Habeas Corpus Blog

Circuit Court Rundown - August 2013

By Matthew Keller

A quick review of some interesting cases decided by the Courts of Appeals in the past few weeks:

Ramos v. Racette (2d Cir. Aug. 9, 2013)

    Starting with my home court, the Second Circuit, we have Ramos v. Racette. The petitioner in that case attempted to express his disapproval of the proceedings by taking the unusual step of both representing himself and absenting himself from trial. The trial judge appointed standby counsel, but then mistakenly introduced counsel to the jury as Ramos' "attorney" rather than as his "legal advisor" or some other term that did not convey the false impression that Ramos was represented by counsel.

    Later in the trial, the prosecutor urged the court to correct its statement, and the court did so by instructung the jury that the man at counsel table was a "legal advisor." To be safe, counsel also spent the remainder of the trial in the gallery.

    Ramos claimed that introduction of standby counsel as his attorney violated his clearly established Sixth Amendment rights to self-representation. He relied on Mckaskle v. Wiggins, a Supreme Court decision which had some helpful dicta, but which ultimately held that a defendant's right to represent himself is not violated where standby counsel's unsolicited involvement is "held within reasonable limits".

    In affirming the district court's denial of the writ, the Second Circuit pointed out that the holding of Mckaskle did not actually help Ramos:

"The fleeting imposition of counsel upon a pro se defendant who has elected to abstain from participating at trial is a matter of first impression in this Court. . . . 

Analysis of [Mckaskle] confirms that Ramos’s self-representation was not substantially disturbed by the court’s brief introduction of counsel."

    At first glance this does not seem like a particularly compelling claim - you might wonder why the Court of Appeals granted a COA.  I suspect the Second Circuit doesn't want defendants to think they can manufacture a postconviction claim simply by choosing a defense strategy of complete nonparticipation, and then attacking any attempt by the court to give them a fair trial as a violation of that constitutionally-protected strategy.  It stands to reason that a court of law would want to shut that party down before sunset.

    This is not an entirely cynical read of the decision.  The "right to self-representation" is generally murky and could use some more discussion by the apppellate courts.  Part of the reason for the murkiness is that the issue arises infrequently.  Most indigent defendants would prefer to have a lawyer than to not have one (unless, that is, they want to martyr themselves for radical Islam).  When it does come up, it seems to make judges uncomfortable because it directly conflicts with the centrality of defense counsel to a fair trial (as Justice Black put it in Gideon v. Wainright, "reason and reflection require us to recognize that, in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.")

    So the right to self-representation is, in a way, a right to an unfair trial. It certainly is where, as here, the defendant himself chooses not to show up. The Second Circuit seems to have recognized this, implicitly acknowledging Ramos' right to a "concerted refusal to participate" in his trial and noting that "[a]ny presentation of a defense at all, no matter how limited, inherently disrupts" that right.

        But the Circuit wouldn't (could not) endorse that strategy by granting the writ here. And it seems pretty clear that the Supreme Court hasn''t clearly established Ramos' right to it under these facts.  An iron-clad right to an unfair trial presents certain risks to justice as we define it.  Not to mention some thorny issues: how could harmless error analysis apply to violations of such a right? What does it mean for an error to create a probability of unfair proceedings when that's exactly what the defendant wanted?

 

Washington v. Sec'y PA Dep't of Corr. (3rd Circuit August 9, 2013)

    Moving across the Hudson, the Third Circuit upheld a 2254 habeas grant on August 9. This was a Bruton issue that it appears the trial court simply ignored. The trial court allowed the prosecutor to introduce a codefendant's redacted confession replacing Washington’s name with “the driver,” when it was clear to everyone that Washington was the alleged driver.

    The Third Circuit agreed that this was a pretty straightforward Confrontation violation (and indeed, that the "trial judge knew at the time of introduction [that the redaction] would be transparent to the jurors").  Nevertheless, the decision still spends an awful lot of time sorting through nationwide precedent (making this this is a good decision to read if you have a Bruton issue).  

Spencer v. United States (11th Circuit, August 15, 2013)

    Finally, we head down the east coast to Florida, where the Eleventh Circuit held in Spencer that § 2255 was an appropriate vehicle for raising a career offender issue* and that two intervening Supreme Court cases (Begay v. United States and Sykes v. United States) applied retroactively to overrule the sentencing court's conclusion that Spencer was a career offender.

* the Court makes sure we all understand the caveats: "We conclude that allowing a first, timely-filed motion under section 2255 where a new Supreme Court decision has been given retroactive effect, and where the prisoner has preserved the issue of career offender categorization at both original sentencing and appeal, will not create an unmanageable problem"

    The Eleventh Circuit (by no means a liberal court) called the incorrect career offender designation here "a fundamental defect that inherently resulted in a complete miscarriage of justice." Lest we think the Court is getting soft, it also threw some meat to the Tea-Party deficit hawks, noting the cost of egregious mandatory minimums:

"And on the other side of the ledger, there is the annual cost to the taxpayers of keeping people in prison who should no longer be there. According to the Bureau of Prisons, that annual cost is $28,893.40 per prisoner. In Spencer’s case, according to the sentencing judge he was facing roughly half the sentence in the absence of career offender status. Thus, erroneously labeling him a career offender results in an annual taxpayer outlay of $28,893.40 for an extra 6 ¼ years. We do not know how many instances there are of defendants like him."

    I fundamentally disagree that the biggest concern in unjustifiably keeping a man in jail for 6.5 years is the cost to taxpayers. But what do you want, we're talking about the Stand Your Ground capital of America. The law and order crowd and equal justice folks are on the same side on mandatory minimums - that's enough for me.

SDNY Grants 2254 Resurrected by Martinez v. Ryan

by Matthew Keller

Court finds state trial counsel ineffective for failing to spot "straightforward" Massiah issue during trial.

Smith v. Fischer, No. 07 Civ. 2966 (S.D.N.Y. Jul. 16, 2013)

        In 2012, the Supreme Court held in Martinez v. Ryan that having an ineffective lawyer (or having no lawyer at all) in a state collateral proceeding could excuse a petitioner's failure to raise an ineffective-assistance-of-trial-counsel claim.  I thought this was a good decision because it would allow the lower federal courts to expend their scarce resources evaluating the merits of ineffectiveness claims rather than hashing out comparatively esoteric considerations of cause and prejudice.  In light of the onerous AEDPA standard, I didn't expect too many petitions to be granted after a merits review.  But last week, the Southern District of New York did just that.  Smith v. Fischer may very well be the first decision in the Second Circuit (or anywhere?) granting a 2254 habeas petition that had been resurrected by Martinez. 

        In March 2012, the district court denied Patrick Smith's 2254 petition as procedurally barred: the state court decision was based on Smith's failure to raise his ineffectiveness-of-trial-counsel claim in his first 440.10 (NY state collateral) motion.  Smith had filed that first collateral motion pro se. 

        A few weeks later, SCOTUS issued Martinez.  Two days after that, Smith moved for reconsideration.  It took the district court eight months, but this past January it decided that Martinez applied and, therefore, the court could reach the merits of Smith's petition.

The Case of the Serendipitous Snitch

        In 2003, a jury convicted Smith of intentional and felony murder for the killing of a security guard during an armed robbery.  Smith was sentenced to twenty to life.  He exhausted his direct appeals in June 2006 and filed his first 2254 petition in 2007. 

        The prosecution had faced substantial obstacles to trying Smith.  He was not arrested until seven years after the crime.  Indeed, the defense was able to have four counts of the six-count indictment dismissed on statute of limitations grounds.  The prosecution had eyewitness ID testimony, but that testimony  described someone who didn't resemble Smith very much and, in any event, those IDs were seven years old.  This gave the defense ample opportunity to impeach the State's identification witnesses based on the passage of time and degradation of memory.  Finally, during pretrial motion practice the trial court excluded Smith's incriminating statements to the police, further weakening the State's case.

        Then, a few weeks before trial, the prosecutor annouced a surprise witness - a jailhouse snitch to whom Smith allegedly confessed.  At trial, William Ferguson testified that, over the course of several days while they were incarcerated together, Smith told Ferguson about his involvement in the crime.  On cross, Ferguson admitted that he pressed Smith for information and attempted to gain Smith's confidence by "sharing his own background" and discussing his own crime.  On postconviction review, Smith's ineffective assistance claim was that trial counsel should have moved, pursuant to Massiah,* to exclude Ferguson's testimony because Ferguson was acting as the government's agent when he elicited the incriminating statements.

*  In Massiah v. United States (1964), the Supreme Court held that  the Sixth Amendment prohibits the government from eliciting statements from a defendant after the right to counsel has attached.  In United States v. Henry (1980), the Court held that an inmate who informs the government of a defendant's incriminating statements becomes the government's "agent" with  respect to later-elicited statements.

The 2254 Decision

        The Southern District reviewed Smith's ineffectiveness claim de novo.  It held that the state court did not make a merits determination of the ineffectiveness claim, even though the state court had referred to the claim as "meritless."  Prior to that, the state judge stated that it "declines to reach the merits of Defendant's [ineffective assistance of] counsel claims." The district court took the state court at its word. It held that the state court's "bare references"* to the merits of the claim following its assertion of a state procedural bar did not "undermine state court's ruling that it 'declines to reach the merits of case.'"

*    This appears to be a dig at the state court decision, which analyzed the "merits" of Smith's ineffectiveness claim in approximately 12 words: Smith's "bare claims of ineffective assistance do not meet the Strickland" standard.  

        The district court had little problem finding ineffectiveness on the part of trial counsel.  It held that "[t]he Massiah issue in this case is straightforward:"

"Mr. Ferguson testified at trial that [he] had agreed to testify for the prosecution before deliberately eliciting incriminating statements from Smith.  Mr. Ferguson's testimony on this issue was enough that defense counsel knew, or should have been aware, that a Massiah violation had occurred and that the statements should be suppressed."
 

        As for Strickland prejudice, the district court had this to say about the probability of an acquittal in the absence of Ferguson's testimony:

"due to the weaknesses the eyewitness testimony, which the trial judge noted, and the lack any scientific or physical evidence linking Mr. Smith to the crime, Petitioner has shown a 'reasonable probability' that he would have been acquitted but for his counsel's failure to suppress Mr. Ferguson's testimony under Massih.  Aside from Mr. Ferguson's testimony as to Mr. Smith's confessions, the evidence at trial consisted of eyewitnesses whose descriptions of the perpetrators were inconsistent with that of Mr. Smith, and whose memories had faded over the seven years between the and the trial. Mr. Smith was not arrested until six after the crime, and there was no physical or scientific evidence tying him to it. Given the limited evidence aside from the informant's testimony, the prosecutor emphasized Mr. Ferguson's statements in summation, including those statements which Mr. Ferguson elicited after he had agreed to testify. During deliberations, the jury asked for read backs of Mr. Ferguson's testimony . . . and returned a guilty verdict the following day. The state court judge who tried the case observed, '[i]t is reasonably clear to me, based upon the quality of the eyewitness testimony in this case, that the jailhouse informant had to be a reasonably important witness.'"  

         Perhaps anticipating that the Second Circuit might disagree that the state court decision was not on the merits, the district court held that the state court denial also didn't survive AEDPA deference: the state court's application of Strickland was "objectively unreasonable" because, "[g]iven the similar critical importance of Mr. Ferguson's testimony to the central issue before the jury in this case, no court could justifiably find that there was not a 'reasonable probability'  that, but for defense counsel's failure to suppress Mr. Ferguson's testimony, Mr. Smith might have acquitted."

        Finally, kudos to SDNY District Judge Sweet for calling it like he saw it here, once again demonstrating the benefits of life tenure free from electoral and other political pressures.  On the issue of whether the police had sent Ferguson in to get something from Smith, the judge was skeptical that it could be otherwise:  

"That Ferguson appeared as an informant on the heels of the trial judge's preclusion of Smith's statement to the police, that the police officers took no notes of their meeting with Ferguson or Ferguson's initial call to [an NYPD Detective], and that Ferguson, as an inmate, was able to have Smith brought to him in the library by a corrections officer all raise serious questions as to whether the police engaged in an intentional effort to secure Smith's incriminating statements."

        That's not Monday morning quarterbacking (which, to be fair, federal courts do indulge in from time to time when reviewing state court trial proceedings).  That's calling the state court out for a serious lapse in sound trial management.  That's what 2254 should be about.