Habeas Corpus Blog

Habeas Corpus - Sitting By Designation

By JK

Got a little bit of a backlog with recent Ninth Circuit habeas decisions.  Been a bunch.  I hate to group them all into a single post, so I plan on doing several relatively short ones.

Back on February 6, 2013, the Ninth Circuit issued its published opinion in Dyer v. Hornbeck.  The court affirmed the denial of habeas relief despite a Miranda violation.  

When I first saw the decision, I had to do a double take as the author of the opinion was Judge Robert Sack -- of the Second Circuit.  Looks like I was not the only one who headed West.  Of course, Judge Sack was only sitting by designation.  But it was nice to see a familiar name as I did argue a couple of habeas appeals before him.  I wanted to say, "Hey, Judge Sack, remember me?  You once complimented me and my adversary for doing a good job during an oral argument . . . (voice trailing off)"*

*Sorry to mention this type of ego-related thing, but it was a nice moment.  And it happened with both my former boss and my future wife in the audience.

In any event, you may have noticed that I said flatly "despite a Miranda violation."  Intentional.  The interesting part about the decision was the concurrence.  Judge Milan Smith explained that had this been a direct appeal, he would have found a Miranda violation.  However, since it was being decided under the deferential standard of review, relief had to be denied.  We've all seen this type of thing before. 

The frustration of that inspired me to create a new tag line for habeas review:

AEDPA - Tolerating Constitutional Violations Since 1996!

I'll use it when appropriate.  

 

 

 

COA Grant in Umali: Second Circuit To Consider Remedy for Burden-Shifting Jury Instruction

By Matthew B. Keller

Last week, HCB’s own Alan Lewis received a COA grant from the Second Circuit in Umali v. Heath, No. 12-3243 (2d Cir. COA granted Dec. 18, 2012).  Not one to toot his own horn, I will trumpet for him – a Circuit COA grant is rare enough these days that it’s important to keep track of all of them.  This one is particularly noteworthy  because it gives the Second Circuit a chance to consider one important, but largely ignored aspect of the Supreme Court’s Lafler v. Cooper opinion from last term – the boundary between the contrary to and unreasonable application clauses of AEDPA.

The case began as a New York State murder prosecution against Isaias Umali for killing Dana Blake during a 2003 fight at an East Village club.  Blake, a bouncer, was in the process of violently removing Umali’s friend, Jonathan Chan, from the club when Umali stabbed Blake in the thigh/groin, severing Blake’s femoral artery.  Surgery to repair the artery failed and Blake died the following day.

Following a trial, Umali was convicted of First Degree Manslaughter and sentenced to 17 years in prison.  In his state court appeals he raised several issues relating to his right to present a defense, the trial court’s exclusion of lay and expert witness testimony, as well as the issue on which the Second Circuit granted a COA – the court’s burden shifting instruction on justification. 

The Trial Court’s Justification Instruction

Umali ’s defense was that, at the time of the stabbing, he believed that Blake was using deadly physical force against Chan.  Both defense and prosecution witnesses testified that Blake (a much larger man than Chan) held Chan by the neck or throat and that Chan unsuccessfully tried to free himself from Blake’s grasp.  The defense argued that Chan could not breathe and was therefore in grave danger. 

In New York, deadly force can be justified where someone reasonably believes that another person is using or is about to use deadly physical force.  For those who haven’t cracked a NY Penal Law since the Bar Exam, you’ll recall that this defense has both  “subjective” and “objective” components: the defendant must subjectively believe at the time that he is acting to stop deadly physical force upon himself or another, and that belief must be objectively reasonable under the circumstances. 

Where this gets tricky is in the burden of proof.  Even though justification is raised by the defendant, in New York it remains the prosecutor’s burden to prove that a defendant was NOT justified in using deadly physical force.  And indeed, in Umali’s case, the court began by correctly instructing the jury that it was, “the burden of the prosecution to disprove [justification] beyond a reasonable doubt.”  (The court also mentioned that, in general, “the defendant has no burden of proof”).  However, the court ran into trouble when it broke down the burden of proof as to each prong (subjective and objective) of justification, stating:

If the evidence convinces you beyond a reasonable doubt that deadly force was necessary to prevent the imminent use – that the defendant believed that deadly physical force was necessary to prevent the imminent use of deadly physical force you must still find the second test, which is the objective test, were defendant’s beliefs reasonable under an objective standard.

If you didn’t catch it, the problem with this explanation is that, by suggesting that the jury had to be “convince[d] beyond a reasonable doubt that . . . the defendant believed that deadly physical force was necessary,” the court shifted the burden of proof on the subjective prong to the defendant.  Umali’s trial attorney (HCB’s Alan Lewis) caught it, and asked the judge to re-charge the jury and explain its previous error.  The court refused, maintaining that it “correctly said” the justification charge. 

A burden-shifting charging error is a big deal.  The criminal justice system relies on juries to give effect to major constitutional rights, including the one at issue here: the requirement that the State prove guilt beyond a reasonable doubt.  Rights don’t get much more fundamental to American justice than that.  Therefore, when a court gives a constitutionally defective instruction, the Supreme Court has held that it is not enough that other parts of the jury charge may have instructed correctly on the same subject.  Instead, the court is required to “explain” the defective instruction: “Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.” Francis v. Franklin, 471 U.S. 307, 322 (1985). 

Appellate Court and District Court Habeas Review

Umali took this argument to New York’s appellate courts, which rejected it.  The NY Court of Appeals agreed with Umali that the instruction on the subjective element of justification had impermissibly shifted the burden of proof onto him.  However, it also held that the trial court corrected its mistake by repeatedly referring to the correct burden of proof in reference to the overall justification defense and to the case in general.  “In light of these repeated references to the correct legal standard,” the Court of Appeals concluded, “the instructions as a whole could not have misled the jury regarding the applicable burden of proof. Thus, a supplemental charge explicitly disavowing the court’s single misstatement of law was not required in this case, although it certainly would have been preferable had the court realized that it misspoke.”

If you’re reading closely you might be asking yourself, “what about that Franklin case he just mentioned?  Doesn’t that require an explanation of the error?”  It sure seems to me that it does.  But you wouldn’t know that from reading the Court of Appeals’ decision.  Even though Umali emphasized the Franklin holding – it is literally the first case cited in Umali’s Court of Appeals’ brief – the opinion refers to Franklin ZERO times.  And neither of the two cases the Court of Appeals relied upon for its expression of the legal standard refers to Franklin. See People v Drake, 7 N.Y.3d 28 (2006); People v Fields, 87 N.Y.2d 821 (1995). 

Umali petitioned the SDNY for habeas review.  The petition was referred to a federal Magistrate Judge, who recommended that District Judge Rakoff deny it.  See Umali v. Heath, No. 10 Civ. 1787 (S.D.N.Y. Report & Recommendation filed Oct. 13, 2011) (Gorenstein, M.J.) (“R & R”).  Judge Rakoff adopted the R & R and also denied a COA. 

To answer the jury instruction question, the R & R applied a modified form of the three-part test of Jackson v. Edwards, 404 F.3d 612, 621 (2d Cir. 2005), asking the following three questions: (1) was the charge incorrect under state law?; (2) if so, was the giving of the faulty charge a denial of due process?; and (3) if so, did the state court’s contrary conclusion constitute an unreasonable application of clear Supreme Court law? 

Before getting to the answers, you have to wonder whether the Magistrate asked the right questions – particularly the third, applying AEDPA’s deferential standard of review under the unreasonable application prong.  Last term in Cooper, the Supreme Court held that state court decisions that fail to apply controlling Supreme Court precedent to a constitutional claim do not get AEDPA deference because they are “contrary to” clearly established federal law as opposed to an unreasonable application of that law. 132 S. Ct. 1376, 1390.  The state court decision at issue in Cooper failed to apply Strickland v. Washington to assess an ineffective assistance of counsel claim.  Here, there is no doubt that the New York Court of Appeals failed to apply Franklin to Umali’s jury instruction claim, because the court never mentioned the case.  So, whence AEDPA deference?  By asking the third question above, the district court simply assumed that AEDPA deference would apply.  A threshold question for the Circuit will be how to deal with the lower court’s unconsidered application of AEDPA deference in light of Cooper.

As for the first two questions, the Magistrate Judge answered yes and no, respectively.  The subjective prong language was incorrect under state law because it incorrectly shifted the burden on to the defendant.  However, the faulty charge did not result in a denial of due process because in the context of the entire charge it did not deny Umali of a fair trial.

Unlike the NY Court of Appeals, the Magistrate Judge applied Franklin; but then he distinguished it from Umali’s case.  Sure, the court said, under Franklin you cannot correct an erroneous burden-shifting instruction merely by using more “general [correct] instructions” on burden of proof to “contradict” the bad instruction on the subjective prong of justification.  But according to the district court, that’s not what happened here: the measures taken by Umali’s judge were much more thorough and “direct” than those taken in Francis. After parsing the language of the jury charge and the trial judge’s responses to jury questions, the Magistrate Judge found that the trial court, “twice made clear that it was the prosecution’s responsibility to prove the absence of [a justification] defense, which necessarily included both the subjective and objective prongs.”  Therefore, the Magistrate concluded, “[t]hese instructions thus constituted a far more direct correction of the incorrectly-given instruction than had occurred in Francis.”   

I’m not sure what Judge Rakoff – an excellent and thoughtful judge – was thinking when he denied COA on this.  It is a fair reading of Franklin that a trial court must correct an unconstitutional instruction by, at a minimum, referencing the bad instruction and then explaining why it is incorrect.  Clearly that did not happen here.  In addition, none of the judge’s correct instructions were as specific as the burden-shifting one.  That is, the burden shifting occurred in the only instruction in which the trial judge dealt specifically with the subjective element of justification. 

The reasoning behind the R & R seems to be that Umali’s case is different from Franklin because here the correct instructions on burden of proof related to a specific claim or defense (i.e. justification) and therefore it’s okay to expect a lay jury to reason that the correct instruction should override an erroneous instruction applying to an element of that claim or defense.  In Franklin, the correct instructions were given only in the abstract, and therefore it was not fair to expect a jury to apply them to override a contradictory instruction as to an element of a claim or defense.

I’m dubious.  As a legal matter, Franklin says that abstract or global instructions cannot override contradictory specific instructions.  Yet both the NY Court of Appeals and the Magistrate Judge specifically relied on such global instructions (as well as the “more specific” ones relating to justification) to defend the legitimacy of the overall charge.  That reliance was misplaced under any reading of Franklin. 

But even on a more basic level, the Magistrate’s reasoning makes an unwarranted assumption about the legal reasoning skills of lay jurors.  Trial judges should charge each jury as if it knows nothing about the law.  If a jury were made up entirely of lawyers (or even law students) it might be reasonable to assume that such a jury could easily reason from a defense to an element of that defense.  These are precisely the sort of reasoning skills that those in (or training for) the legal profession regularly employ.  But I’m not sure why this level of deductive reasoning is any easier for a lay jury than that deemed too difficult for a jury by the Supreme Court's Franklin opinion.

The Second Circuit did the right thing by granting COA.  That will enable it to consider the merits as well as the application of AEDPA deference in light of Cooper.  I’m hoping that Cooper begins a shift away from the sometimes unexamined assumption that every state court decision receives deference under AEDPA.  State court decisions that fail to apply the correct federal standard should not receive that (or any) level of deference.

Habeas Corpus - En Banc Reheard

By JK

After my post last week about the en banc decision in Carrera, Alex sent me an e-mail in which he pointed out a couple of interesting things about the decision that I didn't mention.  First, the breakdown of judges was 10 to 1.  He opined that, with that type of breakdown, it’s hard to see why the case went en banc in the first place.  Especially because there was not really an important legal issue.  

Alex also pointed out that, over the past couple of years, the Ninth Circuit judges have been more closely split in their en banc decisions.  He mentioned big cases such as Doody v. Ryan, Pinholster v. Ayers (aka Cullen v. Pinholster), Richter v. Hickman (aka Harrington v. Richter).  Recognize any of those?  There was also Sessoms v. Runnels from this past summer.  Interestingly, all of them were habeas grants.  Of course, not all of the cases were (as Alex put it to me) bitterly split.  There was Lee v. Lampert from earlier this year that was actually a unanimous, 11-0 decision.* 

            *With a concurring opinion from CJ Kozinski.

All of these en banc decisions got me thinking.  Empirical research shows that the Ninth Circuit takes far more habeas cases en banc than I saw in the Second Circuit.  I think I could count on one hand the number of habeas cases that went en banc in the Second Circuit over the past 15 to 20 years.  I have mentioned six in the Ninth Circuit in the past three years.  And I think that’s true across the board for all types of cases.  The Ninth Circuit takes a lot more cases en banc generally than the Second Circuit.  See this link for more info on current en banc cases.  To note, there is one habeas case currently pending en banc, Detrich v. Ryan.

Why the disparity in en banc habeas cases?  It could simply be that the Ninth Circuit sees that many more habeas petitions, which results in many more likely candidates for en banc review.  That’s probably the most likely reason.  It’s also probably true that it is more likely for a death penalty case to go en banc and the Second Circuit does not see many habeas death penalty cases while the Ninth Circuit sees a lot of them.

But another contributing factor may be the different en banc processes in each court.  The Ninth Circuit’s process is actually different from not just the Second Circuitm but every other circuit.  In every circuit, I believe that the voting process is the same.  A judge must call for a vote of all of the active judges on whether to take the case en banc.  FRAP 35(f).  The rule itself does not indicate whether that judge has to be an active judge.  The case will go en banc if a majority of the active judges vote to have it go that way.  FRAP35(a).

Here’s where the Second and Ninth Circuits differ.  In the Second Circuit, the en banc panel will consist of all of the active judges on the court plus any senior judges who were on the original panel.  Currently, the Second Circuit has thirteen active judges.  And I believe it is at full capacity. 

But that’s not a workable process for the Ninth Circuit.  There are 28 active judges.  If all active judges plus the senior judges on the panel had to sit, it would be completely burdensome.  So the local rules of the Ninth Circuit limit the number of judges to sit on any en banc to 11.  It’s local rule 35-3, appropriately titled “Limited En Banc Court.”  The eleven are the chief judge and 10 of the active judges.*

*Actually, Congress passed a statute that says that any circuit with more than 15 active judges can institute this type of process.  I believe that the only other circuit that qualifies is the Fifth with 17 active judical positions.  But that court has not instituted this procedure.

I think that the limitation on the number of judges makes it easier for the court to vote a case en banc.  Outside of the CJ, there is less than a 50% chance that a judge who votes for an en banc hearing will have to sit on the panel.  I would think that this would have an impact on voting patterns – a yes vote would not automatically mean more work for the individual judge. 

Another interesting aspect is that the 10 judges beyond the CJ are selected at random.  This means that the judges who sat on the original panel may not end up sitting on the en banc panel.

That’s precisely what happened in Carrera.  None of the three judges on the original panel sat on the en banc panel.  Two were active and one was a senior judge.  I don’t see any rules that excludes the original panel from sitting en banc.  In fact, I went and looked at the en banc in Pinholster and two of the judges in the original panel sat in the en banc panel (one was CJK, who had to sit on the en banc).  It really is a random selection of the active judges.

The fact that the original panel members may not end up on the en banc panel may weigh in favor of more cases going en banc.  I think that the Second Circuit judges limit the number of en banc cases in order to prevent the proverbial stepping on each other toes.  They want to remain collegial and respectful to each other. Not sure if that’s the best motivation, but that seems to be one main reason why so few go en banc. 

However, in the Ninth, because the original panel may not show up on the en banc panel, that does provide a level of buffer.  The judges on the en banc panel could potentially reverse the original panel without having to face any members of the original panel.  Because there is no guarantee that the original panel will be there, a voting judge may not feel it necessary to be deferential.  It makes it easier to say that those judges got it wrong.

On the other hand, I guess it could be the opposite.  It isn’t really too fair to the members of the original panel that they don’t automatically get to sit on the en banc panel.  With this in mind, a voting judge may think it is more respectful to be deferential to the original panel because the original members may not be there to defend their positions.

In any event, whatever the reasons why, the Ninth Circuit takes a lot more cases en banc than the Second Circuit.  That is definitely true for habeas cases.

One last thing to note, the local rules do say that all 28 judges of the Ninth Circuit can rehear an en banc case en banc.  The literal en banc².  The idea of that is pretty awesome. 

Unfortunately, it has never happened.  But, in the words of the immortal Wooderson, it would be a lot cooler if it did.

Habeas Corpus - JK's First Ninth Circuit Post

By JK

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

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

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

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

 

Habeas Corpus - The Rumors of Habeas's Demise Have Been Greatly Exaggerated (By Me)

By JK

Following up on Alan’s first post from the other day, I do want to make a little bit of noise around here about several good results in habeas cases in the circuit courts over the past six weeks (since around mid-September).

There have been habeas grants out of the:

Second Circuit: Young v. Conway (see Alan's post for details)

Third Circuit: Garrus v. Secretary of Dep't of Corr. - Apprendi violation

Seventh Circuit: Harris v. Thompson - right to present a defense and IAC

Ninth Circuit: Cudjo v. Ayers - violation of right to present a defense; Stankewitz v. Wong - IAC during sentencing phase of death penalty case

There may have been others; these are just those that I have seen.  And I am sure there will be more.  But I have expressed a lot of doom and gloom around here over the past two years (ever since Richter).  So I do think it’s worthwhile to acknowledge when the good things happen.  And if you have time please read the Seventh Circuit’s decision.  It’s looong, but it's pretty great.  It kind of feels like the court was convinced of petitioner's innocence, and this belief ends up being the motivating force behind the analysis. 

And the Third Circuit’s decision is pretty cool, too.  It’s an en banc decision on an Apprendi issue – the scope of the “prior conviction” exception to the Apprendi rule.  Two things of note (at least related to the blog): the majority has a great footnote (#8) that criticizes the dissent for reading the unreasonable application/clearly established law part of the 2254(d) standard in such a narrow way that it basically turns it into the “contrary to” clause.  I have been yelling about court’s doing that since nearly the inception of this blog (that post was written in July 2009; I started the blog in April 2009).  So glad to see a court say it.

At the other end, the dissent points out that the majority did not give enough deference under the standard of review and gives lists of all of the times that the Supreme Court (i) granted cert. on the issue; and (ii) reversed on this ground (both summary reversals and after merits briefing).  These lists are long.  The lack of deference summary reversal was the subject of my most recent article (part of my recent doomistry* and gloomery*).  And it does serve as a reminder that, even with the good stuff, there are still reasons to be concerned about the future of habeas.  

*Not actual words.

Habeas Corpus - Alan's First Post

By Alan Lewis (posted by JK)

Last week, in Young v. Conway, the Second Circuit affirmed the grant of  a writ of habeas corpus by a WDNY Magistrate (Bianchini) based upon a 4^th amendment claim!  Successful 4^thamendment habeas claims are extremely rare because, so long as the petitioner was permitted an opportunity to fully and fairly litigate the claim in state court, the Supreme Court’s Stone v. Powell  holding is that “a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.”

So how did Young win a 4^th amendment claim in spite of Stone?   In short, the State waived theStone argument by failing to make it in District Court.  The Second Circuit could have exercised discretion to nevertheless apply Stone on appeal, but declined to do so.  The Court was seemingly exasperated by the State’s failure below, describing the record as “bereft of any reason as to why it failed” to make the Stone argument in District Court.

Yet, this may be a rare case where, even if the State had argued the Stone bar, the Petitioner might nevertheless have had a chance.  Let me try to explain.

The nature of the 4^th Amendment claim here was that the Petitioner’s conviction was the result of an in-court identification by the victim that should not have been allowed to occur.  It should not have been allowed, as Young argued and the Court agreed, because the pre-trial identification procedures were suppressed and the victim did not have a source, truly independent of the suppressed pre-trial identification procedures, for her ability to make the in-court ID.

Whether an in-court identification truly rests on an independent source must be assessed under a six factor test, first laid out by the Supreme Court in United States v. Wade.  But when Young raised his independent source argument in the New York Court of Appeals, that court failed to apply the test.  Instead, it treated the independent source question as an “issue of fact” subject to highly deferential review, which asked only if there is “support in the record” for the lower court finding.   Because the N.Y. Court of Appeals failed to apply the Wade test mandated by the Supreme Court to assess independent source issues, its decision was “contrary to” clearly established law, and therefore not entitled to habeas deference.

Had the State not waived the Stone argument in District Court, the Petitioner would likely have argued that Stone did not apply.  That is, how could the state court review be deemed a “full and fair” adjudication of the Wade claim, given the state court’s refusal, based on state law, to apply the Wadestandard to the claim?  In pointing out that this case lacked the “typical indicia of reliability that ordinarily weigh against re-litigating a Fourth Amendment claim on collateral review,” the Second Circuit hinted it might have well been sympathetic to such an argument.  But we’ll never know.

In granting the writ, the District Court had also barred a retrial on the ground that, with the victim’s identification of the defendant now precluded, the prosecution did not have other evidence sufficient to obtain a conviction.  The Second Circuit vacated this aspect of the remedy, but only because it concluded that its “grave doubts” about the sufficiency of the remaining evidence should be resolved in the first instance by the state courts.

One final point – this Petitioner isn’t going anywhere, as he is currently serving a term of 25 to life on an unrelated charge. 

 

Habeas Corpus - Matt's First Post

By MK (posted by JK)

Corby v. Artus: A “Prototypical Form of Bias?”

 Last week in Corby v. Artus, No. 11-1650-pr (2d Cir. Oct. 10, 2012), the Second Circuit overturned a decision by Judge Swain of the SDNY granting a 2254 petition on the ground that the petitioner’s Confrontation rights had been violated at trial.  Unless the Supreme Court grants cert (unlikely since this Confrontation issue is not of the Crawford variety), the Circuit’s decision will end a sixteen-year saga that has divided every reviewing court it has reached. 

The most remarkable aspect of the decision is that it relies primarily on state trial counsel's failure to adequately object - a point which neither the New York Court of Appeals nor the district court raised in their decisions.  In fact, the Circuit tread pretty lightly on the real issue in the appeal: whether the state court unreasonably applied Supreme Court precedent.  More on this below - first, it helps to briefly review the facts and the appellate history of this long and divisive case.

At first glance this case is your typical drug-dealer-on-drug-dealer crime: Norcott Corby was charged with the 1996 robbery and felony murder of Yousef Mohammed, a drug dealer from San Francisco who was visiting New York City to sell Corby heroin. The drug deal was supposed to take place in the Manhattan apartment of Xanderia Burnett, whose mother had once dated Corby.  Burnett, the prosecution’s star witness, testified that she agreed to let Corby use her apartment for the deal.  She stated that she saw Corby and two associates disappear into a back room.  When they emerged, she saw Mohammed lying on a bed, his hands tied behind his back and blood pouring from his head.  Burnett testified that she helped Corby dispose of the body and steal drugs from Mohammed’s hotel room.

The Confrontation issue arose from the defense’s attempts to cross-examine Burnett.  When Burnett was first questioned by police about a week after the murder, she denied any knowledge of the matter.  It was not until two years later, in 1998, that accusations began to fly.  First, Corby accused Burnett:  he told a DEA agent that he had been in Burnett’s apartment on the night of the murder, but that he left to visit his parole officer; when he returned, he said, Mohammed was dead.  Corby told the DEA agent that he helped dispose of the body but did not participate in the murder itself.  The DEA agent passed this information to the NYPD, who confronted Burnett (who had since moved to Philadelphia).  It was only after an NYPD detective told Burnett that Corby had accused her of the murder that Burnett “broke down” and told the detective (after being taken to a local precinct and Mirandized) that it was Corby, not she, that had committed the murder.  She also told police that Corby had threatened to kill her and her family if she spoke to authorities.  The District Attorney decided to go with Burnett’s version and charged Corby with robbery and murder.

At trial, the defense lawyer tried to do what any lawyer would do: confront Burnett with the fact that she had accused the defendant after two years and only after learning that the defendant had accused her.  Prototypical motive for bias, right?  Yet the trial court would not allow counsel to cross Burnett on the crucial issue of whether she had accused Corby only after she learned that he had accused her, reasoning that Corby’s accusation was unreliable because Corby had, according to the Second Circuit, “made it self-servingly while seeking the DEA’s help. . . .” The trial court reasoned that it was unfair to let the defense cross Burnett on this point when the prosecution could not question Corby (who was protected by the Fifth Amendment) on the same point. 

A majority of the First Department panel hearing the appeal upheld the conviction.  While recognizing “the centrality of Burnett's testimony to the People's case,” the majority found that, “the [trial] court's error, if any, was harmless beyond a reasonable doubt” because Burnett’s motive to accuse Corby, “her natural desire to deflect suspicion of complicity in the murder away from herself, and toward another — was already manifest to the jury without the precluded line of inquiry.”  Dissenting from the majority’s decision, Justice Andrias noted that the majority’s finding of harmlessness was suspect because, “such supposedly overwhelming evidence [of guilt] is primarily based upon Ms. Burnett's self-serving account of events, which provides an even stronger reason to permit the defense to question her motives for testifying against him.”  The dissent relied on the Supreme Court’s decision in Delaware v Van Arsdall, 475 U.S. 673 (1986).  That decision found that a defendant “states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby ‘to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.’”

This split continued in the New York Court of Appeals.  The majority found that defense counsel had been given “wide latitude” to cross Burnett and that, “[a]ny additional evidence of Burnett's bias or motive to lie, that would have been established by the precluded line of inquiry, would have been cumulative and of little probative value to defendant's case.”  It reasoned that “Burnett's interest in self-preservation was very apparent to the jury who found her credible.”  Justice G.B. Smith dissented.  Quoting the same language from Van Arsdall, the dissent would have held that the trial court:

prohibited defendant from engaging in appropriate cross-examination designed to show Burnett's motive for implicating defendant as Mohammed's murderer when she did (i.e., after a two-year silence and only after Detective Bourges told Burnett that defendant implicated her). As a result, the jury did not hear all of the facts necessary for it to draw all reasonable inferences regarding Burnett's reliability and credibility. . . . Moreover, in light of the fact that Burnett's testimony was the only evidence linking defendant to the crimes, there is a reasonable possibility that Supreme Court's error contributed to defendant's conviction. As such, the error is not harmless beyond a reasonable doubt.

When Corby’s habeas petition came before the district court, SDNY Magistrate Judge Kevin Fox sided with the state court majorities.  Judge Fox recommended denying the petition on the ground that the NY Court of Appeals correctly held that the cross-examination restrictions placed on Corby were imposed for legitimate reasons and that defense counsel was granted sufficient latitude during his cross-examination of Burnett.  Judge Fox concluded that the state court’s decision was not contrary to Supreme Court precedent, “which recognizes the right of a trial court to place restrictions on a litigant's ability to cross-examine a witness."  Judge Swain, however, declined to adopt Judge Fox’s recommendation.  Instead, the Court found that the NY courts had unreasonably applied applicable Supreme Court precedent:

In sum, because all inquiry into one prototypical form of bias was prohibited, the defendant's constitutional rights under the Confrontation Clause were violated. In reviewing this case, the New York Appellate Division and Court of Appeals cited the correct precedents — primarily Van Arsdall . . . and [Davis v. Alaska, 415 U.S. 308 (1974)] — but unreasonably applied that standard when they upheld the complete preclusion of questions regarding a distinct form of bias material to the jury's determination of the witness' credibility.

(Davis v. Alaska, like Van Arsdall, held that “regardless of other biases held by the witness that may have been presented to the jury, when defense counsel was prohibited from asking the witness about his probation status, the trial court violated the defendant's constitutional right to confront witnesses.”)

Judge Swain also pointed out that, following Magistrate Judge Fox’s Report and Recommendation, the Second Circuit had decided Brinson v. Walker, 547 F.3d 387 (2d Cir. 2008).  In that case, an African-American defendant charged with robbery had been prohibited from cross-examining the victim about whether he had been fired from his job after the robbery for refusing to serve African-American patrons. As explained by Judge Swain:

The Second Circuit affirmed the district court’s decision that the state trial court had violated the defendant's Confrontation Clause rights when it barred defense counsel from cross-examining the witness regarding the witness' alleged intense racial bias. The Brinson Court held that, ‘[g]iven the intensity and extremity of the bias on which Brinson sought to examine [the witness], and the likelihood that one possessing a bias of such intensity might distort his testimony against an object of his bias on account of it, we find that it was not within a trial court's reasonable discretion to preclude this cross-examination,’ and that the state court's ruling was not a reasonable application of federal law.

In reversing Judge Swain’s decision last week, the Second Circuit primarily relied on an entirely new ground: Corby had not raised retaliation bias at trial:

At the sidebar regarding Corby’s cross-examination of Burnett, Corby’s lawyer did not argue that the sought cross-examination would be relevant to prove retaliation bias. Instead, he contended that (1) he wanted to ask about the relayed accusation against Burnett to prove that she had a motive to shift blame away from herself, and (2) he wanted the jury to know that the accusation came from Corby because in that case, Burnett’s motive to lie would be greater, as she would fear that the authorities would believe an accusation coming from someone who had witnessed the events in question. Later, Corby’s lawyer even proposed a compromise that would have foreclosed any retaliation argument: he would forgo specifying that Corby was the person who had accused Burnett if he could ask only whether some unidentified person had accused her.

This fine-parsing of the state court trial record is rare on habeas review, which appropriately focuses on whether state appellate courts reasonably applied Supreme Court precedent.  In addition, the Circuit's use of trial counsel’s “compromise” position to foreclose Corby’s habeas claim is pretty startling:  defense counsel was reacting on the fly to an adverse ruling by the trial court, not thinking about what a federal appeals court might rule more than a decade later.  

In the alternative, the Circuit held that defense counsel had sufficiently conveyed Burnett’s retaliation bias to the jury "by implication:”

[T]he plain implication of [Burnett’s testimony] was the substance of that which Corby argues he was unable to present to the jury: that Burnett believed Corby had implicated her in Mohammed’s murder when she first accused him. It therefore cannot be said that Corby was precluded from ‘expos[ing] to the jury the facts from which the jurors could appropriately draw inferences relating to the reliability of’ Burnett, specifically as to whether she accused him in retaliation for his accusation against her.” (quoting Van Arsdall, 475 U.S. at 680).

Notably, the Second Circuit did not discuss Judge Swain’s reliance on the Circuit’s 2008 Brinson decision.  True, it was not obliged to.  As noted, the question on habeas review is whether the state courts reasonably applied Supreme Court, not Second Circuit, precedent.  Indeed, Brinson was several years in the future at the time the NY Court of Appeals decided Corby’s appeal.  Nevertheless, it is strange and disappointing that the Second Circuit would not tie up this glaring loose end in a decision which has generated so much disagreement in both the state and federal courts.  While the world will probably not long weep for Mr. Corby, the Second Circuit’s resolution of this important issue is far from a satisfying one.

 

Habeas Corpus - Legally Sufficient Depraved Indifference

Following up on the future of legal insufficiency claims, I also want to talk about the present state of legal insufficiency claims in depraved indifference cases.  I wrote a global post about depraved indifference cases last year after the Second Circuit had granted habeas relief on a legal insufficiency claim in a depraved indifference case in Rivera v. Cuomo.  For this post, I'll assume a basic familiarity with that law.  If not, go read that global post for background.

I had such high hopes for these, but the Second Circuit took it all away.  First, they reversed themselves in Rivera mostly on the basis of the decision in Cavazos v. Smith (but I have a theory that it was more due to panel's fear of the decision getting summarily reversed by the Supreme Court).  Then the court rejected legal insufficiency claims in Parker v. Ercole and Garbutt v. Conway. 

And then there was the decision last week in Epps v. Poole.  The Second Circuit once again rejected a legal insufficiency claim in a depraved indifference case.*

*I would be remiss if I didn't mention my frustration with a sentence in the court's opening paragraph in Epps.  Here's what the court said:  "the petitioner advanced the somewhat perverse argument that he should be released from state custody because the evidence suggests he is in fact more culpable than the jury had found him to be."  This is unfair.  Completely.  The defendant was only put in the position to make the "perverse" argument because the prosecution overcharged them.  They were not depraved indifference cases, plain and simple, and the prosecution should not have sought the dual indictment.  And, particularly in a case like Rivera, the prosecution did not even prosecute the case, at all, as a depraved indifference case.

All of these cases were pre-Feingold when the New York State Court of Appeals officially changed the definition of depraved indifference.  And the Second Circuit has now made pretty clear that habeas petitioners are going to have a really tough time winning on these claims.  In these cases (except maybe in Rivera where the court did not really explain in detail why it was reversing itself), the Second Circuit basically combed through the factual record to find some shred of evidence that the killing was not completely and unambiguously an intentional act. 

But some of the reasoning is kind of a stretch.  For example in Parker there was this:

We find particularly relevant the fact that Parker fired a single shot from inside a house, at some distance across the street, into a crowd of people, and did not pursue Johnson, the victim, even when it initially appeared that Johnson was not mortally wounded by the shot.

So?  Sounds like the petitioner intentionally shot a person who he intended to shoot with a shotgun.  Pretty intentional to me.  Do shooters often pursue their victims after shooting them?  Is that rational?

And then there is Garbutt.  The facts were: "Garbutt approached Blanchard, with whom he had had a turbulent romantic relationship, in anger, carrying a large knife, and in the presence of Blanchard's daughter, Tolbert. He grabbed Blanchard away her from her daughter as he demanded her attention. During the resulting physical struggle, he pulled out the knife and began slashing, hitting both Blanchard and Tolbert."

Once again, sounds pretty intentional to me.  But here is the Second Circuit's reasoning:

[A] reasonable jury could equally have found that Garbutt had struck out in blind anger, without specifically intending to cause death, but with an awareness that his conduct could have deadly consequences for either Blanchard or Tolbert or both. The jury could further have inferred from the fact that Garbutt ran away before verifying that Blanchard had died that he had not intended to kill her. Moreover, a reasonable jury could also have found that Garbutt's violent and callous response to Blanchard's refusal to follow his orders, which endangered not only her but also Tolbert, manifested exactly the sort of depraved indifference to human life that New York case law continues to treat as a mental state sufficient for a murder conviction.

That's a head scratcher.  Once again, there's that "not checking that the job was done" logic.  That is not rational to me.  But, overall, the premise is off.  The guy pulled out a large knife and intentionally stabbed the victim who he was angry at.  He didn't wave the knife around in some reckless way knowing that it could kill somebody.  He was angry at someone and deliberately struck the person with a large knife multiple times.  How is that "exactly the sort of depraved indifference to human life" that New York looks to?  I don't think that's a particularly rational position.

But that's where we are at with depraved indifference cases.  Rationality="tiniest shred of evidence that can be found" or "some kind of tenuous basis for saying that it was not exactly intentional".  I guess under the "double deference" standard there's legal support for how the Second Circuit has been analyzing these.  It's going to be a tough hill to climb for pre-Feingold depraved indifference petitioners. 

Habeas Corpus - Today's Summary Orders - Martinez - Edited (Big Time)

The other summary order from today was in Martinez v. Kirkpatrick, 11-2019-pr.

This actually was a habeas win!  Rare these day.  And in a summary order.  I can kind of see why, though.  The decision kind of ends up being in the form of an interim order.  It also kind of sidesteps a big hurdle.  So when that is done in a summary order it means that it did not actually happen, like the sound of a tree falling in the woods in habeasland.  Or something like that.

Petitioner argued that his right to counsel was violated since counsel had labored under a per se conflict of interest.  Counsel had used methamphetamine during petitioner's trial and, at the time, was being investigated and later prosecuted by the same DA's office for his use of the drug.  In the alternative, petitioner asked for an evidentiary hearing to determine whether there was an actual or a potential conflict of interest.  The state court had mistakenly rejected the argument on a procedural ground so there was no factual record of the conflict.*

*The state court had concluded in a 440 proceeding that the conflict of interest claim had to be rejected because it had been raised and rejected previously.  But that was not true.

The Second Circuit rejected the per se conflict claim, but granted the request for a remand to hold an evidentiary hearing. 

That's a little problematic.  Pinholster prevents such an evidentiary hearing.  The Second Circuit does not mention Pinholster at all.  Rather, it says that the hearing is necessary because no factual record was created in state court. 

But as I have said before that's just a part of the unworkable unfairness of Pinholster.  The state court's decision not to hold a hearing has preclusive effect.  The factual record is the one that was before the state court, even though further factual investigation was necessary.  That's the ridiculous conclusion of Pinholster.  This claim also clearly does not meet the ridiculously high (and impractical) standard of the habeas statute for an evidentiary hearing.  So the Second Circuit was not authorized to grant one.  But summary orders don't count, so it doesn't really matter.

Silver lining: maybe the Second Circuit is saying that Pinholster only applies when the state court rejects a claim on the merits.  But if the state court mistakenly rejects a claim on a procedural ground leaving no factual record, then an evidentiary hearing can be held.  Not sure that squares with Pinholster, but maybe this is one out from that unfairness.

You know what, strike all of what I said before.  I was mostly wrong and the Second Circuit was mostly right.  I was wrong because Pinholster only applies when there has been an adjudication on the merits.  That's really the holding: in order to assess the 2254(d) standard of review, the federal courts are confined to the state court record.  My big bad there.

And the Second Circuit appears to be mostly right.  But maybe not.  I guess the question is, when the state court does not adjudicate a constitional claim on the merits, does the 2254 standard for an evidentiary hearing apply?  If it does, then no hearing is authorized here.  If it does not, then a hearing would be okay.  I am not sure how open or closed this question is.  There's Schriro v. Landrigan, which predates Pinholster.  So, to the extent that it survives Pinholster (and I am not sure that it did), that decision would not stand in the way of the hearing.  But it doesn't specifically authorize it either.

But I think the Second Circuit is probably right.  It does not seem fair to preclude an evidentiary hearing here where the state court erroneously rejected the claim on a procedural ground.  Of course, that is no more unfair than a state court refusing to hold a hearing and denying a claim on the merits when a factual hearing was necessary to fairly adjudicate the claim.  But maybe when the state court erroneously refuses to even get to the merits, there is some room for a federal court to review the constitional claim based on facts developed in an evidentiary hearing in federal court.  The federal court won't be restricted under the standard of review.  The review will be de novo.  So I guess it does make logical sense.

Habeas Corpus - Today's Summary Orders - Montstream

Dusting Off the Old Blogging Machine . . .

Thought that today would be a good day to jump back into some habeas corpus blogging due to the two very interesting summary orders out of the Second Circuit today.

This post will cover Montstream v. Superintendent, 11-802-pr. 

Petitioner pled guilty to, among other things, manslaughter and possession of a weapon and was given consecutive sentences.  Petitioner argued that this was illegal/unconstitutional because sentences for  crime A committed with a weapon and the possession of that same weapon with the intent to use it unlawfully cannot run consecutively when the intent to use the weapon was solely based on the commission of crime A.  Very recently, the New York Court of Appeals confirmed that this was true.  Hence, petitioner's consecutive sentences are, at the very least, illegal under state law.  The  question though for habeas is: are they unconstitutional under the Double Jeopardy Clause?  Or more relevant for habeas purposes: is it an unreasonable application of clearly established double jeopardy principles for the state courts to uphold the sentences?

All of that is very interesting.  But what makes the summary order so fascinating, for me at least, is that it really is the first one I've seen from the Second Circuit that really digs deep into the post-Richter world of extreme deference.  The court does cite to Richter in the forefront of its analysis as to what petitioner must show to get relief -- the state court error must be “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”

The Second Circuit concludes that petitioner has not met this standard.  The court frames the issue as: whether a state court's erroneous application of a state concurrent sentence statute violates double jeopardy?  Relying upon some Supreme Court precedent, petitioner argued that the only sentences that the Legislature authorizes can survive double jeopardy.

This is where the deference comes in.  The Second Circuit states, "Reasonable judges may well find that argument persuasive were the issue presented for de novo review."  However, the rejection of that argument would not be unreasonable.  It pointed out that there was no Supreme Court precedent that dictated that conclusion, particularly where the NY statute limiting consecutive sentences gives broader protection than the double jeopardy clause.  The Supreme Court has never held that state legislatures have the power to expand double jeopardy protections in that way.  The Second Circuit concluded that it is "at least a debatable question whether the Court would extend its [prior] holdings" in the manner that petitioner suggests.  Because it is debatable, then it cannot win on habeas. 

And, in a conclusion that does not quite follow from the rest of the opinion, the Second Circuit says: "There can be no dispute, however, that the Supreme Court itself has never clearly answered the question.  It follows, therefore, that we must dismiss [the] petition." 

Odd ending.  Use the entire opinion to show why it cannot be an unreasonable application of federal law; conclude that petition must be denied for lack of clearly established law.  If you can't tell, I am kind of obsessed with the whole internet meme image macro.  It would look something like this:

Pretty geeky.  Don't expect an image macro in ever post from now on.