Habeas Corpus Blog

Habeas Corpus - Following the Friedman Case

By JK

Back in August 2010, the Second Circuit issued an amazing opinion in the habeas case of Friedman v. Rehal.  In the opinion, the court denied habeas relief, but took the nearly unprecedented step of requesting that the DA's office conduct a reinvestigation of the case because "[t]he record here suggests 'a reasonable likelihood' that Jesse Friedman was wrongfully convicted."  Shortly thereafter, the DA's office announced that it would.

The opinion knocked my socks off.  I wrote multiple posts about the decision and the reinvestigation (1, 2, 3, 4, 5 -- read number 4 if you want to get a flavor of my excitement at the time).  I even wrote an article about it.  It was fantastic stuff.  I described it as a "once-in-a-blue-moon PPL* intersection in habeasland.  *What is PPL? P=pop culture; P=politics; L=law -- three of my favorite things."  The pop culture aspect of it was the "Capturing the Friedmans" documentary that set the whole habeas case in motion.  The politics was the fact that the DA who ordered the reinvestigation was running for higher office (she lost).  The law part is obvious. 

Last Sunday, the New York Times had a really interesting article about the status of the reinvestigation.  Sounds as if a lot of favorable evidence has been found, mostly in the form of recantations.  And it sounds like the Panel that was formed by the DA's office to review the case is going to issue its conclusions in the near future.  

I did a search of the internets and it turns out that the story has been all over the news lately (including a Village Voice cover story) in anticipation of the report.  Reading between the lines of the statements from the DA's office in the Times article, I am thinking that the DA's office is not going to agree to vacate the case on its own.  That won't be the end of the story, but it will mean that Friedman will have to fight it out in court if he wants to get the conviction vacated.

One thing I discuss in my article about the case is whether it's a good thing overall to have the DA's office conduct a reinvestigation of one of its own cases.  I will wait until the report is issued to make an assessment of that question in this particular case.  It sounds as if Friedman's attorneys and supporters did not just rely on the DA's reinvestigation, but continued their own investigation.  That is not always going to be possible for the defense.  It was also not clear from the article (or else I can't quite remember) if some of the more improtant recantations were found by the prosecution or the defense.  Hopefully, the report will make that clear.  Looking forward to reading it.

In the meantime, here was Friedman's attorneys July 2012 submission to the reinvestigation Review Panel.

Judge Garaufis (EDNY) Takes NY Trial Judge to Task; Prevents State From Retrying Old Murder Case

By Matthew Keller

 

Lopez v. Miller, No. 02 Civ. 3988
(E.D.N.Y. M&O filed Jan 16, 2013)

        When I read this case out of the federal court in Brooklyn back in January, I was excited to post about it.  But eventually so much time passed that I was afraid any post would be time-barred (like AEDPA, HCB's head honcho JK sets a high standard for timely blogging).  But the Supreme Court's decision in McQuiggin v. Perkins a couple of weeks back opened a door for me.  That case confirmed that there is an actual innocence exception to AEDPA's one-year limitations period.  However, Lopez v. Miller applied this exception back in January . . . and went on to grant a 2254 petition based on ineffective assistance of trial counsel.  A couple of months later, the court took the extraordinary step of forbidding New York from retrying the defendant, and ordered his release.  In response to Justice Scalia's anti-habeas diatribe in the McQuiggin dissent (discussed in JK's recent post on McQuiggin), I think it's appropriate to illustrate the type of case that McQuiggin now allows federal courts around the nation to address.

        Judge Garaufis’ opinion in Lopez is interesting for several reasons.  As I've already said, it foreshadowed McQuiggin by applying an actual innocence exception to an untimely habeas petition.  In doing so the court was following the Second Circuit's ruling last year, in Rivas v. Fischer (see HCB post here), that such an exception was required by due process.  Lopez is also rare in that the court grounded its habeas grant on a § 2254(d)(2) finding that the state court decision was based on unreasonably determined facts, as opposed to an unreasonable application of Constitutional law.

        Lopez is also noteworthy for reasons outside of habeas corpus law.  First, it has federalism implications; rarely does a federal judge take a state’s criminal justice system (and, especially, a state judge) to task as roundly as Judge Garaufis did here.  Garaufis wrote that the state court judge’s unexplained refusal to hold an evidentiary hearing to explore new evidence of innocence was “baffling” and resulted in a loss of important evidence (by the time the federal court hearing, two alibi witnesses were unavailable).    
 

        Second, Lopez is a stark example of justice delayed being justice denied.  Mr. Lopez filed his original § 2254 petition pro se in 2002.  Eleven years later a habeas court ruled that his state court murder conviction must be vacated because it resulted from a self-evidently bad witness ID, a lying prosecutor, and a baffling indifference to both of these by the state court judge. 

 
A “Rotten” Case 

        “The case of William Lopez began twenty-three years ago. It was rotten from day one.”  So begins Judge Garaufis’ 85-page M&O describing Lopez’s conviction for the 1989  murder of a Brooklyn drug dealer.  Pursuant to that conviction Lopez spent 23 years in prison.  Garaufis is unusually free with criticism of how New York state's criminal justice machinery operated in this case:  at one point he notes that, “the prosecution’s evidence was flimsy to begin with and has since been reduced to rubble by facts arising after trial.”  But he saves the real fireworks for the conclusion:
 

“Lopez’s habeas case presents a number of close legal issues, both because of the stringent standards governing federal habeas review and because of the unavailability of many key players. But what is far from close in the court’s view is that Lopez has been wronged by the State of New York. This wrongdoing has ranged from an overzealous and deceitful trial prosecutor; to a series of indolent and ill-prepared defense attorneys; to a bewildering jury verdict; and to the incomprehensible [New York Supreme Court] Justice Demarest, who so regrettably failed time and time again to give meaningful consideration to the host of powerful arguments Lopez presented to her. The result is that a likely innocent man has been in prison for over twenty-three years. He should be released with the State’s apology.”
 

The State should apologize?!?  I'm no historian, but I can't help thinking that it was humbling commands like this from Supreme authorities (i.e., the Crown) to the States that led in part to the American revolution.  Maybe that's why, even today, such direct criticism of state government by federal authorities is still rare.  And criticism in defense of a man convicted of murder?  Even when a man has been exonerated, many states in our nation treat him with slightly-concealed disdain (by, for instance, passing laws denying compensation to an exoneree who “contributed” to their wrongful conviction via a coerced confession or a guilty plea).*  What could have Judge Garaufis so exercised that he would suggest that a State actually apologize? 

            *  Such laws are an affront to our country’s tradition of liberty.  But I digress.  

Justice Delayed . . . A Really Long Time

       Lopez has a long procedural history that is worth summarizing.  Elvirn Surria dealt drugs in Brooklyn.  Late one night in 1989, two men shot and killed him in a Coney Island crackhouse.  A jury convicted Lopez of murder based entirely on the testimony of two witnesses, only one of whom identified Lopez in court.  That witness, Janet Chapman, testified that she saw the shooting through a half-open doorway.  She also testified that she had smoked ten to twelve vials of crack in the two hours prior to the shooting. The second witness came face-to-face with the shooter, and spoke with him, but could not recognize Lopez when she saw him in the courtroom.  During the trial New York Justice Carolyn Demarest stated that it was “not possible this defendant could have committed the crime” based solely upon the second witness’ testimony.

        Fast forward ten years.  Lopez’s state court appeals have all been denied.  In July 2002, he filed a pro se § 2254 Petition.  Almost two years later, in April 2004, the district court dismissed the petition as time-barred, since it was filed more than a year after the 1996 passage of AEDPA.  (Query number 1: Even granting the huge backlog of habeas cases in the Eastern District of New York, how on Earth does it take a federal court two years to determine that 2002 comes after 1997?) 

        Lopez moved for reconsideration of the dismissal, arguing actual innocence.  Shortly after his trial, Chapman told Lopez’s brother that she had falsely ID’d Lopez because of pressure from the police.  Ultimately, she provided an affidavit recanting her ID and stating that she testified falsely based on the trial prosecutor's promise that she’d get out of jail on drug charges if she testified.  And the kicker: Chapman also stated that “the district attorney told me never to tell anyone that we cut a deal about my testimony in exchange for my freedom.” 

        Judge Garaufis was concerned enough about these allegations that he granted the motion to reconsider and, in 2005, appointed a lawyer to investigate.  Fast forward another four years.  During that time counsel learned, among other things, that Chapman had died (Query number 2: why did that take four years to figure out?)  In 2009, Lopez moved to stay and abey his habeas petition so that he could exhaust state remedies.  A year later, Justice Demarest denied Lopez’s motion to vacate his conviction on the grounds that there was “strong evidence of guilt” at Lopez’s trial.

        One year after that, in November 2011, Lopez filed an amended 2254 petition.  In July 2012, Judge Garaufis ordered an evidentiary hearing on Lopez’s gateway actual innocence claim and his 2254 claim of ineffective assistance.  The court heard testimony from Lopez, his brother, and the trial prosecutor, Tess Allen.  In January 2013, the court reopened the hearing to allow new evidence from Cesar Diaz, who appeared via video conference from the Dominican Republic. Diaz, who was present at the scene of the murder, was shown a mug shot of Lopez taken soon after the crime and testified that he was “certain” that the person in the picture was not the shooter.

        Based on the new evidence presented at the habeas hearing, the court found Lopez’s gateway actual innocence claim to be credible (that is, “supported with new reliable evidence . . . not presented at trial”) and compelling (in that it warranted a conclusion that “more likely than not any reasonable juror would have reasonable doubt” if it had heard the new evidence), as required by the Second Circuit’s decision in Rivas.  In fact, the court stated that the new evidence was largely beside the point: “Even without the benefit of Lopez’s new evidence, a reasonable juror would likely have serious questions about Lopez’s guilt.”  The court called the case as presented to the jury a “toss-up at best” and took another swipe at Justice Demarest’s conclusion (in denying state post-judgment relief) that there was “strong evidence of guilt.”  That finding, the district court said, “contains no explanation and is, frankly, outlandish given the circumstances described above. The court gives it no deference.” 

Through the Gateway. . . .

        After the court admitted Lopez through the actual innocence gateway, it sustained his claim of ineffective assistance on the infrequently-used 2254(d)(2) ground that Justice Demarest’s decision denying Lopez’s IAC claim was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Essentially, the court found that Justice Demarest could not effectively evaluate the claim because she had refused to hold a hearing to resolve a credibility dispute between Lopez’s trial lawyer, who said he interviewed two potential alibi witnesses, and the witnesses themselves, who said he did not.  The failure of the state court to resolve this credibility dispute via a hearing led to a “materially incomplete” state court analysis and, as a result, the state court decision was unreasonable. 

        The court then moved to the merits of Lopez’s IAC claim and found that trial counsel had been ineffective in failing to call either of two potential alibi witnesses.  Judge Garaufis ordered New York to release Lopez within sixty days “unless [it] has, by that point, taken concrete and substantial steps expeditiously to retry [him].”

        Following the decision, New York re-arraigned Lopez on murder charges, but after that failed to "offer[ ] any other proof that it intends to promptly retry him."  Accordingly, on March 20, 2013, Garaufis ordered Lopez to be "immediately and unconditionally released" from custody.  He also ordered that "the State is BARRED from retrying him for the August 31, 1989, murder of Elvirn Surria" and "the State shall EXPUNGE Lopez’s conviction from its records and all references to him in the public record."  The court stated it was taking the rare step of forbidding a retrial because it was "convinced that this is one of the extraordinary cases that warrants an unconditional discharge with no future threat of retrial."  In justifying its order, the court took a final shot at New York's handling of the case:  "due to the errors of a State court judge, a State prosecutor, and counsel, Lopez was subjected to an unconstitutional deprivation of liberty for twenty-three years."

        I have to say that Lopez did not have a slam-dunk IAC claim.  Judge Garaufis seemed to recognize this - he found that trial counsel was not deficient for failing to interview the potential alibi witnesses (there wasn't sufficient evidence to figure out whether he had) but rather for failing to call them at trial.  But counsel had explained to Justice Demarest at the trial that he had considered calling them but had decided that the jury would likely not find them credible.  In my experience, federal habeas courts almost always defer to such strategic decisions by trial counsel.  In any event, I think its safe to say that this IAC claim could have gone either way.  What really drove the district court, I think, was the state court's repeated failures to examine the case as the evidence of a wrongful conviction mounted (especially the evidence that the prosecutor had deceived the trial court about its deal with Chapman).  Here, the district court was able to justify the habeas grant on an iffy IAC claim in light of several breakdowns during trial.  So we will have to keep waiting for the case where a defendant with a credible and compelling claim of innocence does not have a colorable claim of a Constitutional violation. 

Postscript

        As far as I can tell, New York State has not yet apologized to Lopez.  And as the history of this case shows, the State did not do much to help him, even after it became clear that there were serious problems with his conviction.  But karma finds a way: New York ultimately did play a role in helping to free Lopez.  Another exoneree, Jeffrey Deskovic (released in 2006 after serving 16 years for rape and murder based on a coerced confession), used some of his $8M settlement with the State to start a foundation to assist other inmates with credible innocence claims.  Deskovic's foundation partly funded Lopez's habeas case.  

Habeas Corpus - Supreme Court Provides Innocent State Prisoners a Glimmer of Hope

By JK

Last week, in a 5-4 decision, the Supreme Court decided McQuiggin v. Perkins.*  The Court held that a Schlup gateway “actual innocence” showing can overcome the one-year statute of limitations time bar. Ginsburg wrote the (nice) majority opinion and Scalia wrote the (troubling) dissent. 

*As I was adding the link, I just realized that McQuiggin (kind of) rhymes with Chief Wiggum. Can't say that about the parties in too many S.Ct. decisions.  Alas, the shorthand for the case technically should be Perkins, as McQuiggin is the name of the warden.  I am guessing, though, that more people will refer to this case as "McQuiggin" rather than "Perkins".

The majority's opinion is a satisfying result for habeas fans.  It’s completely consistent with the equitable principles of habeas law. It’s also consistent with the way that the rest of habeas law is structured, as an actual innocence claim can be used to overcome any other procedural shortcoming.

Important to note what exactly the Court did hold here: there is an actual innocence exception to the statute of limitations.  It stands on its own as it's own procedural thing. As a habeas attorney pointed out to me at one point, the petitioner in this case mistakenly argued that actual innocence could be ground on which the time limit could be equitably tolled. But that’s not what’s going on here. Equitable tolling is one exception. Actual innocence is another. They are now two separate exceptions available to a habeas petitioner. A petitioner can rely on actual innocence to get over the timeliness hump even if there are no grounds to equitably toll the limitations period.

Another important part of the opinion was that the Court concluded that, unlike equitable tolling, there is no diligence requirement. Rather, any argument about the staleness of the innocence evidence or the length of time it took a petitioner to either find the evidence or present it to a court is simply a factor to weigh in determining the strength of petitioner’s claim of actual innocence. In fact, as the Sixth Circuit held below, a diligence requirement for this type of claim is completely illogical. It was really nice to read the Court actually agreeing with something the Sixth Circuit had said.

One interesting note is that the petitioner won on the law, but lost the case. The Court deferred to the district court’s conclusion that his showing was insufficient to meet the Schlup standard. As a lawyer, it’s an odd feeling to get this type of opinion. You feel good that you were right on the law, but you feel horrible that you lost the case. And the loss dulls whatever excitement you may have had that you were right. At least short term. With some perspective and time, it becomes easier to say that at least I made good law for other people, even if it didn’t help my client. It’s probably toughest on the ego, though, as it actually does count as a loss.

Speaking of the loss column, let’s talk about the dissent. It really is a p.r. disaster for the anti-habeas crowd. It’s a tough sell to a lay person that it's okay for someone who can prove their innocence to have to rot in jail. I have seen many people in the media frame it that way. It just makes these judges appear cruel. I guess you have to hand it to the dissenters, they don’t care about how they look in the public eye.  But it’s exactly what I felt when Scalia dissented from the denial of cert. in Cash v. Maxwell (one of those cases where the system clearly went horribly off the tracks) – is this really a situation where the judges want to take a stand against the habeas petitioner? The equities clearly are on the side of the petitioner.

But beyond the p.r. mess, I didn’t really find the arguments in the dissent that persuasive. Scalia’s main claim is that this is the first time that the actual innocence exception has been applied to a statutorily created procedural hurdle, as opposed to a judge-created procedural hurdle. It boils down to an accusation of judicial activism. But it’s a pretty hollow complaint. While his argument, on its own terms, is hyper-technically accurate, it’s not really accurate in the grand scheme of things. Exhaustion is part of the statute, and actual innocence can be used to overcome a procedural default along the way to exhausting a claim. While one step removed, it’s really not that different logically. And of course the irony is that the Supreme Court has been highly active for years in creating procedural rules that don’t exist in the statute. Because equity and fairness (in most situations to the State and its courts). But these concerns obviously can go in the other direction, and the majority was relying upon these principles to make a ridiculously harsh statute more equitable.  

To note, Scalia even has to acknowledge that the Court has already created an exception to the statute of limitations, namely equitable tolling. He differentiates it from actual innocence in that equitable tolling has been around for a long time. Yawn. The actual innocence exception to overcome procedural hurdles has been around for years, and is as old as many of the procedural hurdles that the Court has created. Further, innocence has always been at the heart of modern habeas law – meaning for over 60 years. And, once again, equity and fairness. That’s why equitable tolling typically is allowed for a statute of limitations. It’s the exact same reason the actual innocence exception has now been allowed by the Court in the habeas context -- the imprisonment of an innocent person is one of the greatest inequities that our society faces.

But I haven’t even reach the real cynical part of the dissent. For years, I have been joking on here that much of what the Court does seems to be motivated by nothing more than hatred for habeas corpus. I thought it was only hyperbolic. Turns out it was true.  

At the end of the dissent, Scalia launches into an anti-habeas diatribe (so extreme that Alito won’t even join it). He states:

It has now been 60 years since Brown v. Allen, in which we struck the Faustian bargain that traded the simple elegance of the common-law writ of habeas corpus for federal-court power to probe the substantive merits of state-court convictions. Even after AEDPA's pass through the Augean stables, no one in a position to observe the functioning of our byzantine federal-habeas system can believe it an efficient device for separating the truly deserving from the multitude of prisoners pressing false claims. "[F]loods of stale, frivolous and repetitious petitions inundate the docket of the lower courts and swell our own. . . . It must prejudice the occasional meritorious applicant to be buried in a flood of worthless ones." Id., at 536-537.

The "inundation" that Justice Jackson lamented in 1953 "consisted of 541" federal habeas petitions filed by state prisoners. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 143 (1970). By 1969, that number had grown to 7,359. Ibid. In the year ending on September 30, 2012, 15,929 such petitions were filed. Administrative Office of the United States Courts, Judicial Business of the United States Courts 3 (Sept. 30, 2012) (Table C-2). Today's decision piles yet more dead weight onto a postconviction habeas system already creaking at its rusted joints.

Talk about blaming the victim. The only reason that habeas is somehow “creaking at its rusted joints” is because Justice’s like Scalia broke it with those “byzantine” procedural hurdles. It’s like the current Republicans in Congress complaining that government doesn’t work after they cut the funding necessary to make the Government work.  

Really, he is just unhappy that the Court breathed a small bit of life into habeas. And it really is a very tiny bit. But at least it’s something.

I’ll just close by saying this: This blog has been around for over four years now and we have seen plenty of examples on here of why habeas review remains a vital and necessary element of the criminal justice system. And contrary to what Scalia suggests, I will say as a full-time habeas litigator that meritorious habeas cases are not prejudiced from a flood of stale habeas petitions. Not in the least. They are prejudiced – solely – from the harsh standards of the AEDPA, which has ensured that many constitutional violations do not get remedied.  Get rid of the AEDPA and you will see a miraculous disappearance of, not just the creaking, but also the rust from the joints -- and fast.  If only Billy Mays was still around to sell this simple remedy.

  

Habeas Corpus - Supreme Court Action 2/25

By JK

Looks like Habeas Day brought out a lot of laughter at the Court today.  I counted at least six times between the two arguments where the transcript reads (Laughter.).  But all the laughter appeared to stop once Justice Kennedy shamed the other judges into taking capital cases a little more seriously.  At least, that's how I read the transcript.  Here's the relevant exchange (from pages 41-42 of the Trevino transcript):

JUSTICE BREYER: I'm being sarcastic there but I don't mean to be. I mean, you see what I'm trying to get to.

JUSTICE SCALIA: It was the nose of the camel, which is what Martinez was -- which is what the dissent said, actually.

(Laughter.)

JUSTICE BREYER: Yes, the dissent said that.

(Laughter.)

JUSTICE KENNEDY: This is very amusing in a capital case.

Here are my quick takes on the two cases from the argument (gonna use some short cuts, sorry for the lack of context):

Perkins - seems to be at least five judges willing to say that actual innocence can be used to get an untimely petition into court, but that there will be some kind of diligence requirement.  Not sure what that will eventually look like though.

Trevino - the argument was a mess.  The parties seemed to argue most over what the Texas law actually says.  The judges seemed a little exasperated by all of it.  But it does appear as if there are at least five judges that seem willing to expand Martinez (or "clarify" Martinez to include State's beyond Arizona).

The transcript for Perkins is here.  The transcript for Trevino is here.

The other big news at the Court today was cert grants in a habeas case and a front-end criminal case.  They are:

Burt v. Titlow, 12-414

(1) Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in holding that defense counsel was constitutionally ineffective for allowing respondent to maintain his claim of innocence; (2) whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea; and (3) whether Lafler v. Cooper always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.

Kansas v. Cheever, 12-609

(1) Whether, when a criminal defendant who affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, the state violates the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant; and (2) whether, when a criminal defendant testifies in his own defense, the state violates the Fifth Amendment by impeaching such testimony with evidence from a court-ordered mental evaluation of the defendant.

A cert. grant in a Sixth Circuit case in which habeas relief was granted probably means that a reversal is on the way.  But, even with these elements present, I am not sure whether that is automatic for this one -- Lafler is just too new.  There could be a chance that the Court just wants to give helpful guidance in those cases.  Yeah, that's probably wishful thinking. It seems more likely that a cert. grant to the State means that the Court wants to take the habeas grant away.  

Habeas Corpus - February Calendar

By JK

The Supreme Court released its calendar for it's February sitting.  

And there is going to be a habeas day! This time, it's February 25, 2013!  The two most recent habeas cert. grants, McQuiggin v. Perkins and Trevino v. Thaler, are both calendared for that day.

For more on those cases, please read Matt's post about McQuiggin and Alex's post about Trevino. 

McQuiggin v. Perkins: The Due Diligence / Actual Innocence Showdown

By MK

A few weeks back, Jonathan posted the Supreme Court's cert grant in McQuiggin v. Perkins, No. 12-126.  The case will not be argued until early 2013.  But this week an article appeared about the case by Times court-watching superstar Adam Liptak, so I figured it would be a good time to start following it here. 

The underlying case is fairly simple.  Three men leave a party: two return, the third is found dead.  One of the two (Perkins) is put on trial - he says the other guy did it.  "Other guy" testifies that Perkins did it.  The jury believes Other guy and Perkins is sentenced to life.  Over the following five years, Perkins obtains affidavits from three people casting suspicion on Other guy (including one from a local dry-cleaner who remembers Other guy dropping off heavily bloodstained clothes around the tiime of the murder).  Perkins then waits ANOTHER six years to file his 2254 petition. 

The case deals with a question that has divided the Circuits for several years: whether a late-filing habeas petitioner seeking equitable tolling of AEDPA's 1-year limitations period needs to demonstrate his due diligence in bringing his claim even when he makes a bona fide (or "gateway") claim of actual innocence.  Or, as the Question Presented puts it: "Whether there is an actual-innocence exception to the requirement that a petitioner demonstrate that "he has been pursuing his rights diligently."

The issue is superficially procedural, but the case is very important for three reasons.  The one-year bar imposed by AEDPA in 1997 still catches many prisoners unawares, so equitable tolling cases come up fairly often.  And the law in this area is still fluid: one of AEDPA's ironies is that a limitations period designed to cut the habeas workload of the federal courts in practice spawned an entirely new habeas subspecialty dealing with exceptions to the one-year bar. 

Most importantly though, the issue invokes a deep tension running through postconviction law in general.  On the one hand, no lawyer (and certainly no Supreme Court Justice, except maybe J. Scalia) is comfortable with the idea of tossing a credible claim of innocence simply because it was filed late.  As the pace of exonerations grows, so too does this discomfort.  On the other hand, a broad "actual innocence exception" credibly threatens to swamp the general rule of due diligence.  As the amicus brief of ten states bluntly puts it: "unscrupulous prisoners falsely claim that they are innocent all the time.”  Even more would do so in order to get their late claims heard under the proposed exception.

Given the importance of the issue, it's not surprising the Supreme Court decided to hear it.  And the Court likely wants to provide some consistent guidance.  It's prior discussions of actual innocence are hardly consistent.  In House v. Bell, 547 U.S. 518 (2006), the Court suggested that gateway actual innocence claims are not subject to any "additional requirements.”  Other cases, such as Holland v. Florida, 130 S. Ct. 2549 (2010), and Pace v. DiGuglielmo, 544 U.S. 408 (2005), indicate that "those seeking equitable tolling must, in general, pursue their claims with reasonable diligence.”

Liptak raises an interesting possibility: the Court could find that Perkins actually was dilligent.  The State points out in its cert petition that Perkins "has never argued that he was diligent in waiting six years . . . until filing his habeas petition."  But Liptak refers to district court filings in which Perkins contends that he was hampered in his efforts when prison staff destroyed his personal property "following petitioner’s involvement in inciting a riot."  Perkins also contended that he "was denied access to the law library and law materials while he was held in solitary confinement" for almost five years.

I don't think the Court will go this route.  It is true that the evaluation of due diligence must not “ignore the reality of the prison system,” Easterwood v. Champion, 213 F.3d 1321 (10th Cir. 2000).  But Perkins has had many chances to substantiate his due diligence claims and yet has apparently not done so.  More importantly, it is unlikely that the Supreme Court will avoid settling the Circuit split.  A finding of due diligence would make any answer to the QP obiter dictum. 

More to come on this interesting case. . . .

 

Habeas Corpus - New Cert. Grants

Just last week, I mentioned that the Supreme Court doesn’t have much on its habeas plate this term. Well, that changed a little Monday.  The Court granted cert. in two habeas cases:

(1) McQuiggin v. Perkins, 12-126

Issue: Whether, under the Antiterrorism and Effective Death Penalty Act of 1996, there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition, and if so, whether there is an additional actual-innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.

(2) Trevino v. Thaler, 11-10870

Issue: Whether Martinez v. Ryan applies when a State court system allows a defendant, in some circumstances, to bring an IAC claim on appeal as opposed to requiring all IAC claims to be brought in a post-conviction proceeding

There is a circuit split on the primary issue in McQuiggin, which truly surprises, and disappoints, me.  Seems like a no-brainer to me: it is an exception to every other procedural default.  Why treat the statute of limitations any differently?  Particularly in a situation where equitable tolling is already allowed.  While the cert. grant makes me nervous, I actually think that it could go as much as 7-2 in favor of the actual innocence exception (hope I don’t have to eat those words).  

The diligence issue is a much closer call. Oddly, the McQuiggin case only dealt with the diligence issue; the Sixth Circuit had previously held that the exception existed.  The Sixth Circuit held in McQuiggin that there was no diligence requirement, which actually makes a lot of logical sense in this context – the whole reason why the exception is necessary is because the petitioner wasn’t diligent in filing the petition.  A diligence requirement would nullify the exception in many circumstances.*  The court's language actually was: "[W]e find that such a reading [which would require reasonable diligence] would render the concept of equitable tolling nugatory."

*That's a small oversimplification.  I guess it could be that a habeas petitioner may not have been diligent in filing the habeas petition, but was diligent once he obtained new evidence.  The only problem with such a distinction is that several courts, including the Ninth Circuit, have held that "new evidence" under the actual innocence exception does not require newly discovered evidence, but simply "newly presented" evidence (i/o/w evidence that may have always been known, but was not presented at trial).  In that situation, the lack of diligence in timely filing the petition would apply equally to the actual innocence claim.  If I have to guess, I'd say that this situation has the potential to pop up much more often than a "newly discovered evidence" actual innocence claim. 

I am worried about the Trevino case.  It will either provide reinforcement and strength to the Martinez rule (hope, hope, hope) or it will painfully limit it down to a very narrow set of circumstances.  Really hard to predict at this point.  The oral argument will provide a very good indication of where this is going.  But my sense is that the Court will have to apply Martinez to this type of situation, or else it would give the States too big an out to avoid the effects of Martinez.

Habeas Corpus - The Good, The Bad, The Summary Reversal

There are three relevant Supreme Court decisions from the past couple of months that I have yet to cover.  They are in order of release: Hardy v. Cross, Cash v. Maxwell, and Perry v. New Hampsire.  So, just to make sure I put something up about them, I thought I'd stick them all in the same post.

There isn't a theme that connects all three.  But they aren't completely disconnected, either.  There was some great work from Sotomayor in Maxwell (in an opinion respecting the denial of cert.) and Perry (in dissent).  In both cases, she shined a light on two of the greatest causes of wrongful convictions: misidentification and jailhouse informants.  It's sad that, in the DNA era of wrongful convictions, not a single other judge joined her opinions or expressed any concerns about these problems in the criminal justice system.

I'll start with the front-end case of Perry.  In an opinion by Ginsburg, the Court holds that only identifications procedures arranged by the police are subject to pretrial suppression hearings to determine the reliability of the identification.  Those procedures that are not police arranged, such as where a civilian convinces another person in some manner that the defendant is the perpetrator, cannot be the subject of a pretrial hearing to determine  reliability.  So, even though an identification could have been made under extremely suggestive circumstances, it remains completely reliable evidence that a jury is free to hear and use to convict someone, so long as the police did not arrange it.  Let me repeat, Ginsburg wrote that.  Sotomayor dissented. 

I expressed my outrage about where the Court was going with the case back at the time of the argument.  As I said then, the disjunction between the Supreme Court and where society is at on these matters is striking and tragic.  As everyone around the country acknowledges, we should be doing more to protect against misidentifications, not less.  Only Sotomayor in her dissent showed any acknowledgement of the problem.

Back when the Supreme Court issued its opinion in the prison overcrowding case Brown v. Plata, there was a hyperbolic line in Scalia's dissent in which he stated "terrible things (were) sure to happen as a consequence of this outrageous order."  Let me be equally hyperbolic: terrible injustices are certain to happen as a consequence of the misguided Perry decision.  Innocent people will be wrongfully convicted and maybe even sentenced to death and executed as a result of Perry.  The Supreme Court had a chance to take a small step to make the system more fair.  Instead, they basically went backwards.*

*Once again, in an opinion by Ginsburg, a member of the alleged "liberal wing" of the Supreme Court.  Of course, that isn't going to stop pretty much every commentator from describing her (and Kagan and Breyer who joined her opinion) as liberal.  Tragic on many levels.  

On the other hand, Maxwell actually was a bright spot in habeasland.  The main issue in Maxwell focused on the reliability of a jailhouse informant.  The particular informant who had testified against Maxwell, Sidney Storch, was an infamous liar who had repeatedly testified in criminal cases as a jailhouse informant in order to gain personal advantages.  As I discussed in a prior post, outside of the unreliability of the jailhouse informant, the evidence of guilt was nearly non-existent.  There were compelling reasons to believe that an innocent man had been wrongfully convicted and sent to prison for life.

In Maxwell's case, the state courts premised its denial of relief on the factual finding that there was “no credible or persuasive evidence Sidney Storch lied at [Maxwell’s] trial in 1984.”  The Ninth Circuit had granted habeas relief, "meticulously set[ting] forth an avalanche of evidence demonstrating that the state court’s factual finding was unreasonable."*

*Quotes are from Sotomayor's opinion, discussed more below.

After relisting the case numerous times, the Supreme Court finally denied cert.  That was welcome news.  It also probably means that Maxwell won't be retried and will eventually be released.

Sotomayor issued an opinion respecting the denial of cert., stating that the Ninth Circuit properly did its job -- both procedurally and substantively -- in concluding that the state court's factual finding was unreasonable.  Although not directly, her opinion does raise some awareness about the problem of jailhouse informants in detailing the ways that Storch used alleged jailhouse confessions to get personal benefits.  And Storch is far from the only problematic jailhouse informant out there.

Scalia, joined by Alito, dissented from the denial of cert.  He makes the same old complaint that the Ninth Circuit didn't show enough deference to the state court.  His analysis isn't very persuasive, as he relied upon evidence that even the state courts found to be ludicrous.  As Sotomayor points out, Scalia's argument boils down to this: although there was evidence showing that Storch lied almost every time he opened his mouth, he miraculously told the truth about Maxwell's jailhouse confession.  It's pretty ridiculous.  At bottom, it appears that Scalia was simply taking another opportunity to criticize the Ninth Circuit -- a standard conservative legal dog whistle.

Finally, Hardy v. Cross was another entry in the Supreme Court's expanding "summary reversal based on a lack of deference" jurisprudence (Maxwell obviously escaped that fate).  The full Court concludes that the Seventh Circuit was not sufficiently deferential to the state court's conclusion that the prosecution made a good faith effort to find an unavailable witness. 

The opinion is short and there really isn't much in it.  My sense is that the Seventh Circuit cut through the b.s. and understood that the prosecution's claim of good faith was empty, as the prosecution made the most minimal effort to find the witness.  But I am constrained to agree that the law basically says that the minimal effort that was made there was all that's necessary.  Of course, as I am sure the Seventh Circuit understood, if the prosecution or the police really wanted to find the witness (for example, if they wanted to arrest her), it would have taken them probably about an hour to do it.  But that's not the standard.  So it's hard to say that the state court acted unreasonably.  But that is not to say that this was fair.  Just not (apparently) unreasonable.

Habeas Corpus - Around the U.S. - Part I

Some stuff I've seen:

A preview of the upcoming Supreme Court arguments from the North Country Gazette.

Speaking of Lafler v. Cooper, the Buffalo News had an article about the arrest of a man who obtained habeas relief in WDNY back in 2006 based on IAC during plea negotiations in a drunk driving prosecution in which he had struck and killed some people while drunk driving.  He was arrested for leaving the scene of a car accident that injured three people.

An article from Erwin Chemerinsky about the need for empathy on the Supreme Court.  One situation he points to is what happened in Maples.

More Troy Davis/anti-AEDPA coverage here.  The article indicates that, back in 2009, Rep. Hank Johnson from Georgia introduced legislation called the Effective Death Penalty Appeals Act (I guess it would be called "EDPAA," pronounced as a word the same as "AEDPA").  It received 17 co-sponsors, was referred to a sub-committee, but never obtained a hearing.  Here's the text of the statute.  The only change it would have made would have allowed a court to grant habeas relief in capital cases if petitioner could show that he was innocent.  Significant, but does not really address most of the complaints about the AEDPA.  Or at least it does not address my complaints.

Blood boiling time: two lawyers, one of whom served in the Reagan and Bush I Justice Departments, give a full-throated endorsement of the death penalty in response to the criticism from people upset over the Troy Davis case.  In their mind, the only problem with the death penalty in this country is that people are wasting everyone's time complaining about it.  I wish that was an unfair oversimplification of their position, but it really isn't.  A reader responds, what if the person executed is innocent?  Their response (and I really am not making an unfair oversimplification here) -- too bad.  They say that you can't have "perfect justice, which is impossible.  But the administration of the death penalty in the United States is as close to perfect as it gets."  A footnote adds that three times a day, the writers remove their heads from the sand in order to eat. 

Habeas Corpus - Around the U.S. (Abridged Version) - Corrected

Just a couple of things I've seen lately.

There was a somewhat recent habeas grant out of the Western District of Pennsylvania based on prosecutorial misconduct.  According to this article, "the prosecutors relied almost entirely on the testimony of a single witness who claimed to have witnessed Munchinski rape and shoot the two victims. However, the federal court judge said in her ruling that the alleged witness's story changed so often 'that one wonders whether he witnessed the murders at all.'"

The MJ who decided the petition also granted petitioner's request to be released from custody pending a new trial.  Petitioner had been in prison for 25 years.  The name of the case is Munchinski v. Wilson.

A really interesting habeas case out of Michigan referred to as the "Mother's Day Murder."  According to this article and video, a 7 Action News reporter in Detroit found a new eyewitness for the defense.  On Mother's Day 1999, a woman was shot while parked in a minivan with her three children aboard.  She later died.  Turns out the police never interviewed (at least) one of the children in the car.  This reporter found this child (who is obviously much older now) and he says that he could identify the shooter and his description of the shooter does not seem to match the description of either person who was convicted of the crime.  Most troubling to me was that it appears that the main evidence against the two people convicted of the crime were witnesses who claimed to hear the two defendants talk about the murder.  Those people later recanted saying that the police threatened them to implicate the defendants.

The habeas angle: the case is currently at the habeas stage in federal court.  The DJ assigned to the case has granted a stay to allow petitioner Justly Johnson to pursue the newly discovered evidence issue in state court.

Finally, on October 31 November 2, the Supreme Court is going to hear argument in the habeas case of Gonzalez v. Thaler.  Appeal and Habeas has a preview.