Habeas Corpus Blog

Habeas Corpus - Alan's First Post

By Alan Lewis (posted by JK)

Last week, in Young v. Conway, the Second Circuit affirmed the grant of  a writ of habeas corpus by a WDNY Magistrate (Bianchini) based upon a 4^th amendment claim!  Successful 4^thamendment habeas claims are extremely rare because, so long as the petitioner was permitted an opportunity to fully and fairly litigate the claim in state court, the Supreme Court’s Stone v. Powell  holding is that “a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.”

So how did Young win a 4^th amendment claim in spite of Stone?   In short, the State waived theStone argument by failing to make it in District Court.  The Second Circuit could have exercised discretion to nevertheless apply Stone on appeal, but declined to do so.  The Court was seemingly exasperated by the State’s failure below, describing the record as “bereft of any reason as to why it failed” to make the Stone argument in District Court.

Yet, this may be a rare case where, even if the State had argued the Stone bar, the Petitioner might nevertheless have had a chance.  Let me try to explain.

The nature of the 4^th Amendment claim here was that the Petitioner’s conviction was the result of an in-court identification by the victim that should not have been allowed to occur.  It should not have been allowed, as Young argued and the Court agreed, because the pre-trial identification procedures were suppressed and the victim did not have a source, truly independent of the suppressed pre-trial identification procedures, for her ability to make the in-court ID.

Whether an in-court identification truly rests on an independent source must be assessed under a six factor test, first laid out by the Supreme Court in United States v. Wade.  But when Young raised his independent source argument in the New York Court of Appeals, that court failed to apply the test.  Instead, it treated the independent source question as an “issue of fact” subject to highly deferential review, which asked only if there is “support in the record” for the lower court finding.   Because the N.Y. Court of Appeals failed to apply the Wade test mandated by the Supreme Court to assess independent source issues, its decision was “contrary to” clearly established law, and therefore not entitled to habeas deference.

Had the State not waived the Stone argument in District Court, the Petitioner would likely have argued that Stone did not apply.  That is, how could the state court review be deemed a “full and fair” adjudication of the Wade claim, given the state court’s refusal, based on state law, to apply the Wadestandard to the claim?  In pointing out that this case lacked the “typical indicia of reliability that ordinarily weigh against re-litigating a Fourth Amendment claim on collateral review,” the Second Circuit hinted it might have well been sympathetic to such an argument.  But we’ll never know.

In granting the writ, the District Court had also barred a retrial on the ground that, with the victim’s identification of the defendant now precluded, the prosecution did not have other evidence sufficient to obtain a conviction.  The Second Circuit vacated this aspect of the remedy, but only because it concluded that its “grave doubts” about the sufficiency of the remaining evidence should be resolved in the first instance by the state courts.

One final point – this Petitioner isn’t going anywhere, as he is currently serving a term of 25 to life on an unrelated charge. 

 

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 - Front-End Argument - Edited

On Monday, the Supreme Court will hear argument in two front end cases.  They are listed below. 

I am not going to dig into them here since they are both Fourth Amendment issues.  I haven't discussed it too much around here, but habeas relief is not generally available to habeas petitioners based on an alleged Fourth Amendment violation.  Relief would only potentially be available if a petitioner can argue that the state courts didn't provide him with a full and fair opportunity to litigate the Fourth Amendment claim.  But that doesn't happen very often.*

*I edited this paragraph after posting it to make it more accurate.  The message remains the same -- the merits of Fourth Amendment claims are not litigated in habeas cases.

And a petitioner can argue a Fourth Amendment claim through an IAC claim.  In other words, a petitioner can argue that counsel was ineffective for failing to raise a certain Fourth Amendment claim.  In that posture, we have seen around here the interesting subsidiary question of whether the underlying Fourth Amendment claim had to be clearly established in order to establish deficient performance.  That popped up in the Second Circuit decision of Palacios v. Graham.  It would have made an interesting issue for the Supreme Court to review, but the Court denied review of that petition.*

*D/D: My office signed on to an amicus petition in that case.

In any event, with respect to the two cases being heard next week, I am obviously very interested in Tolentino since it is a case out of New York.  So that will have an immediate impact on my work, if not on habeas law.  

Here are the cases:

Davis v. United States, 09-11328 (front-end case)

• Argument Date: 3/21/11
• SCOTUSblog page
• Issue: scope of good faith exception to exclusionary rule in a situation where a police search was valid at the time of the search but later would have been ruled unconstitutional

Tolentino v. New York, 09-11556 (front-end case)

• Argument Date: 3/21/11
• SCOTUSblog page
• Issue: whether an individual’s motor vehicle records should be suppressed as fruit of an illegal search where the police's only link to the records was based on information obtained after an illegal stop of the individual’s vehicle.

Habeas Corpus - Petition Of Interest

A really interesting cert. petition was brought to my attention because DISCLOSURE/DISCLAIMER - my office signed onto an amicus brief asking the Court to grant certiorari.  So I guess this post could be looked at as a little PR for a case that my office thinks is important.  But that doesn't change the fact that the petition still raises two issues that would be of interest to all people interested in habeas.  

The cert. petition is in the case of Palacios v. Burge, Sup. Ct. Docket No. 10-5257.  The Second Circuit cite is 589 F.3d 556.  I originally discussed the case here and here. 

Those entries didn't discuss too much about the case (probably because it was right around Christmas time, an understandably slow time for blogging).  So here's some background:

The main issue in the case is IAC based on counsel's failure to raise a probable cause issue.  The seizure in the case was pretty unusual.  Shortly after two men were assaulted by a group of people, some of the individuals in the group were seen running towards a local nightclub.  Armed only with a description of "male Hispanics," the police sealed off the entire club and directed all of the people in the club to line up single-file.  Then, one-byone, the police subjected each of the 173 Latino men in the club to a show-up identifcation during which one of the victims identified petitioner as one of the attackers.  The victim did not subsequently identify petitioner in two photo arrays.

The Second Circuit concluded that counsel was not ineffective for failing to raise the 4th Amendment/probable cause claim since there were "exigent circumstances" to justify the seizure.  Critically, in analyzing the Sixth Amendment claim, the court stated that, to establish deficient performance, petitioner "must establish unreasonableness in light of Supreme Court precedent regarding the state court's Fourth Amendment determination."

The two issues in the petition are:

1. Whether there exists an "exigent circumstances" exception to the well-established, general fourth amendment requirement that the police must possess individualized, reasonable suspicion to detain an individual for law enforcement purposes.

2. Whether a habeas corpus petitioner who brings [an IAC] claim that rests on counsel's failure to raise a Fourth Amendment claim needs to establish that the state court engaged in an unreasonable application of Supreme Court Fourth Amendment precedent in addition to establishing that the state court engaged in an unreasonable application of Supreme Court Sixth Amendment precedent.

The amicus that my office joined focuses on the second of these issues.  Essentially, the amicus argues that the AEDPA deferential standard of review should only apply to the overarching Sixth Amendment claim and not to the substantive claim that counsel failed to raise at trial or on appeal.

As the petition shows, there is what I will call an "unacknowledged, implicit split" in the Circuits on the second question.  The Second and Ninth have stated that the standard of review also applies to the underlying suppression claim, not just the Sixth Amendment claim.  Several other circuits have reviewed ineffectiveness claims based on the failure to raise a suppression claim and have not applied the standard of review to the underlying suppression claim.

It makes for a good cert. petition.  I'll be watching it closely.

Here's the current status of the case: The petition was filed in July.  Respondent waived its right to file a response.  On August 19, the petition was distributed for the September 27 conference. 

Habeas Corpus - Law Journal Coverage of Palacios

The Second Circuit's decision in Palacios (discussed here) is the lead article in today's New York Law Journal (subscription only, so I won't link to it).

Here are the opening paragraphs:

The U.S. Court of Appeals for the Second Circuit has rejected an inmate's claim of ineffective assistance of counsel over his attorney's decision not to challenge a show-up identification in the wake of a 1997 stabbing outside a Queens nightclub.

The circuit said New York state courts did not unreasonably apply the law because the nearly immediate show-up identification of defendant David Palacios was justified by exigent circumstances, and the attorney's decision not to challenge the identification did not violate Mr. Palacios' constitutional rights.

Here's what Palacios' attorneys had to say:

Lawrence T. Hausman of the Legal Aid Society Criminal Appeals Bureau represented Mr. Palacios.

"We feel the Second Circuit is applying the exigent circumstances test in a context where it's never been applied before to replace individualized suspicion as a predicate for a police seizure," Mr. Hausman said.  "It's particularly troubling in a situation where they detained 170 individuals based on their gender and ethnicity.  Because they apply what we think is a standard that has never been applied in this kind of situation we will be seeking cert from the Supreme Court."

Habeas Corpus - 4th Amendment in a Habeas Petition

Second Circuit issued a published opinion yesterday in Palacios v. Burge (available here).  The issue in the case is whether counsel was ineffective when he failed to move to suppress evidence of a show-up identification and confession under the Fourth Amendment. 

Judge Walker, joined by Sack and DJ Koeltl, concludes that:

The show-up was limited in scope and duration, and included individuals reasonably suspected of perpetrating a recent, soon-to-be fatal stabbing. There was a strong showing that the show-up was justified by exigent circumstances and, based on the totality of the circumstances, was reasonable, and that the show-up did not unconstitutionally taint Palacios’s subsequent confession. Therefore, the state courts did not unreasonably apply clearly established Supreme Court law in denying his ineffective assistance claim.

As Walker notes in the opinion, what's interesting about the case is that typically Fourth Amendment issues are barred from habeas review under Stone v. Powell, 428 US 465 (1976).  However, because the claim is asserted through an IAC claim, the court can review it.

Overall, it's an interesting read.  It was an unusual seizure and show up.  The police had been told that the perpetrator was inside a club.  So the officers seized everybody inside and had them walk out one by one for the victims to view.  After a lengthy analysis, the Second Circuit upholds this action, concluding that there were exigent circumstances justifying the unusual seizure and the police actions themselves were reasonable.

Habeas Corpus - Something Encouraging

Playing some catch-up this morning, I just reviewed the Supreme Court's per curium opinion in Michigan v. Fisher (available here).  I actually can't even qualify it as a "front end of habeas" decision since it concerns Fourth Amendment issues and Stone v. Powell precludes habeas review of Fourth Amendment issues (for the most part).

But I wanted to mention the opinion due to the dissent.  Stevens dissented, stating that the Court should not interject itself into such a mundane Fourth Amendment case where the ultimate decision was fact-based.

What's most encouraging about the opinion is that Sotomayor joined Stevens dissent.  This continues her general pattern so far of taking the more liberal position on criminal/habeas matters (for example, see here). 

Habeas Corpus - Summary Order

Another summary order from the Second Circuit today.  A little bit more analysis today than in yesterday's summary order, but nothing significant. 

Here are the details:

Garcia v. Walsh, 08-4622-pr, link here, Oct. 6, 2009, Leval, Raggi, Gleason, DJ.

• Affirming Denial of Habeas
• Issue: Ineffective assistance of counsel based on counsel's failure to move for a suppression hearing on probable cause to arrest
• Notes: DJ granted COA on this issue

ANALYSIS:  Court states that the ineffectiveness claim must fail because petitioner could not show that he would have been successful had a hearing been held.  In other words, no probable cause = no ineffectiveness for failing to ask for a hearing.  court engages in a somewhat detailed analysis on the probable cause issue and concludes that there was probable cause.  In a meaningless coincidence, petitioner's counsel shares the same last name as the Respondent.