Habeas Corpus Blog

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.