Habeas Corpus Blog

Habeas Corpus – Rhines Stays

By JK

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

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

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

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

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

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

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

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

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

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

Habeas Corpus - Weekly Review 8/9-13/10

Now is a good time for a Weekly Review.

A lot of stuff above the fold.  First, there was the recent habeas grant in Graham. 

The other two above the fold cases focus on a question from a recent Weekly Review: how to handle a mixed petition.  Once again, maybe I wasn't paying close enough attention, but the DJ's seem to be a little confused on this one.  One of the cases this week gets it almost right, so it's encouraging.  But there are still lingering issues.

Let's get to the cases:

1. Graham v. Portuondo, 01-CV-6911, 2010 WL 3210691 (EDNY Aug. 12, 2010) (JBW)

• Habeas Granted
• Issues: IAC based on counsel's failure to adequately investigate petitioner's mental health issues prior to trial
• Notes: To be published; counseled

ANALYSIS: Previously discussed here and here.

2. Ortiz v. Artuz, 06-CV-644, 2010 WL 3238994 (SDNY Aug. 11, 2010) (DAB) (JCF)

• Habeas Denied
• Issues:(1) IAAC; (2) insufficient evidence
• Notes: Adopting R&R (available at 2008 WL 2369218)

ANALYSIS:  Another improper analysis on an unexhausted claim.  The exact same improper analysis that popped up a couple of weeks ago.  Maybe this is happening more often than I realize, but I am not catching it.

This one is just a tad more confusing.  The IAAC was based, in part, on counsel's failure to raise an IAC claim on appeal.  DJ points out that the underlying IAC claim was based on facts outside the record and should be presented in a 440.10 motion.  In my mind, that means that the IAAC claim has no merit since I don't think it is clearly established law that an appellate attorney can be ineffective for failing to bring a claim in a collateral proceeding. 

But the DJ doesn't go that route.  Instead, the DJ says that the underlying IAC claim is unexhausted so the IAC claim must be dismissed with prejudice.  That's just a weird analysis.  Essentially, the DJ converted the IAAC claim into an IAC claim and dismissed it because the IAC claim was unexhausted.  But the whole point is that it was unexhausted precisely because appellate counsel didn't raise it.  So that's just illogical.

Setting that aside, a DJ should not dismiss a claim with prejudice solely on the ground that it is unexhausted.  As I stated last time, there are three options when a claim is unexhausted:

1. Dismiss the entire petition without prejudice to allow for exhaustion.  Actually, this is the default position.  A mixed petition is supposed to be dismissed.
2. Dismiss the entire petition with prejudice where the court concludes that the unexhausted claim has no merit. 
3. The final option is the "stay and abeyance."  A court can stay the petition and allow petitioner to go back to state court to exhaust the unexhausted claim.

As the prior DJ did, this DJ considered number 3, but said no.  That's fine.  But the DJ then just dismisses the claim with prejudice solely based on the fact that it was unexhausted without considering the merits.  That is simply not an available option.  As shown above, it's either a dismissal without prejudice or a dismissal with prejudice on the merits.

Once again, I am not advocating a COA.  I don't think the actual IAAC claim is a good one.  But once again, I think it's a good idea that the Second Circuit provide some clarification here.

3. Owens v. Conway, 2010 WL 3290980, S.D.N.Y., August 11, 2010 (NO. 10 CIV 3183 NRB)

• Habeas Denied
• Issues: (1) excessive sentence; (2) involuntary guilty plea; (3) IAC

ANALYSIS: On the other hand, the same DJ who I criticized on the exhaustion analysis last time, gets it right here.  Well, almost right.  That's just weird.  Here's what the DJ says:

We close by explaining why we deny the petition outright rather than staying the petition and holding it in abeyance-a procedure provided by the Supreme Court in Rhines v. Weber, 544 U.S. 269 (2005). Although generally, unexhausted, non-procedurally defaulted claims should be dismissed, see Rose v. Lundy, 455 U.S. 509, 510 (1982), the Court in Rhines recognized an exception where, as here, dismissal of such a claim (or claims) in the context of a mixed petition would effectively bar the future claim(s) because the one-year statute of limitations on federal petitions will have expired by the time the petitioner has exhausted any unexhausted claims and returned to federal court, Rhines, 277-78. In such cases, a federal court may stay the pending petition and hold it in abeyance to provide the petitioner with the opportunity to exhaust his claim-but only so long as (1) there was “good cause for the petitioner's failure to exhaust his claims first in state court” and (2) the claims are not “plainly meritless.” Id. at 277. Here, we decline to stay the petition because we find both that there was not good cause for the failure to exhaust and because the unexhausted claims are meritless.

I say mostly right because there are two things the DJ should have made clear.  First, the DJ should have clarified that, in general, a dismissal of a mixed petition should be "without prejudice".  Second, the DJ should have said that, because the unexhausted claims are meritless, she can not only deny the stay, but she can also dismiss those claims on the merits with prejudice despite the lack of exhaustion (as now allowed by the AEDPA).

In any event, it's a step forward.  I should note that this same DJ used this almost correct analysis in another case this week (Carter v. McCoy).

Remaining cases below the fold . . .

Habeas Corpus - "A Procedural Conundrum"

I wanted to quickly revisit the habeas grant in Graham v. Portuondo discussed yesterday around here.

A question underlying the IAC ground is whether the particular claim of IAC is properly before the court.  There was a slightly tricky procedural history.  As I mentioned yesterday, the deficient performance affected two separate parts of the case: petitioner's competency and a potential EED defense. 

The original petition only raised ineffectiveness as to competency.  But, after counsel had been assigned, petitioner added the claim of a potential EED defense. 

If I didn't make it clear yesterday, Judge Weinstein focused on the EED defense claim when determining whether there had been prejudice and the judge decided that he did not need to consider the competency aspect of the IAC claim.  I guess I should have made that more clear.

In the final part of the opinion, Judge Weinstein included the following section: "4. Exhaustion and Second Petition -- A Procedural Conundrum."  The judge pointed out that, if the two different IAC claims are essentially different forms of the same claim, then his decision is fine.  If they are separate, his opinion is no good.  The EED claim was unexhausted and would have be to considered a part of a "second or successive petition" that would need authorization from the Second Circuit to proceed.

Judge Weinstein's answer to the conundrum is pretty clever - look at the Second Circuit remand.  He points out that, if these were two separate claims, then the Second Circuit would have affirmed the dismissal of the petition (albeit on a different ground than the one set forth in his original decision).

However, the Second Circuit did not take that position and, instead, remanded the case for an evidentiary hearing on the EED claim.  So the judge deduces that the Second Circuit has already concluded that they are essentially the same claim. 

But if they are two separate claims, the Second Circuit decision provides an answer for that, too.  He suggests that, by remanding for a hearing on this particular issue, "the Court of Appeals might have decided to cut through one of the AEDPA's Gordian Knots* and moved the case towards a conclusion that saved years of litigation." So it can be assumed that the court had actually granted permission to bring a second or successive petition.

*To be honest, I decided to write this post because I loved the whole "AEDPA Gordian Knots" stuff.  As well as the "Procedural Conundrum" language.  Good times.

Judge Weinstein sums it up like this: "Whatever way the conundrum is analyzed, the district court's present duty seems clear under the mandate: hold the evidentiary hearing, and if the petitioner's present contentions are established, grant the writ." 

Which is precisely what he did.

Habeas Corpus - Wrong is Wrong

As I mentioned in this week's Weekly Review below, I wanted to do a separate post on a procedural issue that I have noticed in the past and that again popped up twice last week (in cases 5 & 6, Robinson and DeJesus). 

The procedural issue has to do with exhaustion.  In those cases, the DJ relied upon 2254(b)(2) -- a provision that was added to the statute by the AEDPA -- and addressed the merits of claims that were unexhausted. 

I don't think this was right.  I think those claims should have been denied as procedurally defaulted.  Now, in some ways, it could be argued that this was better for petitioners since the judges were addressing the merits of the claims and not denying the petition on procedural grounds.  In the abstract, I guess that's true.  Kind of (I'll get into why it isn't really better for the petitioner below the fold).  But, in my mind, the DJ's got the procedural analysis wrong.  And wrong is wrong, so I feel like I should discuss it.

So below the fold I'll enter into the exciting world of exhaustion (including the magical land that is known as the AEDPA) . . .

Habeas Corpus - Summary Order

Smith v. La Clair, 08-4029-pr, Nov. 12, 2009, Miner, Raggi, Hall, order here

• Affirming Denial of Habeas
• Issues: Speedy Trial
• Notes: Lengthy Summary Order (8 pages)

ANALYSIS: More interesting than most summary orders.  Court goes into a relatively in-depth analysis of the Speedy Trial claim.  In fact, the order has three substantive footnotes two of which contain legal analysis.  This may be a little harsh, but I think, as a rule of thumb, if the court feels the need to include substantive footnotes in a summary order, then maybe the matters in the order are significant enough that they really should be in a published opinion.  Or else put everything in the text.  Summary orders have little value, and footnotes in a summary order have even less.  If it has to be in a footnote in a summary order, it's really not worth saying at all in my mind.

At the same time, it's a good thing here that one legal matter was relegated to a meaningless footnote.  One of the main matters in dispute in the speedy trial claim was the issue of prejudice.  There does seem to be competing standards as to whether a defendant needs to show prejudice in order to establish a speedy trial violation.  It is one of the four factors that a court must weigh in determining whether there is a speedy trial violation.  Technically speaking, a defendant can win on a speedy trial claim without showing prejudice if the balance of the remaining factors tip in his direction.  Even though that's true, courts typically won't grant relief unless the defendant has established prejudice.  Put simply: it's not necessary, but it actually is necessary.

In state court, petitioner did not argue that he was prejudiced.  However, in federal court, he did make argument that he was prejudiced.  According to the court in footnote 2, this is basically a novel legal situation for the court:  whether a claim should be rejected as unexhausted where the habeas petitioner presents a new and different legal theory that was not presented to the state courts.  The Court cited to a First Circuit case that generally stands for the proposition that a habeas court should not consider a new legal theory that was not presented to the state courts.  The Second Circuit decides that it does not need to address this procedural issue since the prejudice claim fails.

I guess this is a procedural problem that could potentially render its ugly head in the future.  While this footnote cannot be used as binding precedent, it's now out there.  I don't think that a footnote in a summary order is the proper way to address an issue that seems to be novel.

As I wrote that, I began to remember a summary order from a few months ago that kind of did the same thing -- finding a new legal theory in federal court unexhausted.  Ah ha - here it is.  Somewhat similar I guess.  That was a little more drastic change in legal theory -- from a Batson national-origin-based claim to a Batson race-based claim.  And since it was a summary order, it can't be cited as precedent in this new summary order. 

So I guess it's still open, but now out there in a more concrete way.

Habeas Corpus- A Tricky Exhaustion Question

Second Circuit issues a published opinion today in the case of Acosta v. Artuz, link here.  The decision was written by Judge Raggi and was joined by Judges Walker and Cabranes.

It's a very interesting case on the question of exhaustion (see FAQ 4). 

The petitioner had not raised the claim that the trial court, as opposed to the hearing court, had failed to suppress his confession based on a Miranda violation.  He then kind of attempted to raise it on appeal.  There is no indication in the appeals court's decision that it had addressed this specific claim on the merits.

So, the question is whether this claim is exhausted?

The Second Circuit digs deep into this question, but then does not definitively answer  it.  Instead, it says, in dicta, that it is persuaded, under the Supreme Court's decision of Castille v. Peoples, 489 U.S. 346 (1989) (stating that fair presentation does not occur where claim is raised in discretionary context where merits will be considered for special and important reasons), that if the Appellate Division refuses to exercise its discretionary authority to review an unpreserved claim, that means that it is unexhausted, even if the petitioner had presented it to that appellate court.

But that's not the holding.  Instead, it holds that the claim was not fairly presented since the claim raised in the state court was not the same claim that was being raised in the federal habeas proceeding.

Here's the Second Circuit's conclusion:

(1) The review authority of New York’s Appellate Division to hear claims of unprotested error is discretionary. A question thus arises under Castille v. Peoples, 489 U.S. 346, as to whether Acosta’s direct appeal challenge to the trial court’s failure sua sponte to reconsider the admissibility of his confession was adequately exhausted in the absence of indication that the state appeals court actually addressed the merits of the claim.

(2) The applicability of Castille to this case need not be decided because the record
reveals a more fundamental exhaustion defect: Acosta failed clearly to identify for the state appellate court that he was charging the trial judge with an error in failing sua sponte to reconsider the admissibility of his confession, which error was separate and distinct from any decision made by the hearing judge in denying Acosta’s suppression motion.

(3) Because no state remedies remain available to Acosta, his unexhausted claim is
deemed procedurally barred. Acosta fails to demonstrate the cause and prejudice or
miscarriage of justice necessary to secure a merits review of such a barred claim. Indeed, he cannot do so because his claim lacks merit. On the record presented to the state court, Acosta cannot demonstrate that clearly established Supreme Court precedent compelled the state court to conclude that his confession, made after invocation of the right to counsel, was inadmissible as the product of interrogation rather than admissible as a volunteered statement.

A couple of quick notes:

(1) As we recently learned from Cone v. Bell (discussed here), the State cannot argue that the failure to raise a claim in the trial court does represents an independent and adequate state law ground to bar habeas relief where the appellate court does not reject the claim as unpreserved and, instead, decides the claim on the merits. 

(2) Similarly, it would certainly appear that, under the Second Circuit's reasoning, if the appellate court decided to address an unpreserved claim on the merits, then the claim would be exhausted.

(3) The case presented a very interesting habeas issue, but it is clear that the Second Circuit did not need to address it.  The whole Castille discussion is dicta.  Since it is a very important issue in habeasland, I think it would have been better to have waited to analyze it when it was necessary to the conclusion of the case.  Now, a different panel can simply disagree and go a different way.  At least, habeas petitioner's can still make the argument.  Knowing the state of habeas law these days, petitioner's probably won't be able to persuade a different panel that this dicta should not be followed.  But you never know.