Habeas Corpus Blog

Trevino Grant, Haynes Stay, and the Future of Martinez v. Ryan

By Alexandr Satanovsky

    It took the Supreme Court just seven months since handing down Martinez v. Ryan to grant cert. in Trevino v. Thaler, a case that may expand the Martinez rule beyond its most limited interpretation.

    To appreciate Trevino's possible significance, let's step back and consider the potential range of Martinez's doctrinal impact. At its most narrow and limited, Martinez applies only when two conditions are met: (1) the prisoner is raising a substantial trial IAC claim, and (2) state law requires such a claim to be initially reviewed in a collateral proceeding, not direct review. At its broadest, Martinez may apply when (1) the prisoner is asserting any substantial claim on collateral review -- IAC, Brady, jury tampering, etc., and (2) such a claim is most naturally reviewed in a collateral proceeding, determined by whether the factual basis of the claim requires development beyond the trial record. 

    The narrow view has carried the day in the lower courts, and quite understandably: Martinez limited itself to its facts, i.e., an IAC claim brought under a scheme that barred IAC from the direct appeal. But this view is doctrinally incoherent: First, there is no compelling reason to treat IAC claims as unique from other claims, like Brady, that require investigation and extra-record development, which is obviously too burdensome for an incarcerated petitioner. Second, it makes little sense to resurrect legal formalism by approving a distinction between those states (like Arizona), which impose a formal bar to the direct review of certain claims, and others (like Texas), which--although do not formally bar the claims--realistically  render them impracticable on direct review.

*    *    *

    Up until October, there was little suggestion that Martinez may mean something more than the narrow interpretation described above. But that all changed when the Supreme Court stayed a bunch of executions to consider cert. petitions re: Martinez's applicability to Texas, and eventually granted the Trevino petition. And this past Monday, Justices Scalia and Sotomayor issued brief statements concerning the Haynes v. Thaler stay issued several weeks ago.  

    This past month's developments, I think, make for a good prospect that Martinez will be expanded beyond its limited facts. For the following reasons (which, to be sure, are nothing more than my reading of the proverbial tea leaves), I think Trevino will be a stride in the direction of the broad, doctrinally coherent view of Martinez.  

1.  The Genesis of the Martinez Exception: To get some idea as to what the Court may have been thinking when it issued Martinez, consider the following:  First, there was no circuit split for the Court to address when it chose to grant cert. It was a non-capital case and the petition did not gesture toward a gross miscarriage of justice. Indeed, the thrust of the cert. petition was nothing beyond a call for a change in the law on cause-and-prejudice (well, a call for a constitutional right to collateral counsel, which the Court sidestepped), uncannily resembling a merits brief. Second, the ultimate disposition of Martinez was clean and concise: a 7-2 split, one majority opinion and one dissent.

    This "genesis" of the Martinez rule suggests to me that it was deliberately planned, possibly even prior to the cert. grant.  In other words, Martinez was not a haphazard product of untoward necessity, as may be the case when there is a flagrant circuit split (or other non-merits reason for cert.), and when the disposition involves multiple fractured opinions. And if we grant that Martinez was a delibarate decision to change the law, I find it difficult that Court sought nothing more than to carve out an uber-limited and doctrinally incoherent exception.

2. Revisiting the Rule in Trevino: Returning to Trevino, it's notable how quickly the Court chose to revisit and clarify Martinez. It has been just over seven months, with no circuit split and modest percolation. As with Martinez, the most sensible explanation for the Trevino grant, I think, is that the Court wants to change the law and correct the Fifth Circuit's unduly narrow interpretation. If the Court agreed with the Fifth Circuit's narrow approach, I doubt that it would have granted cert so early. Instead, it would have waited for another circuit (read: the Ninth) to hold that Martinez applies to a state that formally allows IAC claims on direct review, and reverse that decision.

3. Scalia's Dissent to the Haynes Stay: Finally--and this last point only little probative value--it is interesting to look at Scalia's statement, dissenting from last month's stay on the Martinez issue.  His gripe with the Stay was not that Haynes's IAC claim may not procedurally benefit from Martinez, but that his IAC claim was, in any event, meritless:

"Even if the Fifth Circuit is incorrect and Martinez does implicate Texas’s system of postconviction review, a stay is unwarranted here because Haynes presents no plausible claim for relief. His complaint is that his trial counsel was ineffective at sentencing. The absolute most to which he would be entitled under Martinez is excuse of his procedural default of this claim, enabling a federal district court to adjudicate the claim on the merits. But that is precisely what the District Court already did on federal habeas review[, finding the claim to be meritless.]" 

Neither Haynes, nor any other stay issued in anticipation of Trevino, had a noted dissent arguing, e.g., that the Court's "limited exception" in Martinez, should be allowed to percolate, before staying otherwise lawful judgments in the name of hastily clarifying the law.

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 - Depraved Indifference Overview - Updated

Recently, some readers have reached out to me with inquiries about depraved indifference cases.

There is no doubt that depraved indifference cases have popped up a lot around here.  In fact, the first substantive post on the blog had to do with a habeas grant in a depraved indifference case (it was later overturned by the Second Circuit).  A search of the blog shows that there have been dozens of posts that have mentioned this category of cases. 

So I thought it might be helpful to give an overview of what's happened and is happening in those type of cases.*

*For some reason, I felt uncomfortable trying to find a pithy title for a post about depraved indifference cases.  I have previously lamented the fact that pithy titles are not really my forte.  Only rarely do I find that right combination of brevity, cleverness, metaphors and/ or puns, that all come together in a perfectly pithy blog post title.  I am always amazed when someone can do it.  UPDATE: From the comments, this clever proposed title made me laugh: "I'm deprived on account of I'm depraved."  It's kind of perfect.

I am going to cover the following areas:

A. Background (discussing the change in law)

B. Relief

C. Habeas Review of the Merits

D. Procedural Default

E. Retroactivity

This is going to be a long post.  So, for the first time in a long time, I am going to put stuff below the fold . . .

Habeas Corpus - Welcome Back, Supreme Court! - Term Preview - Edited

The Supreme Court's October 2011 Term begins this week.  And it's going to be a very active one for habeas cases.  There are already eight cases on the Court's docket.  I am really excited about a couple of those.  I also dread what the outcome is going to be in a couple others.  And at least one I don't really have much of an idea as to what it's all about.  There are also a couple front-end criminal cases of note.  So it's going to be a big term in habeasland. 

And remember, Habeas Day at the Court will be this Tuesday, when the Court intends to hear three (Maples, Martinez, Howe) of the eight.

Since I love lists, here is a list, in descending order, of this Term's habeas cases on the scale of "what I find most interesting" (in other words, 1=most interesting; 8=least interesting)  I'll note my feeling about the outcome of the case as either (a) excited; (b) dread; or (c) uninterested.

The List:

(1) Martinez v. Ryan (to be argued on 10/4)- Excited

Issue: whether a criminal defendant has the right to counsel at a state post-conviction proceeding in order to raise claims (mainly IAC) that can't be raised on appeal

I hate to swim with the current on this one, but it's hard to argue that this isn't the most interesting (and important) habeas case on the Court's docket this year.  It certainly has the greatest potential impact on criminal law.  Not as big as something like Gideon v. Wainwright (right to counsel in criminal cases) or Douglas v. California (right to counsel on appeal if indigent), but it will be the next biggest thing.  No matter which way it goes, it's going to be a fun opinion.  I'd love to see a split court here as the question may come down to how each individual Justice views the role of counsel in the criminal justice system.  Fun, fun, fun.

(2) Greene v. Fisher (to be argued on 10/11) - Dread/Excited

Issue: when is the temporal cut-off for clearly established law under 2254(d)(1)

For such a simple issue, it does seem odd that I would rank it so high.  But this case is going to have the biggest day-to-day impact on habeas cases.  And it raises abstract questions about the interplay between the AEDPA and the retroactivity rules of Teague v. Lane (i.e., whether those latter rules still exist or will the Court's interpretation of 2254(d)(1) in Greene supersede them).  Which makes me excited for this case.  But I have larger feelings of dread about it as I expect a very anti-petitioner decision here. And you can read more about my feelings of dread about this case in this article that I wrote over the summer.

(3) Maples v. Thomas (to be argued on 10/4) - Excited

Issue: whether there was cause for petitioner's procedural default based on (essentially) attorney and state court negligence

The issue in this case is not really that interesting, but the underlying facts are.  This is the case where the Big City law firm dropped the ball on petitioner's case and the state courts did absolutely nothing to straighten out the problem.  And there was so much unfairness to petitioner that it led multiple national news outlets to take up his cause.  And, around here, it led me to create (the little used, but still enjoyable) "uncommon sense meter" -- the rates cases on the scale of whether it defies common sense that some ridiculous procedural rule can allow a court to overlook an obviously unfair result.  This is a case where good facts could chip away at what otherwise is bad law for petitioners.

(4) Lafler v. Cooper (to be argued on 10/31; being heard with Missouri v. Frye)- Dread

Issue: whether a petitioner who was convicted after a trial can argue IAC based on counsel's failure to give proper advice during the plea bargaining stage of the case

This is also a case with a big potential impact on the criminal justice system.  There is plea bargaining in every case and in almost every case that eventually goes to trial, a plea offer was made at some point in the case.  Counsel is supposed to both communicate that offer to the defendant and give advice on it.  The question here is whether petitioner should be able to get any relief when counsel messes that up.  And, if so, whether any relief is available after the defendant is convicted after trial or does that conviction somehow moot out the deficient performance in the plea bargaining stage.  The fairest result here would be that a petitioner should still be able to raise the claim even after a jury verdict.  But, based on the Court sua sponte adding this particular issue to the Frye case, I have a bad feeling about where this is going.

(5) Howes v. Fields (to be argued on 10/4) - Excited

Issue: whether a prisoner, who is excluded from the prison population and questioned, is always "in custody" for Miranda purposes

I am excited about this case since it is a real substantive law habeas case.  Lafler is too, but that substantive law could be extinguished based on where the case goes.  Not this case.  It is a basic up or down vote.  I have searched my memory and I simply can't remember the last up vote on a habeas case in the Supreme Court where the final decision ended up as a grant for the petitioner.  I don't see that as the most likely outcome here.  But there is a chance for that, which gets me excited.  On the other hand, it is a cert. grant from the Sixth Circuit, and that typically means . . . bad news for the Sixth Circuit.*

*I forced my wife to watch the original Bad News Bears again the other day.  I think that is my second favorite movie of all time.

(6) Gonzlez v. Thaler (to be argued on 11/2) - Dread/Uninterested

Issue: (i) was a COA appropriate on a habeas procedural issue? and (ii) something about what date to use to determine when a petition is timely under the statute of limitations

This case kind of scares me a little.  The Court sua sponte added the COA question.  I am not sure why since the Court has already held that a COA would be appropriate in this situation.  Maybe the Court was not satisfied that the circuit court properly followed the rule in determining whether to issue a COA on a procedural issue.  I should probably look at the briefs for some guidance on that.  But there is a potential that this case could place a further restriction on habeas law.  As for the other issue, I re-read the lower court decision and I still don't get it.  It seems very state-specific as to what date should be used as the end date of the appeal.  And each one is a totally legitimate way of looking at it.  Does the Supreme Court need to step into that mess and say that it needs to be the same date in all cases, regardless of the state's individual procedure?  It seems like a waste of time.  State law should control on that question in my mind.  States' rights!  (That's tongue in cheek -- secessionist talk is best left to southern governors with presidential aspirations)

(7) Wood v. Milyard (recent cert. grant) - Dread

Issue: can a circuit court raise statute of limitations defense sua sponte*

*There's those words again.  I talk about how much I love the term sua sponte about midway through this post.

I really dislike the statute of limitations.  To be fair, a statute of limitations isn't the worst thing ever.  But the one-year one is truly oppressive.  I wish it would go away or get ameliorated (like turned into a two or three year limitations period).  But my personal feelings aren't relevant.  I don't think the federal courts dislike it too much.  And, even though it is a defense that the State can use and not a jurisdictional bar, I worry (in the extreme) that the Supreme Court will uphold a circuit court's power to do this.  In a fair world, they won't.  I mean it's typically frowned upon for an appellate court to go around raising defenses sua sponte where a litigant hasn't relied on it below.  But, of course, everything is skewed in habeasland.

(8) Martel v. Clair (to be argued 12/6) - Uninterested/Excited(?)

Issue: can court-appointed habeas counsel be replaced in a capital habeas proceeding

This case appears to boil down to a statutory interpretation issue.  And it's a statute that I am not too familiar with.  So my interest level is not high.  But maybe, just maybe, the opinion could branch out into issues that I am more interested in.  If the Court's opinion could potentially be applicable to the question of replacement of court-appointed counsel in a non-capital case (i.e. when a court grants a petitioner's motion for assignment of counsel under the "likely merit" standard), I'd be interested in that.  And, because the issue presented seems broad (although I don't think in the end that it is), there is a small chance that the Justices could once again veer off into the more abstract concept of an attorney's role in the criminal justice system.  Which could be fun.  But I won't get my hopes up.

[edited the Gonzalez paragraph for clarity]

Habeas Corpus - Relist Revisited

In my last post about the relists, I stated that I thought that the case in Maples would end up as a GVR in light of the supreme Court's decision in Walker v. Martin as both cases concerned the question of whether a state rule represented an independent and adquate state law ground.

A reader pointed out to me that this outcome does not seem likely since the lower court in Maples actually ruled against Maples and concluded that the State rule, which in some ways resembles the California rule at issue in Martin, was adequate.  So there would be no reason to reverse since it would seem to be consistent with Martin.

That makes sense, so I would like to take back my statement about the GVR.  I guess what I really should have said was that the result in Maples on the adequacy of the procedural rule, whatever it should end up being, seems to be dictated by the Martin decision.  So it makes sense that the Court would hold the case in light of Martin.

But then I starting looking into it some more and realized that Maples had the additional issue of cause for the procedural default.  I completely forgot that this was the case that got all of the media attention focusing on how a mailroom in a big New York City law firm screwed up the case.  And I can't believe that I forgot that, as it was the case in which I instituted the "uncommon sense meter" (which I guess has been in hibernation for awhile).

Which means that it could still be a GVR, but on this other ground.  However, I think that it is more likely to be a dissent from cert. denial.  I can't see the Supreme Court deciding to review this case on the "cause" ground.  But I am guessing that the facts in this death penalty case make at least one judge a little bit* uncomfortable.

*In my relist post yesterday, I also used the "a little bit" phrase.  It's because I had that great line from Goodfellas stuck in my mind: "No, no, no, no, no. You insulted him a little bit. You got a little bit out of order yourself."  I happened to watch Goodfellas again on Monday night.  I worry that it's a little cliche to refer to Goodfellas.  Who hasn't seen Goodfellas a million and a half times?   But it's such a ridiculously rewatchable movie.  So for your viewing pleasure, I've included the entire "Billy Batts" scene from Goodfellas.  It's obviously NSFW. The quote mentioned above is at 3:07 if you want to skip ahead:

 

 

 

Habeas Corpus - Second Circuit Opinion from Yesterday

Yesterday, the Second Circuit issued a somewhat quirky published opinion.  There is no doubt that the court had problems with the viability of the underlying conviction.  The issue had to do with territorial jurisdiction in a drug case where neither petitioner nor the drugs were ever in New York State.  However, the court refused to dig too deep into the merits since it believed the claim was procedural defaulted due to a failure to exhaust.

More in a second, but here's the details:

Carvajal v. Artus, 09-0826-pr

• Affirming Denial of Habeas; Opinion here
• Panel: Jacobs, Feinberg, Cabrane; Opinion by Jacobs, CJ
• Decided: 1/25/11
• Argued: 9/29/10
• Lower Ct. Info: 07-CV-10634, 2009 WL 62177(SDNY Jan. 9, 2009) (CMM) (AJP)
• Issue: whether New York lacked territorial jurisdiction to try petitioner on drug possession charges where possession was exclusively outside state of New York

ANALYSIS: As mentioned above, while expressing concerns about the conviction, the court affirms the denial of habeas based on petitioner's failure to fairly present the constitutional claim to state court under the Daye factors.*  According to the court, the claim was only advanced as a state law claim. 

*The Daye factors come out of what is now a pretty old case called Daye v. Attorney General, 696 F.2d 186 (2d Cir. 1982) (en banc).  The Second Circuit established the following four ways that a petitioner can satisfy the "fair presentation" test:

(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.

This Daye test has endured for the past 30 years since I don't think the Supreme Court has ever truly addressed this question and the AEDPA did not alter the fair presentation standard.

The novel aspect of the decision is the question of whether the State expressly waived the exhaustion issue.  For whatever reason, the State did not advance the exhaustion argument in the district court.  The AEDPA added the following language to the habeas statute: "[s]tate shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the [s]tate, through counsel, expressly waives the requirement." 28 U.S.C. § 2254(b)(3).

The court states that this express waiver is a stringent standard.  And the State did not make such an express waiver here.

For such a relatively simple question, the opinion is long.  It admirably takes on petitioner's arguments as to why the claim actually was fairly presented to the state courts.  And then the court sticks its toe into the merits water, but not particularly deep.  Once again it expresses concern about the conviction, but does not necessarily indicate that the claim would have succeeded on the merits.  The court states, "The Supreme Court has not had occasion to say how far a state may go in expanding its criminal jurisdiction. We therefore cannot say that the state court's interpretation of New York Criminal Procedure Law section 20.20, however surprising, was in conflict with 'governing law set forth' by the Supreme Court."

Two final notes.  One of these is pretty technical.  First, the Second Circuit skipped a step in the procedural default analysis.  The fact that the constitutional claim had not been fairly presented to the state court means that the claim is unexhausted.  If petitioner could still present the claim to state court, then the court should consider whether to (a) stay the petition and give petitioner a chance to exhaust the claim; (b) give petitioner the option to withdraw the petition to exhaust the claim (which would render the claim untimely in a follow-up habeas); or (c) deny the claim on the merits despite the exhaustion problem. 

On the other hand, if petitioner cannot present the claim in state court anymore, then the federal court is supposed to deem the claim exhausted, but procedurally defaulted.  That's apparently the situation here, but the court failed to note that petitioner could no longer raise the claim in state court, which meant the claim would be deemed exhausted.  Pretty technical, but relevant.

Second, as a reader pointed out to me, in a footnote the court kind of calls out petitioner's counsel.  After concluding that the claim is procedurally defaulted, the court concludes that there was no cause or prejudice and that petitioner had made no claim of actual innocence.  In a footnote, the court notes that "Carvajal's jurisdictional claim might be a sufficient basis from which he could have argued that he is 'actually innocent' and entitled to habeas relief. It may be that conviction in New York for conduct that is not a crime against that sovereign would fall within the 'narrow scope' of the 'miscarriage of justice exception' as defined by the Supreme Court."  However, the court would not address this "open and vexing" question because petitioner did not raise it.

As a lawyer, I kind of feel like it was a tad unfair for the court to point out this purported failing by counsel.  But, on the other hand, from a habeas point of view, it's nice that the court has put it out there that the miscarriage of justice exception may cover this type of argument.  It could be helpful to petitioners down the road.

Habeas Corpus - District Court Review - Habeas Grant Recommended - Edited

In District Court Review Number Two, I am going to briefly discuss a recent R&R recommending a grant of habeas relief based on the ground of insufficient evidence to establish depraved indifference.

[EDIT - In the original post I never included the name of the case.  It's Wells v. Perez, 10-CV-1107 (SDNY) (DC)(JCF)]

While the R&R was covered at length in the New York Law Journal (as I have said before, I will not provide a link to a subscription only site -- so here's one to the New York Post's brief article on the case), the R&R does not seem to be published anywhere.  I had to print it off PACER.  But it was worth the $2.40.  It's a really fascinating decision.

The case itself is quite infamous.  In fact, you can watch a Dateline NBC video about the case here.  It concerns a drunk driver who struck and killed a mother of three.  Petitioner, a popular party promoter, was, according to Dateline, one of the "worst kind of drunk drivers," namely someone who had been a repeat drunk driver. 

I have previously talked at length about the changes to the depraved indifference laws.  This was a case where all of the changes to the law applied to the case.  Although the conviction occurred before Feingold, the case was still pending on appeal when Feingold (the case that actually altered the depraved indifference law) was decided.  This meant that, for the appeals courts to uphold the conviction, it was necessary for the trial evidence to establish that petitioner had a depraved state of mind.  Relying on a New York Court of Appeals decision that discussed the relationship between intoxication and a depraved state of mind, the MJ concluded that the facts did not rise to the level of depravity.

The more interesting part of the decision, though, is how the MJ navigates the habeas corpus procedural issues.  At trial, counsel argued that the evidence was legally insufficient to established depraved indifference.  It was about as preserved as it could have been under the law as it stood at the time.  However, counsel did not make the Feingold argument -- that depraved indifference was its own culpable mental state that needed to be evaluated from the defendant's subjective perspective.

For this reason, the New York appellate court concluded that the claim was unpreserved.  Seems illogical, right?  How can a claim of law be unpreserved when it did not even exist at the time of the trial?  The MJ acknowledges the illogic of this, but nevertheless concludes that New York law requires it.  Thus, the appellate court's state procedural bar was independent and adequate. 

However, the MJ says that there is cause for the procedural default.  In fact, he flips around the illogic of New York's preservation rule.  He says, "Because New York's law on depraved indifference changed markedly while Mr. Wells' case was on direct appeal, the legal bases for his sufficiency claim was not reasonably available to his attorney at the time of trial."  R&R at 30-31.  Due to the drastic change in law, he later adds, "It would therefore be unreasonable to hold the petitioner's counsel to a standard of performance that would have required him to make multiple legal sufficiency objections based on hypothetical future changes in the law."  Id. at 31.

One problem: this sounds like a futility argument, which the Second Circuit rejected in an unpublished depraved indifference decision called Brown v. Ercole (discussed here).  The MJ provides the following explanation as to why that case does not control:

New York courts prior to Feingold had never applied the standard subsequently adopted in that decision.  Thus, it was not until after Feingold that defense attorneys generally started making objections based on the prosecution's failute to prove "culpability."

Unfortunately, that doesn't completely persuade me.  It's what the MJ said plus this -- this case is distinguishable from Brown.  In that case, the defense attorney did not raise any challenge to the sufficiency of the evidence.  None at all.  Here counsel made the one that was available to him at the time.  It was only unpreserved because he did not make the hypothetical argument based on a change in law.  To me, that's a big difference and completely distinguishes it from the previous futility case.

The MJ here noted that other DJ's had followed similar paths in depraved indifference cases, citing to Petronio (discussed around here before) and Fernandez v. Smith (discussed in the Petronio post).

Before we get too excited about this, it still needs to go through the DJ.  But even if the DJ disagrees with the R&R, let's hope that the DJ grants a COA. 

Habeas Corpus - Relist Revisited

The Volokh Conspiracy has a new post up about the Supreme Court relists.  My previous discussion of the relists is here.  A couple new cases were added to the relist list, but no new habeas cases.

Apart from Smith, no action was taken on the other three relists.  The only news is that the Court ordered the lower court record in Lawhorn.

One of the commenters to the post asked about Maples.  I tried to submit a comment but it didn't go through.  So I'll just talk about it here.

Preliminarily, let me say that my initial take on Maples was off.  Based on the Washington Post editorial, I got the sense that the issue in the case had to do with an untimeliness issue as to the petition in federal court.  The editorial asked the Supreme Court to use the same standards for missing a deadline that the Court used in a takings case.  That led me to believe that the issue had to do with the application of a time limit that the Court had control over.

But that's not the case at all.  I have now dug into the 11th Circuit's decision in Maples (something I should have done before -- teaches me to rely on a newspaper editorial).  Maples has to do with a procedural default in state court.  Maples did not timely file a notice of appeal from a trial court post-conviction decision.  As a result, he did not fully exhaust the issue.  So the question in that case is whether the procedural default was independent and adequate.  The Supreme Court would have absolutely no power in Maples to say to the Alabama state courts that they should apply their rules differently than the way that they did in this case.  Outside of my other complaints about the editorial, it made a completely irrelevant argument.  Makes me kind of really annoyed. 

The true question is whether Alabama had been consistently applying the procedural rule in the manner that they did in Maples' case.

When framed like that, I now have a pretty good guess as to what's happening with Maples.  It is most likely being held pending the Court's decision in Walker v. Martin (see the Pending Supreme Court Cases page).  The issues in that case are:

Whether a state procedural bar that prevents collateral relief for a “substantially delayed” filing represents an “independent and inadequate state law ground" because (1) the rule is vague, and (2) the courts did not “consistently” apply the rule

That would explain the lack of a relist and no request for the lower court record.

 

Habeas Corpus - A Favorable Outcome for Petitioner

Back in September, in a case called Petronio v. Walsh, an EDNY judge granted habeas on the ground that the evidence was insufficient to support a depraved indifference conviction. 

It was great opinion as it not only granted relief on that ground, but it granted relief even though the claim had been procedurally defaulted in state court.  The judge concluded that petitioner had overcome the procedural default in two ways: one, he had shown cause because the depraved indifference argument "could not reasonably have been within counsel's contemplation at the time of the trial"; and two, there would be a miscarriage of justice for the federal courts to refuse to address the claim.

What was so great about this opinion is that in stood in direct contrast to a separate lower court opinion that had gone the other way on at least the miscarriage of justice issue and that case is now pending before the Second Circuit.  This would have been a great companion case for that one.

But something else happened with the case.  I recently read an article* in Newsday about the case and the paper reported that Petronio and the Nassau County DA's office reached a plea agreement under which Petronio would plead guilty to second-degree manslaughter.  The guilty plea was entered on October 15.  According to the article, the arrangement will make him almost immediately eligible for parole after serving ten years in prison.

*The article is subscription only, so no link.  I was able to read it on Lexis/Nexis.

I checked the EDNY docket sheet for the case and the DA's office did file a notice of appeal.  However, one of Petronio's attorneys has informed me that the DA's office does not plan on pursuing the appeal.  And the Second Circuit's PACER system has no record of an appeal in that case.  So it looks like the case is over.

While I would have liked the EDNY's great opinion to become the law of the circuit, I like the fact that the habeas grant resulted in a reduced plea for petitioner.  It's a situation where habeas corpus provided a real world benefit to a habeas petitioner.  Despite those recent calls for its abolition, this is a nice example of the continuing importance of the writ.