Habeas Corpus Blog

Extending Martinez

By JK

Let’s turn the lights back on around here. . .

Recently, the Supreme Court granted cert. on a really interesting habeas issue:  whether Martinez extends to ineffective assistance of appellate counsel claims.  Case is called Davila v. Davis.  SCOTUSblog page here.

Let’s start with a Martinez refresher: in 2012, the Supreme Court held in Martinez v. Ryan that the ineffective assistance of post-conviction counsel can represent cause to overcome a procedural default on an ineffective assistance of trial counsel claim.  In other words, a petitioner can argue that his post-conviction counsel was ineffective for failing to raise or properly litigate a trial counsel ineffectiveness argument.  If he can establish that, then he can obtain federal review of the trial counsel ineffectiveness claim (I am going to use IAC from here on out, it’s a lot of words to keep spelling out).

That’s the law now for trial IAC claims.  But what about appellate IAC claims?  Does the reasoning of Martinez extend to those types of claims?

I am going to steal this clever framing from a colleague, but in some ways it boils down to this: It’s the Ninth Circuit vs. the rest of the country on this one.  The Ninth Circuit in a case called Nguyen v. Curry held that Martinez extends to these types of claims.  Every other court has said no. 

Based on the infamy of the Ninth Circuit, one may think that it is the kiss of death for the habeas petitioner to have the Ninth Circuit on his side.  But I wouldn’t jump to that conclusion so quick here.  The Ninth Circuit is not always wrong when it issues a pro-habeas petitioner interpretation on a procedural issue.*  That is not inconsistent with recent Supreme Court law, as the Court has actually been relatively generous in expanding habeas procedural issues under the Roberts Court (e.g. Martinez, Maples, McQuiggin). Ironically, Martinez was out of the Ninth Circuit and the Supreme Court reversed the Ninth Circuit for failing to rule in favor of the habeas petitioner.

*Of course, they do still get reversed on their pro-habeas petitioner procedural rulings as well.  This decision from last term is a good example.

Here’s why the petitioner could win.  The logic of Martinez supports its extension to IAC appellate claims looked at in broad terms.  One of the main motivating factors underlying Martinez was that the initial post-conviction review proceeding was the exclusive forum in which a petitioner was allowed to raise IAC trial claims.  A petitioner should be provided with an attorney to assist him with raising that type of constitutional claim.  Just like IAC trial claims, the initial review collateral proceeding is the first opportunity for a petitioner to raise an IAC appellate counsel claim.  Significantly, Justice Scalia in his dissent in Martinez acknowledged that the holding of Martinez would obviously apply to IAC appellate counsel claims.  He went so far as saying that the majority’s assurance that the holding was limited to the issues before it “insults the reader’s intelligence.”

But let me also advocate for the devil here.**  Is there something different between these two types of claims?  There is an argument to be made that there is.  As Justice Kennedy reasoned in Martinez, IAC trial claims often require investigation into matters outside the trial record.  Something that a habeas petitioner cannot do while incarcerated.  But appellate counsel claims don’t require that type of investigation.  Appellate issues are based exclusively on the lower court record.  Outside of having legal experience, wisdom, and skill, habeas petitioners do in theory have the issues at their disposal while incarcerated (assuming they have the trial record with them).

** No, I obviously do not believe the State is the devil.  It’s a play on words on the expression “playing devil’s advocate.” [Insert winky face emoticon here]

But I don’t find that reasoning particularly persuasive.  As I imply in that final sentence, habeas petitioners are not in a good position to raise these claims.  They don’t generally have the legal ability to identify appellate issues.  They are incarcerated.  They don’t have a lot of access to legal materials.  They don’t often have complete records from their trial.  Yet, criminal defendants have the constitutional right to the effective assistance of appellate counsel (yes, spelled it out there, but it seemed appropriate).  These claims can only be brought in the initial review collateral proceeding.  Representation by counsel in those proceedings to raise a violation of a guaranteed constitutional right seems pretty vital to me.

Martinez was 7 to 2.  If the court remains at 8, it will take a shift of four members of the majority for the Court to reject the Martinez extension.  But I guess it is more complicated than that.  If the habeas petitioner loses three, then it is 4 to 4.  The individual petitioner will lose in that situation, but at least petitioners in the Ninth Circuit would still be happy.  And the issue would remain undecided.  

If the Court gets back up to 9, the numbers game would change a little.  Assuming the new judge votes like Scalia, that will add another judge to the anti-Martinez extension crew.  In that situation, a three-judge shift will mean a lose for all habeas petitioners.

So it really boils down to whether the habeas petitioner will lose all of Roberts, Kennedy, and Alito.  Only needs to hold on to one for the win here.*

* Yes, I am assuming Ginsburg, Kagan, Breyer, and Sotomayor are reliable votes here. 

If you want to read more about this, I enjoyed this write up about the case.

Second Circuit Ruling on Double Jeopardy / 2241 Petitions

Hoffler v. Bezio, 726 F.3d 144 (2d Cir. Aug. 8, 2013)

by Matthew Keller

 

       There are many newer issues on my list to discuss here, but I wanted to go back to a Second Circuit decision from last summer. Hoffler is interesting for many reasons: it addresses sexy Double Jeopardy issues likely to come before the Supreme Court at some point, and it also discusses a couple of important habeas jurisdictional and procedural claims of equal (more?) interest to the (no offense, dear Readers) geeks who peruse this site.

        The case concerns the December 2003 murder of Christopher Drabik. Michael Hoffler, a cocaine dealer from upstate New York, was charged with first-degree witness elimination murder on the theory that he contracted to have Drabik killed, and participated in the murder himself, in order to prevent Drabik from testifying against him at a trial on drug charges.*

* While I do not expect many potential witness murders to read this post, take note: it doesn't work. Even without Drabik as a witness, a jury found Hoffler guilty on the drug charges and the court sentenced him to a 17 to 34 year term. 

        A jury convicted Hoffler of Drabik’s murder, but the NY appellate court reversed because of what can only described as a rookie mistake. When the jury venire was sworn prior to voir dire, it was given the oath required of an empaneled petit jury, not the prospective juror oath.The appellate court found that, because this "structural" error infected the entire trial proceeding, there could be no harmless error. The court remanded for a new trial.

        Determined to get some more mileage out of the mistake, Hoffler’s attorney argued on remand that a retrial was barred by Double Jeopardy. The thrust of the claim was that, having presented insufficient evidence of witness elimination murder at the first trial, Double Jeopardy precluded New York from a second bite at the apple. The appellate court did not reach Hoffler’s insufficiency claim. On remand, Hoffler claimed that the court’s failure to address the sufficiency issue precluded a second trial.*

*This claim is based on a 1978 Supreme Court decision, Burks v. United States (Double Jeopardy bars retrial where conviction reversed due to insufficiency).

        The trial court rejected Hoffler’s claim but, before sitting through the retrial, allowed Hoffler to return to the appellate court. It, too, rejected the Burks claim, concluding that, in fact, Hoffler hadn’t been placed in jeopardy at his first trial because the failure to properly swear the jury venire rendered all subsequent proceedings a nullity. Hoffler collaterally attacked that decision in his habeas petition to the district court.

        The district court denied Hoffler’s petition by upholding the state court decision: the jury oath error invalidated the entire trial, making it “patent” that Hoffler was never placed in jeopardy at his original trial. And the sufficiency of the evidence issue was not a problem, because the state appellate court had a “sound reason” for not considering the sufficiency challenge:

“Since the Appellate Division determined that no trier of fact could properly consider the evidence offered at Hoffler’s [first] trial, any discussion regarding the evidence presented to that improperly empaneled body may well have been viewed by that court to be advisory in nature,” and it is “well-settled that the giving of [advisory] opinions is not the exercise of the judicial function of New York appellate courts.”

Second Circuit to the District Court: "Um, no."

        The Second Circuit found the district court’s reasoning neither patent nor sound. It affirmed the district court, but on completely different grounds. First, it found that Hoffler had in fact been placed in jeopardy at the first trial. Even though the venire panel was not sworn in accordance with New York law, that error rendered the conviction merely “voidable” at the defendant’s election, not “void.”* Thus the court that heard the first trial retained “fundamental power or basic jurisdiction” over the murder charge.

* The Circuit dove deep to explain this conclusion, engaging in a lengthy discussion going all the way back to Blackstone and the common law preference for void rather than voidable judgments to promote “the law’s longstanding opposition to retrying an acquitted defendant.” I'm almost certainly nitpicking, but query whether that preference is relevant to the retrial of a convicted defendant. To be clear, I think the Circuit found the least contorted way out of the legal pickle presented here. But resort to Blackstone for the answer to this question? To go back even further, the Circuit doth protest too much.  

Harmless Error Resurrected

        Having come out in favor of Hoffler on the Double Jeopardy issue, the Second Circuit now had to deal with the sufficiency claim. Hoffler appeared to be on solid ground here: although jeopardy does not terminate when a conviction is reversed for trial error, it does terminate upon a reversal due to insufficient evidence at trial. This is the Burks rule: the Double Jeopardy Clause protects a defendant from being subjected to a second opportunity by the government “to supply evidence which it failed to muster in the first proceeding.” And in a 1992 case, United States v. Wallach, the Second Circuit interpreted Burks broadly to require a determination of sufficiency prior to retrial:

“A reversal on the basis of insufficiency of evidence, like an acquittal, bars a retrial, and a reversal of a conviction on grounds other than sufficiency does not avoid the need to determine the sufficiency of the evidence before a retrial may occur.”

        You might think that this seals the deal in favor of Hoffler: we have a “reversal of a conviction on grounds other than sufficiency,” (here the jury oath error) and a state appellate court that “avoid[ed] the need to determine the sufficiency of the evidence before a retrial may occur.” Hoffler’s free to go then, right?

        Of course not. The Second Circuit was not going to give a pass to Hoffler, a convicted witness murderer, for any reason, and certainly not because the Rensselaer County Court stopped listening for a few seconds on a Monday morning while his clerk swore in a jury venire prior to voir dire. Accordingly, the Court found a way out of Wallach:

“Nowhere in [Wallach], however, did we indicate whether we were identifying a prudential rule for the courts of this circuit or a generally applicable constitutional requirement.”

        Indeed, the Circuits are split on this issue. According to the Second Circuit’s count, the Third, Eighth, and Tenth Circuits have found it to be a constitutional requirement, while the First, Fifth, Sixth, Seventh, Ninth and Eleventh Circuits have adopted, as a prudential rule, mandatory appellate review of sufficiency challenges prior to retrial. The Second Circuit declined to answer the question.* Instead, the Circuit held that, even if sufficiency review prior to retrial was a constitutional requirement, the failure to review Hoffler’s sufficiency claim was “necessarily” harmless because Hoffler’s claim was meritless.** 

* Why not weigh in on the issue here? My guess is that at least one panel member believed that would have involved overruling Wallach, something the Second Circuit can only do en banc.

** At this point you have to ask: why didn't the NY Appellate Division reject Hoffler's sufficiency claim in the first instance? It's as close to a zero-risk ruling as you can get. The standard is so high for a defendant that there is almost no chance of reversal. And while answering only the minimum to dispose of a case is a great rule, all of this Burks precedent suggesting that this is an exception to that rule has been out there for a long time. The closest the Circuit came to criticizing the Appellate Division is that sufficiency review was warranted, “at a minimum, as a matter of prudent policy.” I can only conclude that the state court did not think through the ramifications of its omission.   

        The Circuit did what the state appellate court should have done. Of course the trial evidence against Hoffler was sufficient: Hoffler had a “strong motive” and ample means to murder Drabik. After a thorough review of the evidence, the Circuit held that “the totality of these circumstances” allowed a reasonable jury to infer that Hoffler solicited Drabek’s murder, and then aided in its commission, in order to silence Drabik prior to Hoffler’s drug trial.

Coda       

        I cannot finish this post without noting the procedural rulings, which also involve some clever strategic thinking on the part of New York here. Hoffler initially raised his habeas claims in a § 2241 petition. A little brother to the usual § 2254 petition, § 2241s are appropriate in limited circumstances and, as the district court noted:

“whether a petition for a pretrial writ of habeas corpus is properly brought pursuant to § 2241 or § 2254 has never been squarely addressed by the Second Circuit.”

Importantly, the district court concluded that § 2241 was the appropriate vehicle for Hoffler’s petition and, as a result, the state court decision did not get AEDPA deference. Yet New York did not appeal that issue to the Circuit.

It turned out that was the smart thing to do, because the state appellate court decision was not great for New York, either. That court reversed Hoffler’s conviction and held that the trial error was “not subject to harmless error” – a phrase that must send shivers down a prosecutor’s spine. By not challenging the form of the petition or, more to the point, the standard of review*, New York made it easier for the Second Circuit to undo the state court’s pro-defendant Double Jeopardy ruling. It will be interesting to see how the New York courts deal with the Second Circuit’s decision.

* The district court, following holdings in the First, a Fifth, Ninth and Tenth Circuits, ruled that there is no AEDPA deference in § 2241 proceedings. But the Circuit reminded everyone that that question is “unsettled in this circuit.”

 

Habeas Corpus - Cert. Grant in Habeas Case

BY JK

Earlier today, the Supreme Court granted cert. in a habeas case, Jennings v. Stephens, on a procedural question:

Whether the Fifth Circuit erred in holding that a federal habeas petitioner who prevailed in the district court on an ineffective assistance of counsel claim must file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected even though the Fifth Circuit acquired jurisdiction over the entire claim as a result of the respondent’s appeal.

What does this mean?  2253 requires that a petitioner obtain a COA in order to appeal to the circuit court.  The State is not required to obtain one.  If a district court grants habeas relief, the State is automatically entitled to appeal.  When the State appeals, what happens to the grounds that were denied in the district court?  Does the habeas petitioner need to get a COA to have the circuit court review any of those issues?

In this case, the petitioner raised one IAC claim with three different allegations of deficient performance.  The district court agreed with two of them, but rejected the third.  The State appealed from the grant on the two deficient performance grounds.  The Fifth Circuit agreed with the State and reversed the district court on those two grounds.  When petitioner attempted to argue, "Wait there's one other allegation of deficient performance on which to affirm the judgment," the Fifth Circuit said no chance, you didn't get a COA on that particular allegation of deficient performance.

After reading the petition, it's clear that petitioner is contending that only in this limited circumstance -- where it is a single ground in the district court -- no COA is necessary.  Because the cert. grant was to the habeas petitioner, he could see some success on this issue.

But that leaves upon the broader question of whether a COA is necessary when, in a State's appeal, the petitioner asks that the Circuit court review a separate ground that the district court denied.  I have only read the cert. petition (not the State's response), but it appears that there is a circuit split on this broader issue.  In contrast to the Second and Fifth Circuits, the Seventh Circuit does not require a habeas petitioner to seek a COA on other grounds in a State's appeal.  In Szabo v. Walls, 313 F.3d 392, 397 (7th Cir. 2002), the impure-opinion-writing Judge Easterbrook reasoned (with internal citations omitted):

Since 1996 both state and federal prisoners have needed certificates of appealability to obtain appellate review of adverse decisions in collateral attacks. 28 U.S.C. 2253. But the statute deals only with appeals by prisoners; it does not mention arguments by prisoners as appellees offered in support of relief they have obtained.  Section 2253(c)(1) begins: “Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from—”. Szabo has not taken an appeal, nor did he need to do so. An appellee may defend his judgment on any ground properly preserved in the district court. Szabo does not ask for additional relief, so he was entitled to proceed exactly as he has done. Two opinions— (ed. cites edited out, but it was one from the Ninth and one from the Fifth) —assume that a certificate of appealability is needed for a prisoner's cross-appeal, and this is a plausible understanding of 2253(c) (though neither court discussed the question). But no court has demanded that a prisoner obtain a certificate of appealability in order to present an extra issue in a case already before the court on*398 the state's appeal, and we are content to apply 2253 as it is written. It serves a gatekeeping function, and once a case is properly before the court of appeals—for state and federal governments need not obtain certificates of appealability, see Fed. R. App. P. 22(b)(3) —there are no remaining gates to be guarded.

So I guess the big question here will be whether the Supreme Court takes on the broader issue or keeps it limited.  The merit briefs may provide some indication on how broad the issue before the Court will be.

Habeas Corpus – Rhines Stays

By JK

It is my policy to not discuss any of my cases on this blog.  I also try not to discuss any cases in which the petitioner is being represented by someone in my office. 

But I want to briefly violate that policy and mention the Ninth Circuit’s decision from last week in Blake v. Baker.*  In the first case ever to address this issue, the Ninth Circuit concluded that ineffective assistance of post-conviction counsel, i.e. a Martinez argument, can establish good cause to justify a Rhines stay and abeyance to allow a petitioner to present an unexhausted claim to state court.

* To note, I did not work on this case at all.  The petitioner is represented by members of the Capital Habeas Unit in my office.  I am in the Non-Capital Unit.

Rather than talk about the specifics of Blake, I’ll just briefly mention what this means generally.*  A petitioner files a petition with both exhausted and unexhausted claims.  This is what’s known as a mixed petition.  A federal court is required to dismiss a mixed petition without prejudice.   Unfortunately, if the petition gets dismissed, even without prejudice, then the case is over.  It is much more likely than not that any attempt by petitioner to resuscitate the petition in federal court after exhausting the unexhausted claims in state court will be outside the one-year statute of limitations.  This leaves the petitioner with few choices.  He can either dismiss the unexhausted claims and solely proceed on the exhausted ones.  Or he can move for a stay and abeyance, known as a Rhines stay (because it was created in a case called Rhines v. Weber).  To obtain a stay, a petitioner must show, among other things, good cause for failing to exhaust the claim previously.

* Actually, I have talked about all of this before.  And in more detail.  But it can't hurt to cover it again.

Blake now establishes that a Martinez argument can establish good cause to justify a stay.  Great decision for habeas petitioners.

But there is a likely reason why the decision in Blake is the first of its kind.  A stay typically isn’t necessary for a Martinez argument.  Rather, the typical situation is more like that in Dickens v. Ryan.  A petitioner raises an unexhausted ineffective assistance of trial counsel claim.  There is absolutely no doubt that the state court would find the claim procedurally defaulted because it was not raised previously.  Thus, a return to state court is futile.  In such a situation, the unexhausted claim is “technically” exhausted.  A technically exhausted claim does not get addressed on the merits in federal court.  Rather, the claim is considered procedurally defaulted.  In other words, the federal courts just acknowledge an “anticipatory” default on that claim.  Because the claim is procedurally defaulted, the petitioner is required to show cause and prejudice to overcome the default.  At that point, the petitioner raises the Martinez argument.  In most situations, the federal court will just jump to this step, rather than force the petitioner to go back to state court to obtain the inevitable procedural default first.  That’s what happened in Dickens.

But that’s not what happens here in Nevada.  The district court here makes the petitioner go back to state court to get the procedural default.  The court’s justification for this is that Nevada “allows” second or successive habeas petitions if the petitioner can show “good cause” and prejudice.  So essentially, the district courts here believe that because Nevada has a similar cause/prejudice structure, the petitioner should be required to first present that cause and prejudice to the state court before it gets presented to the federal court.  If there is cause and prejudice, the state court will get the chance to address the merits of the claim in the first instance. 

Personally, I disagree with this.  I don’t think it’s consistent with Supreme Court authority on the issue (such as Harris v. Reed, or at least O’Connor’s concurring opinion in Harris).  But it’s an interesting debate that I am going to have to face repeatedly in my cases.   

Nevertheless, Nevada is most likely not the only State with unusual post-conviction rules.  For those States where the federal courts do believe that a return to state court is necessary, then Blake will provide tremendous assistance to those petitioners.

Habeas Corpus - What is up with Hurles?

By JK

Last year, I wrote a post about a little case from the Ninth Circuit named Hurles v. Ryan.  The post was entitled "Ninth Circuit Stays the Course."  That decision represented a reaffirmation of the Ninth Circuit's prior precedent that a state court's failure to hold an evidentiary hearing can represent an unreasonable determination of the facts under 2254(d)(2).  Such an unreasonable step would allow the federal court to conduct a de novo review of the constitutional claim and consider facts that the state court unreasonably prevented the petitioner from establishing while in state court.  

For me, this is a really important concept.  I have complained and complained and complained on here about a specific type of unfairness in the wake of Cullen v. Pinholster, namely a state court's unreasonable failure to hold an evidentiary hearing is binding on the federal court and unfairly limits the factual record that the federal court can consider.  The Ninth Circuit in cases such as Hurles found a clever way around this by finding that such an action was an unreasonable determination of the facts under 2254(d)(2).  But it's not just clever -- it's just.

Now go back and look at the emphasized language in the first paragraph of this post.  See how it is phrased: "can represent."  In other words, the Ninth Circuit repeatedly held that it can be unreasonable for a state court to refuse to hold an evidentiary hearing. Hurles was the Ninth Circuit's most recent statement on the issue. 

The decision in Hurles has now taken on a life of its own before the Supreme Court.  It has been relisted 15 times!  I don't know if that's a record, or even if records like that are kept anywhere, but that is a huge number of relists.  And every time that the SCOTUSblog Relist post mentions it, it always phrases the issue as whether it is per se unreasonable for a state court to fail to hold an evidentiary hearing.  That has routinely bugged me.  I figured that they were just parroting the State's question presented.  And they probably have been.  

Nevertheless, I went back and read my prior post on Hurles.  And . . . to my frustration . . . it does appear that the Ninth Circuit did not chose its language carefully in Hurles.  Here is what the court said: "We have held repeatedly that where a state court makes factual findings without an evidentiary hearing or other opportunity for the petitioner to present evidence, the fact-finding process itself is deficient and not entitled to deference."

Argh.  That goes further than the prior precedent.  I don't think that the Ninth Circuit meant in Hurles that it was automatically unreasonable for the state court to fail to hold an evidentiary hearing.  But that is how that sentence can be read.  And, to my surprise, I actually did point out the problem with this sentence in my prior post:

But I will point out that, I don't think it is just in the situations where a hearing was not held in state court (as the court stated in Hurles).  It must be where it was unreasonable for the state court not to have held a hearing.  In the court's defense, it's discussion in Hurles made clear that the state court was acting unreasonably throughout the fact-finding process.

That is consistent with the prior precedent: an unreasonable denial of a hearing is what matters.  Critically, Hurles may have gone a little too far in that sentence quoted above, but not in its overall analysis. It clearly focused on the unreasonableness of the state court's actions. But its poorly chosen language in the quote above may be why it's been relisted 15 times.

What does the future hold for Hurles?  It's really hard to predict the outcome when a case gets relisted but there are probably only two that are likely now: (1) a summary reversal; or (2) opinions respecting/dissenting denial of cert.  If I had to guess I would say it's the latter.  I simply cannot believe that there would be a summary reversal on an issue of first impression for the Court without any briefing, even with the language that the Ninth Circuit used in Hurles.

The odd part about the relists in Hurles is that it wasn't until the second most recent relist on March 7 -- over six months after it was first distributed to a conference -- that the court finally asked for the lower court record.  That usually happens much earlier in the process if there is going to be a summary reversal or opinions respecting/dissenting denial of cert.  My guess is that the ordering of the record means that those outcomes are now almost inevitable.  But they appeared almost inevitable prior to the record getting ordered.  It begs the question:  what the heck has been happening behind the scenes with this case?  Unfortunately, even when the decision is issued, we probably won't ever know exactly why.  But there will be a lot of reading between the lines.  I guarantee it (See Men's Wearhouse meme).

The next conference is March 21.  Let's see if we find out more then.

 

Habeas Corpus - En Banc Entertainment

By JK

Hello again internet universe.

The Ninth Circuit’s fascinating work in its recent en banc cases has inspired me to jump back into the blogosphere and share some news/thoughts about those recent cases.

Let’s start with some news.  Last year, I wrote about the en banc decision in Sessoms.  Briefly, in a close 6-5 en banc opinion, the Ninth Circuit granted habeas relief on the ground that the petitioner had invoked his right to counsel at the beginning of an interrogation.  The Supreme Court GVR’d it based on Salinas v. Texas.  I found that surprising as Salinas really had nothing to do with the issue in Sessoms.  The biggest wrinkle for Sessoms after the remand was that the author of the 6-5 opinion, the legendary Betty Fletcher, has passed away.  She has been replaced with McKeown. 

The case has now been scheduled for a new en banc argument.  This is going to happen next Tuesday, March 18 at 10:00 a.m. in San Francisco.  You can watch it live through the Ninth Circuit’s website.*

*A long, long time ago, I spent a great deal of time comparing the different websites of the circuit courts (I had done it for all of the New York federal district courts).  It was actually sort of related to work (at least that’s what I told myself), but mostly I just enjoy wasting time on the internet.  The Ninth Circuit had far-and-away-not-even-close the best website.  I am not just saying that because I practice in that court now.  It’s just really well done – easy to navigate, well-organized, nice to look at, has a ton of great info.  It makes me happy to visit it on a daily basis.  A nice perk of this job as now I actually get to say it’s work related!

Speaking of Sessoms, I was recently told about a supremely entertaining article about the case called “Sherlock Holmes and the Mystery of the Pointless Remand,” written by Professor James Duane.  Click the following link to read it: Download Duane article.  Totally worth the time.  The entire article is written as a conversation between Holmes and Watson.  The premise is that the “pointless” GVR in Sessoms points to a larger truth – the Supreme Court intends to summarily reverse Sessoms once it gets back in front of them. 

Sessoms is far from the only en banc habeas action in the Ninth Circuit.  Late last year and earlier this year, the Ninth Circuit issued two, count ‘em two, en banc opinions interpreting Martinez v. Ryan.  And each one, like Sessoms, has a really unique wrinkle.

The first was Detrich v. Ryan.  Detrich was a highly splintered opinion with no true majority opinion.  There was a main opinion, two concurring opinions, and a dissenting opinion.  What was called the main opinion was written by Judge William Fletcher.  Judge Fletcher broke down Martinez and explained what the standard of review should be when reviewing a Martinez claim.  Essentially, what does cause and prejudice mean when a petitioner relies upon ineffective assistance of post-conviction counsel to overcome a procedural default?  Even for a habeas-lover like me, it’s a pretty gnarly opinion.  There’s multiple layers of deficient performance analysis stacked on top of “but for” causations, that it’s a real challenge to follow.  And what makes it even harder to follow is that it was not really presented in a true majority opinion.  So the wrinkled question after Detrich was, does Judge Fletcher’s opinion, which was not joined by a majority of the en banc panel, now set forth the proper analysis for Martinez claims in the Ninth Circuit? 

The Ninth Circuit answered that question last week in a case called Claibourne v. Ryan.  Using a novel approach for the Ninth Circuit (which it adopted from other circuits), the court simply counted votes on the relevant issues, including the dissent votes, to see what conclusion got the most number of votes. 

It came out like this.  Two good results for habeas petitioners, one bad one: 

(1) where it is necessary to consider whether a procedural default should be excused under Martinez in a case where the district court’s holding that there had been a procedural default preceded Martinez, and the result is uncertain, we should remand the matter to the district court to let it to conduct such a review in the first instance, if the result is uncertain.   Good result.

(2) to demonstrate “cause” – the first part of the showing of “cause and prejudice” required in order to excuse a procedural default under Coleman – the petitioner must show that his post-conviction relief counsel was ineffective under Strickland.  This is the bad one and is different from what Fletcher wrote in the main opinion in Detrich.  What this one means is that a petitioner must show that post-conviction's counsel was defective and that the outcome of the post-conviction proceedings would have been different.

(3) “prejudice” for purposes of the Coleman “cause and prejudice” analysis in the Martinez context requires only a showing that the trial-level ineffective assistance of counsel claim was “substantial.”  Good result.

The other Martinez en banc opinion was Dickens v. Ryan.  That case didn’t spend too much time on the Martinez standard, but instead focused on when a petitioner can use Martinez to overcome a procedural default.  It boiled down to this: if a petitioner presents new evidence to a federal court to improve a claim that had been previously presented to the state court, does that make the claim in the federal petition an unexhausted “new” claim such that a petitioner can rely upon Martinez to overcome the procedural default that he would inevitably face in state court if he attempted to raise the new claim?  The Dickens opinion says yes.  It's a great opinion for habeas petitioners.

My favorite part about the opinion was its language about Martinez vs. Pinholster.  Long-time readers will know that this has been a favorite issue of mine for awhile.  It’s also something that Alex has written about on here.  The Ninth Circuit makes quick work of it. And the winner is . . . Martinez!  Here’s the relevant discussion:

We reject any argument that Pinholster bars the federal district court's ability to consider Dickens's “new” IAC claim. The state argues that the district court cannot consider new allegations or evidence proffered for the first time to the district court. In Pinholster, the Supreme Court made clear that a federal habeas court may not consider evidence of a claim that was not presented to the state court. 131 S.Ct. at 1398. However, this prohibition applies only to claims previously “adjudicated on the merits in State court proceedings.” Id. at 1401; see also 28 U.S.C. § 2254(d).

Pinholster does not bar Dickens from presenting evidence of his “new” IAC claim, because the claim was not “adjudicated on the merits” by the Arizona courts. While the Arizona courts did previously adjudicate a similar IAC claim, the new allegations and evidence “fundamentally altered” that claim, as discussed above. See, e.g., Aiken, 841 F.2d at 883. Pinholster says nothing about whether a court may consider a “new” claim, based on “new” evidence not previously presented to the state courts. See 131 S.Ct. at 1401 n.10. Indeed, the Pinholster court expressly declined to “decide where to draw the line between new claims and claims adjudicated on the merits.” Id. Thus, Pinholster does not affect earlier cases like Vasquez, Aiken, and Nevius, or a federal habeas court's ability to consider new evidence where the petitioner successfully shows cause to overcome the procedural default. 

Short and sweet. And patently logical.

What’s the wrinkle in this case?  Well, soon after the opinion was issued, the petitioner died.  En banc opinions are beginning to look cursed, huh?  As a result of the death, the State moved to vacate the opinion.  Earlier this week, the Ninth Circuit denied the motion stating:

[J]udicial precedents “are not merely the property of private litigants,” but are “valuable to the legal community as a whole.”  . . . The precedent set by the en banc panel in this case will undoubtedly affect cases now pending before this court. We see no reason to undo this precedent and force future panels to duplicate our efforts by re-deciding issues we have already resolved within the contours of article III.

So Dickens remains good law.  And good law it is for habeas petitioners.

The en banc machine got kicked back into gear again this week.  The Ninth Circuit agreed to rehear en banc a capital case, McKinney v. Ryan, that raised the following issue: is an Eddings error structural or is it subject to harmless error?  An Eddings error occurs when a state court refuses to allow  certain mitigating evidence during the penalty phase because that evidence was not causally connected to the crime.  Eddings stated that all mitigating evidence must be considered (I hope I am getting this right, I am a non-capital habeas person).  For years, Arizona had violated this clearly established law.  For years, the Ninth Circuit found the error structural.  But recently, a panel found that an Eddings error was harmless.  The dissent in McKinney indicated that there was now an intra-circuit split on the issue and it should be heard en banc.  Ask and ye shall receive.

Finally, there is one other pending en banc case called Frost v. Van Boenning.  It was argued last June. Reviewing the en banc petition, it appears that the issues are very standard-of-review heavy that only a true devotee of habeas will appreciate. Here's the main issue from the petition: "The New 'Super AEDPA Requirement' of Factual Identity with Supreme Court Precedent Conflicts with Supreme Court and Ninth Circuit Decisions and Presents an Issue of Exceptional Importance."  That's an issue I have also complained about on here for years (I called it the "troubling trend").  And it's something that one of my former colleague's at Brooklyn Law School, Ursula Bentele, wrote about in depth. Frost is still pending.  More info on Frost here.

Circuit Court Rundown

By Matthew Keller

In the months since I last posted I have been trying to keep tabs on the many interesting Circuit Court habeas decisions that have been coming down. The idea that I would eventually combine them all into one massive post has, at this point, moved from "starry-eyed aspirational" into "outright delusional" territory. Hence, the first of (hopefully) a series in what has been going on around the Circuits over the past few months.

Hodge v. Mendonsa (1st Cir. Dec. 30, 2013) 

In last Term’s Johnson v. Williams decision, SCOTUS held that federal habeas courts “must presume [a] federal claim was adjudicated on the merits” even where “there is no explicit discussion of the articulated federal constitutional issue amidst the discussion of issues in the state court opinion.” Just before the New Year, the First Circuit sent forth the word that Johnson meant what it said.

Hodge was convicted of second-degree murder, and sentenced to life, for his involvement in the murder of Jones on a Boston public bus. Prior to trial, his codefendant (Francis) told his lawyer that he (Francis) had shot Jones after he wrested a gun away from Jones’ associate and saw Jones point a gun at Hodge. Francis also told the lawyer that Hodge left the bus before Jones was shot.

Hodge naturally sought to introduce Francis's statement as evidence that Francis, not Hodge, was the shooter. The trial court denied admission, reasoning that the statement was not corroborated by circumstances indicating its trustworthiness. On appeal in the state courts, Hodge claimed that failure to admit the statement denied him a due process right to present a complete defense under Chambers v. Mississippi (1973) and Holmes v. South Carolina (2006) where “the evidentiary rule against hearsay [was used] to gut the petitioner's only available defense, by excluding a powerfully exculpatory and corroborated eyewitness exoneration in a weak inculpatory case. . . .” The Massachusetts appellate court (MAC) affirmed, but made no express mention of the federal due process argument. Rather, the MAC simply cited a state case that rejected a federal due process argument on identical grounds.

The district court granted Hodge’s § 2254 petition, holding that "[u]nder the circumstances, the exclusion of the evidence appears to present the kind of fundamental unfairness against which the constitutional right to a defense is intended to protect." The district court did not grant AEDPA deference to the state court decision because "the substance of petitioner's federal claim was never addressed by the state courts."

The Circuit reversed, holding that the MAC reached the merits of Hodge’s due process claim by citing a state case “which discussed Chambers expressly.” Accordingly, it held, the state court decision was an adjudication on the merits entitled to deference and, under that tougher standard, its decision was reasonable.

The Circuit also added a “final word” about the effect of Last Term’s Johnson decision:

"The Supreme Court decision in Johnson noted that state appellate courts carrying heavy caseloads have adopted many mechanisms to handle their case load expeditiously, including short opinions. Federal habeas courts are required to keep in mind the burdens faced by those courts, including the MAC. "[F]ederal courts have no authority to impose mandatory opinion-writing standards on state courts."

. . . including, apparently, the "standard" that a court must actually adjudicate a claim on the merits in order to adjudicate a claim on the merits.

 

Brumfield v. Cain, (5th Cir. Jan. 8, 2014)

Here, the Fifth Circuit reversed a district court habeas grant finding that a mentally retarded defendant was ineligible for execution under Atkins v. Virginia (2002). The state court had denied the defendant funds to develop his Atkins claim prior to sentencing. However, once the case arrived in federal court, the Federal Public Defender Board provided expert funding to develop the claim. After reviewing the additional evidence produced by the expert during a six-day Atkins hearing, the district court granted Brumfield’s petition on the ground that he is mentally retarded. Key to the district court’s ruling was its finding that the state court decision was not entitled to AEDPA deference because the state court had not provided expert funding for the Atkins issue.

The Fifth Circuit reversed, finding that “no Supreme Court decision has held that prisoners asserting Atkins claims were entitled to expert funds to make out a prima facie case.” Rather, the Supreme Court in Atkins left “to the State[s] the task of developing appropriate ways to enforce the constitutional restriction upon [the] execution of sentences.” Therefore, the Circuit held, it was not error for Louisiana to deny capital defendants asserting Atkins claims expert funds to develop the record. The Circuit also rejected the district court’s conclusion that, under § 2254(d)(2), the state court decision that Brumfeld was not mentally retarded was unreasonable in light of the evidence presented.

Once AEDPA deference kicked in, the district court could not rely on the new evidence that the expert funding had allowed Brumfeld to develop for the first time in federal court. This is because of Cullen v. Pinholster's (2010) limitation of habeas review under § 2254(d) to “the record that was before the state court that adjudicated the claim on the merits.” Covering its bases, however, the Circuit dropped a footnote that, “[e]ven if we were to consider the new evidence presented to the district court, we likely would hold that Brumfield failed to establish an Atkins claim.”

Another author on this blog has explained the tragedy of Pinholster:  it freezes the factual development of a case at “the time that the state court makes a decision on the merits of the case.” This is so even where, apparently, that state factual record was stunted by the Southern states’ already-low indigent defense budgets. Through Pinholster, the Supremes are expressly disincentivising state legislatures from adequately funding indigent defense programs. After all, why fund defense lawyers to develop their clients constitutional claims when that will just give some high-falutin federal court more to pick apart on habeas review. Unbelievable.

Coleman v. Hardy (7th Cir. Jan. 8, 2014) 

Coleman provides a useful analysis of what is required for plausible actual innocence claims, especially in the wake of McQuiggin v. Perkins, decided last year. That decision clarified that “tenable actual-innocence gateway pleas are rare: ‘[A] petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.’”

Coleman was convicted in 1983 for the murder of a Chicago drug dealer. In the ensuing decades, he continued to present the courts with new evidence and problems with the state’s evidence at trial. In 2010, the Seventh Circuit reversed a district court’s denial of Coleman’s first habeas petition and remanded for an evidentiary hearing to determine whether Coleman could potentially avoid a procedural bar by demonstrating his actual innocence.

During the ensuing hearing, the district court considered four categories of new evidence: (1) a codefendant’s (Barnes) testimony that Coleman was not involved in the murder; (2) testimony from Barnes’ attorney that Barnes professed Coleman’s innocence to him during the trial; (3) alibi corroboration from Coleman’s ex-girlfriend and her mother; and (4) evidence that certain witnesses could not identify Coleman as being at the scene on the day of the murder.

After a two day hearing, the district court concluded that Coleman had not satisfied the actual innocence standard, and the Seventh Circuit affirmed. As for the first three categories of new evidence, the Circuit noted that these witnesses “all suffer from profound credibility and reliability problems that most likely would not persuade a reasonable juror of Coleman’s innocence.” The Circuit viewed the fourth category as Coleman’s “best hope” for an actual innocence claim, because those witnesses had no reason to lie for Coleman. In the end, however, the Court concluded that the failure of the eyewitnesses to place Coleman at the scene “was not enough to overcome the testimony of two [trial] eyewitnesses who identified Coleman as the perpetrator and another who implicated Coleman in the murder.” “In short,” the Court held, “Coleman’s is not ‘the extraordinary case’ of actual innocence that warrants excusal of the procedural default rule.”

 

Chavarria v. United States (7th Cir. Jan. 9, 2014)

Chavarria, a legal permanent resident since 1982, was convicted of cocaine trafficking in federal court in 2009. After the Supreme Court decided Padilla in 2010, Chavarria moved to vacate his conviction under § 2255, arguing that his attorney had told him that immigration authorities “said they were not interested” in deporting Chavarria.

While the habeas motion was pending, the Seventh Circuit decided that Padilla was not retroactive under Teague and, last Term, the Supreme Court affirmed that decision in Chaidez. The disctrict court thereafter dismissed the § 2255 motion, and the Seventh Circuit affirmed.

This decision is unremarkable but for the the persistence and ingeneuity of Chavarria’s lawyer. Stuck with a case that was crumbling quickly after Chaidez, she tried to stay afloat by relying on dictum in Chaidez distinguishing between omissions (a lawyer who provides no advice on immigration consequences) and affirmative misrepresentations (lawyer provides bad advice). According to her argument, Padilla’s new rule addressed the former situation, while the latter might have made out Strickland ineffectiveness even prior to Padilla.

Unfortunately, the Circuit pointed out that "Padilla was itself about an affirmative misrepresentation,” and therefore “this distinction, which is thin on its own terms, fails on Padilla’s facts.”

Way to keep kicking till the end, though.

 

Covington v. United States (8th Cir. Jan. 9, 2014)

The rare white-collar case on HCB, Convington confirms that, rich or poor, your lawyer has little to fear from sentencing errors once you plead guilty.

Covington, a former local agency head in the town of Nixa, Missouri (pop. 19,000), was indicted in connection with a long-running scheme in which he and others created fake companies and then used state and federal funds to pay for nonexistent goods from those entities. He pleaded guilty pursuant to a written plea agreement in which the parties agreed that § 2C1.1 was the appropriate Guideline. That Guideline is reserved for frauds involving “the intangible right of honest services of a public official.” Using this Guideline, the district court sentenced Covington to 108 months.

In his § 2255 motion, Covington argued that trial counsel was ineffective at plea negotiation and at sentencing because § 2C1.1 was not the appropriate Guideline. The Circuit court did not bother itself with whether counsel was deficient for missing this argument. Instead the Court went straight to prejudice: Covington did not argue that he would have demanded a trial had he known § 2C1.1 did not apply, nor did he show that going to trial would have resulted in a lower sentence.

This case demonstrates one of the more subtle – but no less pernicious – consequences of the virtually omnipotent power federal prosecutors wield over what and when to charge. Here, they gathered evidence over several years and when they were ready, charged Covington and his confederates under a fifty-one count Indictment, with each count carrying a maximum penalty of at least five years. Faced with a mountain of evidence and potentially decades in jail, Covington was obviously going to seek a plea deal allowing him to plead guilty to something less than the full Indictment. And indeed, his plea agreement allowed him to plead to just four counts; the remaining forty-seven were dismissed. Under these circumstances (present in many, if not most, federal fraud/conspiracy prosecutions) a defendant accepting a plea deal will never be able to show Strickland prejudice, no matter how deficient the attorney’s performance in connection with the plea and sentence.

Courts should keep this in mind as they develop the area of plea-related ineffectiveness claims after Frye and Lafler.

Alito and Error Correction

    By Alexandr Satanovsky

    Today's Supreme Court order list contained two written opinions by Justice Alito. The first was his Statement Respecting Denial of Certiorari in the non-habeas civil case of Martin v. Blessing, the second was his dissent from the denial of certiorari in the Sixth Circuit's Rapelje v. McClellan.

    Notably, in the former non-habeas case, Justice Alito concludes by emphasizing that he "do[es] not disagree with the Court’s refusal to review" because "we are not a court of error correction[.]" Indeed, Alito's unremarkable proposition tracks Supreme Court Rule 10, which outlines the "considerations" in whether to grant cert., noting that "misapplication of a properly stated rule of law" is of lowest priority.   Ironically, in the very next page in today's order--the first page of Justice Alito's dissent in McClellan--he faults the Sixth Circuit for its "serious misreading" of Richter, and faults the Court for leaving the decision "uncorrected." He concludes that he would "grant the petition and vacate the decision below because the Sixth Circuit made a severe error of federal law."

    So the question that should be resolved is whether and under what circumstances can the Supreme Court act as a court of error correction?  If practice is an indicator, error correction is often appropriate provided that the petition is from a decision of a federal appellate court, preferrably the Sixth or Ninth Circuit, that erroneously grants federal habeas relief.  It would just be really nice if this practice was codified, perhaps by a formal amendment to Rule 10.

 

Circuit Court Rundown – October 13, 2013

by Matthew Keller

Some more recent habeas rulings from the Courts of Appeals. In this post, I focus on the Sixth Circuit, which over the past month has issued a series of generally helpful procedural rulings:
 

Gillis v. United States (6th Cir. Sept. 9, 2013)

     Gillis offers good advice on one possible method for avoiding filing deadlines for 2255 motions and, more generally, is a good reminder of the value of reading rules of procedure. Often there are little nuggests in there that may get you out of an occasional fix.

     The petitioner was convicted in 2007 of dealing crack near a school in violation of 21 U.S.C. 841 and 860(a). The court initially sentenced him to 262 months, but in 2009 it lowered the sentence to 191 months following a remand to reconsider application of the Guidelines' career-offender provisions. Gillis asked his attorney to appeal his new sentence, but counsel failed to file a timely notice. In May, 2011, Gillis filed a pro se § 2255 motion claiming ineffective assistance. The district court dismissed the motion as barred by the one-year deadline of § 2255(f). Gillis waited 201 days to appeal that denial, and the Government moved to dismiss the appeal as untimely.

     The Sixth Circuit held that the appeal was timely.  The district court never entered a separate judgment after denying the § 2255 motion, and therefore Gillis effectively had 210 days to appeal. The 210 days adds up as follows: Federal Rule of Civil Procedure 58(a) requires a separate judgment for all decisions or orders, except for five exceptions.  A § 2255 motion is not one of those exceptions. Therefore, the district court’s judgment was not considered “entered” until 150 days after it denied the § 2255 motion. See Fed. R. App. P. 4(a)(7)(A)(ii) (defining “judgment” as entered 150 days after entry in the civil docket in the absence of a separate judgment required under Civil Rule 58(a)). Then, you add to that 150 the standard 60 days to appeal provided for in Federal Rule of Appellate Procedure 4(a)(1)(B) (and Rule 11(b) of the Federal Habeas Rules). Because Gillis filed his appeal within the 210-day window, his appeal was timely.

     For those of us practicing primarily in the Second Circuit, there is a wrinkle here.  The Sixth Circuit noted that the Second is the only Circuit that has held, in a 1993 case, that , Civil Rule 58(a) does not apply to § 2255 motions because of the “quasi-criminal” nature of such motions. See Williams v. United States, 984 F.2d 28, 29–31 (2d Cir. 1993). However, there is a good argument to be made that Williams was wrongly decided. Federal Habeas Rule 11(b) is clear that Fed. R. App. P. 4(a) governs appellate filing deadlines. That rule, in turn, defines the entry of a judgment with reference to Fed. R. Civ. P. 58(a). There is thus no basis in the governing Rules for the Second Circuit’s “quasi-criminal” gloss. The other circuits to consider the issue have recognize this: the Third, Fourth, Tenth, Eleventh, and D.C. Circuits all agree with the Sixth Circuit’s 210-day rule.

     Unfortunately for Mr. Gillis, AEDPA’s filing deadlines are not as forgiving as the rules of Federal and Apppellate Procedure. Here the latter rules gave Gillis an extra six months to appeal the denial of his § 2255 motion. But the former, as the Court noted, “are not so lenient with regard to the timeliness of his § 2255 motion in the first place.” Gillis had 14 days from his resentencing in December 2009 to file a direct appeal. (Fed. R. App. P. 4(b)(1)). His lawyer did not do so, and his conviction became final (and the one-year AEDPA clock began to run) on December 26, 2009. That clock ran out on December 26, 2010, but Gillis did not file his pro se § 2255 motion until May 20, 2011. 

     Gillis tried to argue that the one-year AEDPA clock should not have begun until the Sixth Circuit dismissed his untimely direct appeal in January 2011. The Sixth Circuit (correctly) found that this was not the way things work: “[i]f the one-year AEDPA statute of limitations could be extended by filing a late notice of appeal and getting that late appeal dismissed,” the Court said, “there would not be much left to the statute of limitations.”  

Ajan v. United States (6th Cir. Oct. 3, 2013):

     In another ruling on 2255 procedure, the Sixth Circuit joined the Fourth, Eleventh and D.C. Circuits in holding that a COA is not required to appeal the relief granted after a successful § 2255 motion.

     Ajan was originally sentenced to 646 months for various drug, kidnapping and firearm offenses. However, his § 2255 motion was granted, and his sentence vacated, after the parties agreed that one of the § 924(c) firearm convictions was not an offense under the charged statute. Without conducting new sentencing proceedings, the district court ordered entry of an amended judgment reflecting a new sentence of 346 months (the total term for the remaining offenses). Ajan appealed without obtaining a COA.

     The Sixth Circuit held that a defendant need not obtain a COA to appeal the remedy following a successful § 2255 motion, because the granting of the motion results in a “new judgment” and therefore a new right of direct appeal. The court held that this follows from the Supreme Court’s 2010 decision in Magwood v. Patterson. Magwood held that an appeal from a successful § 2254 petition was not a second or successive petition because a “new judgment” is entered when the § 2254 is granted. The Circuit held that this rule applies with equal force to § 2255:

“Ajan’s successful § 2255 petition led to a new judgment — the Amended Judgment — which did not exist at the time his § 2255 petition was brought. It is the Amended Judgment that Ajan appeals. Because Ajan seeks to challenge the relief granted — i.e., whether the relief was ‘appropriate’ under § 2255, whether the new sentence was in conformity with the Constitution or Sentencing Guidelines, etc. — he is appealing a new criminal sentence and therefore need not obtain a COA”

Jefferson v. United States (6th Cir. Sept. 12, 2013)

     Petitioners often seek equitable tolling of AEDPA’s statute of limitations.  The Sixth Circuit also had some good news for petitioner's on that score as well, at least in the context of Brady claims.

     Kenneth Jefferson was originally convicted in federal court in 1999 for his role in a gang selling crack out of Ypsilanti, Michigan throughout that drug’s boom years of the 1980s and 1990s. He was sentenced to twenty years. The Sixth Circuit affirmed his conviction on direct appeal, and the conviction became final ninety days later, on May 12, 2003. However, Jefferson did not file his § 2255 motion until August 2004, making it untimely.

     Here’s where it gets tricky (apologies for the bumpy procedural history, but its necessary). Throughout the post-trial process, Jefferson and his codefendants asserted that the Government withheld the promises it had made to several cooperating witnesses regarding the benefits they would receive in exchange for their help in prosecuting Jefferson and others. They also asserted that these CWs lied at trial about the benefits they were promised, and that the Government knew about this perjury and sat by silently. These claims were given some support when, in March 2004, one of the CWs stated to the judge that he expected the AUSA to recommend a downward departure in his case. This set in motion an internal investigation by the local US Attorney’s office, which ultimately concluded that the AUSA had in fact met with some CWs without their counsel present, and made some, “at least tacit, promises of further sentencing reductions.” The investigation also concluded that the AUSA “had witnesses testify without revealing the additional understandings; moved orally at sentencing or in Rule 35 motions for downward departures; and had the sentencing records of these witnesses sealed.”

     Jefferson then filed a series of additional motions (and supplements to pending motions), and continued to receive belated Giglio information from the Government. At some point he was given an attorney to help him with his claims.  At first, the district court denied Jefferson’s § 2255 motion and the various supplements to it arguing for a new trial based on the Brady, Giglio and Napue violations highlighted by the US Attorney’s investigation. The Court rejected Jefferson’s attempts to toll the start date for his one-year AEDPA limitations period from May 2003 (when his conviction became final) to either September 2004 (when a decision was issued in an unrelated case detailing disclosure violations by the same AUSA), or to September 2005 (when the government revealed information from its internal investigation essentially confirming the Brady/Giglio violations in Jefferson’s case).*

* Jefferson argued pursuant to § 2255(f)(4) that his one-year clock ran from the date “on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.”

     The court rejected the September 20004 date on the ground that “a decision in an unrelated terrorism case could not constitute the factual predicate for prosecutorial-misconduct claims in Jefferson’s case.” And it rejected the September 2005 date because Jefferson had filed his motions in March 2005, which severely undercut an argument that he was not on notice of his claim until five months after he filed it.

      On its first trip up to the Circuit, the court reversed. It agreed that neither the 2004 nor the 2005 dates could serve as the factual predicate of his claims. But, the Circuit held, the district court “did not resolve the critical question of whether Jefferson’s additional claims were brought within one year of ‘the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.’” The Court therefore remanded for consideration of “the statute of limitations and the possible application of equitable tolling.”

     The district court complied, gave Jefferson’s motion additional consideration, and again denied it.  This time, the court essentially deployed the “kitchen sink” reasoning the habeas practitioners are so used to: the claims are untimely, they do not warrant equitable tolling and, in any event, they are meritless. Case closed. 

     On appeal last month, the Sixth Circuit reversed the district court’s procedural rulings, but ultimately agreed that the claims failed on the merits. It found that, given the “realities of the prison system,” Jefferson could not have discovered the basis for his Brady/Giglio claims prior to 2005. Importantly, the Court rested this holding on the nature of the Government’s disclosure obligations under Brady:

“We hold that § 2255(f)(4)’s due-diligence standard did not require Jefferson continuously to seek out evidence that the government had a constitutional duty to disclose (evidence that, despite specific requests by the defense for the information, the government represented did not exist). We reject the district court’s determination that because Jefferson suspected undisclosed promises as early as 2000, his failure to seek information from “the cooperating witnesses themselves or their acquaintances” and his failure to seek sentencing records—which the prosecutor had sealed—rendered his diligence insufficient. We do not fault Jefferson for failing to scavenge for evidence of undisclosed promises when he already repeatedly asked for disclosure and the evidence was unconstitutionally withheld by the government.”

     On the merits, the Circuit held that Jefferson’s Brady claims failed on the materiality requirement, the bane of so many Brady/Giglio claims. Where the Government withholds impeachment material for cooperating witnesses, such claims almost always fail for the same reason, which goes something like this: “these witnesses were bad guys ratting out their friends to save their own asses. Both sides knew it, the Court knew it, and the jury sure as hell knew it. If the jury chose to believe them anyway, it probably would have still believed them if it knew they were promised $10 (or ten years off their sentence) instead of $5 (or 5 years off).”

   As Ive said on this blog before, I disagree with the wide application of the assumption that juries would do the same thing if they had more or different information to all manner of different circumstances. Our system operates largely on the theory that jury deliberations are (and should be) a black box. The frequency with which judges retroactively predict what a jury would have done under different circumstances (and the confidence with which they do so) violates that precept. To some extent this is necessary to conserve resources – the courts would be swamped if we had to retry every case where the jury didn’t hear evidence it should have (or where, in the more frequent case, the jury hears something it shouldn’t have). But make no mistake: the Brady materiality standard operates primarily as a practical resource-management tool. It is not a well-considered reflection on the ability of judges to accurately second-guess juries. 

Henderson v. Palmer (6th Cir. Sept. 12, 2013)

      In Henderson, the Sixth Circuit applied the prison mailbox rule to reverse the district court's finding that petitioner had procedurally defaulted on claims to the Michigan state courts.  Henderson was convicted of armed robbery and carjacking based in part on a lineup identification. Law enforcement officers claimed that Henderson's attorney was present at the lineup, but the attorney denied that he was there. Henderson claimed that his trial attorney was ineffective for failing to raise the issue at trial. However, state courts rejected his claims as untimely because the filing arrived one day late due to failings in the prison mail system.

     The Sixth Circuit reversed the district court's rejection of the 2254 petition because the lower court failed to apply Circuit precedent holding that “[w]here a pro se prisoner attempts to deliver his petition for mailing in sufficient time for it to arrive timely in the normal course of events,” that circumstance “is sufficient to excuse a procedural default based upon a late filing.”


Hooper v. Ryan (7th Cir. Sept. 9, 2013)

     For the last case, we move to the Seventh Circuit. In Hooper, the Seventh Circuit granted a §2254 petition, reversing the district court and effectively reversing a 32-year-old murder conviction on Batson grounds.

     At trial, the court drew a venire of 63 members, seven of whom were black. Two of the seven were removed for cause, and the prosecutor exercised peremptory challenges against the remaining five. The Seventh Circuit held that the Illinois Supreme Court applied Batson unreasonably in four respects. It’s worth going through all four grounds, both because a state Supreme Court making four mistakes on any one issue is notable, and because some of the mistakes would be funny if they were not so troubling.

     First, the Illinois Supreme Court unreasonably held that, under Batson, a trial court cannot “infer a prima facie case of discrimination from a racially disproportionate use of challenges.” The Seventh Circuit noted that Batson and subsequent rulings clearly allowed the use of peremptory strike statistics to support a prima facie case. Second, the Illinois court held that the five strikes against black venire members could not be discriminatory because the prosecutor also struck six white or Asian members. The Seventh Circuit held that, in addition to being legal error, the comparison of absolute strikes as opposed to their proportion relative to the racial makeup of the venire reflected “confusion about how to use numbers.” 

     We all know that lawyers are bad with numbers - otherwise we’d all be doctors, right? So perhaps that second error is somewhat understandable.  It’s a bit harder to excuse the third error. The Circuit held that it was error for the Illinois Supreme Court to reject the Batson challenge on the ground that the defendant, all three victims, and all principal witnesses were black. Not only was the Illinois Supreme Court plain wrong on this (three principal witnesses were white), the Circuit also pointed out that Batson and its progeny protect the rights of potential jurors (and the public at large) as well as the rights of defendants. The Circuit called the the Supreme Court of Illinois’ idea that “using race in jury selection is tolerable as long as the defendant, victims, and witnesses all are of the same race” a “serious legal blunder.”

     Finally, the Circuit held that the state court erred unreasonably in excusing the trial judge’s incorrect application of Batson’s three-step sequence of proof.

     The Seventh Circuit’s decision may force Illinois to free Hooper, who has served over 32 years for the murders and is now 67 years old. The Court acknowledged that it may be impossible for the state to conduct a “fruitful” Batson hearing more than three decades after the trial (not to mention a retrial). But I think the Court correctly reasoned that it could not let such an unacceptable decision stand. It may have helped that the Illinois Supreme Court decision under review was 24 years old – the Circuit was not throwing stones at the current court. It may have also felt that the trial was also tainted by its judge, Thomas Maloney, who was later convicted of bribery and spent the last 15 years of his life in prison. Maloney was not your ordinary crooked judge: a jury found that he fixed three gang murder trials. It’s not legally relevant to the Batson claim, but Maloney’s presence in the case was just one more taint on the appearance of justice.

 

Habeas Corpus - Reinhardt Opinions - Part I

By JK

If there is one judge who has been viewed as the poster child for the Ninth Circuit run amok in habeas cases, it's Judge Stephen Reinhardt.  His name has become nearly synonymous with summary habeas reversals from the Supreme Court.

However, I have great admiration for the judge's work in habeas cases.  Despite some nasty reversals from the Supreme Court, he refuses to relent in his pursuit of fairness in habeas cases.

In two recent opinions, he has done great work in showing that the Supreme Court's recent attempts to restrict habeas corpus can be navigated around to reach the fair result. I'll talk about the first one in this post, and the second one in a later post.

Back in 2011, the Supreme Court in Harrington v. Richter defined unreasonable under 2254(d)(1) in a ridiculously harsh way using a multi-layered "fairminded judge" standard.  If taken literally, the "fairminded judge" standard would mean that a habeas petitioner would have to essentially show judicial incompetence or bad faith in order to get habeas relief. And both the States and federal judges have used it this way.  I have bemoaned this standard, criticizing it for its harshness and for the fact that it silently overruled Williams v. Taylor's rejection of nearly the exact same standard.  In fact, the Court in Williams stated that the term "unreasonable" could not be defined.

But nothing like this can deter Reinhardt from getting to the fair result.  Back on September 5, 2013, Reinhardt authored the decision in Dow v. Virga.  He granted habeas relief based on a Napue claim.* And he grants it under the Richter "fairminded judge" standard.**

*A Napue claim is where the prosecutor knowingly elicits false testimony and fails to correct it.

**Actually, it's a little more complicated than that.  He first finds that the state courts used the wrong legal standard making its decision contrary to federal law.  But he said that, in the alternative, even if the state used proper standard, it was an unreasonable application of Napue.

But the best part is how Reinhardt dismisses my complaint that Richter changed the unreasonableness standard under 2254(d)(1).  And I am happy to have Reinhardt show me that I am wrong.  Reinhardt explains that "fairminded" really is not that important and that the crux of the matter is whether the state court decision was "unreasonable."  In other words, his take is that Richter did not change the word "unreasonable" to mean anything other than "unreasonable."  Here's what he said:

The “fairminded jurist” standard is an objective standard of law, not a reference to the quality of the judge making the decision. The standard, therefore, does not require us to evaluate whether the individual jurists are “fairminded” in the sense that they are generally impartial and honest adjudicators, but rather whether there could objectively be fairminded disagreement as to the outcome dictated by the Supreme Court’s clearly established law. Fairminded jurists can make mistakes in legal reasoning or judgment, and if such a mistake is beyond reasonable legal disagreement, the “fairminded jurist” standard is satisfied. Were we to apply a fairminded jurist standard literally, a federal court could never reverse a state court’s habeas decision. For every state appellate court contains at least one fairminded jurist, if not a majority of its supreme court or appellate court members who voted to reject the petitioner’s arguments. When we reverse a state court’s habeas decision we are surely not saying that all the state court justices whom we are reversing are not fairminded jurists, but rather that objectively the answer is one that a fairminded jurist should reach.

So habeas practioners take note: Reinhardt has shown the way around Richter.  At least temporarily.