Habeas Corpus Blog

Extending Martinez

By JK

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Second Circuit Ruling on Double Jeopardy / 2241 Petitions

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

by Matthew Keller

 

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

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

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

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

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

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

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

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

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

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

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

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

Harmless Error Resurrected

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

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

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

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

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

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

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

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

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

Coda       

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

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

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

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

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

 

Habeas Corpus - Cert. Grant in Habeas Case

BY JK

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

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

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

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

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

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

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

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

Habeas Corpus – Rhines Stays

By JK

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

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

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

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

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

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

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

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

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

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

Habeas Corpus - 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.

Alito and Error Correction

    By Alexandr Satanovsky

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

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

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

 

Habeas Corpus - Reinhardt Opinions - Part I

By JK

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

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

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

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

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

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

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

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

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

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

Habeas Corpus - Previewing (kind of) the October 2013 Term - Updated

By JK

Next Monday, the Supreme Court is going to kick off its October 2013 Term.  And for the first time in a few years, it does not have any heavy duty habeas cases on the docket.  That could potentially change with the results from today's long conference (to be released on October 1).  

But for now, the Court only has two agenda-driven-Sixth-Circuit-error-correction cases on its habeas docket.  Both of these concern review of habeas grants out of the Sixth Circuit and both will get reversed.  The only question is whether any bad law for habeas petitioners, beyond the typical "no deference" analysis, will come with them.

Actually, I shouldn't be so negative.  Burt v. Titlow could expand upon Lafler in a positive way.  I guess we will see from the argument next week whether there is any chance for that.  Unfortunately, I am not sure that there is any hope in the Woodall case.  That looks like a standard 2254(d)(1) reversal.  But maybe that one can buck the trend.

Here they are (issues are presented as they are in the States' cert. petitions):

(1) Burt v. Titlow, 12-414

• To Be Argued 10/8/2013
• Issues: (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 tomaintain 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.

(2) White v. Woodall, 12-794

• To Be Argued 12/11/2013
• Issues: (1) Whether the Sixth Circuit violated 28 U.S.C. 2254(d)(1) by granting habeas relief on the trial court's failure to provide a no adverse inference instruction even though the Supreme Court has not "clearly established" that such an instruction is required in a capital penalty phase when a non-testifying defendant has pled guilty to the crimes and aggravating circumstances; and (2) whether the Sixth Circuit violated the harmless error standard in Brecht v. Abrahamson in ruling that the absence of a no adverse interference instruction was not harmless in spite of overwhelming evidence of guilt and in the face of a guilty pleas to the crimes and aggravators.

UPDATE: The Court issued an order list from the long conference today and no cert. grants in habeas cases.  So it remains, for now, a relatively inactive habeas docket for the Court.

 

Habeas Corpus - Checking In on Sessoms

By JK

Hello again, internets.  Been a long while since I posted something.  Too long.  Let's just blame the sequester.  I hope to start posting more regularly.  Fortunately, Matt has been putting up a lot of good stuff over the past few months so the group blog remained active as I adjusted to life under sequestration.  Which looks like it will painfully continue for the foreseeable future. And don't even get me started about the likely shutdown.  Grrrr. 

Back in August 2012, the legendary Betty Fletcher wrote the 6-5 en banc decision in Sessoms v. Runnels, granting habeas relief based on the police obtaining a statement from a defendant after he had invoked his right to counsel.  

Petitioner, a 19-year-old, was taken into custody and, before he was given his Miranda rights, the following exchange occurred: 

Sessoms: There wouldn't be any possible way that I could have a — a lawyer present while we do this?

[Detective]: Well, uh, what I'll do is, um —

Sessoms: Yeah, that's what my dad asked me to ask you guys ... uh, give me a lawyer.

The California courts rejected his right to counsel claim because, in their view, he had not made an unambiguous request for an attorney.  Judge B. Fletcher* concluded that California unreasonably extended this standard to this situation.  According to Judge Fletcher, the "unambiguous" request test applies after Miranda has been given.  But before the rights are read, a request such as the one here is sufficient to assert the right to counsel under clearly established Supreme Court law that focus on pre-Miranda invocation of the right to counsel.  Beautifully reasoned opinion.

*I use "B. Fletcher" here since her son William Fletcher is also a judge on the Ninth Circuit.  So saying Judge Fletcher used to be imprecise.  At this point, if you write Judge Fletcher, you should probably be referring to W. Fletcher.

But, come on.  Let's have some real talk (NSFW due to language, I believe). In the real world, this was obviously a request for an attorney.  Breaking out, as I typically do, my uncommon sense meter, who in their right mind would not believe that this kid was asking for an attorney?  Even the police officers in this case believed that he was, as they responded to his request by convincing this young guy that having an attorney present was not in his best interest.  Feels like irony lives somewhere in there.  It rates pretty high on the meter.

Sadly, this great decision was Judge B. Fletcher's last habeas opinion.  She passed away in October 2012.

The warden sought cert. in the Supreme Court and it sat up there for the second half of the Court's term.  Then at the end of June 2013, the Supreme Court GVR'd the case based on Salinas v. Texas -- the uncommon sense case that says that you have to speak in order to remain silent.  To note, Sessoms had a different name up in the high court due to a new warden: Grounds v. Sessoms.  

Sadly again as a result of the GVR, Judge Fletcher's opinion is no longer on the books. My sense is that the GVR was a compromise among the liberal and conservative judges to avoid having to deal with a case that is not an ideal candidate for a summary reversal.  On a cynical and grisly level, it's possible that the conservative judges may also have decided to take a gamble and send it back down knowing that the lineup in a close 6 to 5 opinion was going to change now that Judge B. Fletcher could no longer participate.  But no judges would actually think that way, would they?

On remand, the Ninth Circuit ordered further briefing on whether Salinas is relevant to Sessoms. Obviously, it isn't.  And I think that's probably why the court framed the question as whether that case is "relevant" as opposed to what "impact" it had on the case.

I checked the lineup for the new en banc panel (you have to scroll down a ways on the Ninth Circuit's en banc page to find it).  The lineup remains the same, except Judge M. Margaret McKeown has now replaced B. Fletcher.  She is a Clinton appointee and has been around for awhile.  I have been told that it's a pretty good draw for the habeas petitioner.

Going be interesting to see what happens here.

 

Two Recent Seventh Circuit Decisions

By Matthew Keller

A quick post on a couple of Seventh Circuit decisions issued in the past couple of weeks:

     First, the Seventh Circuit quickly put the kibosh on habeas petitions asserting claims based on Alleyne v. United States (U.S. Jun. 17, 2013), the recent Supreme Court decision holding that Apprendi extends to facts mandating a mandatory minimum sentence. 

     In Simpson v. United States, No. 13-2373 (7th Cir. Jul. 10, 2013), the Circuit disposed of Levence Simpson’s request to file a successive § 2255 motion based on Alleyne.  Simpson received a 20-year mandatory minimum sentence for drug offenses; the Seventh Circuit affirmed in 2003.  His first § 2255 motion, claiming ineffective assistance, was denied in 2006. 

     Then came Alleyne, which overruled Harris v. United States and held that a judge cannot find facts resulting in a mandatory minimum unless the defendant either admits those facts or waives his entitlement to have a jury make that determination.  After Alleyne, Simpson argued that he was entitled to a successive § 2255 based on the “new constitutional rule” created by that decision.

     The Seventh Circuit denied Simpson leave to file a successive § 2255.  The easiest way to do this would have been to limit it to Simpson's facts: in his case the jury had found, by way of a special verdict, that he conspired to distribute more than one kilogram of heroin and more than 50 grams of crack (thus requiring the 20-year mandatory minimum). 

     But the Seventh Circuit, no-doubt envisioning a tsunami of Alleyne-based prisoner claims, went a bit further.  It conceded (as it had to) that Alleyne established “a new rule of constitutional law.”  But the Court noted that Alleyne did not satisfy the second requirement of § 2255(h)(2): that the Supreme Court make the new rule “retroactive to cases on collateral review.”  The Supreme Court did not do this; Alleyne came to the Supremes on direct, not collateral, review and the Court's decision says nothing about retroactivity.  For good measure, the Circuit noted that other extensions of Apprendi have been held to be non-retroactive. 

Taylor v. Ground, No. 12-2632 (7th Cir. Jul. 3, 2013)

     A week before Simpson, the Seventh Circuit granted a habeas petition based on an attorney's conflict of interest in a joint representation.  You don't see many of these claims, especially in big cities where public defender organizations and Criminal Justice Act panels generally do a good job of providing separate counsel where there is even a potential for conflicts.  So a habeas grant on conflict grounds coming out of Chicago deserves a bit of digging.*

* For all you history buffs, this months' NY State Bar Journal has a good article about the Boston Massacre trials, one of the most famous joint representations ever. John Adams represented both the British soldiers who fired into the crowd and the officer who was charged with giving the order to fire.  These days, such a joint representation would never be allowed.  But no one seemed all that concerned at the time.

     In Taylor, Levell Taylor was convicted of murder in Illinois and sentenced to 35 years for the 1996 gang-related killing of Bruce Carter.  On direct appeal, he claimed that his counsel operated with a conflict of interest by jointly representing both him and his brother, Lowell, in simultaneous murder trials.  In particular, Taylor argued that his lawyer’s refused to call certain exculpatory witnesses at his trial because those witnesses might have implicated Lowell.  This is a classic conflict claim, but the Illinois Supreme Court found no conflict and affirmed the conviction

    On § 2254 habeas review, the district court upheld the Illinois Supreme Court.  However, it granted COA on the issue: "[w]hether trial counsel's joint representation of Petitioner Levell Taylor and his co-defendant/brother, Lowell Taylor, violated Petitioner's constitutional right to the effective assistance of counsel under the Sixth and Fourteenth Amendments. . . .” 

     The Seventh Circuit disagreed with the district court. It found that the Illinois Supreme Court unreasonably applied US Supreme Court precedent by holding that Taylor’s interest in presenting exculpatory witnesses did not conflict with Lowell’s interest in preventing admission of inculpatory testimony. 

     The governing Supreme Court law, Cuyler v. Sullivan, 446 U.S. 335 (1980), requires a reviewing court to analyze whether there was a defect in counsel's strategy, tactics, or decision-making attributable to a conflict of interest.  According to the Seventh Circuit, the Illinois Supreme Court unreasonably applied Cuyler.  The Supreme Court:

"unreasonably declined to perform any analysis of Taylor's potential defense in assessing his Sixth Amendment claim. If it had, the court would have arrived at the inescapable conclusion that Taylor's potential strategy was sufficiently plausible such that his interests were at odds with those of his brother in deciding whether to pursue a unified assault on the State's evidence."*

*Specifically, the Circuit noted that three eyewitnesses identified Lowell as the shooter but did not see Taylor hand Lowell a gun. According to the Circuit, “these witnesses would have refuted the State's only evidence connecting Taylor to the crime.”

     The Circuit remanded for fact-finding required under Cuyler - whether the conflict of interest between the two brothers adversely affected the attorney’s performance.

     In the Second Circuit, pursuant to a decision called Curcio, the Court is required to explain to codefendants who wish to share counsel the risks of joint representation.  I don't know what the practice is in the Seventh Circuit, but it sounds as if there should have been more of an effort at the beginning to think through the conflicts between Taylor and his brother.  As this decision illustrates, it's better to get those issues out in the open early on rather than dealing with them after trial.   

   A quick post on a couple of Seventh Circuit decisions issued in the past couple of weeks:

     First, the Seventh Circuit quickly put the kibosh on habeas petitions asserting claims based on Alleyne v. United States (U.S. Jun. 17, 2013), holding that Apprendi extends to facts mandating a mandatory minimum sentence. 

     In Simpson v. United States, No. 13-2373 (7th Cir. Jul. 10, 2013), the Circuit disposed of Levence Simpson’s request to file a successive § 2255 motion based on Alleyne.  Simpson received a 20-year mandatory minimum sentence for drug offences; the Seventh Circuit affirmed in 2003.  His first § 2255 motion, claiming ineffective assistance, was denied in 2006. 

     Then came Alleyne, which overruled Harris v. United States and held that a judge cannot find facts resulting in a mandatory minimum unless the defendant either admits those facts or waives his entitlement to have a jury make that determination.  After Alleyne, Simpson argued that he was entitled to a successive § 2255 based on the “new constitutional rule” created by that decision.

     The Seventh Circuit denied Simpson leave to file a successive § 2255.  The easiest way to do this would have been to limit it to Simpson's facts: in his case the jury had found, by way of a special verdict, that he conspired to distribute more than one kilogram of heroin and more than 50 grams of crack (thus requiring the 20-year mandatory minimum). 

     But the Seventh Circuit, no-doubt envisioning a tsunami of Alleyne-based prisoner claims, went a bit further.  It conceded (as it had to) that Alleyne established “a new rule of constitutional law.”  But the Court noted that Alleyne did not satisfy the second requirement of § 2255(h)(2): that the Supreme Court make the new rule “retroactive to cases on collateral review.”  The Supreme Court did not do this; Alleyne came to the Supremes on direct, not collateral, review and the Court's decision says nothing about retroactivity.  For good measure, the Circuit noted that other extensions of Apprendi have been held to be non-retroactive. 

Taylor v. Ground, No. 12-2632 (7th Cir. Jul. 3, 2013)

     A week before Simpson, the Seventh Circuit granted a habeas petition based on an attorney's conflict of interest.  You don't see as many of these claims as you used to, especially in big cities where public defender organizations and Criminal Justice Act panels generally do a good job of providing separate counsel where there is even a potential for conflicts.  So they are interesting where they do arise (and especially where they are sustained).*

* For all you history buffs, this months' NY State Bar Journal has a good article about the Boston Massacre trials. John Adams represented both the British soldiers who fired into the crowd and the officer who commanded them to fire.  These days, such a joint representation would never be allowed, but no one seemed all that concerned at the time.

     In Taylor, Levell Taylor was convicted of murder in Illinois and sentenced to 35 years for the 1996 gang-related killing of Bruce Carter.  On direct appeal, he claimed that his counsel operated with a conflict of interest by jointly representing both him and his brother, Lowell, in simultaneous murder trials.  In particular, Taylor argued that his lawyer’s refused to call certain exculpatory witnesses at his trial because those witnesses might have implicated Lowell.  This is a classic conflict claim, but the Illinois Supreme Court found no conflict and affirmed the conviction.

 

 

     On § 2254 habeas review, the district court upheld the Illinois Supreme Court.  However, it granted COA on the issue: "[w]hether trial counsel's joint representation of Petitioner Levell Taylor and his co-defendant/brother, Lowell Taylor, violated Petitioner's constitutional right to the effective assistance of counsel under the Sixth and Fourteenth Amendments. . . .” 

     The Seventh Circuit disagreed with the district court. It found that the Illinois Supreme Court unreasonably applied US Supreme Court precedent by holding that Taylor’s interest in presenting exculpatory witnesses did not conflict with Lowell’s interest in preventing admission of inculpatory testimony. 

     The governing Supreme Court law, Cuyler v. Sullivan, 446 U.S. 335 (1980), requires a reviewing court to analyze whether there was a defect in counsel's strategy, tactics, or decision-making attributable to a conflict of interest.  According to the Seventh Circuit, the Illinois Supreme Court unreasonably applied Cuyler.  The Supreme Court:

"unreasonably declined to perform any analysis of Taylor's potential defense in assessing his Sixth Amendment claim. If it had, the court would have arrived at the inescapable conclusion that Taylor's potential strategy was sufficiently plausible such that his interests were at odds with those of his brother in deciding whether to pursue a unified assault on the State's evidence."*

*Specifically, the Circuit noted that three eyewitnesses identified Lowell as the shooter but did not see Taylor hand Lowell a gun. According to the Circuit, “these witnesses would have refuted the State's only evidence connecting Taylor to the crime.”
 

The Circuit remanded for fact-finding required by Cuyler - whether the conflict of interest between the two brothers adversely affected the attorney’s performance.

I don't know why counsel went forward representing both defendants.  Maybe there was a good reason, but where there was such a clear conflict in available defenses someone (if not defense counsel, then either the Court or the prosecutor) probably should have raised the issue at some point.