Habeas Corpus Blog

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 - Various Items

Some habeas-related stuff I have seen around the internets . . .

Earlier this week, the Ninth Circuit reversed a grant of habeas for a petitioner sentenced to death in a case called Leavitt v. Arave.  A DJ had granted habeas relief based on IAC where counsel failed to present mitigating evidence that petitioner had a defect in his brain that could have caused his personality disorder.  However, Judge Kozinski, writing for the majority, stated that "Given the exceptional depravity of this murder, it is unlikely that additional evidence of a brain abnormality would have made a difference."  In dissent, Judge Reinhardt stated that the particularly "horrendous" nature of the crime should indicate "that there was something radically wrong with Leavitt, who was otherwise a law-abiding citizen, a father and a husband."  Coverage of the case can be found here and here.

Over at Volokh Conspiracy, there is a post entitled, "When Judges Decide Against Type."  The writer points out that a three-judge panel of the Sixth Circuit recently granted habeas relief on IAC grounds; however, the three judges on the case would generally be considered a "fairly conservative panel."  Good to see a habeas grant, but the Supreme Court has been pretty active over the past few years reversing habeas grants out of the Sixth Circuit.  I don't think it's gonna matter to the Court whether or not this panel of the Sixth Circuit was a bunch of farily conservative judges.  The case is called Hardaway v. Robinson. 

In Pennsylvania, a State Supreme Court judge, who used to be Philadelphia's district attorney, accused lawyers in that State's Capital Habeas Unit of intentionally, over-litigating a death penalty case in an attempt to delay the execution.  The judge's words were much harsher.  According to the article linked above, he said that they were trying to "sabotage" the system and were pursuing an intentionally "abusive" strategy intended to "exhaust as much of this court's time and resources as possible" and frustrate the legitimate exercise of the death penalty.  In response, the lawyers called the accusations "unwarranted" and "unfounded." 

And, in an interesting take on the Pennsylvania judge's opinion, Common Sense Political Blog states that the judge should be angry at the prosecutors who keep pursuing the death penalty, even though it is virtual assurance that the execution will never take place.  The writer points out that Pennsylvania has put over 200 people on death row since the penalty was reinstated, but has only executed three of them and those three voluntarily gave up their appeals. 

Habeas Corpus - Various Items

A few habeas-related things I have seen lately:

Further defense of habeas in response to King and Hoffman at a Ohio-focused blog called Gamso - For the Defense.  It's long but good.  And I joked about this before, but now The End of Habeas is a movie, or at least a youtube video.

An en-banc Ninth Circuit reaffirmed a prior grant of habeas relief to a "teen mass murderer" in Doody v. Ryan.  The court had previously granted habeas relief on the grounds that the petitioner had not been properly advised of his Miranda rights.  The Supreme Court GVR'd the case in light of Florida v. Powell.  However, on remand, the Ninth Circuit held that Powell did not change its conclusion that habeas should be granted.

At the other end, the Fourth Circuit reversed a grant of habeas in Jackson v. Kelly.  The district court had held an evidentiary hearing and then granted habeas relief based on IAC during the penalty phase of petitioner's case.  In the new extraordinarily restrictive post-Richter and post-Pinholster habeas landscape, the Fourth Circuit held that, based on the evidence that was before the state court, its decision was not unreasonable.

Freakonomics reports that a recent study to be published shows that initial sentences handed down to minority defendants convicted of killing white victims were as much as 9 percent more likely to involve errors that had to be reversed than were those in cases involving a minority defendant killing a minority victim.  According to the summary of the study, "This result holds strong both for the cases that reach the final stage of revisions and appeal, the Habeas Corpus stage in Federal Courts, and for the full sample of cases in the first appeal stage, called Direct Appeal."

An interview with Laura Moye of Amnesty International about the Troy Davis case.

The Atlantic has a short post by Wendy Kaminer entitled, When Justice Becomes a Mere Technicality.  Using the Second Circuit case of Rosario v. Griffin as an example, the writer states that, under our current system, "as long as the state observes all procedural niceties (or technicalities), it is empowered to execute people* who, on second thought, seem innocent. The state is not required to entertain such inconvenient second thoughts."

*Kaminer acknowledges in her analysis that Rosario has actually been sentenced to 25 years to life, not the death penalty. Nevertheless, her logic stays the same -- the State won't reconsider the question of petitioner's innocence even though he faces a maximum term of life in prison.

 

Habeas Corpus - Habeas Cases From Around the Country

Saw some interesting habeas cases from other places over the past few weeks. . .

Last week, the Third Circuit re-affirmed its prior decision to grant habeas relief to Mumia Abu-Jamal on the grounds that the instructions in his capital sentencing phase were unconstitutional.  The court had originally granted habeas relief, but the Supreme Court vacated the decision in light of Smith v. Spisak.  On remand, the Third Circuit stuck to its prior conclusion, saying that it was not inconsistent with Spisak. 

Interesting habeas grant out of New Mexico a few weeks back in a case called Case v. Hatch, 2011 WL 1126335 (D.NM Mar. 28, 2011).  Petitioner was able to establish under 28 U.S.C. 2244(b)(2)(B)(i) & (ii) that the facts underlying a Brady claim "if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense."  After concluding that this gateway standard had been met, the court then granted habeas relief on the Brady claim.  This is a rare occurence.  The facts are also really interesting, as it appears that law student investigators were the ones who unearthed the Brady material.  You can download the decision here -- Download Case v. Hatch.

Briefly, here's an article about a habeas petition being filed in a high-profile murder case in Las Vegas from the '90's in which a grandmother was convicted of killing her husband.

It's a 2255 motion, but here's an article about a Fourth Circuit decision in the infamous Jeffrey MacDonald case, dramatized in the made for tv movie/Karl Malden vehicle "Fatal Vision." (of course, it was a book first, but I was a big fan of the movie, which also starred Eva Marie Saint and one of my all-time favorites, Gary Cole).  I mention it, not just because of its pop culture relevance (and the actual innocence issues hovering over the case), but because the decision concerns whether the lower court properly applied the standards for evaluating a second or successive 2255 motion, which appear to be the exact same as those for evaluating a second or successive 2254 petition under 2244(b)(2) (analyzed above in Case v. Hatch).  So, it does have relevance to 2254 cases.  The Fourth Circuit decision is here.

 

Habeas Corpus - Long Live Habeas! (At Least in the Circuits Courts)

There have been some big habeas grants coming out of the other circuits recently.  I know of three of them in the past three weeks, but there could obviously be some more. 

The most notable of these was the decision yesterday out of the Fourth Circuit in the case of Tice v. Johnson.  The petitioner is one of the "Norfolk Four".  The Norfolk Four are four men who were convicted of a brutal rape and murder in Norfolk, VA.  The convictions were based largely on confessions that the four claim were coerced and otherwise false.  A fifth man was also convicted of the rape and murder and only his DNA was found at the scene.  In his confession, he said that he acted alone.

The Fourth Circuit affirmed a district court's grant of habeas relief on the ground of IAC based on counsel's failure to move to suppress the confession on the grounds that petitioner had invoked his right to remain silent.

PBS did a documentary on the Norfolk Four called "The Confessions".  You can watch it here.  News coverage of yesterday's decision can be found here.

But that's not the only one . . .

Back in late March early April, the Seventh Circuit also granted habeas relief in two separate cases. 

In a case decided on March 31, the Seventh Circuit granted habeas relief on the ground that petitioner's confrontation rights were violated when the prosecution was allowed to admit through a detective a confession that a co-defendant made to his brother.  That's a doubly confusing sentence because it was a double hearsay problem.  The case is Jones v. Basinger.

The following day, in a separate case, the Seventh Circuit granted habeas relief on IAC grounds based on counsel's failure to follow the proper procedures in order to admit evidence that the complainant had made prior false accusations of sexual abuse against other people.  The case is Sussman v. Jenkins.

Good stuff happening in the circuits.  Didn't I recently mention that this appeared to be peak season in habeasland?

 

Habeas Corpus - Habeas GVR

Thanks to reader DB I see that I missed a Supreme Court GVR in a habeas case back on October 12.

The case is called Doody v. Schiro, 596 F3d 630 (9th Cir. 2010).  In the decision, the Ninth Circuit granted habeas relief based on Miranda and voluntariness grounds.  In other words, there was a Miranda violation and, notwithstanding the Miranda violation, the statement itself was involuntary under the due process clause.

The Supreme Court GVR'd the case on the basis of Florida v. Powell, a decision from earlier this year in which the Court basically held that a Miranda violation does not necessarily occur when the cops don't get the Miranda warnings exactly right.  That's a slight oversimplification, but mostly true.  Looked at another way, in Powell, the question was not whether they were misleading, or ambiguous, or confusing, but simply whether they were adequate.

But that's not the issue in Doody.  There, the question was whether the warnings were clear and understandable.  And they were a complete mess.  Here's how the court described them:

During his administration of the warnings, Detective Riley emphasized that Doody should not “take them out of context,” and implied to a juvenile, who had never heard of Miranda, that the warnings were just formalities. This misdirection was coupled with repeated assurances that the detectives did not necessarily suspect Doody of any wrongdoing. Most significantly, in informing Doody of the right to counsel, Detective Riley deviated from the form containing the juvenile Miranda warnings, and ad libbed that Doody had the right to counsel if Doody was involved in a crime. Indeed, Detective Riley instructed Doody that he had the right to counsel “if you were involved in it ... but if you were, then that's what that would apply to[.]” The implication from this improperly qualified, unclear, and confusing warning was that Doody only had the right to counsel if he were involved in a crime. In such a circumstance, the invocation of one's right to counsel would be tantamount to admitting one's involvement in a crime. Overall, the fact that Detective Riley's explanation of a one-page Miranda warning form consumed twelve transcribed pages of text is a testament to the confusion generated by the detective's obfuscation.

So I am not quite sure I can agree with the GVR here.  Powell seems to have nothing to do with the situation here.  Oh well.

Getting back to Doody, the dissent in that case took issue with the paragraph quoted above, believing that the court did not follow its AEDPA responsibilities - a common complaint against the 9th Circuit.  As DB predicted in his e-mail to me, I got a big kick out of the majority's response:

Our colleagues in dissent chastise us for reaching these conclusions, accusing the majority of “once again pay[ing] mere lip service to AEDPA and then proceed [ing] as though it did not exist.” See Dissenting Opinion, p. 663. The dissent would prefer that we simply parrot the findings made during the state court proceedings and call it a day. However, if we succumb to the temptation to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat rubber stamp, pucker up, and kiss The Great Writ good-bye.

Judge Kozinski in his concurring opinion also took on the AEDPA standard and said, "I write separately because I believe that deference is neither a blindfold nor a bandana."  Interesting.  I must admit when I first read it, I thought he had written "banana."  That would have made no sense, but it would have been far more interesting to try and explain.  "Bandana" fits a little better.

Shifting back to the GVR, it seems inappropriate for a different reason.  Setting aside the Miranda issue, the 9th Circuit also concluded that the statement was involuntary as a matter of due process.  So, even if the 9th Circuit is wrong about Miranda, Powell has no impact on the voluntariness argument.

Based on the questionable GVR, I am guessing we will see the 9th Circuit stick to its prior decision.

Habeas Corpus - Good for Democracy

Google directed me towards this odd post entitled, "When 'The Nine' Overrule the Ninth: O'Scannlian ponders 10 years of reversals."

Apparently, Judge O'Scannlain, who sits on the Ninth Circuit, is a lion among conservatives.  I haven't done too much research, but he is a Reagan appointee and his most famous (or notorious) recent judicial act seems to have been joining the majority in concluding that an officer did not use excessive force when he tasered a pregnant woman.

The post is about a recent talk he gave at Harvard Law School (he's an alum) at which everyone basically celebrated the fact that the Supreme Court has overruled the Ninth Circuit so many times over the past ten years.  The judge pointed out that this was particularly true in habeas cases.  He said that, "'It seems that at least once every term, the Supreme Court has to remind us about the proper standard of review in habeas proceedings" under the AEDPA.  He suggested that, in not following AEDPA guidelines, the Ninth Circuit was "abusing its authority of constitutional review."  Strong words for what has become an easy target.

But the part I liked best was the question and answer session at the end of the post.  In particular, the first question, which is just so fevered that it sounds as if it is right out of a Glenn Beck rally:  "What do you say to your left-leaning colleagues who argue that their disagreement with the Supreme Court is good for democracy?"  Yes, that's a rallying cry I hear every day from liberal judges: Let's defy the Supreme Court to promote democracy!  Of course, I wasn't able to find anything remotely resembling this logic coming out of the mouths of any actual left-leaning judges (a group on the verge of extinction).  It only seems to appear on right-wing websites.

Anyways, O'Scannlian handled the question well with a very vanilla answer about "predictab[ility]."

Habeas Corpus - Interesting Habeas from 1st Circuit

Here's an interesting article about a habeas case that was recently argued before the First Circuit.

The issue in the murder case is whether trial counsel was ineffective for failing to raise the defense that petitioner "killed two business associates because his ingestion of Zoloft caused a drug-induced state of agitation called akathisia."

But it does appear from the article that petitioner's counsel had a pretty difficult go of it at oral argument.  I don't expect this case to come out in petitioner's favor.

Interesting nonetheless.

Habeas Corpus - Interesting Article in the Times

The New York Times today has an article about a death row inmate who, in exchange for pleading guilty to first-degree murder, was banished from Oklahoma.

Although the words "habeas corpus" are never mentioned, they play an important part of the story as the defendant was granted habeas relief from the 10th Circuit based on IAC at trial.  That decision began the progression towards the guilty plea, which included an intervening second trial and conviction -- which was also overturned on IAC grounds, that one by a state court.

What's interesting about the article is that it is kind of fashioned as an actual innocence-type story, but it never really makes the case that this is an actual innocence case.  The plea agreement suggests that there are strong questions about his guilt.  And the main witness appears to have been completely unreliable.  But it never really talks much about those things. 

Rather, the article is more about the unusual guilty plea and how difficult and confusing re-entry into society can be after a long incarceration.  Worth checking out.

Habeas Corpus - Other Circuits

Been spending some time this week on the other circuit's websites.  I am going to share my opinions about how the different websites compare to the Second Circuit's.  But I'll save that for when I have more time.

Today, I just wanted to mention that, following a recent decision from the Second Circuit, the First Circuit held yesterday in Riva v. Ficco, that the one-year statute of limitations can be equitably tolled due to petitioner's mental illness.

Actually, the Second Circuit had been the most recent court to hold this.  Every other circuit to have addressed it came to the same conclusion.  Now we can add the First Circuit to that list.