Habeas Corpus Blog

Habeas Corpus - Second Circuit Decision

After some time off, I have decided to turn the blogging machine back on.  Got a bit of a backlog that I am going to try to churn out over the next few days.

Starting with a published opinion last week from the Second Circuit.  The court rejected a claim of equitable tolling of the statute of limitations based on petitioner's difficult in obtaining an affirmation from his trial attorney to support an ineffectiveness claim.  There was a dissent, from Parker, who believed that the circumstances did justify equitable tolling.  Here are the details with some analysis afterwards:

Jenkins v. Green, 09-3623-pr

• Affirming Denial of Habeas (opinion here)
• Majority Opinion (Lynch); Dissent (Parker)
• Argued: 04/15/10; Decided: December 23, 2010
• Panel: Parker, Livinston, Lynch
• Lower Court Info: 06-CV-7171, 646 F.Supp.2d 615 (SDNY 2009) (RWS)
• Issues: whether time limit should be equitably tolled based on difficulty petitioner faced in obtaining affidavit from trial counsel

ANALYSIS: Really interesting case with a strong dissent.  In New York, the 440.10 statute requires that a motion under the section be supported by affidavits.  In my experience, New York courts are more than happy to deny motions where the defendant fails to provide the required affidavits.  The crazy part is that this happens in cases where the motion is claiming ineffective assistance of counsel when the missing affidavit is one from the offending trial attorney.  Put another way, to allege ineffectiveness, the New York statutes basically require a defendant to get the attorney against whom the claim is being brought to provide sworn facts to help establish it.  Anybody see the logical problem with that?  Obviously, I don't think this is a logically sound rule; it makes no sense when applied to an IAC claim.

In Jenkins case, he sought an affidavit from the attorney for a loooong period of time before eventually receiving it.  The interesting part is that, unlike most ineffectiveness claims, the attorney affidavit actually supported Jenkins' position.  Nevertheless, the 440.10 motion was denied.  And the long waiting period rendered his habeas petition untimely.

He asked that the limitations period be equitably tolled since it seemed quite a bit unfair to hold that waiting period against him.  The majority rejected the claim, stating that the affidavit requirement was not an "inflexible" rule.  In fact, the Court of Appeals has stated that a defendant does not need to get one so long as he provides the reason why he failed to get it.*

*This whole thing is a bit absurd in my mind.  Why should a defendant challenging an attorney's deficient performance have to explain why he failed to get an affidavit from the attorney whose performance he is criticizing?  It's self-evident -- 99 times out of 100 the attorney does not want to do anything to assist a defendant in showing that he or she was ineffective.  It's kind of human nature.

The major problem with this reasoning, as the dissent points out, is that the lower courts don't always follow this rule.  In fact, they often reject motions precisely on the ground that no affidavit was provided.  At the very least, the law is confusing.  For that reason, the dissent argues that courts should use its equitable powers in the appropriate situation when the delay was a result of a defendant seeking an affidavit from his attorney.  The dissent states it really nicely here:

Unsympathetic to Jenkins's petition, the majority makes much of their view that New York state courts do not "inflexibly" require that defendants claiming ineffective assistance present a supporting affidavit from the challenged attorney. . . .  The majority cites to cases where New York courts require either an attorney affidavit or an explanation for its absence, and suggest that in lieu of the affidavit, Jenkins should have supplied such an explanation in a sworn statement accompanying his affidavit. The fact that New York courts may not "inflexibly" require such an affidavit sidesteps the fact that some courts apparently do and some do not. My reading of the case law is that such an affidavit probably should be submitted. The majority believes that such an affidavit need not be submitted. If court of appeals judges can honestly disagree over this point of law it seems to me wrong for a court of equity to close the court to a pro se litigant who happened to find himself on the wrong side of this debate. This is especially so where the cost of his choice is an additional forty years of incarceration for a man who, as indicated below, may well have received constitutionally ineffective assistance of counsel. Where equity is the point of departure, this constellation of circumstances is, I believe, extraordinary.

As I said before, it's a strong dissent.

One other item of note is that the Second Circuit sidesteps the issue of what the standard of review should be for a district court's decision denying equitable tolling.  The dissent concludes that the decision should be reviewed de novo since it was based on an incorrect interpretation of what the law required.  However, it does not appear that the dissenting judge was suggesting that all equitable tolling determinations should be reviewed de novo, only the particular one in that case, which was based on the legal conclusion that the circumstances present in the case could never represent a ground for equitable tolling.

 

Habeas Corpus - Summary Order From Monday

Second Circuit issued a summary order in a habeas case on Monday.  Here it is:

Shabazz v. Filion, 06-5438-pr

• Affirming Denial of Habeas (order here)
• Argument Date: 11/30/10 [on submission]
• Panel: McLaughlin, Raggi, Lynch
• Lower Ct. Info: 02-CV-939, 2006 WL 2792741 (NDNY Sept. 26, 2006) (LEK) (GHL)
• In Circuit: Circuit Ct. COA
• Issues: whether petitioner's claim was timely filed with one year of the date that the factual predicate for the claim could have been discovered with due diligence

NOTES: Very fact-based analysis of why petitioner did not establish due diligence.  The only interesting legal issue here is this one (I'll quote from the order itself):

Our precedent has not clearly identified whether the exercise of due diligence under § 2244(d)(1)(D) raises a question of law, fact, or both. See, e.g., Wims v. United States, 225 F.3d 186, 190-91 (2d Cir. 2000) (indicating that "the date on which the limitations clock began to tick is a fact-specific issue" that is "appropriately answered by the district court," but noting that petitioner's delay in discovering factual predicate was not so "unreasonable that it plainly appears from the face of [the] petition").

However, the court decided not to answer the question since, under the most favorable standard (i.e. that the exercise of due diligence is a question of law), petitioner couldn't win.  Must wait for another day.

Habeas Corpus - Argument Preview - Wall v. Kholi

On Monday, the Supreme Court will hear argument in the habeas case of Wall v. Kholi. 

The issue is: Whether a state court collateral sentence-reduction motion constitutes an “application for State post-conviction or other collateral review” under 28 U.S.C. § 2244(d)(2), that tolls the one-year limitations period.

From the briefs, the issue is better stated like this: whether state court post-conviction applications seeking discretionary, equitable relief fall within the scope of “collateral review” for purposes of the AEDPA’s tolling provision, or is it solely limited to legal challenges to the judgment.

On first blush, I thought that this was a pretty easy one.  Of course a post-conviction sentence reduction motion should qualify under 2244(d)(2).  It focuses on the relevant judgment.  It literally is an application for "post-conviction or other collateral review."  Further, why should a petitioner rush into federal court and file a habeas while something like that is still pending in state court?  A petitioner should be allowed to pursue all of the possible state court remedies first.  It only makes sense, particularly from the standpoint of federalism and comity -- two of the big habeas equitable principles (but I will admit that I am not sure how different federalism and comity are).  The First Circuit in this case came to this reasonable conclusion.

So I was surprised to see (after reading pages 30-31 of the State's Brief) that the majority of circuits have held differently.  Apparently, the First is an outlier on this one.  These other courts look to see whether the application seeking collateral review was a legal challenge to the validity of the judgment. 

In my mind, that is not a fair reading of the statute.  That language does not appear in there anywhere.  That's not the plain meaning of those words.  What made me laugh was that the State accused the First Circuit of being too reliant on a dictionary in defining words in the statute.  How dare a court define a word using a dictionary!

Fine, I get what the State is saying here:  "collateral review" is a term of art that the Supreme Court has given meaning to in the past.  And, according to the State, Congress was incorporating that term of art into the statute.  That argument would be stronger if Congress said it was doing that . . . But, ok, that's their argument. 

Why a petitioner should be required to know that, I am not sure.  It's funny.  In the other case being heard on Monday (Walker v. Martin, preview coming soon), the State is arguing that any State procedural rule is okay so long as it gives "fair notice" to the petitioner of its requirement.  Why should that be any different here?  Does a statute in which its words are given their "term of art" definitions rather than their plain meanings give a petitioner "fair notice" of its requirement?

The answer is obviously no.  Just define the words in the way that Mirriam and Webster intended, please.  It will make life easier.

By the way, for all the New Yorkers out there, this case is mostly irrelevant.  This type of discretionary sentencing reduction motion doesn't exist.  In New York, the Appellate Division has discretionary power on appeal to reduce the sentence.  Off-hand, I can't think of a post-conviction proceeding in New York that would be similar to the discretionary one at issue here. 

In any event, the argument is on Monday.

Habeas Corpus - Habeas Editorial

The Washington Post has an editorial today urging the Supreme Court to grant cert. in the habeas case of Corey Maples in which the lower courts held that the petition had been untimely filed.  The editorial is provocatively entitled, "An inmate shouldn't die because of his lawyers' error."

The error was that, after the Alabama state appellate court denied the appeal, the decision was mailed to petitioner's attorneys' law firm in New York.  However, the actual attorney to whom it was addressed no longer worked at the firm.  The firm's mailroom stamped it "return to sender."  The state court's clerk's office never did anything else.*

* One wrinkle, petitioner's local counsel in Alabama also received the decision, but believed that the New York attorneys were the ones to contact the client.  Not sure what to make of this fact.

Apparently, the New York Times had a more detailed article about the case back in August.

The Post compares the situation to a takings case where the Supreme Court vacated the taking of property where there had been similar mail issues.  I agree with the paper that it would seem like taking of life should have the same strict standards as the taking of property.

But that's not the relevant law.  The relevant law would appear to be last year's decision in Holland.  Or at least the concept of equitable tolling in the habeas context, which courts have interpreted very strictly.

Will the Court be influenced by the editorial?  Probably not.  But you never know. 

Habeas Corpus - Amazing Opinion Today from the Second Circuit (Updated link)

Just a truly amazing opinion from the Second Circuit today.  A couple of weeks ago, I criticized the court for only giving lip service to innocence claims.  Well, shame on me.  Today's opinion shows just how far the court will go when it believes that there has been an unjust conviction.  Although the court does not grant habeas relief, the court goes out of its way to thoroughly question the reliability of the evidence against petitioner and calls upon both the state courts and the prosecutor to re-examine the conviction.  Truly amazing.

The case is Friedman v. Rehal and it's available here.  The opinion was written by DJ Korman (sitting by designation) and joined by Raggi and Pooler.  Raggi added a brief concurrence, which I'll discuss below.

Petitioner is Jesse Friedman, whose case was made famous in the great documentary Capturing the Friedmans, which documents the child abuse cases brought against petitioner and his father.  The movie goes into detail about the investigation into the case, which included a bunch of questionable investigatory techniques devised to obtain statements from the child victims.

However, the People never turned over this information about the investigation to petitioner.  After watching the movie, petitioner raised a Brady claim.  After losing in state court, the district judge dismissed the petition as untimely.

The Second Circuit agrees, showing that petitioner filed the petition three months out of time.  The court also goes on to address the underlying merits of the Brady claim and concludes that the investigatory techniques are really impeachment material and the failure to turn it over does not qualify as a Brady violation when the defendant pleads guilty -- as petitioner did here.  Additionally, the court believes that the Brady claim itself does not rely on clearly established law.

But the Second Circuit does not end the opinion there.  Here's what the court says: "While the law may require us to deny relief in this case, it does not compel us to do so without voicing some concern regarding the process by which the petitioner’s conviction was obtained."  The court then engaged in a lengthy discussion about the problems with the evidence.  

At the end of this discussion, the court expresses a deep concern about the conviction:

As such, this case is unlike other appeals which raise concerns about the quality of the
evidence and the guilt of the defendant. In those appeals, we defer to the judgment of the jury after the defendant has received a fair trial. We take comfort in “[t]he established safeguards of the Anglo-American legal system [which] leave the veracity of a witness to be tested by crossexamination, and the credibility of his testimony to be determined by a properly instructed jury.” Hoffa v. United States, 385 U.S. 293, 311 (1966). In this case, the quality of the evidence was extraordinarily suspect and never subjected to vigorous cross-examination or the judgment of a properly instructed jury.

The court notes, though, that, whether or not there exists a federal stand alone claim of actual innocence, that type of claim was not exhausted in state court, so it can't be addressed now.

And then here is where the opinion turns extraordinary.  The court suggests to both the state courts and the prosecution that it do something to re-examine what it believes to be a very likely wrongful conviction.

First, the court notes that an actual innocence claim may be available to petitioner in state court.  It adds, "Considering the facts of the case and the circumstances that caused him to plead guilty, this case may be one in which the New York courts may be particularly sympathetic to a proceeding seeking such relief."  Pretty strong suggestion there.

Next, the court turns to the prosecution and implores it to re-examine the case.  I am going to quote the entire part of this opinion because it is really amazing:

The focus on the impediment to legal relief, however, should not obscure the continuing ethical obligation of the District Attorney to seek justice. We refer here especially to New York Rules of Professional Conduct 3.8, Comment 6B, which explains that “[t]he prosecutor’s duty to seek justice has traditionally been understood not only to require the prosecutor to take precautions to avoid convicting innocent individuals, but also to require the prosecutor to take reasonable remedial measures when it appears likely that an innocent person was wrongly convicted.” N.Y. Rules Prof’l Conduct 3.8, cmt. 6B. In language particularly pertinent here, the Comment goes on to say:

[W]hen a prosecutor comes to know of new and material evidence creating a reasonable likelihood that a person was wrongly convicted, the prosecutor should examine the evidence and undertake such further inquiry or investigation as may be necessary to determine whether the conviction was wrongful. The scope of the inquiry will depend on the circumstances. In some cases, the prosecutor may recognize the need to reinvestigate the underlying case; in others, it may be appropriate to await development of the record in collateral proceedings initiated by the defendant. The nature of the inquiry or investigation should be such as to provide a “reasonable belief” . . . that the conviction should or should not be set aside. Id.

The record here suggests “a reasonable likelihood” that Jesse Friedman was wrongfully convicted. The “new and material evidence” in this case is the post-conviction consensus within the social science community that suggestive memory recovery tactics can create false memories and that aggressive investigation techniques like those employed in petitioner’s case can induce false reports. Indeed, it is not even clear from the record that Assistant District Attorney Onorato was aware of the suggestive questioning techniques that were used by the Nassau County police. More importantly, the record does not speak to whether the then–District Attorney of Nassau County whose principal role was administering and overseeing the activities of one of the largest such offices in the United States,11 was aware of the techniques used by the Nassau County detectives, who were not members of his staff.

Only a reinvestigation of the underlying case or the development of a complete record in a collateral proceeding can provide a basis for determining whether petitioner’s conviction should be set aside. We hope that, even if she continues to oppose relief in collateral legal proceedings, the current Nassau County District Attorney, who was not responsible for the investigation and prosecution of Jesse Friedman, will undertake the kind of complete review of the underlying case suggested in the Comment to Rule 3.8.

Wow. 

In her concurrence, Raggi questions whether the court should have engaged in the length discussion of the underlying facts in which it assumed the truth of the allegations against the police.  While she believes that further inquiry by the prosecution may be warranted, she is not ready to state that such an inquiry would be favorable to petitioner.

In the final section of the main opinion, the majority responded to the concurrence and explains why it engages in the lengthy discussion of the facts.  I am not sure I find the reason entirely persuasive.  Generally, the court says that it was done to try and convince the prosecutor to engage in the investigation despite the guilty plea.  Hmm.  It's not that I wouldn't want a court to do that.  But it does raise interesting questions about the purpose of a judicial opinion.  It's actually a great existential judicial-opinion-writing question.  The court kind of answers that question with its final line, which I'll quote here: 

In sum, an appellate court faced with a record that raises serious issues as to the guilt of the defendant and the means by which his conviction was procured, yet unable to grant relief, is not obligated to become a silent accomplice to what may be an injustice. 

A great ending to a truly remarkable opinion.

Habeas Corpus - Other Circuits

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

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

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

Habeas Corpus - Other Circuits - Supreme Court Remand

A small habeas development over in the Eleventh Circuit. 

This past term in the Supreme Court, the Court reversed the Eleventh Circuit's decision in Holland v. Florida, finding that the gross negligence of an attorney can equitably toll the statute of limitations.  See my (brief) discussion of the case here.

At the end of the opinion, the Court left "it to the Court of Appeals to determine whether the facts in this record entitle Holland to equitable tolling, or whether further proceedings, including an evidentiary hearing, might indicate that respondent should prevail." 

Today, the Eleventh Circuit decided to ship it down to the district court for "fact finding and further proceedings -- including, if it is necessary, an evidentiary hearing -- consistent with the Supreme Court’s instructions."  The remand order is here.

Is this a good sign for petitioner?  Not sure.  The Eleventh Circuit could have acted on its own and found equitable tolling.  It did not.  It decided that more fact finding was necessary.  Evidentiary hearings are usually a positive development for petitioners.  But the Supreme Court's remand sentence is a little weird -- hold an evidentiary hearing to determine whether "respondent should prevail"?  The evidentiary hearing is usually held to determine whether the moving party should prevail.  So it's a little backwards.

Maybe the Eleventh Circuit picked up on the backwardness of that remand discussion and decided that an evidentiary hearing may actually harm petitioner as it could establish facts unfavorable to the equitable tolling.  Okay, that's a pretty cynical way of looking at it.  But the Eleventh Circuit has, in the past, ruled against petitioner.  So the court doesn't really seem inclined to act in his favor.  And the court did note in the remand order that the district court should act consistent with the Supreme Court instructions --  which was to see whether respondent should prevail.

I'd be curious to see how this case eventually gets resolved.

Habeas Corpus - Other Circuits - A Complaint About the AEDPA

Taking a look around the other circuits today, I came across a really interesting habeas opinion out of the Sixth Circuit.  Actually, the opinion itself wasn't too interesting; it was the concurring opinion that got my attention. 

The name of the case is Pinchon v. Myers; it's available here.  Petitioner, who was 17-years-old at the time of the murder, was sentenced to life in  prison. The main issue in the case is whether petitioner's motion to amend his petition to add an IAC claim was within the one-year statute of limitation.  The court concludes that it was not. 

Although the concurring judge was constrained to agree with the outcome, the judge wrote separately to "express my distress over the harsh edges of AEDPA and our habeas jurisprudence, displayed so dramatically in this case."

After discussing the evidence that showed that petitioner was "mildly mentally retarded," the judge reviewed petitioner's post-judgment actions and found that he had acted diligently overall.  Nevertheless, despite that diligence, the petition was out-of-time.

The judge believed that the harsh outcome in the case was unfair and did not further the goals of comity or finality.  In his final paragraph, the judge unleashes a great rant against the unfairness of the result.  Here's what he says:

It is disheartening and frustrating to acknowledge that the ability to pursue one’s constitutional rights—with a life prison sentence hanging in the balance—can turn on such minor distinctions and such a small, understandable mistake made by an incarcerated, mentally retarded, young man with no attorney. Indeed, although these doctrines are grounded in the valid policy interests of efficiency and finality, this decision does not satisfy these interests. Rather than avoiding repetitive, time-consuming litigation, the application of these doctrines has resulted in years of litigation on procedural issues rather than the substance of Pinchon’s claims. I believe that Pinchon’s petition unjustly has been lost in the “Byzantine morass of arbitrary, unnecessary, and unjustifiable impediments” present in our habeas system. Coleman v. Thompson, 501 U.S. 722, 759 (1990) (Blackmun, J., dissenting). I concur in the judgment only because my misgivings about the outcome of this case “do[] not . . . justify a refusal to respect precedents that remain a part of our law.” Baze v. Rees, 553 U.S. 35, 87 (2008) (Stevens, J., concurring in the judgment).

Habeas Corpus - Quick Thoughts on Holland

Got a chance to read the Holland majority opinion this morning.  It's a nice little opinion.  Nothing groundbreaking.  The main holding -- that the statute of limitations can be equitably tolled -- really has no effect on habeas law as every single Circuit to have considered the issue (including the Second Circuit) concluded that it could be equitably tolled.

And the Court did seem to conclude that attorney misconduct (and maybe even negligence) could potentially constitute a ground for equitably tolling, so long as it represents "extraordinary circumstances."  In this regard, the Court struck down the 11th Circuit's per se approach to rejecting attorney malfeasance as a ground for equitably tolling.  The Court emphasized that equitable tolling is an exercise of a court's equity powers which need to be done on a case-by-case basis. 

Another good part about the opinion is that, in reaching its holding, the Court used a lot of nice language about the importance of habeas corpus review to the criminal justice system.  It even gave a shout out to the Suspension Clause.  So that's cool.

The Court also rejected the district court's conclusion that the petitioner had not acted diligently in pursuing his habeas rights (a necessary showing before a court can conclude that a time period should be equitably tolled).  That was another nice aspect to the decision.  The Court remanded the case for the lower courts to determine whether the specific facts of the case represented extraordinary circumstances.

So, in short, nothing huge, but a good habeas win.

Habeas Corpus - Decision Day from Supreme Court - Updated

This morning, the Supreme Court is issuing opinions.

And the second one issued is a habeas case: Holland v. Florida.  And it's a victory for the petitioner!  In a 7-2 opinion written by Justice Breyer, the Court reverses the 11th Circuit.  This was the case that sought equitable tolling based on attorney gross negligence.  More details to follow . . .

UPDATE 1: Should have noted that Alito wrote separately and concurred in part and in the judgment.  Scalia dissented and his dissent was partially joined by Thomas.

UPDATE 2: The opinion from Holland is here.  I'll write more later today.