Habeas Corpus Blog

Habeas Corpus - Previewing (kind of) the October 2013 Term - Updated

By JK

Next Monday, the Supreme Court is going to kick off its October 2013 Term.  And for the first time in a few years, it does not have any heavy duty habeas cases on the docket.  That could potentially change with the results from today's long conference (to be released on October 1).  

But for now, the Court only has two agenda-driven-Sixth-Circuit-error-correction cases on its habeas docket.  Both of these concern review of habeas grants out of the Sixth Circuit and both will get reversed.  The only question is whether any bad law for habeas petitioners, beyond the typical "no deference" analysis, will come with them.

Actually, I shouldn't be so negative.  Burt v. Titlow could expand upon Lafler in a positive way.  I guess we will see from the argument next week whether there is any chance for that.  Unfortunately, I am not sure that there is any hope in the Woodall case.  That looks like a standard 2254(d)(1) reversal.  But maybe that one can buck the trend.

Here they are (issues are presented as they are in the States' cert. petitions):

(1) Burt v. Titlow, 12-414

• To Be Argued 10/8/2013
• Issues: (1) Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in holding that defense counsel was constitutionally ineffective for allowing respondent tomaintain his claim of innocence; (2) whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea; and (3) whether Lafler v. Cooper always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.

(2) White v. Woodall, 12-794

• To Be Argued 12/11/2013
• Issues: (1) Whether the Sixth Circuit violated 28 U.S.C. 2254(d)(1) by granting habeas relief on the trial court's failure to provide a no adverse inference instruction even though the Supreme Court has not "clearly established" that such an instruction is required in a capital penalty phase when a non-testifying defendant has pled guilty to the crimes and aggravating circumstances; and (2) whether the Sixth Circuit violated the harmless error standard in Brecht v. Abrahamson in ruling that the absence of a no adverse interference instruction was not harmless in spite of overwhelming evidence of guilt and in the face of a guilty pleas to the crimes and aggravators.

UPDATE: The Court issued an order list from the long conference today and no cert. grants in habeas cases.  So it remains, for now, a relatively inactive habeas docket for the Court.

 

Habeas Corpus - Wacky

By JK

Got to hand it to the Ninth Circuit. I have been here about 3½ months and I have now seen something that I never seen before in over 15 years of practice. Essentially, the court issued an opinion without a majority opinion. That is really a fair assessment – I simply do not know how else to describe what happened.  

The Ninth Circuit affirmed the denial of a habeas petition in a non-capital case out of California in a case called Loftis v. Almager. The issue in the case was whether a factual basis was constitutional required for the no-contest guilty plea in the case. It boiled down to two things: if the no-contest guilty plea was actually an Alford plea (or California’s analogue (People v. West)), then the factual basis was necessary. If it was, then was such a factual basis present?

Seems pretty straightforward, right? But it did not end up that way.

Before I get into it, I should probably briefly say what the difference is between a “no contest” plea and an Alford plea. A no-contest plea is an alternative to pleading guilty, but in reality has the same effect as a guilty plea. The defendant essentially says, "I do not contest the charges." He is taking no position as to whether he committed the crime, so there is no reason for the court to examine that question.

In contrast, an Alford plea does have some relation to the question of innocence/guilt. In this type of plea, a defendant is pleading guilty, but not admitting that he is guilty. Rather, the defendant (essentially) maintains innocence, but acknowledges that the prosecution has sufficient evidence to convict him. Because questions of innocence hang over the head of this type of plea, courts have concluded that a factual basis for the plea is constitutionally required.

Now that that's out of the way, let's go back to the decision in Loftis. The "majority opinion," written by Judge Adelman (DJ from Wash, sitting by designation) concludes that the guilty plea was simply a no contest plea, not an Alford plea, so no factual basis was necessary. As such, this omission did not rise to a constitutional violation.

I put "majority opinion" in quotes because I am not sure how it really was the majority opinion. Amother member of the panel, Judge Silverman, only concurred in the judgment, while the third member dissented. But Judge Silverman's concurrence means that he did not join the reasoning of the majority opinion.  So at a basic level, I am not sure why Adelman's opinion actually is the majority opinion as opposed to Silverman's concurring opinion. They seem equivalent.  Why is one ranked higher than the other?

But I have not even reached the wacky part of the decision, if you can believe that. Judge Silverman concludes that this actually was an Alford plea, but that the error was harmless. That's not wacky. But what is wacky is that he agrees with the dissenting judge on this point. The dissenting judge, Tashima, believes that the factual basis was necessary and it did not exist in the case. But Tashima's reasoning means that, on the issue on which the "majority opinion" rested its conclusion, there were actually two judges who came to a different conclusion. Wacky!* Inconceivable!**

*Always had an affection for the word wacky. 

**On the other hand, that word's a little played out (at least among my generation).

Because this is true, is there any way that Adelman's opinion can be cited for any precedential value when he was the only judge out of the three who came to the conclusion on the issue on which the opinion rested? I guess it becomes less problematic (but more intellectually tangled) if the 2-1 split against Adelman was based on what can arguably be classified as a factual, as opposed to a legal, issue.

But even so, why is Adelman's opinion the "majority opinion," not Silverman's? Is it because he consistently uses the word "we"? Because it's longer and more formal?  Seriously, what makes it a majority opinion? No other judge joined the reasoning in the opinion.  

Or am I wrong for even calling it the "majority opinion" at all? Although it is published that way, isn't it really just two concurring opinions joining in a shared result?

But let's just say that I am missing here and there is some official reason why Adelman's opinion must be considered the "majority opinion"?  Accepting that as true, how in the hell does someone cite it? Doesn't there need to be a parenthetical saying that it's just like nohing more than a plurality opinion? And what is the worth of a circuit court plurality opinion?   

I am sure something like this has happened before. Oh wait, Judge Silverman talks about that:

Chief Judge Kozinski recently designated a separate opinion of his, not as a dissent or a partial concurrence, but as a “disagree[ment] with everyone.” Garfias-Rodriguez v. Holder, — F.3d —, 2012 WL 5077137 (9th Cir. October 19, 2012). I chuckled at the time, but not any more. I now find myself in the position of agreeing with the result reached by Judge Adelman affirming the denial of a writ of habeas corpus, but only with the result; agreeing with the portion of Judge Tashima’s dissent demonstrating the constitutional requirement of a factual basis to support a People v. West type no contest plea; but ultimately disagreeing with Judge Tashima about whether there was, indeed, a factual basis in this case for second degree murder under California law.

I enjoyed reading that paragraph. But it's not enlightening as to what to do with this type of opinion.

So, what is the real opinion here? At bottom, I guess it can be summed up in two words: habeas denied.