Habeas Corpus Blog

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 - Supreme Court today

Today, the Supreme Court will be hearing argument in the front-end case of Smith v. Cain (Brady violation) and the front-end Fourth Amendment case of United States v. Jones (is it unconstitutional for the government to use GPS tracking on a suspect without a warrant?).

Haven't covered these cases too much around here.  Particularly true about Jones since, under Stone v. Powell, habeas petitioners can't really raise Fourth Amendment claims in a habeas petition, except to the extent that the State gave them insufficient process to raise it or it was ineffective for counsel to raise the Fourth Amendment claim.  So it's twice removed from habeas as opposed to a front-end case, which is only once removed.

SCOTUSblog coverage of these cases can be found here (Smith) and here (Jones).

 

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 II

Some other stuff I've seen:

The Ninth Circuit Blog has created a great handbook for navigating the new habeas landscape as a result of the restrictive decisions from the Supreme Court's last term, namely Ricther, Pinholster and Moore. It's called "Recent Supreme Court And Ninth Circuit Habeas Decisions: Why We Need Full Factual Development And Preservation Of Issues In State Court Litigation" writted by Stephen Sady, Chief Deputy Federal Defender for the District of Oregon.

In a similar vein, a new article has been posted on SSRN called "Habeas After Pinholster" by Samuel Wiseman.  Looks like it is going to get published next year in the Boston College Law Review.  This is from the abstract:

By limiting federal review to the state record for claims already adjudicated in state court, Pinholster places an enormous premium on the adequate development of that record. In the wake of the decision, petitioners denied the ability to develop their claims in state court will seek alternative solutions. Indeed, several state defendants already have begun to pursue some of the potential paths around Pinholster, suggesting what is to come. The resulting challenges will raise fundamental, unanswered questions about AEDPA, the Suspension Clause, and the role of due process in postconviction review. This Article explores likely paths toward filling the gaps that Pinholster, together with the Court’s recent decisions in Boumediene v. Bush, District Attorney’s Office v. Osborne, and Skinner v. Switzer, has created in both the literature and the jurisprudence.

Here's a fascinating article about a habeas case up in Connecticut before DJ Charles Haight, who used to sit in SDNY.  Petitioner, who was convicted of committing a double murder, has maintained his innocence throughout the case.  But he's not the only one to say that he's innocent.  Both a police detective and the FBI, after an 18-month investigation, concluded that he was innocent and had been framed.  He has now been incarcerated for 21 years.

Not something new, but I did come across this comment from 2010 in the Yale Law Review about whether habeas corpus relief is available based on a reverse-Batson challenge (i.e. when the court improperly grants a prosecutor's Batson motion and overrules a defense peremptory challenge on the ground that it was racially-motivated).  It addresses the question of whether habeas relief is now unavailable after the Supreme Court's decision in Rivera v. Illinois.  It argues that it remains available (even though I think the common understanding is that it is not).

Appeal and Habeas has a post about a recent Ninth Circuit decision in which the court found equitable tolling of the statute of limitations where petitioner's attorney took $20,000 and never bothered to file the petition.

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 - October 28 Conference

Some notes on the Supreme Court's upcoming October 28 conference. 

Four of the five habeas cases that had previously been relisted were officially relisted again and will be considered at the conference. Those are Cavazos, Dixon, Cross, and Buck.  I am guessing that, because the Court had ordered the record in Maxwell, it was not officially relisted for this conference.  But it will be eventually.

In addition, according to the most recent SCOTUSblog relist post, a front-end criminal case was also relisted.  It's a capital case called Medina v. Texas.  It's an odd one.  SCOTUSblog explains:

In it, he argues that he was deprived of his rights to due process, a meaningful opportunity to be heard, a fair opportunity to present a defense, a fundamentally fair trial, right to counsel, and right to a reliable and individualized capital sentencing in violation of the Sixth, Eighth, and Fourteenth Amendments.  One of the main issues is the prejudice caused to Medina, who was charged with killing his two children, by a number of court-ordered delays because of jury conflicts (including, supposedly, induced labor and fishing (!) during the punishment phase of his trial).  Medina argues that those delays, coupled with other errors, ultimately prevented a number of witnesses from Medina’s native El Salvador from testifying on his behalf.  The relist is slightly unusual because the Court scheduled Medina for the November 4 (rather than October 28) Conference, perhaps because the record (which the Court requested back on October 6) arrived at One First Street the same day the petition was on for the October 14 Conference.

So, I guess, on second thought, it's not entirely relevant to the October 28 conference.  But this seems like the right post to put it in.

Finally, on their petitions to watch page, SCOTUSblog mentions a petition in a habeas case to watch, on for its second conference.  It's Wetzel v. Lambert and here's the issue (from SCOTUSblog): Did the Third Circuit fail to properly apply the habeas deference standard to the state court's rejection of respondent's Brady claim?

 

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 - Maxwell Relist - Updated

While I usually put up a relist post that reviews the SCOTUSblog post on the matter, I decided to be slightly more proactive this week.  But it's left me a little confused.

For the last conference on October 14, there were five relisted habeas cases: Cavazos, Maxwell, Dixon, Cross, and Buck.  The Court took no action on any of them, except for ordering the record in Maxwell.  But none of them were relisted for another conference.  That can still happen and I am guessing it probably will for all five.  The next conference is not until next Friday.  But as it stands they are all just in a holding pattern.

In the meantime, I read this really interesting article about the Maxwell case called "The Case You Go to Law School For."  That's a reference to a quote from Maxwell's attorney Verna Wefald.  Actually, in the full quote, the lawyer was trying to be funny, not simply poignant.  She said that, when she first started working on the case back in the late '80's, "I was young and thought this was the kind of case you went to law school for. About 10 years into it, I wished I had never gone."

Maxwell is a relatively well-known petitioner.  He was convicted of committing the "Skid Row" murders that occurred in Los Angeles in the 70's.  However, as the article states, the problem is that "in all likelihood, he’s innocent."  The main evidence against him was a jailhouse confession, which is a notoriously unreliable type of evidence.  The other evidence presented was really weak - a palm print on a public bench and some muddy footprints.  Maxwell was acquitted of several of the murders and only eventually convicted of three of the ten of which he was charged.  He was sentenced to life imprisonment.

Turns out that the prosecution failed to turn over that the jailhouse informant was given a deal for his testimony against Maxwell.  Pretty big deal, no?  Well, Maxwell had trouble obtaining relief on this significant Brady violation until he reached the Ninth Circuit.  The Ninth Circuit granted habeas, holding that (1) state court’s finding that jailhouse informant testified truthfully at petitioner’s trial was unreasonable determination of facts in light of evidence presented;  (2) perjury by informant deprived petitioner of his right to trial by jury; (3) details of informant’s deal were material for Brady purposes; (4) information regarding informant’s prior informant activities were material for Brady purposes; and (5) state court’s determination that prosecution’s failure to disclose impeachment evidence did not undermine confidence in petitioner’s trial was unreasonable application of Brady. 

Without seeing it, I am guessing that the state court decision here would rank pretty high on the "uncommon sense" meter.

And this obvious Brady violation does not just appear in a vacuum.  As alluded to above, there are significant reasons to believe that petitioner is innocent. To some academics, innocence is all that should matter.  So this really should be viewed as a case where the federal courts were getting it right.

But, of course, innocence is not what's important to the Court.  It's the AEDPA.  Here are the issues before the Court (from the SCOTUSblog page for Maxwell):

(1) Whether, under 28 U.S.C. § 2254, a federal court may grant habeas relief on a claim that the state-court conviction rested on perjured testimony absent proof that the prosecution knew that the challenged testimony was false and when the state post-conviction court deemed the testimony truthful; (2) whether, under 28 U.S.C. § 2254, a federal court may grant habeas corpus relief on a claim alleging suppression of exculpatory evidence when that evidence was unknown to law enforcement officials working on the case and without considering whether the state court might have rejected this claim.

Now that the Court has ordered the lower court record, we are looking at one of two probable outcomes: either a summary reversal or a dissent from a cert. denial.  Let's hope it's the latter.

It's always interesting for me to get a look behind the papers once awhile and learn more about some of these cases.  I felt the same way when Skinner was before the Court last term.  And Connick v. Thompson.  I know it can't be done for every case.  But I appreciate it when I do get the chance to get a bigger picture.

UPDATE: Actually, I neglected to mention Maples as one of those cases where we have learned more about the background of the case.  Of course, that was the case that inspired the "uncommon sense" meter, so I am disappointed in myself for leaving it out.

Habeas Corpus - Relists and Denials

SCOTUSblog has its new relist post up.  Many of the cases from the prior relist post were relisted again.  These were: Cavazos, Maxwell (for which the Court ordered the lower court record), Dixon, Cross, and Buck.

But not all cases were relisted again.  The petitions in Rocha and Adams, the cases that concerned questions about the independent and adequate state law ground, were denied. 

The Court also denied cert in Doody.  That's pretty significant.  Doody is a habeas grant out of the Ninth Circuit.  The Supreme Court previously had GVR'd that case after a prior Ninth Circuit grant.  On remand, the Ninth Circuit reaffirmed the habeas grant.  I guess the Court decided to give up on that one.

There were also two petitions that SCOTUSblog was watching for that conference: Harrison and Abu-Jamal.  According to SCOTUSblog, the Court appears to be holding Harrison in light of the cert grant in Blueford.

And the Court denied cert in Abu-Jamal.  That's also significant for two reasons.  First, it's a habeas grant out of the Third Circuit.  And, similar to Doody, a prior habeas grant in that case had been GVR'd.  Second, it's a well-known petitioner, Mumia Abu-Jamal.  So Mumia will get a new sentencing hearing.  There was a bunch of media coverage of the denial, for example here and here, with CNN speculating that a new death sentence was unlikely.

There will be a conference tomorrow (Oct. 14) at which the Court will consider the relisted cases.  I'll try and post something soon after the order list gets issued.

Habeas Corpus - Relist List - Edited

Just in time for today's conference, I am going to link to SCOTUSblog's recent relist post discussing the cases that were relisted after last week's long conference.  And consistent with the overall theme of this Court's term, it is very habeas heavy.

A couple of the relists were cases that were on that site's Petitions to watch:  Bobby v. Dixon and Cash v. Maxwell.

Another relisted case is Buck v. Thaler.  That's the capital case in which the Court recently granted a stay.  I have previously stated that I can't see the Court granting cert. in that case.  I'd be happy to be wrong about that.

Then there are Adams v. Thaler and Rocha v. Thaler, both of which seem to concern the independent and adequate state law ground doctrine.  I guess there still is a little bit left there for the Supreme Court to chip away at.

Then there are two habeas grants, Ryan v. Doody and Harvey v. Cross, where the State was arguing that the Circuit Courts weren't deferential enough to the state courts.  It supports my prior claim that "it's safe to say that there are certain members of the Court who think that any habeas grant under the AEDPA  . . . is questionable."

In a prior post, I had previously covered the petitions to watch for the long conference.  One petition that was relisted, but not mentioned in the SCOTUSblog post was Cavazos v. Smith.  That one's been relisted many,  many times (nine to be exact).  So I am guessing it was just an oversight.  It's still on their petitions to watch page.

And a GVR was granted in one of the cases, Allison v. Diaz, in light of Richter.  That's obviously bad news for the habeas petitioner.

I must have misread the SCOTUSblog petitions to watch page and thought that every petition that they were watching was going to be submitted to the long conference.  That turns out not to have been the case.  But unlike before, that page of petitions is now broken up into conferences.  Which means that many of the cases I mentioned before actually are going to different conferences.

For today's conference, in addition to the relisted cases mentioned above, these petitions to watch will be considered: Harrison v. Gillespie and Wetzel v. Abu-Jamal.

[Edit - there were a couple extra words at the end here that should have been deleted before the original post was posted]