay the default at Maples’ death-cell door.

Scalia and Thomas dissented and would have been perfectly comfortable with holding the default against Maples.  So following Ginsburg's logic, these two judges simply do not believe in a just system.  Hey, I am not the one who said it.

Unfortunately, I am guessing that the good times won't last long.  The Court only concluded in Maples that there was cause for the default.  The case was remanded to the 11th Circuit to determine whether there was prejudice.  And this part is dripping with unfair irony: it will now be extremely hard for Maples to prejudice because Pinholster has rendered the system unfair. 

In Maples, the state court rejected Maples' IAC claim in state court without holding a hearing.  In fact, according to Ginsburg, the state court simply signed a pre-made order that the State had submitted in opposition to Maples' state collateral motion.

It is pretty safe to say that it will be very difficult, if not impossible, for Maples to establish prejudice with respect to his IAC claim without a detailed factual record to support the claim.  And, because the State refused to allow Maples to create that record -- even if that decision was completely arbitrary -- Pinholster now establishes that the state court's decision denying a hearing has preclusive effect on federal courts.  Petitioner now has no opportunity to make the necessary factual record to establish the IAC claim.  It's going to make it very hard to establish prejudice.

As I have said many times before, it is completely unfair to give state courts preclusive authority on such a decision.  I only wish the standard in habeas cases was "no just system could tolerate the result."  It would make the Court want to reconsider what they did in Pinholster (well, except for Thomas and Scalia).

Habeas Corpus - The Good

I had mentioned that there was both good and bad during my break from blogging.  I already talked about the really, really bad.

Let's shift to the good.  The Second Circuit granted a habeas petition back on December 1 in Cornell v. Kirkpatrick.

The issue actually is pretty simple.  IAC based on counsel's failure to object based on venue grounds.  Petitioner was charged with two rapes.  Only one of the rapes occurred in the county in which he was tried.  The prosecutor acknowledged this in his opening and closing, and, according to the Second Circuit, the evidence established that one of the rapes did indeed occur in a different county.  The prosecutor had proceeded under the "automobile exception" to the venue statute.  But the Court of Appeals had strictly limited that exception to situations where it was literally "impossible" to determine the actual county.  It is pretty clear (or at least clear enough) that this happened in the county that housed Rochester and its environs -- not the county in which the case was prosecuted.

One other note: the court only granted relief on the conviction for the rape that took place in the other county.  The court determined that this error had no spill over effect on the rape case that was prosecuted in the appropriate county.

Honestly, this seems like a pretty easy case to me.  It really is an issue that should have been resolved back in state court.  But when faced with a situation like this -- a winning, purely legal issue, where relief should be granted even though the evidence of guilt in a highly inflammatory case is strong -- state courts are often hesitant to do what's right.  One reason why federal habeas relief remains so vital to the system.  Such a shame that the Supreme Court seems so dead set on rendering it powerless.

I read a nice discussion of the Cornell decision here.

Here are the details:

 Cornell v. Kirkpatrick, 10-561-pr 

• Reversing Denial of Habeas; Habeas Granted on
• Argued: 8/23/11; Decided 12/1/11; Published Opinion by Straub
• Panel: Newman, Cabranes, Straub
• Lower Ct. Info: 06-CV-0734, 2010 WL 161429 (WDNY Jan. 13, 2010) (MAT)
• In Circuit: Circuit Ct. COA
• Issue: (1) whether appellant was prejudiced by counsel's failure to object to venue in Ontario County; (2) whether counsel was ineffective for failing to request that a venue charge be delivered to the jury

 

Habeas Corpus - District Court Review - Habeas Grant!

Another habeas grant in the district courts!  The case is called Cross v. Perez.  There's a lot going on in the case: Can a defendant waive his right to file a habeas petition when he pleads guilty?  Does IAC invalidate such a waiver?  IAC during plea negotiations.  Whether out-of-state convictions can be used as predicate felony convictions in New York.  The defendant knowing more about the law than the trial attorney.

The facts are actually pretty simple: during plea negotiations, the prosecution wanted to use three different New Jersey convictions to enhance petitioner's sentence.  Defense counsel did not put up a fight.  Petitioner stood up and said, wait, none of the New Jersey convictions qualify as predicate felony convictions under New York law.  He handed up to the court case law to support his position.  The prosecutor, defense counsel and the court were willing to accept that two of them did not, but believed that one of them did -- aggravated assault against a police officer.  Petitioner disagreed but let the issue go.  He was offered a plea with a sentence for a second violent felony offender.  As part of the plea, he agreed to waive his right to bring a federal habeas petition.

He brought one anyways.  In his petition, he argued that he received IAC during plea negotiations because the NJ conviction did not qualify as a felony in New York and his attorney's deficient performance rendered involuntary the waiver of his rights.

The DJ agreed.  First, the DJ concluded, in what appears to be a relatively novel conclusion, that a petitioner could waive his rights to bring a federal habeas petition but that IAC could render such a waiver involuntary.  There is a lenghty discussion on this issue in the opinion.  The DJ then found that the NJ conviction did not qualify as a New York felony because it criminalized conduct as a felony that would not be a felony in New York. 

And here's where the case runs into Lafler v. Cooper: the DJ also concluded that petitioner would have been offered and would have accepted a lower offer as a first time violent felony offender.  The DJ orders specific performance of a plea offer that was not actually ever made.  So that's a little controversial.  Let's see if the State appeals.  Despite the opinion being dated October 4th, an amended judgment was entered on October 20, so the time to appeal has not yet run out.

Here are the details:

Cross v. Perez  

• Habeas Granted
• 11-CV-1186, 2011WL 4711466 (EDNY Oct. 4, 2011) (BMC)
• Issues: IAC in plea negotiations based on counsel's failure to challenge use of out-of-state conviction to enhance petitioner's sentence

 

Habeas Corpus - Lafler Transcript

I got a chance to read through the transcript of the oral argument in Lafler v. Cooper.  Have not yet read the transcript in the companion case of Missouri v. Frye.

From the argument in Lafler (I guess it will eventually be Cooper, who is the habeas petitioner - not gonna make that mistake again), I get the sense that the judges are willing to conclude that a defendant can advance an IAC claim based on an attorney's deficient performance during plea negotiations, even if the defendant subsequently was convicted after trial. 

The appropriate remedy is what the Court seemed to struggle over more.  In the district courts in New York, we have seen a lot of specific performance of the plea offer.  That is the easiest remedy to identify and apply, but is it the most equitable one?  I don't think most of the Judges feel that it was.  Another problem with the specific situation in Cooper is that both Breyer and Sotomayor seemed to think that counsel's conduct may not have been deficient, even though the State conceded that it had been.

When I get a chance to read Frye, I'll update this post with additional thoughts.