Habeas Corpus Blog

Habeas Corpus - What A Relief!*

By JK

Last week, the Supreme Court announced that I don’t have to talk to my client’s anymore!*

* Anytime you see an asterisk (*) in this post, it means sarcasm. That means the title, too. Double asterisks (**) will mean footnotes.

It’s going to save all of us habeas litigators so much time and resources!*  No more travel to visit clients!* No more letter writing!* No more phone calls!*

In Ryan v. Gonzales, the Supreme Court held that a petitioner who is incompetent has no right to a stay of his habeas case during the period that he is incompetent. The Ninth Circuit had concluded that a capital habeas petitioner’s statutory right to counsel under 28 U.S.C. § 3599(a)(2) meant that he had to be competent so that he could communicate with his attorney and effectuate that relationship.**

The Supreme Court said that that's just crazy talk.  It stated that a statutory right to counsel in a habeas case did not give the habeas petitioner any right to provide input into the habeas litigation. Justice Thomas, speaking for a unanimous court, stated, “Attorneys are quite capable of reviewing the state-court record, identifying legal errors, and marshaling relevant arguments, even without their clients’ assistance.”

** The Sixth Circuit had provided a separate statutory justification for finding that incompetency compelled a stay. The Court dismissed it pretty summarily and it’s not really worth mentioning.

So there it is: once counsel is assigned to a case, the habeas case goes on with or without the petitioner. Who cares if the habeas petitioner has no capability of comprehending what’s going on? It’s not his case anymore. It’s the lawyer’s. Just because the petitioner has to face the consequences of the result does not mean he has the right to be competent to hear it.

I really have one word for this: cold. Ok, maybe two words: breathtakingly cold. I can even break out the uncommon sense meter on this one: try to explain to a layperson what this means: you are in prison on death row and you are challenging the conviction, but you don’t even have to be, essentially, a sentient human being while it all plays out in court. Even more, your attorney gets to litigate the case while you are away with absolutely no input from you.  Cold and contrary to common sense.

Of course, the result is not particularly surprising. In my mind (as I have discussed before), it flows from Jones v. Barnes (even though, surprisingly, that decision makes no appearance in Gonzales). A habeas case is record-based, like a direct appeal. So the attorney is the one who makes the decisions. Input from client would not technically be necessary.

That’s logically fine. But here is where the absence of a true liberal voice can be seen in the current Supreme Court. Justices Brennan and Marshall dissented in Jones (and Justice Blackmun agreed with Brennan and Marshall overall, but concurred in the result). Those two (+1) judges would not have found the Ninth Circuit’s reasoning to be crazy talk. Having counsel assigned to a case, even a record-based type of situation, does not mean that the defendant disappears from the case. In their eyes, the function of an assigned attorney (at least under the Sixth Amendment) should be “to protect the dignity and autonomy of” the defendant. Those judges considered these values “central to many constitutional rights,” including those under the Sixth Amendment. The right to counsel is not an “all-or-nothing right.” Counsel should be assisting the defendant, rather than doing everything on his or her own. While this view is not particularly practical, it certainly is far more empathetic and dignified.  

It’s safe to say that a true liberal judge would have seen similar concerns in Gonzales. It’s pretty depressing that not a single judge would voice any of these concerns.

Of course, no habeas practitioner would want to proceed like this. It’s both unethical and unprofessional to litigate a habeas case without input from the client. It really seems a bit shocking to me that the Supreme Court has now condoned such a practice, at least when the client is incompetent. The Court’s (apparently unanimous) disdain of habeas has now run so deep that it is willing to sacrifice some of the dignity of the legal profession** in furtherance of that contempt. 

** [insert joke here] - but, against all odds, I still believe in the dignity of the profession

I guess on the brightside the Court didn’t completely prevent federal judges from granting a stay based on incompetency. Federal judges still have the discretion to do it. But the Court indicated that this discretion really should be guided by the judges’ “docket[ ]” concerns. The Court did not suggest in any way that a judge should consider whether or not she felt comfortable with forcing a case to go forward while the petitioner has no current understanding of what’s going on.  In fact, the Court specifically precluded a stay in the extreme situation where the petitioner may never have any understanding of what’s going. And just when you thought the Court couldn’t get any colder . . .

Habeas Corpus - The Rumors of Habeas's Demise Have Been Greatly Exaggerated (By Me)

By JK

Following up on Alan’s first post from the other day, I do want to make a little bit of noise around here about several good results in habeas cases in the circuit courts over the past six weeks (since around mid-September).

There have been habeas grants out of the:

Second Circuit: Young v. Conway (see Alan's post for details)

Third Circuit: Garrus v. Secretary of Dep't of Corr. - Apprendi violation

Seventh Circuit: Harris v. Thompson - right to present a defense and IAC

Ninth Circuit: Cudjo v. Ayers - violation of right to present a defense; Stankewitz v. Wong - IAC during sentencing phase of death penalty case

There may have been others; these are just those that I have seen.  And I am sure there will be more.  But I have expressed a lot of doom and gloom around here over the past two years (ever since Richter).  So I do think it’s worthwhile to acknowledge when the good things happen.  And if you have time please read the Seventh Circuit’s decision.  It’s looong, but it's pretty great.  It kind of feels like the court was convinced of petitioner's innocence, and this belief ends up being the motivating force behind the analysis. 

And the Third Circuit’s decision is pretty cool, too.  It’s an en banc decision on an Apprendi issue – the scope of the “prior conviction” exception to the Apprendi rule.  Two things of note (at least related to the blog): the majority has a great footnote (#8) that criticizes the dissent for reading the unreasonable application/clearly established law part of the 2254(d) standard in such a narrow way that it basically turns it into the “contrary to” clause.  I have been yelling about court’s doing that since nearly the inception of this blog (that post was written in July 2009; I started the blog in April 2009).  So glad to see a court say it.

At the other end, the dissent points out that the majority did not give enough deference under the standard of review and gives lists of all of the times that the Supreme Court (i) granted cert. on the issue; and (ii) reversed on this ground (both summary reversals and after merits briefing).  These lists are long.  The lack of deference summary reversal was the subject of my most recent article (part of my recent doomistry* and gloomery*).  And it does serve as a reminder that, even with the good stuff, there are still reasons to be concerned about the future of habeas.  

*Not actual words.

Habeas Corpus - Supreme Court Catch-Up - Updated

By JK

 

 

I know I am jumping into this a little late, but thought it was a good idea to at least put something up about the current Supreme Court term.  Overall, it’s not a very active term on the habeas front (unlike the past two years, which were quite memorably active). There are only three cases on the docket, two of which present the same issue.  And the Court has already heard oral argument on all three cases.

 

 

There are some front-end cases out there (I’ll wait for the decisions to mention them individually) and a quasi-habeas case that could have a huge impact on the criminal justice system (that’s the Chaidez case, which asks whether Padilla v. Kentucky applies retroactively).  And, of course, similar to last term, the Court could issue some summary reversals in habeas cases.  And there is time for more cert. grants for the current term. But overall, slow habeas term.

 

 

Turning to the three habeas cases themselves, the two cases heard together back on October 9, 2012 – Ryan v. Gonzales and Tibbals v. Carter – garnered the most pre- and post-argument attention (you can read about them here, here, and here).  The issues are whether a habeas petitioner must be “competent” during the pendency of the habeas proceeding and, if incompetent, how broad is the district court’s discretion to stay the proceedings until the petitioner becomes competent.  

 

 

I think it is an interesting question, not just from a substantive point of view, but also an ethical one. It’s stuff that I used to focus on with my students (notice the past tense there, no longer an active professor after the move out West).  The question is: whose appeal is it anyway?  The Supreme Court has stated that appellate attorneys are the ones who get to make the ultimate call on what issues to raise.  And I think that this ethical logic can get extended to the habeas post-conviction attorneys.  In both situations, the substantive arguments to be raised are (typically) record-based.  So input from the defendant or petitioner is not absolutely necessary.  And it’s even less once the petition/appeal gets filed and the attorney is left to litigate everything.  But as a matter of legal ethics and good client representation, client input should always be taken into account.  Should it really be that an attorney should be allowed to make the decisions and then litigate the case in a vacuum with no client input whatsoever?  That’s what the consequences would be if the Court says that habeas petitions can go on with an incompetent client.  I don’t think the Supreme Court should condone such a situation as a matter of legal ethics, despite the current Court’s distaste for almost all things habeas.  The transcripts of the argument in the cases can be found here and here.

 

 

The final habeas case is Johnson v. Williams.  It’s got an impressive sounding AEDPA-focused issue: Whether a habeas petitioner’s claim has been “adjudicated on the merits” for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim (copied from SCOTUSblog).  But from the argument, which occurred back on October 3, 2012 (transcript here), it appears that the Court is going to sidestep the issue and find the State court actually did address the federal-law basis for the claim.  End result will be a remand to the Ninth Circuit for that court to apply the 2254(d) standard of review.

 

 

What’s interesting about this case is that, at the argument, the State attorney refused to take the signals from the Judges that she was going to win on the narrow issue and repeatedly pressed on her broader argument (and I’m paraphrasing here) that if a state court sneezes, it has made a merits-based decision on every federal claim before it.  There were conflicting opinions over at SCOTUSblog as to whether this was an appropriate oral argument strategy.  Lyle Denniston believed, and once again this is paraphrasing, that the attorney was being needlessly inflexible and/or stubborn, at best, or maybe even obtuse, at worst.  But Tom Goldstein believed (written here paraphrasingly) that it was a conscious strategy – she could see she was going to win, so why not go for the broadest ruling possible.  Tough to know for sure.  My take: inflexibility may have simply been the strategy.