Habeas Corpus Blog

Habeas Corpus - District Court Review - An End to Discovery?

Back in February, I had written about the case of Quezada v. Brown (previously known as Quezada v. Smith).  It's a groundbreaking case in which the Second Circuit has already issued a published opinion interpreting several aspects of the second or successive 2244 statute for the very first time.

After the Second Circuit granted authorization to allow petitioner to bring a second or successive petition raising a Brady claim and a claim that the prosecution knowingly presented false evidence, petitioner made a request for discovery in the district court and the DJ granted it.  Discovery in the case proceeded forward.

While the parties were engaged in discovery, Pinholster was decided.  Relying upon that case, Respondent moved for reconsideration of the order granting discovery, arguing that Pinholster prevents any further discovery in a habeas corpus proceeding.  Their argument: if the 2254(d)(1) analysis is restricted to the record before the state court, then there is no need for discovery in federal court.

Petitioner responded that Pinholster was not a discovery case, so it was not a change in law justifying reconsideration.  In other words, Pinholster had not changed the standard for when discovery should be ordered.  He also argued that there were other reasons in a habeas case for ordering discovery beyond the question of whether or not petitioner had met the 2254(d)(1) standard, including (but, of course, not limited to) whether or not petitioner could establish a miscarriage of justice to overcome a procedural default.

The district court has yet to issue an opinion on the State's reconsideration motion. 

This is a really important question that has resulted in a split in the district courts around the country.  But it does make me really worried.  If Pinholster can be read as stifling discovery (especially in a case like Quezada where it just seems so clear from the smoke that there's a fire), it's just another way in which Pinholster has created inequity in habeas law.

Habeas Corpus - Published Opinion - Habeas Does Not Lie For Deficiencies in State Court Collateral Proceedings

Last Friday, the Second Circuit issued a published opinion in a case in which the petitioner had made a request for authorization to file a second or successive petition.  The decision is Word v. Lord, 11-111-op. 

Petitioner sought to pursue a claim that her due process rights were violated when the Appellate Division denied her error coram nobis petition.  Oddly, she had previously raised a similar claim in 2004 and authorization was granted, but the district court denied the petition concluding that her challenge concerned only state post-conviction proceedings and therefore was not subject to federal habeas review.

In a short per curiam, the Second Circuit came to the same conclusion as the DJ in the earlier petition.  The court held that, consistent with the majority of Circuit Courts to address the issue, that "errors in state post-conviction proceedings do not provide a basis for redress under § 2254."  This is based on the recognition that "the Constitution does not compel states to provide post-conviction proceedings for relief."

 

 

Habeas Corpus - Habeas Cases From Around the Country

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

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

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

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

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

 

Habeas Corpus - District Court Review - A Lesson In Discovery

Back in 2010, the Second Circuit took the unusual step of granting a petitioner's request to file a second or successive habeas petition.  In addition to granting the request, the case was notable because the court issued a published opinion in which it interpreted, for the first time, certain aspects of the second or successive authorization provision. 

The name of that opinion was Quezada v. Smith and I talked about it here. 

Now, in the district court, the case has taken an unusual and fascinating turn. 

Just to briefly go over the relevant facts again, petitioner was convicted of murder based primarily on the testimony of Sixto Salcedo.  However, Salcedo later recanted.  In addition, another person, Freddy Caraballo, had come forward and stated that petitioner had not been the one who pulled the trigger. 

At a hearing in state court, Salcedo testified that contrary to his trial testimony, he had not seen the shooter's face. He also testified that, prior to the trial, a time when he was on parole, a detective had told him that he had to testify against Quezada or else he would put him away for 10 years.  Salcedo also testified that the detective kept him confined in a hotel during the trial.

Turning back to the habeas part of the case . . .

In December 2010, after the Second Circuit granted authorization, petitioner filed a habeas petition in EDNY raising two claims (and these are taken directly from the habeas petition): (1) "The use of perjured testimony to secure Mr. Quezada's conviction violated his right to due process"; and (2) "The State's failure to disclose the coercive conditions under which Sixto Salcedo testified at trial violated Mr. Quezada's right to due process." 

The case is now called Quezada v. Brown, 08-CV-5088 (EDNY) (KAM).

Shortly after filing the petition, petitioner moved for discovery.  Discovery in habeas cases does not happen all that often.  It is governed by Rule 6 of the Rules Governing Habeas Corpus Cases Under Section 2254 (yes, those rules exist and that is the actual full name of the rules; I'll just say RGHCCUS2254 from here on out). 

The rule allows for discovery with leave of the court if good cause is shown.  The request for discovery must be specific and provide the reasons for the request.  It also must include "any proposed interrogatories and requests for admission, and must specify any requested documents."  The Supreme Court has stated that this rule was intended to effectuate its 1969 decision in Harris v. Nelson, in which it stated, "where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is ... entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry."

Here is where the case took a really unusual turn.  In response to the discovery request, the State acknowledged for the first time that it possessed documents that actually supported Salcedo's claims about his pre-trial conditions as a witness.  Specifically, the State acknowledged that they had documents showing that they did seek and obtain a material witness order for Salcedo.  In addition (and even more shockingly in my mind), the State admitted that they had excerpts from a log book entitled "Hotel Custody."

So, in response to the discovery motion, the State completely validated the reasons for why discovery should occur!  These documents provided corroboration for Salcedo's prior testimony in the hearing.  As a lawyer, it is just so rare to see your adversary make your arguments look even better than they were when you started.

In his reply, petitioner explained exactly why these admissions were just so shocking.  Back in the state court proceeding where Salcedo made all of his claims about his pre-trial conditions, the State argued that his testimony was incredible.  But these documents tend to show that they were far from incredible.  More like pretty credible.  The documents, as petitioner points out, strongly suggests that the State may have other stuff to validate Salcedo's claims. 

In response to the motion, the DJ held oral argument last Tuesday. Someone recently asked me if oral argument in the district court is rare in habeas corpus cases.  It's a good question.  I have previously noted that Judge Gleeson in EDNY holds oral argument on almost every petition.  But outside of that judge, in my experience, it is pretty rare to see a DJ or MJ hold oral argument in a habeas case. 

And the big news is that, as reflected on the docket sheet, the judge granted the motion for discovery at the end of the hearing, "subject to petitioner narrowing and specifying his requests to the extent possible." That qualification seems consistent with RGHCCUS2254 Rule 6.

So an interesting twist in an already groundbreaking case.  So far, the district court proceedings have more than validated the Second Circuit's decision to grant authorization.  I will be keeping a close eye on this case.

Habeas Corpus - Authorization Granted - Updated X 2

Boy, did I miss something big last week.

On Thursday, the Second Circuit granted a request to file a second or successive petition in a published opinion.*  The case is called Quezada v. Smith and it is available here.  The opinion was written by Newman and joined by Hall and Restani, CIT.

*I missed it because it had a docket number that ended in "op."  Habeas appeals always end in "pr."  I am not quite sure why this one ends with different letters, but now I know to check these opinions as well.  [Update: From the comments, "op" stands for "original proceeding" and obviously would apply to a request for authorization to file a second or successive petition.  I feel bad that I didn't know that]

It's an important decision.  The attorneys for petitioner are quoted in the New York Law Journal article as saying that this could be the first published opinion from the Second Circuit that discusses the court's gatekeeping function under section 2244(b).  I believe that is the case.  Notably, the court didn't cite to any other Second Circuit cases discussing the gatekeeping provision. 

The court does a lot of stuff in Quezada.  First, the court tackles on its own the question of whether or not this was even a second or successive petition.  Quezada's first petition was dismissed as untimely.  There is no doubt that that counts as a decision on the merits.

But the court asks whether it is required to revisit a dismissal of a first petition as untimely when an application for a second or successive petition is filed. More specifically, does the court need to ask whether "the initial dismissal now appears to be erroneous because the law on which that dismissal was predicated is unarguably no longer good law." 

The court says, no.  It only needs to revisit the issue "upon allegations of unusual procedural errors" that prevented the petitioner from having a court address the merits of the claims.

That did not happen in Quezada's case, but it's a good thing for habeas petitioners overall that the Second Circuit is willing to consider this question at all.

Turning to the gatekeeping function, it is a very favorable ruling for habeas petitioners.  Quezada was convicted of murder based on a single witness, who later recanted.  In addition, another person had come forward and stated that Quezada had not been the one who pulled the trigger.  One of the constitutional claims was based on a due process claim that petitioner had been convicted on the basis of perjured testimony.  This claim, at least as far as the application was concerned, was based on a Second Circuit decision.  In response, the State argued that the application should be denied because it did not meet the standard of 2254(d).

The Second Circuit rejected the argument.  It said that, as a gatekeeper, it was only required to see whether petitioner's claims would meet the standard of 2254(b) 2244(b) [a commenter picked up this typo] not whether the claim would ultimately have a chance of prevailing in the district court.  The gatekeeping provision does not incorporate 2254(d), so it did not need to consider that question in determining whether authorization should be granted.  That's a good ruling.

The State then argued that the underlying factual claim was unreliable, so authorization should be denied.  The Second Circuit rejected that argument as well.  It looked to the statute and concluded that petitioner only needed to make a "prima facie" showing that he had met the requirements of the statute.  The ultimate determination of whether the recantation should be credited was for the district court.  Once again, that's a good ruling.

The court concluded that authorization should be granted on the false evidence claim as well as a Brady violation.

Nice win for Quezada and a good decision for habeas petitioners.

 

 

 

Habeas Corpus - "A Procedural Conundrum"

I wanted to quickly revisit the habeas grant in Graham v. Portuondo discussed yesterday around here.

A question underlying the IAC ground is whether the particular claim of IAC is properly before the court.  There was a slightly tricky procedural history.  As I mentioned yesterday, the deficient performance affected two separate parts of the case: petitioner's competency and a potential EED defense. 

The original petition only raised ineffectiveness as to competency.  But, after counsel had been assigned, petitioner added the claim of a potential EED defense. 

If I didn't make it clear yesterday, Judge Weinstein focused on the EED defense claim when determining whether there had been prejudice and the judge decided that he did not need to consider the competency aspect of the IAC claim.  I guess I should have made that more clear.

In the final part of the opinion, Judge Weinstein included the following section: "4. Exhaustion and Second Petition -- A Procedural Conundrum."  The judge pointed out that, if the two different IAC claims are essentially different forms of the same claim, then his decision is fine.  If they are separate, his opinion is no good.  The EED claim was unexhausted and would have be to considered a part of a "second or successive petition" that would need authorization from the Second Circuit to proceed.

Judge Weinstein's answer to the conundrum is pretty clever - look at the Second Circuit remand.  He points out that, if these were two separate claims, then the Second Circuit would have affirmed the dismissal of the petition (albeit on a different ground than the one set forth in his original decision).

However, the Second Circuit did not take that position and, instead, remanded the case for an evidentiary hearing on the EED claim.  So the judge deduces that the Second Circuit has already concluded that they are essentially the same claim. 

But if they are two separate claims, the Second Circuit decision provides an answer for that, too.  He suggests that, by remanding for a hearing on this particular issue, "the Court of Appeals might have decided to cut through one of the AEDPA's Gordian Knots* and moved the case towards a conclusion that saved years of litigation." So it can be assumed that the court had actually granted permission to bring a second or successive petition.

*To be honest, I decided to write this post because I loved the whole "AEDPA Gordian Knots" stuff.  As well as the "Procedural Conundrum" language.  Good times.

Judge Weinstein sums it up like this: "Whatever way the conundrum is analyzed, the district court's present duty seems clear under the mandate: hold the evidentiary hearing, and if the petitioner's present contentions are established, grant the writ." 

Which is precisely what he did.

Habeas Corpus - Magwood = Huh? (Updated)

Court decides Magwood.  And it's another habeas win!  And, as I predicted, it was a 5-4 result.

But the breakdown is one of the oddest lineups I have ever seen in a habeas case.  Truly.

Here's the holding: the defendant's habeas application is not a "second or successive" petition because it challenges a new judgment for the first time.

That's the result I was hoping for as I thought that it really was the most reasonable reading of the habeas statute.  And it did not implicate federalism concerns.

But, to my surprise, Thomas wrote the opinion.  Let me repeat that, Thomas wrote an opinion in favor of a habeas petitioner.  And he was joined by Scalia, as well as Stevens, Breyer, and Sotomayor.

And here's who dissented: Kennedy, CJ Roberts, Ginsburg, and Alito.

Wow.  That's a crazy breakdown.  I can't wait to see the opinion.

UPDATE: The opinion can be found here. 

Habeas Corpus - Magwood Argument Today

At 11:00 a.m. this morning, the Supreme Court is going to hear oral argument in the habeas case of Magwood v. Patterson. 

As stated today at SCOTUSblog, the issue is: whether, when a person is re-sentenced after having obtained federal habeas relief from an earlier sentence, a claim in a federal habeas petition challenging that new sentencing judgment is a “second or successive” claim under 28 U.S.C. § 2244(b) if the petitioner could have challenged his previous sentence on the same constitutional grounds.

My previous discussion of the case was here.

Habeas Corpus - Interesting Supreme Court Case

Next week, the Supreme Court will hear argument in the capital habeas case of Magwood v. Patterson.

The issue is whether a habeas petitioner can raise a claim in a petition challenging a judgment of resentencing where he could have raised the claim initially in the first petition that vacated his original sentence.

SCOTUSblog's preview is here.

Actually, my statement of the issue does not quite capture the facts.  The petitioner was sentenced to death.  On habeas, he was granted relief and the sentence was vacated.  He was then resentenced to death.  On direct appeal from the judgment of resentencing, he raised for the first time a constitutional challenge that he could have raised on the original appeal from the judgment but did not.  The state courts appeared to have rejected this claim on the merits in the appeal from resentencing.

Even though this is a capital case, it will impact every type of habeas case. I believe this  situation could arise in almost any criminal case.

I actually think the arguments on both sides make sense.  So this will be a close call.  Could even be a 5-4 breakdown.  My initial take is that this should not be considered a second or successive petition.  I think the fairest reading of the statute is that, because he was challenging a new judgment, then it is not a second or successive petition, regardless of whether or not he could have raised the issue earlier.  While I think petitioner has the better argument here as to the reading of the statute, Respondent's arguments are probably more in line with the oppressive goals of the AEDPA, which seeks to limit petitioners to a single habeas petition.

From my own federalism/policy point of view, it does not make sense to me that the federal court would put up a procedural block here where the state court did not.  If the state court had no problem with a defendant raising the claim at that point in the proceeding, then I don't see why the federal court should be more strict.  It feels like a gratuitous kick in the gut, if you will.

In the end, I believe the outcome will be colored by the judge's view of the goals of habeas.  For the judges who view habeas as a crucial component of the criminal justice process, I am guessing that they'll read the statute as petitioner sees it.  For those judges who think that the AEDPA was the best thing to happen since cable television,  I am guessing they'll say that the policy goals of the AEDPA should dictate the outcome. 

What to say about the judge who doesn't fall into either camp?  It's probably that judge's vote that everyone will be fighting for.

Habeas Corpus - Catch-22's

I have been meaning to post something about the opinions respecting the denial of certiorari in Johnson v. Bredesen from a few weeks back, but never had the time to do it.  The delay is ironic (sort of) since that case concerned the issue of whether an execution after a "lengthy and inhumane" delay violates the Cruel and Unusual Punishment Clause of the Eighth Amendment.  It's known as a Lackey claim.  I realize that three weeks of failing to blog about a non-binding case does not quite qualify as a lengthy and inhumane delay.  But everything on the internet does seem to happen at light speed, so three weeks is nearly an eternity in internet time.

Johnson contained two opinions respecting the denial of cert.  The first was from Stevens, who was joined by Breyer.  The second was from Thomas, who just wrote to criticize Stevens' opinion.

The substantive part of the Lackey claim got a lot of media attention, especially the back and forth between Stevens and Thomas.  And deservedly so. 

But it's the procedural aspects of the case that will get some attention around here.

In Johnson, the petitioner brought his Lackey claim in a 1983 claim.* According to Stevens, this was a novel approach since Lackey claims are typically brought in habeas petitions.  Indeed, in Johnson's case, the Sixth Circuit construed the 1983 claim as a habeas petition and denied the petition under the second or successive standard.

*A 1983 claim is a civil action arguing that the state had violated the plantiff's constitutional rights.

Stevens says that the case raised two interesting procedural questions:

(1) whether a Lackey claim can be brought in a 1983 actions; and

(2) if not, whether a second habeas petition raising a Lackey claim is a successive petition under 2244(b)(2).

Stevens argues that the "resolution of these questions below poses a nearly insurmountable hurdle for those seeking to raise similar Eighth Amendment claims." 

Here's why:

Stevens shows the difficult Catch-22 here.  First, he opines that the claim can be raised in a 1983 actions since it is a claim that the method under which that the State seeks to  execute him (i.e. the long delay) is unconstitutional.  But at the same time, success on this claim would also mean that the execution cannot be carried out, which would directly call into question the validity of the sentence.  That type of claim needs to be raised in a habeas petition.  Tricky.

And here's another Catch-22:  Okay, so let's say that it has to be a habeas.  The rules only allow one petition and are very strict about when a petitioner can file a second.  A Lackey claim clearly does not fall under the limited circumstances in which authorization to bring a second claim can be granted.  Thus, mandating that a petitioner must bring the claim in a habeas petition has "the curious effect of forcing Johnson to bring a Lackey claim prematurely, possibly at a time before it is ripe."  Extra tricky.

Stevens acknowledges that when he first envisioned the Lackey claim, he did not foresee these procedural loop-de-loops.  Because they were so tied-in with the merits of the claim, he argues that they merit the Court's attention.  At this point, only one other judge agrees.

Interesting little non-binding opinion respecting the denial of cert.