Habeas Corpus Blog

Habeas Corpus - District Court Review - Habeas Grant and COA!

I feel like there have been more habeas grants than COA's this calendar year in the district courts.  I guess I probably should have kept better track.  Nonetheless, assuming that feeling is correct, it just surprises me.  There should be more COA's than grants.  Kind of obvious, right?  A COA is a lower standard than a habeas grant.  But the DJ's have been pretty stingy this year with the COA's.

Setting that aside for a moment, for the second time this year, a DJ granted habeas and a COA in the same case!  That's pretty remarkable.  I guess it won't do anything to close the gap between COA's and grants this past year.  Still pretty exciting though.

The name of the case is Cardoza v. Rock and the issue is IAC on the habeas grant and IAC/conflict of interest on the COA.  More specifically, the court concluded that counsel was ineffective for failing to convey a plea offer to petitioner, who had been charged with participating in a drug conspiracy.  Petitioner was found guilty after a trial and was sentenced to a longer sentence than the one that was available in the plea offer.  The DJ ordered that the state court impose the sentence offered in the plea (since petitioner has sworn that he would have taken it had he known about it).  As for the conflict of interest issue, petitioner argued that his counsel had a conflict for two reasons: (1) he represented two co-conspirators; and (2) the attorney himself may have been involved in the drug conspiracy.  Crazy stuff.

One thing to note: as I discussed in my Supreme Court preview, the Court is going to hear two cases that raise these IAC issues - Lafler v. Cooper and Missouri v. Frye (to be argued on 10/31).  The Court could potentially conclude that this is not even a viable IAC claim or that the relief that the DJ ordered here is not an appropriate remedy.  So those cases could have a huge impact here.  Maybe I should have ranked those cases higher on the list of most interesting cases this term (they came in as number 4).

In any event, here are the details:

Cardoza v. Rock

• Habeas Granted; COA Granted
• 08-CV-8210, 2011 WL 4472030 (SDNY Sept. 27, 2011) (PAC) (RLE)
• Issues: Habeas Grant: IAC based on counsel's failure to advise petitioner of plea offer; COA: IAC/conflict of interest based on allegations that attorney had participated in same drug conspiracy and had represented two co-conspirators
• Notes: Adopting R&R (available at 2010 WL 7597717)

Habeas Corpus - Updates

Just finished a global update of the Pending Second Circuit Cases page.

Some things to note.  First, the following case was removed since petitioner was resentenced in trial court, which I guess rendered the habeas petition moot.

McGuire v. Walsh, 10-3862-pr 

• Lower Ct. Info: 09-CV-464, 2010 WL 3420629 (EDNY Aug. 26, 2010) (ARR)
• In Circuit: Dist. Ct. COA
• Issues: (1) the nine years the trial court took to decide his 440.10 motion violated due process; (2) IAC based on counsel's failure to conduct an adequate investigation

Second, I recently discussed a DJ's decision on a Rule 60(b) motion in which the DJ stated that if a COA was necessary for a decision on a Rule 60(b) motion, he would be inclined to grant one.  As I pointed out in that prior post, a COA is necessary in that situation.  So, if the DJ thought one was appropriate, he should grant one.  As it stands, I don't think that what the DJ did is enough to actually say that a COA was issued.

Nevertheless, I liked what counsel did in that case.  He filed a notice of appeal and, in the notice, he stated that the DJ held "that were a Certificate of Appealability required for a Rule 60(b) motion to be appealed it would be granted."  The case was only docketed in the Second Circuit a few days ago.  Let's see what the court does with the case.  It could either agree that a COA was essentially issued and let the case go forward.  Or it could put the brakes on the appeal and tell petitioner to get an official COA from the DJ (which I am sure the DJ will grant).

So, at this point, I think it's worthwhile to add it to the Pending Second Circuit Cases page.  Here are the details:

Graves v. Phillips, 11-4023-pr

• Denying Rule 60(b) Motion
• Lower ct. Info: 02-CV-6550, 2011 WL 4347881 (EDNY Sept. 15, 2011) (JBW)
• In Circuit: Dist. Ct. COA (kind of)
• Issues: Brady violation based on prosecution's failure to disclose criminal history of witness

Habeas Corpus - Welcome Back, Supreme Court! - Term Preview - Edited

The Supreme Court's October 2011 Term begins this week.  And it's going to be a very active one for habeas cases.  There are already eight cases on the Court's docket.  I am really excited about a couple of those.  I also dread what the outcome is going to be in a couple others.  And at least one I don't really have much of an idea as to what it's all about.  There are also a couple front-end criminal cases of note.  So it's going to be a big term in habeasland. 

And remember, Habeas Day at the Court will be this Tuesday, when the Court intends to hear three (Maples, Martinez, Howe) of the eight.

Since I love lists, here is a list, in descending order, of this Term's habeas cases on the scale of "what I find most interesting" (in other words, 1=most interesting; 8=least interesting)  I'll note my feeling about the outcome of the case as either (a) excited; (b) dread; or (c) uninterested.

The List:

(1) Martinez v. Ryan (to be argued on 10/4)- Excited

Issue: whether a criminal defendant has the right to counsel at a state post-conviction proceeding in order to raise claims (mainly IAC) that can't be raised on appeal

I hate to swim with the current on this one, but it's hard to argue that this isn't the most interesting (and important) habeas case on the Court's docket this year.  It certainly has the greatest potential impact on criminal law.  Not as big as something like Gideon v. Wainwright (right to counsel in criminal cases) or Douglas v. California (right to counsel on appeal if indigent), but it will be the next biggest thing.  No matter which way it goes, it's going to be a fun opinion.  I'd love to see a split court here as the question may come down to how each individual Justice views the role of counsel in the criminal justice system.  Fun, fun, fun.

(2) Greene v. Fisher (to be argued on 10/11) - Dread/Excited

Issue: when is the temporal cut-off for clearly established law under 2254(d)(1)

For such a simple issue, it does seem odd that I would rank it so high.  But this case is going to have the biggest day-to-day impact on habeas cases.  And it raises abstract questions about the interplay between the AEDPA and the retroactivity rules of Teague v. Lane (i.e., whether those latter rules still exist or will the Court's interpretation of 2254(d)(1) in Greene supersede them).  Which makes me excited for this case.  But I have larger feelings of dread about it as I expect a very anti-petitioner decision here. And you can read more about my feelings of dread about this case in this article that I wrote over the summer.

(3) Maples v. Thomas (to be argued on 10/4) - Excited

Issue: whether there was cause for petitioner's procedural default based on (essentially) attorney and state court negligence

The issue in this case is not really that interesting, but the underlying facts are.  This is the case where the Big City law firm dropped the ball on petitioner's case and the state courts did absolutely nothing to straighten out the problem.  And there was so much unfairness to petitioner that it led multiple national news outlets to take up his cause.  And, around here, it led me to create (the little used, but still enjoyable) "uncommon sense meter" -- the rates cases on the scale of whether it defies common sense that some ridiculous procedural rule can allow a court to overlook an obviously unfair result.  This is a case where good facts could chip away at what otherwise is bad law for petitioners.

(4) Lafler v. Cooper (to be argued on 10/31; being heard with Missouri v. Frye)- Dread

Issue: whether a petitioner who was convicted after a trial can argue IAC based on counsel's failure to give proper advice during the plea bargaining stage of the case

This is also a case with a big potential impact on the criminal justice system.  There is plea bargaining in every case and in almost every case that eventually goes to trial, a plea offer was made at some point in the case.  Counsel is supposed to both communicate that offer to the defendant and give advice on it.  The question here is whether petitioner should be able to get any relief when counsel messes that up.  And, if so, whether any relief is available after the defendant is convicted after trial or does that conviction somehow moot out the deficient performance in the plea bargaining stage.  The fairest result here would be that a petitioner should still be able to raise the claim even after a jury verdict.  But, based on the Court sua sponte adding this particular issue to the Frye case, I have a bad feeling about where this is going.

(5) Howes v. Fields (to be argued on 10/4) - Excited

Issue: whether a prisoner, who is excluded from the prison population and questioned, is always "in custody" for Miranda purposes

I am excited about this case since it is a real substantive law habeas case.  Lafler is too, but that substantive law could be extinguished based on where the case goes.  Not this case.  It is a basic up or down vote.  I have searched my memory and I simply can't remember the last up vote on a habeas case in the Supreme Court where the final decision ended up as a grant for the petitioner.  I don't see that as the most likely outcome here.  But there is a chance for that, which gets me excited.  On the other hand, it is a cert. grant from the Sixth Circuit, and that typically means . . . bad news for the Sixth Circuit.*

*I forced my wife to watch the original Bad News Bears again the other day.  I think that is my second favorite movie of all time.

(6) Gonzlez v. Thaler (to be argued on 11/2) - Dread/Uninterested

Issue: (i) was a COA appropriate on a habeas procedural issue? and (ii) something about what date to use to determine when a petition is timely under the statute of limitations

This case kind of scares me a little.  The Court sua sponte added the COA question.  I am not sure why since the Court has already held that a COA would be appropriate in this situation.  Maybe the Court was not satisfied that the circuit court properly followed the rule in determining whether to issue a COA on a procedural issue.  I should probably look at the briefs for some guidance on that.  But there is a potential that this case could place a further restriction on habeas law.  As for the other issue, I re-read the lower court decision and I still don't get it.  It seems very state-specific as to what date should be used as the end date of the appeal.  And each one is a totally legitimate way of looking at it.  Does the Supreme Court need to step into that mess and say that it needs to be the same date in all cases, regardless of the state's individual procedure?  It seems like a waste of time.  State law should control on that question in my mind.  States' rights!  (That's tongue in cheek -- secessionist talk is best left to southern governors with presidential aspirations)

(7) Wood v. Milyard (recent cert. grant) - Dread

Issue: can a circuit court raise statute of limitations defense sua sponte*

*There's those words again.  I talk about how much I love the term sua sponte about midway through this post.

I really dislike the statute of limitations.  To be fair, a statute of limitations isn't the worst thing ever.  But the one-year one is truly oppressive.  I wish it would go away or get ameliorated (like turned into a two or three year limitations period).  But my personal feelings aren't relevant.  I don't think the federal courts dislike it too much.  And, even though it is a defense that the State can use and not a jurisdictional bar, I worry (in the extreme) that the Supreme Court will uphold a circuit court's power to do this.  In a fair world, they won't.  I mean it's typically frowned upon for an appellate court to go around raising defenses sua sponte where a litigant hasn't relied on it below.  But, of course, everything is skewed in habeasland.

(8) Martel v. Clair (to be argued 12/6) - Uninterested/Excited(?)

Issue: can court-appointed habeas counsel be replaced in a capital habeas proceeding

This case appears to boil down to a statutory interpretation issue.  And it's a statute that I am not too familiar with.  So my interest level is not high.  But maybe, just maybe, the opinion could branch out into issues that I am more interested in.  If the Court's opinion could potentially be applicable to the question of replacement of court-appointed counsel in a non-capital case (i.e. when a court grants a petitioner's motion for assignment of counsel under the "likely merit" standard), I'd be interested in that.  And, because the issue presented seems broad (although I don't think in the end that it is), there is a small chance that the Justices could once again veer off into the more abstract concept of an attorney's role in the criminal justice system.  Which could be fun.  But I won't get my hopes up.

[edited the Gonzalez paragraph for clarity]

Habeas Corpus - District Court Review - Rule 60(b) Motion

Interesting decision out of EDNY on a Rule 60(b) motion for reconsideration.  The original habeas petition had raised a Brady claim based on the prosecution's failure to turn over the criminal history of a testifying witness.  In the original petition, petitioner did not provide much of a factual foundation for the claim.  He presented a note from his attorney which stated that the witness had a violation in his background, but no crimes.  Of course, the State did not provide any assistance in answering the question of whether the witness had a criminal background.  In fact, the State denied it.

Surprise, surprise -- the witness had a "substantial criminal record relevant to credibility."  So petitioner moved for reconsideration under Rule 60(b).  Although the DJ denies the petition, the court acknowledged that there were "serious factual and legal problems presented" in the case.  Except the DJ drops the ball on a COA.

First, the details:

Graves v. Smith

• Denying Rule 60(b) Motion
• Lower ct. Info: 02-CV-6550, 2011 WL 4347881 (EDNY Sept. 15, 2011) (JBW)
• Issues: Brady violation based on prosecution's failure to disclose criminal history of witness

ANALYSIS: DJ does a nice job with the habeas procedural issues, except for the COA.

The DJ concludes that the Rule 60(b) motion was not a second or successive petition since it "'attack[ed], not the substance of the federal court's resolution of a clim on the merits, but some defect in the integrity of the federal habeas proceedings.'"  Good decision.

The DJ next concludes that Pinholster did not preclude reliance on the new evidence since it had been presented to the state courts in post-conviction proceedings.  Good decision.

The Dj next concludes that, even though the state court rejected the claim on the merits, "[d]eference is not required," since the state court did not hold an evidentiary hearing, so not factual findings that are entitled to deference, and the Appellate Division's "bare conclusion [on the legal claim], without analysis, presents no opportunity for a federal court to assess whether the Appellate Division unreasonably applied federal law."  Okay, maybe that last part is a bit out of the mainstream.  That does not seem consistent with Richter.  If a summary disposition is entitled to deference, then I would think that a bare conclusion would as well.  But, in the end, that does not play a part in the analysis, since the DJ concludes under a de novo review that the Brady claim fails.

The DJ next expresses some regret that he did not order a hearing back when he originally reviewed the petition.  He doesn't explain why that's relevant, but I am thinking he believes that it matters as to whether the Rule 60(b) motion was an appropriate vehicle to reconsider the claim. 

Then the DJ turns to merits and concludes that the State suppressed favorable evidence, but that there was no reasonable probability that it affected the outcome of the trial.  Although this witness' credibility would have been thoroughly undermined, there was other evidence against petitioner, including testimony from an alleged co-conspirator.   So Brady claim fails.

The DJ then whiffs on a COA.  The DJ states, "Were a certificate of appealability required for a Rule 60(b) motion to be appealed, it would be granted by this court in this case in view of the serious factual and legal problems presented.  A fresh view by a panel of the Court of Appeals for the Second Circuit might be helpful." 

I am not sure why the DJ would think that a COA is not necessary for the denial of a Rule 60(b) motion.  Some quick research shows that the Second Circuit has held that it is necessary.  See Kellog v. Strack, 269 F.3d 100, 103 (2d Cir. 2001) ("We thus expressly hold that the COA requirement provided in 28 U.S.C. § 2253(c) applies to an order denying a Rule 60(b) motion for relief from a judgment denying a § 2254 petition.").

I hope that the DJ straightens this out.  Maybe another Rule 60(b) motion is necessary.

 

Habeas Corpus - July 2011 Second Circuit Orders

As mentioned earlier today, there were two COA grants from the Second Circuit in July.  One of the grants is in a case out of Connecticut.  First time in a long time I have seen one of those.  One other oddity: the district court decisions in both cases were issued on the same day.  That's a really odd coincidence.

Hawthorne v. Spitzer, 10-4324-pr

• Lower Ct. Info: 07-cv-4128, 2010 WL 3803861 (EDNY Sept. 21, 2010) (NG) (CLP)
• Issues: (1) whether Appellant has established prejudice for the procedural default of his claim that his Miranda rights were violated; and (2) whether counsel was ineffective during the suppression hearing when his counsel failed to cross-examine detectives about appellant's interrogation and did not call appellant to testify at the hearing

Notes: What's notable about the COA is that the court goes into some factual detail as to the basis for the IAC claim.  It states:

With respect to the ineffective assistance of counsel claims, the record indicates that Appellant submitted a “pro se supplemental motion to suppress his November 13, 2000 statements,” and his newly assigned counsel, Stephen Singer, Esq., submitted an affirmation to the state court stating that he had met with Appellant’s prior counsel, who had offered no “legitimate difference of opinion” or “alternative legal strategy” to explain his failure to cross-examine the Detectives as described above, or preserve issues for review. In addition, [the detectives'] and Appellant’s testimony at trial revealed new facts, not elicited at the Huntley hearing, respecting Appellant’s November 13, 2000 interrogation. These facts call into question whether counsel’s representation at the Huntley hearing was objectively reasonable and did not prejudice Appellant so as to deprive him of a fair trial. . . . The Clerk’s Office shall appoint counsel pursuant to the Criminal Justice Act.

Clearly, the court is sending a signal to appointed counsel to pay attention to these facts.  It's a bit unusual for the court to do that. 

Jones v. Murphy, 10-3997-pr

• Lower Ct. Info: 10-CV-49, 2010 WL 3829129 (D. Conn. Sept. 21, 2010) (JCH)
• Issues: (1) whether, before removing the Appellant from the courtroom, the trial court should have warned the Appellant that he would be removed if he continued his disruptive behavior; (2) whether the Appellant “reclaimed” his right to be present at trial; (3) whether the Appellant was interrogated within the meaning of Rhode Island v. Innis, 446 U.S. 291 (1980) and, (4) if so, whether his subsequent, post-Miranda statements are admissible consistent with Oregon v. Elstad, 470 U.S. 298 (1985), and Missouri v. Seibert, 542 U.S. 600 (2004).

Habeas Corpus - Second Circuit Orders - Preview

First, I'd like to note that there were two COA grants from the Second Circuit in July.  Unfortunately, I have them saved on a different computer, so I can't write about them right now.

But I learned today from a reader about a COA grant from the Second Circuit in August.  So look at this as a preview of the future August 2011 Second Circuit Orders post.

The COA grant was in a case already pending before the Second Circuit as a result of a habeas grant and a COA grant from the district court.  So this is actually an order granting a request to expand the COA.  Safe to say, there is a lot going on in the case.

The case is Jackson v. Conway, 11-922-pr (L).  I have previously written about the case here.  If you look at the case on the Pending Second Circuit Cases page, you will see that the list of issues is now quite long.  I actually was missing one issue from the district court COA.  That's now been added.

Here are the new issues that have been added as a result of the Second Circuit's COA grant:

whether defense counsel had been ineffective due to (1) his incorrect assumption that the prosecution had to prove that penetration occurred in order to sustain a first-degree sodomy conviction, and (2) his failure to investigate or introduce a “plethora of exculpatory evidence” at trial

Habeas Corpus - District Court Review - Another COA!

In one of the district court reviews from yesterday (there were two of them), I mentioned the habeas grant in Johnson based on insufficient evidence to establish depraved indifference.  What I found important about Johnson was the DJ's analysis on the miscarriage of justice issue.

Today, I learned from a reader that another COA has been granted on this very issue.  The case is called Sanchez v. Lee.  It is such a recent COA that it has not made its way onto Westlaw yet.  I'll update the information when it becomes available.

So now we have three cases before the Second Circuit (Garbutt, Johnson, and Sanchez) with the miscarriage of justice issue.  That's going to be a big decision.

For now, here's the details:

Sanchez v. Lee, 10 Civ. 7719 (SDNY Aug. 8, 2011) (PKC) (AJP)

• Habeas Denied; COA granted
• Issues: whether whether petitioner had shown a miscarriage of justice in order to overcome a procedural default
• Notes: Adopting R&R (avaiable at 2011 WL 924859)

Habeas Corpus - District Court Review - COA's Granted!

During the week of July 25, 2011, there were two COA's issued in the district courts.*  I am only going to mention the details below without analysis.  It's more about the D/D associated with one of the cases that I am going to refrain from any analysis here.  I am just going to list them here and then add them to the Pending Second Circuit Cases page.

*Of course, other COA's may have been issued that week (or in prior weeks/months) in unpublished orders.  As I have complained about before, those represent a gap in my knowledge about what's pending before the Second Circuit.

Pagan v. Brown, 07-CV-0453, 2011 WL 3235769 (EDNY July 28, 2011) (JS) (WDW)

• Habeas Denied; COA Granted
• Issues: whether the trial court impermissibly allowed a police officer to testify about petitioner's silence in response to police questioning (known as a Doyle violation)
  
• Notes: Adopting R&R (available at 2011 WL 3235840)

Mason v. Duncan, 02-CV-5729, 2011 WL 3251535 (SDNY July 27, 2011) (KMW)

• COA Granted
• Issues: whether petitioner's sentence as a persistent felony offender is unconstitutional
• Notes: D/D - I represent petitioner in this case

 

Habeas Corpus - June 2011 Second Circuit Orders

Only one COA grant last month.  Here it is:

Montstream v. Superintendent, 11-802-pr

• Lower Ct. Info: 06-CV-787, 2011 WL 283252 (WDNY Jan. 25, 2011) (RJA) (VEB)
• Issues: (1) whether the double jeopardy claim was fairly presented to the state court; (2) whether petitioner's consecutive sentences represented a double jeopardy violation; and (3) IAC related to counsel's failure to challenge the consecutive sentences.

Habeas Corpus - Cert. Grant in Habeas Case

Earlier today, the Supreme Court granted cert. in the habeas case entitled, Gonzalez v. Thaler.  I never got around to putting up a post focusing on the relist cases from last week's conference.  But in that post, the writer at SCOTUSblog predicted that this case was headed for a grant.  He was right on with the prediction.

According to the order list, here are the two issues:

1. Was there jurisdiction to issue a certificate of appealability under 28 U.S.C. §2253(c) and to
adjudicate petitioner’s appeal?

2. Was the application for a writ of habeas corpus out of time under 28 U.S.C. §2244(d)(1) due to “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review”?

Honestly, I am not sure what those mean.

So I looked at SCOTUSblog's statement of the issues.  They are a little more detailed:

1) Whether the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) - which establishes a one-year statute of limitations for a state prisoner to file a federal habeas petition, running from "the date on which the judgment [of conviction] became final by the conclusion of direct review or the expiration of the time for seeking such review" - dictates a single federally prescribed point in time when all state direct-review processes are deemed to have concluded;

2) whether AEDPA's "conclusion of direct review" occurs upon issuance of an intermediate appellate court's mandate, expiration of the time for seeking discretionary review in the state's highest court, or issuance of the intermediate appellate court's decision; and

3) whether “expiration of the time for seeking [direct] review” under AEDPA includes the ninety-day period for filing a petition for a writ of certiorari with the Supreme Court even when the petitioner forewent discretionary review in the state's highest court.

Slightly more insight, but I was still not sure what's going on here. 

So I looked at the lower court's decision, and it really is all about question 2 in SCOTUSblog's statement of issue.  If the finality date is the issuance of the mandate, the petition is timely.  If the finality date is the date upon which time to seek discretionary review ended, it is untimely.  There is a split in the circuits on that issue.

At the same time, I didn't see anything of note in the lower court's decision about the COA issue on which cert. was granted.  Here's what the lower court said as to the COA:

[W]e granted a certificate of appealability (COA) on the question of "whether [one of the court's prior decisions] has been overruled by Lawrence [v. Florida, 549 U.S. 327, 331-35 (2007)] and, if so, whether [Gonzalez’s] habeas application was timely filed.

Not sure why they can't issue a COA on that ground.  Under Slack v. McDaniel, 529 U.S. 473, 484 (2000), a COA can be granted on a procedural question under the following test:

When the district court denies a habeas petition on procedural grounds without reaching the prisoner's underlying constitutional claim, a COA should issue when the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. 

So I don't know what question (1) is all about.  Is the Court going to overrule its prior precedent in Slack?  I would typically say no, but last term shows that the Court is shifting the playing field to the right in habeas cases.  If the State is going to be seeking that Slack be overruled, then this case will be elevated to a critically important habeas case next term.

We shall know more from the briefs . . .