Habeas Corpus Blog

Habeas Corpus - Decision in Greene - Oh Boy Reprise

The Supreme Court issued its opinion today in Greene v. Fisher.  And as I expected (or is feared the better word?), the Court concluded that "clearly established law" is the law in place at the time of the relevant state court merits adjudication.  It was unanimous.  It's available here.

It's a short, pretty straightforward opinion.  Basically, it comes down to the language of the statute.  The Court believes that the language of the statute compels the result.  While the Court makes it seem like this is such a no-brainer, it really isn't.  If it was, then this would have been decided years ago.  Not to overstate it, but I think it does alter a common understanding of habeas law.

And this decision will have ripple effects throughout habeas law.  In particular on retroactivity and, in my mind, exhaustion.

As for retroactivity, the Court states that "clearly established law" and retroactivity are two different concepts.  But they are completely intertwined.  This decision is going to necessarily overrule parts of Teague.  It is going to be interesting (and probably a little frustrating) to see how this plays out.

This decision reinforces the idea of preclusive effect of state court decisions that I wrote about.  Once again, the Court uses the term "relitigation bar" as it did in Richter.  The state courts now decides what the clearly established law is.  Here's an example: Let's say that an intermediate appellate court issues its decision.  While the defendant is seeking review from the State's highest court, the Supreme Court issues an opinion favorable to petitioner.  The State's highest court then decides not to review the case.  In that situation, even though the state courts had the opportunity to correct the problem, the courts decided (in kind of a retroactive fashion) that clearly established law should be the earlier date.  They get to decide that the intermediate appellate court decision gets preclusive effect.  That's problematic.*

*Certainly, a defendant in that situation could (and I emphasize could) seek review from the Supreme Court.  But there is absolutely no guarantee that the Supreme Court would grant cert. to the defendant in that situation.  The Court in Greene seems to believe it's a GVR is a certainty.  But we saw after the decision in Melendez-Diaz that it's not a certainty. The Court held many petitions, but did not grant all of them.  For example, it denied cert. in Rawlins but Rawlins was right on point with Melendez-Diaz.  So seeking cert. is not a certainty.  It also now has no effect on the clearly established law date.  It also has no effect on exhaustion, as seeking cert. is not part of that process.

And, in my mind, Greene has an impact on exhaustion.  First of all, this decision is inconsistent with the exhaustion requirement.  The idea of exhaustion was to give state courts the first crack at a constitutional violation.  Now a denial of discretionary review is absolutely meaningless to habeas review.  Why force a petitioner to seek discretionary review if that step will in most cases have no impact on federal review?  It shifts the equities.  A petitioner may want to seek review from the higher state court, but it shouldn't be required to in order to obtain habeas relief.

So the Court has continued down the path of placing even greater restrictions on habeas review.  Not unexpected, but very troubling.

 

Habeas Corpus - Perry v. New Hampshire - 11/2

Tomorrow, the Supreme Court will hear argument in the front-end case of Perry v. New Hampshire.  Here's the issue:

Do the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances or only when the suggestive circumstances were orchestrated by the police?

While I haven't been covering this case too much, it has been getting a lot of attention around the internet.  And a lot of that is focusing on the unreliability of eyewitness identification evidence.  As the New Jersey Supreme Court recently concluded in its seminal case of State v. Henderson, this clearly is a factor that can impact upon the reliability of eyewitness evidence and it should be considered both at the suppression hearing and at trial.

However, I am not expecting the Supreme Court to issue a broad ruling discussing in general the unreliability of eyewitness evidence.  In fact, I am not even sure that a majority of this Court is particularly concerned about the growing body of work showing that eyewitness identification evidence is exceedingly unreliable.  So I am setting my expectations low with the potential that I will be pleasantly surprised.

And should that surprise occur, I will let Alex Satanovsky offer up one goodie and one question (with some editing):

1.  It seems to me that, under Teague, a favorable ruling in Perry would be exactly the kind of rare case that would qualify for retroactive application on collateral review.  It would be "watershed" new rule in criminal procedure, and it would be based squarely upon concerns for the truthfinding process.  As of yet, no such "new rule" has ever been made retroactive under this framework.  (In Wharton v. Bocking, a unanimous court struck down Ninth Circuit's retroactive application of the Crawford confrontation clause rule, holding that the departure from Roberts was not essential to the truthfinding process, thus not warranting for retroactive review).  But Perry could be different.  If Perry wins, it will be precisely because the unreliability is so perverse, so damning to truth-seeking, that the previous "state action requirement" necessary to suppress an unduly suggestive identification was simply gloss.   A whole lot of inmates would (rightfully) see this as an opening to reassert their factual innocence -- in a way that is qualitatively different than the previous situations where a defendant had argued that there had been a "watershed" rule -- (I'm thinking Crawford, Gant, JEB v. NC, . .. )

2.  But what about on habeas review?  The AEDPA only allows for retroactive application of rules that are "made retroactive" by the Supreme Court.  Is this supposed to incorporate-by-reference the Teague rule for the rare/watershed case, or does it supercede Teague, effecitvely requiring the Supreme Court to expressly announce --  "this new rule shall be retroactive"?

Anyway, I think the answer is not clear, and should be worth seeing whether this issue pops up in the background of the oral argument.

Thanks again, Alex.

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 - Greene v. Fisher Transcript and Quick Thoughts

The transcript for Greene v. Fisher is available here.

I read through it last night.  Wow.  This is really gonna happen.  The Court is going to make the temporal cutoff for "clearly established" law the date of the relevant state court decision.  If you think I am just being all doom and gloom here about the argument, just go read it.  Not a single judge was on petitioner's side.  The questions to the State's attorney were not very probing.  And the State's attorney did not even have to use up all of his time.   Indeed, the questioning made it seem as if this issue was not a difficult one at all, particularly in light of what happened last term in Pinholster.

This inevitable result is going to raise a lot of questions going forward.  The first, what is going to happen to the retroactivity rules?  The only way that this is going to work is for Greene to completely supplant Teague's "after conviction becomes final" retroactivity rule.   There's no way around that.  It's funny how petitioner had to ask to keep Teague, when the Teague rules were originally conceived as a way to make life harder for petitioners.  

But what about Teague's two exceptions to the retroactivity bar.  Do those still apply?  They are not in the statute.  And what about the situation where a Supreme Court case is decided after the relevant state court decision but does not state a new rule?  For example, in Portalatin, the Second Circuit decided that, in Apprendi and Blakely cases, Cunningham was such a decision.  Thus, Cunningham could be considered when reviewing a habeas petition where the conviction became final before it was decided.  Will this still be allowed?

Another impact will be exhaustion.  Why should the strict exhaustion rules remain in place?  In particular, the requirement that the defendant seek discretionary review where available.  Certainly, one policy underlying exhaustion would remain in place -- giving the State first shot at correcting the error.  But discretionary review is discretionary.  The overwhelming odds are that permission to appeal will be denied.  And that decision will soon be immune from federal review.  That's not equitable.  So why should a petitioner be required to seek discretionary review when the state has already issued the decision that will be up for habeas review and the almost certain denial of review will have no impact on the habeas proceeding?

These things and more will have to be sorted out in the future.  And just when I thought habeas law couldn't get any worse for petitioners . . .

Habeas Corpus - Greene v. Fisher Argument - Updated

On Tuesday, the Supreme Court will hear argument in the habeas case of Greene v. Fisher.  The question: what is the temporal cut off for clearly established under 2254(d)(1).

I ranked this case pretty high on my list of interest for this term. It was number two.  Here's what I said about it:

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.

To get a little more into the weeds, I believe that this issue presents a conflict between long-standing equitable principles of habeas corpus -- exhaustion -- and the preclusion issues that came up last term.  If the original intent of exhaustion wins out, then the date for clearly established law will be when the last state court reviews the case.  If preclusion wins out, then it will be the date of the last reasoned state court decision up for review on habeas. 

And, if it goes the latter way, then such a decision could potentially conflict with Teague retroactivity principles.  Under Teague, a Supreme Court decision cannot be applied retroactively to a convicion after the conviction has become final.  And that finality date was always looked at as the date that the direct appeal ended.  From what I remember, there was a recent debate in a capital case in the Supreme Court over whether it ended at the conclusion of state court review or did you include the time to seek cert (a-ha, found it; it was Smith v. Spisak).  But both of those dates is later than what the clearly established law date could end up being.

So, what happens if the clearly established law date is different from the retroactivity date?  Not sure.  I am still working through the potential logic and permutations.  Will it mean that the retroactivity date is gonna change?  It shouldn't really since it was originally set based on the equitable principles underlying habeas. But the retroactivity date would have to change in order to make everything work. 

Or does it mean that the "clearly established law principle" is simply going to subsume all of the Teauge rules?  But that could potentially mean that retroactivity would no longer even be available on habeas review as none of those rules are written into the statute.  It's an extreme view, but that seems like something that could actually happen.

Or maybe I am just overthinking all of this.

Either way, I truly believe that Greene is a very important case this term. I am very eager to see the transcript of that argument.

UPDATE: For more in depth analysis, you can check out these previews.

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 - Going Public -- A Front-End Case

Finally got around to reading the decision last week in Presley v. Georgia (available here).

In the case, the Supreme Court set forth two holdings favorable to criminal defendants: (1) a defendant's sixth amendment right to a public trial extends to jury selection; (2) trial courts are required to consider alternatives to closure even when not offered by the parties.

The second holding will seem to have a big effect in NY, as both the state Court of Appeals and the Second Circuit have held thata defendant was required to propose alternatives and the court was not obligated to consider the issue sua sponte.  See People v. Ramos, 90 NY2d 490 (1997); Ayala v. Speckard, 131 F3d 62 (1997).

So the case will definitely have an impact on those cases still in the direct appeal pipeline.

But what about cases that have already become final, for example, any pending habeas petitions?  Here is where we find some intersection between the 2254(d) standard and Teague v. Lane (the case that sets forth the rules on retroactivity in habeasland, which I have discussed here).  If Presley is a "new rule," then a petitioner cannot get any retroactive benefit of this case.  That also would mean that prior to Presley the two holdings were not clearly established law under 2254(d).

On the other hand, if Presley is not a "new rule," but simply an application or an explanation of a "clearly established" principle, then it would apply to cases that have already become final.

I think a strong argument can be made that this was not a "new rule" but simply an explanation of a clearly established rule.  First, this was a summary disposition.  No formal briefing or oral argument was ordered.  It was vacated solely based on the cert. petition.  This was because the Court felt that it was such an obvious decision: "The Supreme Court of Georgia's affirmance contravened this Court's clear precedents."  (My emphasis).  Kind of answers the question all by itself, doesn't it?

But there's more.  When discussing the Sixth Amendment issue, the Court states that the law is "well settled" that the Sixth Amendment extends to jury selection.  The Court then discusses the two cases that show that the rule has already been established.

Then, when addressing the alternatives to closure issue, the Court stated that the answer was "clear" from its precedents and that the rule had been set forth in "explicit statements." 

That's a lot of clarity and well-settledness.  Provides much ammunition for cases that have already become final.

On the other hand, there is the dissent.  In his dissent, Thomas (joined by Scalia) states that it was improper to summarily dispose of the case because these were two previously "unanswered" questions.  He then explains why the prior precedent did not show that the questions were "well-settled" or "clear."  He believes that these were extensions of the prior precedent.

When asking whether a decision is a "new rule," the fact that there was a dissent and the substance of the dissent are things to consider.  At the same time, it was only a two-person dissent, while seven of the judges felt that this was just an explanation of a well settled principle.  And that's something, too.

I'll be curious to see if this argument gets any play in the federal courts.

Final Note: It's been a long time, but I had to add a new category.  I hope that fact doesn't get used against habeas petitioners when trying to show that this was not a "new rule."

Habeas Corpus - What is the Retroactive Effect of a Judicial Change in State Law?

Second Circuit issued a published opinion in the habeas case of Henry v. Ricks (here).  The opinion was authored by Judge Cabranes and he was joined by Judge Miner and DJ Stein.

The issue in the case is whether the Due Process Clause requires the state courts to retroactively apply a new judicial interpretation of the meaning of a state law? 

The specific, underlying judicial interpretation concerns the New York Court of Appeals change in the meaning of depraved indifference murder.  I have previously discussed this change here.  In this case, petitioner's conviction became final prior to this change in law, so he could only get relief retroactively.  He argued that due process requires that the Court of Appeals' new interpretation of this kind of murder apply to his case.

The Second Circuit describes this as a question of first impression for the court.  But in the end, it does not end up being a particularly hard one for the court.   Judge Cabranes concludes that, under Supreme Court precedent, States are not required to make a judicial change in the law retroactive.  If the State courts that the change will not apply retroactively, then the federal courts must respect it.

So, the court affirmed the district court's denial of habeas relief.