by Matthew Keller
A few of the more interesting appellate habeas rulings from the past few weeks:
Heard v. Addison, (10th Cir. Sept. 4, 2013)
In Heard, the Tenth Circuit (reversing the district court) granted the 2254
petition on ineffectiveness grounds and ordered the state court to allow Heard to withdraw his guilty plea. I like this decision not just because it offers some good insight on analysis under AEDPA. It also was made possible by the intervention of an observant attorney, Kevin Adams, who had no prior connection to the case and nothing obvious to gain from offering his help. But he saw something amiss and spoke up - and may well have saved Mr. Heard from spending the rest of his life in prison.
A Good Samaritan Attorney???
David Heard is not a sympathetic defendant. He was charged with two counts of lewd molestation under Oklahoma law after he followed two minors into a Wal-Mart and “positioned himself in such a way as to be able to look under their dresses.” Oklahoma really frowns upon such conduct - each count carried a mandatory minimum of twenty years and a max of life. Apparently in light of this incredible (to a New Yorker)* exposure, Heard's public defender recommended that he accept the state's offer to recommend two concurrent twenty-five-year sentences in exchange for a plea. Heard did, and was sentenced accordingly.
* Obviously, what Heard did was completely inappropriate and intolerable. And young women and girls can of course be traumatized without being physically assaulted. But twenty years? I ride the subway often, so maybe I'm a little desensitized to the phenomenon of dirty old men pruriently ogling young girls. But even the Tenth Circuit panel (whose judges, I'll wager, don't ride mass transit much) found that the sentence "could only be described as harsh."
About a month later, private attorney (and guardian angel?) Adams appeared and told Heard about an unpublished Oklahoma Court of Criminal Appeals case suggesting that Heard's conduct did not fall within the scope of the lewd molestation statute. He raised this with his public appellate counsel, who "acknowledged the apparent error on Heard’s trial lawyer’s part” and agreed to prepare Heard’s post-conviction relief. The State appellate court rejected the claim - essentially holding that any precedent suggesting that what Heard did wasn't lewd molestation in Oklahoma was poppycock. Heard then filed his 2254 petition claiming that his lawyer was ineffective for not finding out about the arguably helpful precedent before advising him to take the plea deal.
State Courts Cannot Excuse Bad Lawyering By Retroactively Making it Good Lawyering
The Tenth Circuit declined to extend AEDPA deference to the state court decision. It acknowledged that that decision - holding that Heard's acts were covered by the molestation statute and disclaiming the helpful precedent - was "a matter of state law [and] insulated from our review." However, with respect to Heard's federal ineffective assistance claim, the Court held that the state court had unreasonably applied Strickland because it "improperly relied on hindsight" - that is, there was no way for trial counsel to know, when advising Heard on the plea offer, that the state court would find that the statute covered his conduct. This is because the precedent holding otherwise was "squarely on point" with Heard's case, and the appellate court's subsequent reversal from that precedent was a "marked departure from the only available law on
the books at the time Heard pleaded guilty." In other words, the state court could hold whatever it wanted with respect to state law; but as a matter of federal law, it could not excuse trial counsel's performance by overruling precedent that would have helped the defendant at the time of the plea. This was an unreasonable application of Strickland.
On de novo review of the ineffectiveness claim, the Tenth Circuit had little problem granting the petition. Trial counsel should have known about the helpful precedent because it was "squarely on point" with Heard's case:
"minimally competent counsel would have discovered the [state appellate court's two] unpublished opinions . . . two cases which, as we have already explained, would have provided Heard with a powerful argument that his conduct was not criminal. . . ."
This failure prejudiced Heard, the Court held, because it left him without a strong defense to a charge carrying essentially a life sentence. In coming to this last conclusion, the Court looked at Social Security
actuarial data estimating that a 48 year-old man like Heard could
expect to live another 31 years - ten years more than what he was required to serve under Oklahoma law. The Court stated, "[g]iven the uncertainties
associated with the possibility of parole and life in prison, Heard’s
current prison term could very well become a life sentence."*
* More courts should acknowledge the unnecessary risks to longevity from unduly harsh sentencing laws. A recent study found that people in Northern China lose about 5.5 years of life expectancy due to intense fossil fuel pollution. According to the Tenth Circuit's estimate, being an American prisoner is almost twice as dangerous.
Drummond v. Houk, (6th Cir. Aug. 26, 2013)
The Sixth Circuit affirmed, over a dissent, a habeas grant and new trial where the state court had unreasonably denied a claim that the petitioner had been denied a right to a public trial. During trial, the court twice closed the courtroom to petitioner's family members and other spectators on the ground that witnesses expressed feeling threatened. The Sixth Circuit upheld the district court's holding that the Supreme Court of Ohio unreasonably applied Waller v. Georgia, 467 US 39 (1984). The trial court did not make specific record findings justifying the closures:
"the trial court made no specific inquiries on the record about who was feeling threatened by whom,” and “nowhere in the trial record is it discussed by any party which witnesses were frightened or which spectators were threatening witnesses.” . . . . The trial court demonstrated neither an overriding interest nor a substantial reason to close the courtroom, and it was unreasonable for the Supreme Court of Ohio to find otherwise."
In dissent, Judge Kethledge argued that the Ohio Supreme Court's opinion, "agree with it or not—was reasoned and
coherent in its application of Waller’s general rule."
The majority opinion also commented on the use of Circuit Court precedent in evaluating a habeas claim. This issue comes up often, with Respondents frequently (and many times successfully) arguing that only Supreme Court precedent is "clearly established federal law" for purposes of AEDPA deference. See, for example, Carey v. Musladin, 549 U.S. 70 (2006). Here, the Sixth Circuit distinguished Musladin:
"In Musladin, the Court held that Supreme Court law was not clearly established under circumstances in which circuit courts “diverged widely” in their interpretations of the law. Here, however, we have the opposite situation: circuit courts with parallel holdings, all in agreement that Waller extends some form of Sixth Amendment protection to defendants facing partial closures. While this congruence among the circuits does not permit us to adopt any court’s interpretation as authoritative, the unanimous circuit court consensus lends credence to our holding that the law of Waller was clearly applicable to partial closures just as the circuit court divergence in Musladin demonstrated that Supreme Court law was not clearly established."
This is a good point to keep in mind. While Circuit Courts cannot make "clearly established federal law," a "congruence" among them as to the interpretation of Supreme Court precedent is strong evidence that a rule is clearly establsihed.
McElvaney v. Pollard, (7th Cir. Aug. 20, 2013)
The Seventh Circuit affirmed the dismissal of habeas claims of ineffective trial and
appellate counsel related to failure to raise a lack of particularity in the criminal complaint.
In 2005, McElvaney was charged under Wisonsin law with a 2001 sexual assault of the six-year-old daughter of a woman he was living with at the time. The complaint alleged that the assault occurred between September and December, 2001. Trial counsel moved for greater particularity as to the the time of the assault and to prohibit modification of the time period at trial. However, at a hearing on the motion, counsel conceded that the state had authority to allege the three-month date range. The trial court denied the motion for particulars, but agreed that the state would not be able to amend the range. McElvaney was convicted and sentenced to 15 years. State appellate courts rejected his ineffective assistance claims based on counsel's failure to pursue the particularity issue.
This is a case where AEDPA deference made the difference. The Seventh Circuit held that AEDPA's:
“'doubly' deferential standard of review dooms McElvaney’s appeal. . . . While McElvaney may have a colorable argument that his trial counsel was ineffective for failing to challenge the charging period for lack of specificity under Wisconsin state precedent, he cannot persuade us that the Wisconsin Court of Appeals’ adverse determination was 'contrary to, or involved an unreasonable application of' Strickland."
The federal appeals courts continue to take a broad view of AEDPA deference, making it more important that state appellate counsel catch trial errors early and raise them often.
Miller v. United States, (4th Cir. Aug. 21, 2013)
In Miller, the Fourth Circuit (reversing the district court) held that Teague retroactivity applied to a prior Fourth Circuit opnion, and remanded with instruction to vacate a federal conviction.*
* Not sure what's going on in the Fourth Circuit. It's traditionally been known as one of the more prosecution-friendly circuits, but last week it ripped a North Carolina U.S. Attorney's Office a new one for a pattern of discovery violations and other sharp practices in criminal cases. Now this.
Mr. Miller was convicted of a single count of being a felon in possession of a firearm. His 2255 motion argued that a prior Fourth Circuit decision, United States v. Simmons (4th Cir. 2011) (en banc), announced a "new substantive rule" that was retroactive on collateral review.
Teague issues are never simple. Without getting too much into the weeds, in 2010 the Supreme Court, in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), held that, in order to determine whether a conviction is an aggravated felony for immigration purposes, a court must look at the actual conviction and not the offense for which he could have possibly been convicted based on his conduct. To qualify as an aggravated felony, that actual conviction must have been one for which “the maximum term of imprisonment authorized is more than one year.” Following that decision, the Fourth Circuit (in Simmons) overruled its own long-standing precedent and held that a prior conviction is punishable by more than one year of imprisonment [and hence a felony] only if the defendant’s conviction, based on his individual offense characteristics and criminal history, allowed for such a sentence."
Miller argued that Simmons should be applied retroactively because it fell within the Teague exception for new substantive rules. The Fourth Circuit held that Simmons annouced such a rule, because it:
"narrowed the scope of [the felon in posession statute] by establishing that it does not reach defendants whose prior convictions could not have resulted in a sentence of more than one year in prison. Thus, Simmons altered “the class of persons that the law punishes,” and announced a substantive rule that is retroactively applicable."
The Fourth Circuit pointed out that the case relied upon by the district court to deny Miller's 2255 motion involved the issue of whether the Supreme Court decision in Carachuri-Rosendo was retroactive. That case, however, had not passed on the retroactivity of Simmons.