Habeas Corpus Blog

Circuit Court Rundown – October 13, 2013

by Matthew Keller

Some more recent habeas rulings from the Courts of Appeals. In this post, I focus on the Sixth Circuit, which over the past month has issued a series of generally helpful procedural rulings:
 

Gillis v. United States (6th Cir. Sept. 9, 2013)

     Gillis offers good advice on one possible method for avoiding filing deadlines for 2255 motions and, more generally, is a good reminder of the value of reading rules of procedure. Often there are little nuggests in there that may get you out of an occasional fix.

     The petitioner was convicted in 2007 of dealing crack near a school in violation of 21 U.S.C. 841 and 860(a). The court initially sentenced him to 262 months, but in 2009 it lowered the sentence to 191 months following a remand to reconsider application of the Guidelines' career-offender provisions. Gillis asked his attorney to appeal his new sentence, but counsel failed to file a timely notice. In May, 2011, Gillis filed a pro se § 2255 motion claiming ineffective assistance. The district court dismissed the motion as barred by the one-year deadline of § 2255(f). Gillis waited 201 days to appeal that denial, and the Government moved to dismiss the appeal as untimely.

     The Sixth Circuit held that the appeal was timely.  The district court never entered a separate judgment after denying the § 2255 motion, and therefore Gillis effectively had 210 days to appeal. The 210 days adds up as follows: Federal Rule of Civil Procedure 58(a) requires a separate judgment for all decisions or orders, except for five exceptions.  A § 2255 motion is not one of those exceptions. Therefore, the district court’s judgment was not considered “entered” until 150 days after it denied the § 2255 motion. See Fed. R. App. P. 4(a)(7)(A)(ii) (defining “judgment” as entered 150 days after entry in the civil docket in the absence of a separate judgment required under Civil Rule 58(a)). Then, you add to that 150 the standard 60 days to appeal provided for in Federal Rule of Appellate Procedure 4(a)(1)(B) (and Rule 11(b) of the Federal Habeas Rules). Because Gillis filed his appeal within the 210-day window, his appeal was timely.

     For those of us practicing primarily in the Second Circuit, there is a wrinkle here.  The Sixth Circuit noted that the Second is the only Circuit that has held, in a 1993 case, that , Civil Rule 58(a) does not apply to § 2255 motions because of the “quasi-criminal” nature of such motions. See Williams v. United States, 984 F.2d 28, 29–31 (2d Cir. 1993). However, there is a good argument to be made that Williams was wrongly decided. Federal Habeas Rule 11(b) is clear that Fed. R. App. P. 4(a) governs appellate filing deadlines. That rule, in turn, defines the entry of a judgment with reference to Fed. R. Civ. P. 58(a). There is thus no basis in the governing Rules for the Second Circuit’s “quasi-criminal” gloss. The other circuits to consider the issue have recognize this: the Third, Fourth, Tenth, Eleventh, and D.C. Circuits all agree with the Sixth Circuit’s 210-day rule.

     Unfortunately for Mr. Gillis, AEDPA’s filing deadlines are not as forgiving as the rules of Federal and Apppellate Procedure. Here the latter rules gave Gillis an extra six months to appeal the denial of his § 2255 motion. But the former, as the Court noted, “are not so lenient with regard to the timeliness of his § 2255 motion in the first place.” Gillis had 14 days from his resentencing in December 2009 to file a direct appeal. (Fed. R. App. P. 4(b)(1)). His lawyer did not do so, and his conviction became final (and the one-year AEDPA clock began to run) on December 26, 2009. That clock ran out on December 26, 2010, but Gillis did not file his pro se § 2255 motion until May 20, 2011. 

     Gillis tried to argue that the one-year AEDPA clock should not have begun until the Sixth Circuit dismissed his untimely direct appeal in January 2011. The Sixth Circuit (correctly) found that this was not the way things work: “[i]f the one-year AEDPA statute of limitations could be extended by filing a late notice of appeal and getting that late appeal dismissed,” the Court said, “there would not be much left to the statute of limitations.”  

Ajan v. United States (6th Cir. Oct. 3, 2013):

     In another ruling on 2255 procedure, the Sixth Circuit joined the Fourth, Eleventh and D.C. Circuits in holding that a COA is not required to appeal the relief granted after a successful § 2255 motion.

     Ajan was originally sentenced to 646 months for various drug, kidnapping and firearm offenses. However, his § 2255 motion was granted, and his sentence vacated, after the parties agreed that one of the § 924(c) firearm convictions was not an offense under the charged statute. Without conducting new sentencing proceedings, the district court ordered entry of an amended judgment reflecting a new sentence of 346 months (the total term for the remaining offenses). Ajan appealed without obtaining a COA.

     The Sixth Circuit held that a defendant need not obtain a COA to appeal the remedy following a successful § 2255 motion, because the granting of the motion results in a “new judgment” and therefore a new right of direct appeal. The court held that this follows from the Supreme Court’s 2010 decision in Magwood v. Patterson. Magwood held that an appeal from a successful § 2254 petition was not a second or successive petition because a “new judgment” is entered when the § 2254 is granted. The Circuit held that this rule applies with equal force to § 2255:

“Ajan’s successful § 2255 petition led to a new judgment — the Amended Judgment — which did not exist at the time his § 2255 petition was brought. It is the Amended Judgment that Ajan appeals. Because Ajan seeks to challenge the relief granted — i.e., whether the relief was ‘appropriate’ under § 2255, whether the new sentence was in conformity with the Constitution or Sentencing Guidelines, etc. — he is appealing a new criminal sentence and therefore need not obtain a COA”

Jefferson v. United States (6th Cir. Sept. 12, 2013)

     Petitioners often seek equitable tolling of AEDPA’s statute of limitations.  The Sixth Circuit also had some good news for petitioner's on that score as well, at least in the context of Brady claims.

     Kenneth Jefferson was originally convicted in federal court in 1999 for his role in a gang selling crack out of Ypsilanti, Michigan throughout that drug’s boom years of the 1980s and 1990s. He was sentenced to twenty years. The Sixth Circuit affirmed his conviction on direct appeal, and the conviction became final ninety days later, on May 12, 2003. However, Jefferson did not file his § 2255 motion until August 2004, making it untimely.

     Here’s where it gets tricky (apologies for the bumpy procedural history, but its necessary). Throughout the post-trial process, Jefferson and his codefendants asserted that the Government withheld the promises it had made to several cooperating witnesses regarding the benefits they would receive in exchange for their help in prosecuting Jefferson and others. They also asserted that these CWs lied at trial about the benefits they were promised, and that the Government knew about this perjury and sat by silently. These claims were given some support when, in March 2004, one of the CWs stated to the judge that he expected the AUSA to recommend a downward departure in his case. This set in motion an internal investigation by the local US Attorney’s office, which ultimately concluded that the AUSA had in fact met with some CWs without their counsel present, and made some, “at least tacit, promises of further sentencing reductions.” The investigation also concluded that the AUSA “had witnesses testify without revealing the additional understandings; moved orally at sentencing or in Rule 35 motions for downward departures; and had the sentencing records of these witnesses sealed.”

     Jefferson then filed a series of additional motions (and supplements to pending motions), and continued to receive belated Giglio information from the Government. At some point he was given an attorney to help him with his claims.  At first, the district court denied Jefferson’s § 2255 motion and the various supplements to it arguing for a new trial based on the Brady, Giglio and Napue violations highlighted by the US Attorney’s investigation. The Court rejected Jefferson’s attempts to toll the start date for his one-year AEDPA limitations period from May 2003 (when his conviction became final) to either September 2004 (when a decision was issued in an unrelated case detailing disclosure violations by the same AUSA), or to September 2005 (when the government revealed information from its internal investigation essentially confirming the Brady/Giglio violations in Jefferson’s case).*

* Jefferson argued pursuant to § 2255(f)(4) that his one-year clock ran from the date “on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.”

     The court rejected the September 20004 date on the ground that “a decision in an unrelated terrorism case could not constitute the factual predicate for prosecutorial-misconduct claims in Jefferson’s case.” And it rejected the September 2005 date because Jefferson had filed his motions in March 2005, which severely undercut an argument that he was not on notice of his claim until five months after he filed it.

      On its first trip up to the Circuit, the court reversed. It agreed that neither the 2004 nor the 2005 dates could serve as the factual predicate of his claims. But, the Circuit held, the district court “did not resolve the critical question of whether Jefferson’s additional claims were brought within one year of ‘the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.’” The Court therefore remanded for consideration of “the statute of limitations and the possible application of equitable tolling.”

     The district court complied, gave Jefferson’s motion additional consideration, and again denied it.  This time, the court essentially deployed the “kitchen sink” reasoning the habeas practitioners are so used to: the claims are untimely, they do not warrant equitable tolling and, in any event, they are meritless. Case closed. 

     On appeal last month, the Sixth Circuit reversed the district court’s procedural rulings, but ultimately agreed that the claims failed on the merits. It found that, given the “realities of the prison system,” Jefferson could not have discovered the basis for his Brady/Giglio claims prior to 2005. Importantly, the Court rested this holding on the nature of the Government’s disclosure obligations under Brady:

“We hold that § 2255(f)(4)’s due-diligence standard did not require Jefferson continuously to seek out evidence that the government had a constitutional duty to disclose (evidence that, despite specific requests by the defense for the information, the government represented did not exist). We reject the district court’s determination that because Jefferson suspected undisclosed promises as early as 2000, his failure to seek information from “the cooperating witnesses themselves or their acquaintances” and his failure to seek sentencing records—which the prosecutor had sealed—rendered his diligence insufficient. We do not fault Jefferson for failing to scavenge for evidence of undisclosed promises when he already repeatedly asked for disclosure and the evidence was unconstitutionally withheld by the government.”

     On the merits, the Circuit held that Jefferson’s Brady claims failed on the materiality requirement, the bane of so many Brady/Giglio claims. Where the Government withholds impeachment material for cooperating witnesses, such claims almost always fail for the same reason, which goes something like this: “these witnesses were bad guys ratting out their friends to save their own asses. Both sides knew it, the Court knew it, and the jury sure as hell knew it. If the jury chose to believe them anyway, it probably would have still believed them if it knew they were promised $10 (or ten years off their sentence) instead of $5 (or 5 years off).”

   As Ive said on this blog before, I disagree with the wide application of the assumption that juries would do the same thing if they had more or different information to all manner of different circumstances. Our system operates largely on the theory that jury deliberations are (and should be) a black box. The frequency with which judges retroactively predict what a jury would have done under different circumstances (and the confidence with which they do so) violates that precept. To some extent this is necessary to conserve resources – the courts would be swamped if we had to retry every case where the jury didn’t hear evidence it should have (or where, in the more frequent case, the jury hears something it shouldn’t have). But make no mistake: the Brady materiality standard operates primarily as a practical resource-management tool. It is not a well-considered reflection on the ability of judges to accurately second-guess juries. 

Henderson v. Palmer (6th Cir. Sept. 12, 2013)

      In Henderson, the Sixth Circuit applied the prison mailbox rule to reverse the district court's finding that petitioner had procedurally defaulted on claims to the Michigan state courts.  Henderson was convicted of armed robbery and carjacking based in part on a lineup identification. Law enforcement officers claimed that Henderson's attorney was present at the lineup, but the attorney denied that he was there. Henderson claimed that his trial attorney was ineffective for failing to raise the issue at trial. However, state courts rejected his claims as untimely because the filing arrived one day late due to failings in the prison mail system.

     The Sixth Circuit reversed the district court's rejection of the 2254 petition because the lower court failed to apply Circuit precedent holding that “[w]here a pro se prisoner attempts to deliver his petition for mailing in sufficient time for it to arrive timely in the normal course of events,” that circumstance “is sufficient to excuse a procedural default based upon a late filing.”


Hooper v. Ryan (7th Cir. Sept. 9, 2013)

     For the last case, we move to the Seventh Circuit. In Hooper, the Seventh Circuit granted a §2254 petition, reversing the district court and effectively reversing a 32-year-old murder conviction on Batson grounds.

     At trial, the court drew a venire of 63 members, seven of whom were black. Two of the seven were removed for cause, and the prosecutor exercised peremptory challenges against the remaining five. The Seventh Circuit held that the Illinois Supreme Court applied Batson unreasonably in four respects. It’s worth going through all four grounds, both because a state Supreme Court making four mistakes on any one issue is notable, and because some of the mistakes would be funny if they were not so troubling.

     First, the Illinois Supreme Court unreasonably held that, under Batson, a trial court cannot “infer a prima facie case of discrimination from a racially disproportionate use of challenges.” The Seventh Circuit noted that Batson and subsequent rulings clearly allowed the use of peremptory strike statistics to support a prima facie case. Second, the Illinois court held that the five strikes against black venire members could not be discriminatory because the prosecutor also struck six white or Asian members. The Seventh Circuit held that, in addition to being legal error, the comparison of absolute strikes as opposed to their proportion relative to the racial makeup of the venire reflected “confusion about how to use numbers.” 

     We all know that lawyers are bad with numbers - otherwise we’d all be doctors, right? So perhaps that second error is somewhat understandable.  It’s a bit harder to excuse the third error. The Circuit held that it was error for the Illinois Supreme Court to reject the Batson challenge on the ground that the defendant, all three victims, and all principal witnesses were black. Not only was the Illinois Supreme Court plain wrong on this (three principal witnesses were white), the Circuit also pointed out that Batson and its progeny protect the rights of potential jurors (and the public at large) as well as the rights of defendants. The Circuit called the the Supreme Court of Illinois’ idea that “using race in jury selection is tolerable as long as the defendant, victims, and witnesses all are of the same race” a “serious legal blunder.”

     Finally, the Circuit held that the state court erred unreasonably in excusing the trial judge’s incorrect application of Batson’s three-step sequence of proof.

     The Seventh Circuit’s decision may force Illinois to free Hooper, who has served over 32 years for the murders and is now 67 years old. The Court acknowledged that it may be impossible for the state to conduct a “fruitful” Batson hearing more than three decades after the trial (not to mention a retrial). But I think the Court correctly reasoned that it could not let such an unacceptable decision stand. It may have helped that the Illinois Supreme Court decision under review was 24 years old – the Circuit was not throwing stones at the current court. It may have also felt that the trial was also tainted by its judge, Thomas Maloney, who was later convicted of bribery and spent the last 15 years of his life in prison. Maloney was not your ordinary crooked judge: a jury found that he fixed three gang murder trials. It’s not legally relevant to the Batson claim, but Maloney’s presence in the case was just one more taint on the appearance of justice.

 

DeCiantis v. Wall: First Circuit Denies Habeas for Brady Violation

by Matthew Keller

I don't closely follow habeas decisions from the First Circuit (covering most of New England) but the court's decision last week in Deciantis v. Wall, No. 12-2383 (1st Cir. July 1, 2013), caught my attention.  While the decision probably reached the right result, it raises the interesting and recurring question of how accurately judges can predict what a jury would have done absent some trial error.  

To begin with, the decision is worth noting for the sole reason that it reads like an outtake of the Departed.  It was the early 1980s, and the mob still held sway in many big cities.  Cities like Providence, Rhode Island, where on December 4, 1981, Anthony DeCiantis and another man forced Dennis Roche into a car and drove him to garbage dump.  The next day, Roche's body was found with two gunshot wounds, several stab wounds, and "injuries to the face and head consistent with his having been run over by a car."  Witnesses testified that DeCiantis killed Roche for the part he played in the disappearance of DeCiantis' brother Rocco.  DeCiantis was convicted of first-degree murder in 1984 and sentenced to life.

The Case of the (Really) Bad Prosecution Witness

Fourteen years later (1998), DeCiantis moved for state postconviction relief on the ground that the state had withheld at trial material information favorable to the defense in violation of Brady v. Maryland.  Brady requires prosecutors to disclose to the defense, among other things, their witnesses' prior criminal histories as well as any benefits conferred by the State on a witness that the defense might use to impeach the witness.  One of the witnesses against DeCiantis was William Ferle, a mob turncoat with an extensive criminal history.  Prior to trial the prosecutor told DeCiantis about several of Ferle's crimes, including conspiracy, bank fraud, robbery, murder, and arson.  But, according to DeCiantis' postconviction motion, the State neglected to disclose information about many other crimes that Ferle told the authorities about.  This withheld list included twenty-four crimes, including several additional instances of arson, robbery and murder. 

The Providence trial court was in no hurry to consider the motion - it waited seven years to hold a hearing (December 2005) only to deny the claim in 2007.  Four years after that, the Rhode Island Supreme Court affirmed (2011).  Essentially, both courts held that the prosecutor had disclosed to DeCiantis enough dirt on Ferle to allow him to show the jury that Ferle was a shady character, and that the failure to disclose the full list of Ferle's wrongdoing did not, at the end of the day, make a difference to the outcome.  In Brady jurisprudnce, this idea is captured by the "materiality" standard:  the Rhode Island Supreme Court determined that evidence of Mr. Ferle's additional criminal activity was not material:

"It is clear to us that it could not have escaped the attention of the jury that Mr. Ferle had an extensive criminal background, that he had decided to testify against members of organized crime (and that he was recently such a member himself), and that he hoped to receive protection and avoid incarceration in exchange for his testimony. We are unpersuaded that evidence of additional criminal activity on the part of Mr. Ferle would have materially changed the jury's evaluation of him as a witness or would have changed the ultimate result of the proceeding."

Can Judges Read Juries' Minds?

Ultimately, the federal courts agreed with this conclusion.  And, let's face it, in this case it's almost certainly correct.  As bad a guy as Ferle was, DeCiantis was no angel (or simply one with a dirty face).  Other evidence (not affected by the alleged Brady violation) showed that it wasn't enough for DeCiantis to shoot Roche to death - he had to stab him and run over him with his sister's car for good measure.  On facts like those, a jury is unlikely to acquit even where one of the witnesses has to squeeze his testimony into a full schedule of criminal conduct.  As the First Circuit put it, "e[v]en if we assume this evidence would have induced the jury to view Ferle differently, there was still the testimony of the other witnesses at trial, who overwhelmingly pegged DeCiantis." 

But what about the cases where the crime is not so brutal, nor the evidence so overwhelming?  Brady claims in those cases also require reviewing courts to make materiality determinations - that is, they must answer what the jury would likely have done if it had some additional information.  Defense lawyers are always telling clients that trials are risky; that "you never know what a jury is going to do."  Why are judges as a group any better at this than defense attorneys or prosecutors?

In fact, the evidence is that they are not great at it.  In their recent book, "Not Guilty: Are the Acquitted Innocent?," authors Daniel Givelber and Amy Farrell cite a widely-quoted poll of judges concluding that they agree with jury verdicts in their cases only 78% of the time.  Of the cases where the judge's personal "verdict" is at odds with the juries' actual one, judges are far more likely to convict where a jury acquits (19%) than to acquit where a jury convicts (3%).  These numbers suggest that, as a whole, judges' after-the-fact calls on what a jury "would have done" may be biased in favor of upholding a conviction (the only context in which Brady claims arise).

Brady's materiality standard has been criticized for many reasons, and this may be one more reason to rethink it.  In any event, judges should take care to carefully consider what a jury - in all its inscrutable, irrational glory - would have done with additional evidence, and not allow the judge's own preferences and experience to fill the void.  While the decision may not be a tough call in the case of a wiseguy like DeCiantis, it is less clear in less Scorcesesque cases.

Habeas Corpus - Gonzalez and Smith

Yesterday, the Supreme Court issued its opinions in the habeas case of Gonzalez v. Thaler and the front-end case Smith v. Cain.

Gonzalez concerned two issues: whether certain requirements about the content of a COA were jurisdictional and when the time period began to run for the one-year statute of limitations when petitioner did not seek review from the highest state court from which review was possible.  Both issues are pretty dull.

Sotomayor wrote the opinion and concluded that the content requirements were not jurisdictional.  The only jurisdictional requirement of a COA is that a court must issue one.  It's the obvious result.  As I explained before, the entire issue was laughable.  Truly.  Eight judges agreed. 

For some reason, Scalia dissented.  I mean, I read his dissent.  And he certainly believes that the contents of the COA should be jurisdictional from his take on the statute and the Court's past jurisdictional jurisprudence.  But it's certainly not a better reading of the statute or the prior cases.  And from a practical point of view, it's pretty absurd.  And Sotomayor said why, but not directly enough -- it is a court that issues the COA.  When a court messes something up in an order, a court typically has the power to fix it.  We saw the Second Circuit do that recently with respect to a deficient COA.  Just send it back to the issuing judge to fix it.  It is ridiculous -- truly -- to think that either a federal district court judge or a circuit court judge can deprive the federal courts of jurisdiction based on a mistake that a federal judge made in a COA order.  This whole thing was such a waste of the Court's resources.

As for the other issue, the Court reads the language of the statute literally and says that the limitations period begins to run when the time to seek discretionary review in the highest available court expires.  It's the obvious result.  But the situation in Gonzalez is not that simple.  Petitioner had argued that the time should run from when the intermediate appellate court issued its mandate, which starts the clock to run in state court as to when the petitioner can file a state habeas corpus petition.  So the mandate has significance in state court.  But the habeas statute really doesn't contemplate such procedural subtleties.  Sotomayor suggests that, if a mandate is being overly delayed, the petitioner should file his habeas petition in federal court and ask for a stay.  I don't think that's a particularly credible option.  But now that it has been suggested by the Supreme Court, hopefully federal courts will follow it and allow stays in situations where the state courts have more compicated procedural rules that may interfere with a literal application of the one-year time requirements.

Turning to Smith, it's a nice little decision.  As SCOTUSblog noted, it's power is in its brevity.  It's an obvious Brady violation that must result in the reversal of the conviction.  It's just shocking that it had to get all the way up to the Supreme Court for that to happen.

For some reason, Thomas dissented.  I read his dissent.  He is fundamentally wrong.  It is simply ludicrous to think that the defendant here did not meet the Brady standard -- this was suppressed, favorable impeachment evidence of the main witness against the defendant.

And here is where Thomas's silence at oral argument has an impact.  From all media reports, this was a brutal oral argument for the State.  From what I remember, Kagan asked the State's attorney whether they had thought about conceding.  That's extreme.  And from what I remember, no judge spoke up in defense of the state court's decision.  So the story here was that the State really didn't have a leg to stand on and their fight to uphold this conviction was nearly in bad faith.  At the very least, in severe bad taste.

Of course, Thomas remained silent.  No questions of the defendant's attorney about why the conviction should be considered reliable.  No helpful questions for the State seeking to explain to the world, under intense media scrutiny, as to why the criminal justice system should accept a criminal convicion under these circumstances. 

And then he issued a dissenting opinion.  How can anybody who is paying attention see that as credible?  It's why oral argument matters, at least in the Supreme Court.  It's really a time for the world to get a visual and oral picture of what's going on in this case.  The world got to see that this conviction stinks.  If Thomas wanted to get the world to see it his way, he should have tried to make that case at oral argument when at least one crucial chapter of the story gets written.  Now, nobody who is paying attention is going to agree with him.  They saw with their own eyes and heard with their own ears that there was something egregiously wrong here.

Habeas Corpus - Supreme Court today

Today, the Supreme Court will be hearing argument in the front-end case of Smith v. Cain (Brady violation) and the front-end Fourth Amendment case of United States v. Jones (is it unconstitutional for the government to use GPS tracking on a suspect without a warrant?).

Haven't covered these cases too much around here.  Particularly true about Jones since, under Stone v. Powell, habeas petitioners can't really raise Fourth Amendment claims in a habeas petition, except to the extent that the State gave them insufficient process to raise it or it was ineffective for counsel to raise the Fourth Amendment claim.  So it's twice removed from habeas as opposed to a front-end case, which is only once removed.

SCOTUSblog coverage of these cases can be found here (Smith) and here (Jones).

 

Habeas Corpus - Maxwell Relist - Updated

While I usually put up a relist post that reviews the SCOTUSblog post on the matter, I decided to be slightly more proactive this week.  But it's left me a little confused.

For the last conference on October 14, there were five relisted habeas cases: Cavazos, Maxwell, Dixon, Cross, and Buck.  The Court took no action on any of them, except for ordering the record in Maxwell.  But none of them were relisted for another conference.  That can still happen and I am guessing it probably will for all five.  The next conference is not until next Friday.  But as it stands they are all just in a holding pattern.

In the meantime, I read this really interesting article about the Maxwell case called "The Case You Go to Law School For."  That's a reference to a quote from Maxwell's attorney Verna Wefald.  Actually, in the full quote, the lawyer was trying to be funny, not simply poignant.  She said that, when she first started working on the case back in the late '80's, "I was young and thought this was the kind of case you went to law school for. About 10 years into it, I wished I had never gone."

Maxwell is a relatively well-known petitioner.  He was convicted of committing the "Skid Row" murders that occurred in Los Angeles in the 70's.  However, as the article states, the problem is that "in all likelihood, he’s innocent."  The main evidence against him was a jailhouse confession, which is a notoriously unreliable type of evidence.  The other evidence presented was really weak - a palm print on a public bench and some muddy footprints.  Maxwell was acquitted of several of the murders and only eventually convicted of three of the ten of which he was charged.  He was sentenced to life imprisonment.

Turns out that the prosecution failed to turn over that the jailhouse informant was given a deal for his testimony against Maxwell.  Pretty big deal, no?  Well, Maxwell had trouble obtaining relief on this significant Brady violation until he reached the Ninth Circuit.  The Ninth Circuit granted habeas, holding that (1) state court’s finding that jailhouse informant testified truthfully at petitioner’s trial was unreasonable determination of facts in light of evidence presented;  (2) perjury by informant deprived petitioner of his right to trial by jury; (3) details of informant’s deal were material for Brady purposes; (4) information regarding informant’s prior informant activities were material for Brady purposes; and (5) state court’s determination that prosecution’s failure to disclose impeachment evidence did not undermine confidence in petitioner’s trial was unreasonable application of Brady. 

Without seeing it, I am guessing that the state court decision here would rank pretty high on the "uncommon sense" meter.

And this obvious Brady violation does not just appear in a vacuum.  As alluded to above, there are significant reasons to believe that petitioner is innocent. To some academics, innocence is all that should matter.  So this really should be viewed as a case where the federal courts were getting it right.

But, of course, innocence is not what's important to the Court.  It's the AEDPA.  Here are the issues before the Court (from the SCOTUSblog page for Maxwell):

(1) Whether, under 28 U.S.C. § 2254, a federal court may grant habeas relief on a claim that the state-court conviction rested on perjured testimony absent proof that the prosecution knew that the challenged testimony was false and when the state post-conviction court deemed the testimony truthful; (2) whether, under 28 U.S.C. § 2254, a federal court may grant habeas corpus relief on a claim alleging suppression of exculpatory evidence when that evidence was unknown to law enforcement officials working on the case and without considering whether the state court might have rejected this claim.

Now that the Court has ordered the lower court record, we are looking at one of two probable outcomes: either a summary reversal or a dissent from a cert. denial.  Let's hope it's the latter.

It's always interesting for me to get a look behind the papers once awhile and learn more about some of these cases.  I felt the same way when Skinner was before the Court last term.  And Connick v. Thompson.  I know it can't be done for every case.  But I appreciate it when I do get the chance to get a bigger picture.

UPDATE: Actually, I neglected to mention Maples as one of those cases where we have learned more about the background of the case.  Of course, that was the case that inspired the "uncommon sense" meter, so I am disappointed in myself for leaving it out.

Habeas Corpus - District Court Review - An End to Discovery?

Back in February, I had written about the case of Quezada v. Brown (previously known as Quezada v. Smith).  It's a groundbreaking case in which the Second Circuit has already issued a published opinion interpreting several aspects of the second or successive 2244 statute for the very first time.

After the Second Circuit granted authorization to allow petitioner to bring a second or successive petition raising a Brady claim and a claim that the prosecution knowingly presented false evidence, petitioner made a request for discovery in the district court and the DJ granted it.  Discovery in the case proceeded forward.

While the parties were engaged in discovery, Pinholster was decided.  Relying upon that case, Respondent moved for reconsideration of the order granting discovery, arguing that Pinholster prevents any further discovery in a habeas corpus proceeding.  Their argument: if the 2254(d)(1) analysis is restricted to the record before the state court, then there is no need for discovery in federal court.

Petitioner responded that Pinholster was not a discovery case, so it was not a change in law justifying reconsideration.  In other words, Pinholster had not changed the standard for when discovery should be ordered.  He also argued that there were other reasons in a habeas case for ordering discovery beyond the question of whether or not petitioner had met the 2254(d)(1) standard, including (but, of course, not limited to) whether or not petitioner could establish a miscarriage of justice to overcome a procedural default.

The district court has yet to issue an opinion on the State's reconsideration motion. 

This is a really important question that has resulted in a split in the district courts around the country.  But it does make me really worried.  If Pinholster can be read as stifling discovery (especially in a case like Quezada where it just seems so clear from the smoke that there's a fire), it's just another way in which Pinholster has created inequity in habeas law.

Habeas Corpus - Supreme Court Stuff

Earlier this week, I mentioned the cert. grant in the habeas case of Gonzalez v. Thaler.  Next term is shaping up to be pretty interesting, and potentially scary for habeas petitioners.

I neglected to mention that the Court also granted cert. in a front end case, Smith v. Louisiana.  According to SCOTUSblog, here are the issues:

1) Whether there is a reasonable probability that the outcome of Smith’s trial would have been different but for Brady and Giglio/Napue errors; 2) whether the state courts violated the Due Process Clause by rejecting Smith’s Brady and Giglio/Napue claims.

As that blog notes, there is a long and ugly of history of Brady violations coming out of Orleans Parish in Louisiana.  The Court recently looked at those violations, in the context of a 1983 claim, in Connick v. Thompson, which was the really horrible decision in which the Court found prosecutors immune from liability despite serious bad faith.  Although the Court refused to hold the prosecutors responsible in Thompson, there is room for the Court to act in Smith.  Maybe the Court decided to take Smith to say, while a civil suit is not the way to stop the Brady violations, upsetting the criminal conviction may be.  We shall see.

In any event, I really need to update the Supreme Court Cases page.

SCOTUSblog also had a relist post the other day.  Nothing of note in habeas cases (except for Cavazos v. Smith, which clearly is going to be either a summary reversal or a dissent from a denial of cert).  However, the Court relisted two front-end capital cases.  Here's what SCOTUSblog said about these two cases:

And the Court relisted for the first time in two capital cases:  Russell v. California, 10-10201, on direct review from the Supreme Court of California, raises constitutional challenges to the exclusion of mitigating evidence from the penalty phase of a capital trial under a state’s hearsay rule.  The Court also relisted in Spencer v. Alabama, 10-9085, a capital case from the Alabama state courts, which involves a claim that the trial court erred by not instructing the jury that it could find the defendant guilty of a crime other than capital murder, and an Apprendi challenge to the state’s sentencing system.

Habeas Corpus - District Court Review - Habeas Granted!

I wished I had covered this earlier, but there was another habeas grant in WDNY on the same day as the big Jackson v. Conway opinion (actually, there has been another habeas grant out of the WDNY, but I'll cover that in another post).  In fact, it was the same judge who granted habeas in both cases (actually, it's the same judge in all three cases).

Here are the details of the other habeas grant from January 10, 2011:

Valentin v. Mazzuca, 05-CV-0298, 2011 WL 65759 (WDNY Jan. 10, 2011) (VEB)

• Habeas Granted
  
• Issue: Brady violation based on the prosecution's failure to disclose criminal record of one of a prosecution witness
• Notes: consented to proceed before MJ; pro se habeas grant

ANALYSIS: This case is a robbery where the prosecution called a single eyewitness to the robbery, John Kemp.  The prosecutor did not disclose that the eyewitness had a criminal background.  In fact, the prosecutor made a point at trial to inform the judge that he steadfastly refused to look into whether his witness had a criminal history.  Odd, in this day and age, for a prosecutor to make such a public display of refusing to follow his ethical obligations. 

Not surprisingly, the Appellate Division concluded that there was a Brady violation, but that it was not material, namely that there was no reasonable probability of a different result had the criminal background been disclosed.  The MJ concluded that the Appellate Division's decision on materiality was unreasonable.

There was a wacky aspect to this case: the conflicting stories from the eyewitnesses.  There were two eyewitnesses, Kemp and another man named McLaren.  Kemp said that petitioner was the gun man, while McLaren stated in the GJ that another man, Arroyo, was the gun man.  The indictment against Arroyo was dismissed because the identification evidence was unreliable.  At Valentin's trial, the prosecutor announced that McLaren was out of the jurisdiction and not available.  So only Kemp testified.

The MJ concluded that it was unreasonable to conclude that there was no reasonable probability that the impeachment material would not have had an effect on the outcome.  According to the MJ, the criminal history was not "insubstantial."  And while Kemp had other credibility issues, the prosecutor relied heavily on his testimony and used many tactics to bolster his credibility.  The MJ concluded that the impeachment material would clearly have had an impact.

Here's what the MJ stated:

Where, as here, the prosecution's case was more akin to a house of cards than a foundationally sound structure, it is more than reasonably possible that Kemp's criminal record could have been the card that toppled the house. It bears emphasizing that Kemp's testimony about Valentin having the gun and being the “lead robber” was not corroborated by any independent evidence. This Court finds, after reviewing the entirety of the record, that had the prosecution complied with its Brady obligations by disclosing Kemp's criminal record, his credibility would have been significantly more compromised. Non-disclosure of this non-cumulative impeachment evidence has seriously undermined my confidence in the outcome of Kemp's trial. Thus, I conclude that the information was “material,” and that Valentin has demonstrated a true Brady violation.

One final interesting thing to this decision: the relief.  Petitioner had already been released from custody and was serving time on parole.  The court ordered that "Respondent is accordingly directed to expunge Valentin's convictions for first degree robbery and second degree robbery and release him from parole supervision within sixty days. This judgment is not stayed pending completion of appeal proceedings, if any." 

Two notable things: the court did not order a new trial.  Instead, the court ordered basically a dismissal of the charges.  Even though he had finished serving his time in prison, I don't think that means that the convictions should necessarily get expunged.  The typical remedy would be a new trial.  Thinking about that remand in Ramchair last year (I am referring to the end of that long post), I wonder if the MJ should have done a more thorough job explaining why that particular relief was warranted.

As for the denial of a stay, that makes sense in the face of the relief that was ordered.  If the judge thinks that the convictions should be expunged, petitioner will suffer irreparable harm during the appeal.  But it is still notable that a stay was denied.  Doesn't always happen that way.

Habeas Corpus - DA Misconduct before the Supreme Court

I would be remiss if I didn't mention something about Connick v. Thompson, a case to be argued before the Supreme Court today. 

I didn't include it in the Pending Supreme Court Cases page because it is only tangentially related to criminal law and will have no effect on habeas cases.

Nonetheless, there are criminal law aspects to it, so I thought I would at least talk about it.

At its core, the case concerns a wrongful conviction from over 20 years.  The defendant filed a civil case against the DA's office, arguing that the office's failure to adequately train its prosecutors on their Brady violations entitled him to relief.  The question before the Supreme Court is whether a claim can be stated where there has only been on Brady violation as a result of the lack of training. 

It's definitely interesting, and it's criminal law-related, but it won't have a direct effect on the development of criminal law or habeas law.  I guess in a back door way it could.  If the Court says that this states a claim, it will increase the amount of Brady training.  Vice versa, if the Court says that it doesn't, then it may decrease the amount of training, as the DA Offices may just decide to risk it and not train their prosecutors, knowing that the odds of civil liability will only occur if there are multiple violations.

One other thing to note about the case, I guess that a book has been written about the underlying criminal case.  It's called, Killing Time: An 18-Year Odyssey from Death Row to Freedom, written by John Hollway and Ronald Gaultier.  SCOTUSblog notes that Hollway has an article on Slate about the case (I haven't read it yet).

Habeas Corpus - Amazing Opinion Today from the Second Circuit (Updated link)

Just a truly amazing opinion from the Second Circuit today.  A couple of weeks ago, I criticized the court for only giving lip service to innocence claims.  Well, shame on me.  Today's opinion shows just how far the court will go when it believes that there has been an unjust conviction.  Although the court does not grant habeas relief, the court goes out of its way to thoroughly question the reliability of the evidence against petitioner and calls upon both the state courts and the prosecutor to re-examine the conviction.  Truly amazing.

The case is Friedman v. Rehal and it's available here.  The opinion was written by DJ Korman (sitting by designation) and joined by Raggi and Pooler.  Raggi added a brief concurrence, which I'll discuss below.

Petitioner is Jesse Friedman, whose case was made famous in the great documentary Capturing the Friedmans, which documents the child abuse cases brought against petitioner and his father.  The movie goes into detail about the investigation into the case, which included a bunch of questionable investigatory techniques devised to obtain statements from the child victims.

However, the People never turned over this information about the investigation to petitioner.  After watching the movie, petitioner raised a Brady claim.  After losing in state court, the district judge dismissed the petition as untimely.

The Second Circuit agrees, showing that petitioner filed the petition three months out of time.  The court also goes on to address the underlying merits of the Brady claim and concludes that the investigatory techniques are really impeachment material and the failure to turn it over does not qualify as a Brady violation when the defendant pleads guilty -- as petitioner did here.  Additionally, the court believes that the Brady claim itself does not rely on clearly established law.

But the Second Circuit does not end the opinion there.  Here's what the court says: "While the law may require us to deny relief in this case, it does not compel us to do so without voicing some concern regarding the process by which the petitioner’s conviction was obtained."  The court then engaged in a lengthy discussion about the problems with the evidence.  

At the end of this discussion, the court expresses a deep concern about the conviction:

As such, this case is unlike other appeals which raise concerns about the quality of the
evidence and the guilt of the defendant. In those appeals, we defer to the judgment of the jury after the defendant has received a fair trial. We take comfort in “[t]he established safeguards of the Anglo-American legal system [which] leave the veracity of a witness to be tested by crossexamination, and the credibility of his testimony to be determined by a properly instructed jury.” Hoffa v. United States, 385 U.S. 293, 311 (1966). In this case, the quality of the evidence was extraordinarily suspect and never subjected to vigorous cross-examination or the judgment of a properly instructed jury.

The court notes, though, that, whether or not there exists a federal stand alone claim of actual innocence, that type of claim was not exhausted in state court, so it can't be addressed now.

And then here is where the opinion turns extraordinary.  The court suggests to both the state courts and the prosecution that it do something to re-examine what it believes to be a very likely wrongful conviction.

First, the court notes that an actual innocence claim may be available to petitioner in state court.  It adds, "Considering the facts of the case and the circumstances that caused him to plead guilty, this case may be one in which the New York courts may be particularly sympathetic to a proceeding seeking such relief."  Pretty strong suggestion there.

Next, the court turns to the prosecution and implores it to re-examine the case.  I am going to quote the entire part of this opinion because it is really amazing:

The focus on the impediment to legal relief, however, should not obscure the continuing ethical obligation of the District Attorney to seek justice. We refer here especially to New York Rules of Professional Conduct 3.8, Comment 6B, which explains that “[t]he prosecutor’s duty to seek justice has traditionally been understood not only to require the prosecutor to take precautions to avoid convicting innocent individuals, but also to require the prosecutor to take reasonable remedial measures when it appears likely that an innocent person was wrongly convicted.” N.Y. Rules Prof’l Conduct 3.8, cmt. 6B. In language particularly pertinent here, the Comment goes on to say:

[W]hen a prosecutor comes to know of new and material evidence creating a reasonable likelihood that a person was wrongly convicted, the prosecutor should examine the evidence and undertake such further inquiry or investigation as may be necessary to determine whether the conviction was wrongful. The scope of the inquiry will depend on the circumstances. In some cases, the prosecutor may recognize the need to reinvestigate the underlying case; in others, it may be appropriate to await development of the record in collateral proceedings initiated by the defendant. The nature of the inquiry or investigation should be such as to provide a “reasonable belief” . . . that the conviction should or should not be set aside. Id.

The record here suggests “a reasonable likelihood” that Jesse Friedman was wrongfully convicted. The “new and material evidence” in this case is the post-conviction consensus within the social science community that suggestive memory recovery tactics can create false memories and that aggressive investigation techniques like those employed in petitioner’s case can induce false reports. Indeed, it is not even clear from the record that Assistant District Attorney Onorato was aware of the suggestive questioning techniques that were used by the Nassau County police. More importantly, the record does not speak to whether the then–District Attorney of Nassau County whose principal role was administering and overseeing the activities of one of the largest such offices in the United States,11 was aware of the techniques used by the Nassau County detectives, who were not members of his staff.

Only a reinvestigation of the underlying case or the development of a complete record in a collateral proceeding can provide a basis for determining whether petitioner’s conviction should be set aside. We hope that, even if she continues to oppose relief in collateral legal proceedings, the current Nassau County District Attorney, who was not responsible for the investigation and prosecution of Jesse Friedman, will undertake the kind of complete review of the underlying case suggested in the Comment to Rule 3.8.

Wow. 

In her concurrence, Raggi questions whether the court should have engaged in the length discussion of the underlying facts in which it assumed the truth of the allegations against the police.  While she believes that further inquiry by the prosecution may be warranted, she is not ready to state that such an inquiry would be favorable to petitioner.

In the final section of the main opinion, the majority responded to the concurrence and explains why it engages in the lengthy discussion of the facts.  I am not sure I find the reason entirely persuasive.  Generally, the court says that it was done to try and convince the prosecutor to engage in the investigation despite the guilty plea.  Hmm.  It's not that I wouldn't want a court to do that.  But it does raise interesting questions about the purpose of a judicial opinion.  It's actually a great existential judicial-opinion-writing question.  The court kind of answers that question with its final line, which I'll quote here: 

In sum, an appellate court faced with a record that raises serious issues as to the guilt of the defendant and the means by which his conviction was procured, yet unable to grant relief, is not obligated to become a silent accomplice to what may be an injustice. 

A great ending to a truly remarkable opinion.