Habeas Corpus Blog

Circuit Court Rundown – October 13, 2013

by Matthew Keller

Some more recent habeas rulings from the Courts of Appeals. In this post, I focus on the Sixth Circuit, which over the past month has issued a series of generally helpful procedural rulings:
 

Gillis v. United States (6th Cir. Sept. 9, 2013)

     Gillis offers good advice on one possible method for avoiding filing deadlines for 2255 motions and, more generally, is a good reminder of the value of reading rules of procedure. Often there are little nuggests in there that may get you out of an occasional fix.

     The petitioner was convicted in 2007 of dealing crack near a school in violation of 21 U.S.C. 841 and 860(a). The court initially sentenced him to 262 months, but in 2009 it lowered the sentence to 191 months following a remand to reconsider application of the Guidelines' career-offender provisions. Gillis asked his attorney to appeal his new sentence, but counsel failed to file a timely notice. In May, 2011, Gillis filed a pro se § 2255 motion claiming ineffective assistance. The district court dismissed the motion as barred by the one-year deadline of § 2255(f). Gillis waited 201 days to appeal that denial, and the Government moved to dismiss the appeal as untimely.

     The Sixth Circuit held that the appeal was timely.  The district court never entered a separate judgment after denying the § 2255 motion, and therefore Gillis effectively had 210 days to appeal. The 210 days adds up as follows: Federal Rule of Civil Procedure 58(a) requires a separate judgment for all decisions or orders, except for five exceptions.  A § 2255 motion is not one of those exceptions. Therefore, the district court’s judgment was not considered “entered” until 150 days after it denied the § 2255 motion. See Fed. R. App. P. 4(a)(7)(A)(ii) (defining “judgment” as entered 150 days after entry in the civil docket in the absence of a separate judgment required under Civil Rule 58(a)). Then, you add to that 150 the standard 60 days to appeal provided for in Federal Rule of Appellate Procedure 4(a)(1)(B) (and Rule 11(b) of the Federal Habeas Rules). Because Gillis filed his appeal within the 210-day window, his appeal was timely.

     For those of us practicing primarily in the Second Circuit, there is a wrinkle here.  The Sixth Circuit noted that the Second is the only Circuit that has held, in a 1993 case, that , Civil Rule 58(a) does not apply to § 2255 motions because of the “quasi-criminal” nature of such motions. See Williams v. United States, 984 F.2d 28, 29–31 (2d Cir. 1993). However, there is a good argument to be made that Williams was wrongly decided. Federal Habeas Rule 11(b) is clear that Fed. R. App. P. 4(a) governs appellate filing deadlines. That rule, in turn, defines the entry of a judgment with reference to Fed. R. Civ. P. 58(a). There is thus no basis in the governing Rules for the Second Circuit’s “quasi-criminal” gloss. The other circuits to consider the issue have recognize this: the Third, Fourth, Tenth, Eleventh, and D.C. Circuits all agree with the Sixth Circuit’s 210-day rule.

     Unfortunately for Mr. Gillis, AEDPA’s filing deadlines are not as forgiving as the rules of Federal and Apppellate Procedure. Here the latter rules gave Gillis an extra six months to appeal the denial of his § 2255 motion. But the former, as the Court noted, “are not so lenient with regard to the timeliness of his § 2255 motion in the first place.” Gillis had 14 days from his resentencing in December 2009 to file a direct appeal. (Fed. R. App. P. 4(b)(1)). His lawyer did not do so, and his conviction became final (and the one-year AEDPA clock began to run) on December 26, 2009. That clock ran out on December 26, 2010, but Gillis did not file his pro se § 2255 motion until May 20, 2011. 

     Gillis tried to argue that the one-year AEDPA clock should not have begun until the Sixth Circuit dismissed his untimely direct appeal in January 2011. The Sixth Circuit (correctly) found that this was not the way things work: “[i]f the one-year AEDPA statute of limitations could be extended by filing a late notice of appeal and getting that late appeal dismissed,” the Court said, “there would not be much left to the statute of limitations.”  

Ajan v. United States (6th Cir. Oct. 3, 2013):

     In another ruling on 2255 procedure, the Sixth Circuit joined the Fourth, Eleventh and D.C. Circuits in holding that a COA is not required to appeal the relief granted after a successful § 2255 motion.

     Ajan was originally sentenced to 646 months for various drug, kidnapping and firearm offenses. However, his § 2255 motion was granted, and his sentence vacated, after the parties agreed that one of the § 924(c) firearm convictions was not an offense under the charged statute. Without conducting new sentencing proceedings, the district court ordered entry of an amended judgment reflecting a new sentence of 346 months (the total term for the remaining offenses). Ajan appealed without obtaining a COA.

     The Sixth Circuit held that a defendant need not obtain a COA to appeal the remedy following a successful § 2255 motion, because the granting of the motion results in a “new judgment” and therefore a new right of direct appeal. The court held that this follows from the Supreme Court’s 2010 decision in Magwood v. Patterson. Magwood held that an appeal from a successful § 2254 petition was not a second or successive petition because a “new judgment” is entered when the § 2254 is granted. The Circuit held that this rule applies with equal force to § 2255:

“Ajan’s successful § 2255 petition led to a new judgment — the Amended Judgment — which did not exist at the time his § 2255 petition was brought. It is the Amended Judgment that Ajan appeals. Because Ajan seeks to challenge the relief granted — i.e., whether the relief was ‘appropriate’ under § 2255, whether the new sentence was in conformity with the Constitution or Sentencing Guidelines, etc. — he is appealing a new criminal sentence and therefore need not obtain a COA”

Jefferson v. United States (6th Cir. Sept. 12, 2013)

     Petitioners often seek equitable tolling of AEDPA’s statute of limitations.  The Sixth Circuit also had some good news for petitioner's on that score as well, at least in the context of Brady claims.

     Kenneth Jefferson was originally convicted in federal court in 1999 for his role in a gang selling crack out of Ypsilanti, Michigan throughout that drug’s boom years of the 1980s and 1990s. He was sentenced to twenty years. The Sixth Circuit affirmed his conviction on direct appeal, and the conviction became final ninety days later, on May 12, 2003. However, Jefferson did not file his § 2255 motion until August 2004, making it untimely.

     Here’s where it gets tricky (apologies for the bumpy procedural history, but its necessary). Throughout the post-trial process, Jefferson and his codefendants asserted that the Government withheld the promises it had made to several cooperating witnesses regarding the benefits they would receive in exchange for their help in prosecuting Jefferson and others. They also asserted that these CWs lied at trial about the benefits they were promised, and that the Government knew about this perjury and sat by silently. These claims were given some support when, in March 2004, one of the CWs stated to the judge that he expected the AUSA to recommend a downward departure in his case. This set in motion an internal investigation by the local US Attorney’s office, which ultimately concluded that the AUSA had in fact met with some CWs without their counsel present, and made some, “at least tacit, promises of further sentencing reductions.” The investigation also concluded that the AUSA “had witnesses testify without revealing the additional understandings; moved orally at sentencing or in Rule 35 motions for downward departures; and had the sentencing records of these witnesses sealed.”

     Jefferson then filed a series of additional motions (and supplements to pending motions), and continued to receive belated Giglio information from the Government. At some point he was given an attorney to help him with his claims.  At first, the district court denied Jefferson’s § 2255 motion and the various supplements to it arguing for a new trial based on the Brady, Giglio and Napue violations highlighted by the US Attorney’s investigation. The Court rejected Jefferson’s attempts to toll the start date for his one-year AEDPA limitations period from May 2003 (when his conviction became final) to either September 2004 (when a decision was issued in an unrelated case detailing disclosure violations by the same AUSA), or to September 2005 (when the government revealed information from its internal investigation essentially confirming the Brady/Giglio violations in Jefferson’s case).*

* Jefferson argued pursuant to § 2255(f)(4) that his one-year clock ran from the date “on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.”

     The court rejected the September 20004 date on the ground that “a decision in an unrelated terrorism case could not constitute the factual predicate for prosecutorial-misconduct claims in Jefferson’s case.” And it rejected the September 2005 date because Jefferson had filed his motions in March 2005, which severely undercut an argument that he was not on notice of his claim until five months after he filed it.

      On its first trip up to the Circuit, the court reversed. It agreed that neither the 2004 nor the 2005 dates could serve as the factual predicate of his claims. But, the Circuit held, the district court “did not resolve the critical question of whether Jefferson’s additional claims were brought within one year of ‘the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.’” The Court therefore remanded for consideration of “the statute of limitations and the possible application of equitable tolling.”

     The district court complied, gave Jefferson’s motion additional consideration, and again denied it.  This time, the court essentially deployed the “kitchen sink” reasoning the habeas practitioners are so used to: the claims are untimely, they do not warrant equitable tolling and, in any event, they are meritless. Case closed. 

     On appeal last month, the Sixth Circuit reversed the district court’s procedural rulings, but ultimately agreed that the claims failed on the merits. It found that, given the “realities of the prison system,” Jefferson could not have discovered the basis for his Brady/Giglio claims prior to 2005. Importantly, the Court rested this holding on the nature of the Government’s disclosure obligations under Brady:

“We hold that § 2255(f)(4)’s due-diligence standard did not require Jefferson continuously to seek out evidence that the government had a constitutional duty to disclose (evidence that, despite specific requests by the defense for the information, the government represented did not exist). We reject the district court’s determination that because Jefferson suspected undisclosed promises as early as 2000, his failure to seek information from “the cooperating witnesses themselves or their acquaintances” and his failure to seek sentencing records—which the prosecutor had sealed—rendered his diligence insufficient. We do not fault Jefferson for failing to scavenge for evidence of undisclosed promises when he already repeatedly asked for disclosure and the evidence was unconstitutionally withheld by the government.”

     On the merits, the Circuit held that Jefferson’s Brady claims failed on the materiality requirement, the bane of so many Brady/Giglio claims. Where the Government withholds impeachment material for cooperating witnesses, such claims almost always fail for the same reason, which goes something like this: “these witnesses were bad guys ratting out their friends to save their own asses. Both sides knew it, the Court knew it, and the jury sure as hell knew it. If the jury chose to believe them anyway, it probably would have still believed them if it knew they were promised $10 (or ten years off their sentence) instead of $5 (or 5 years off).”

   As Ive said on this blog before, I disagree with the wide application of the assumption that juries would do the same thing if they had more or different information to all manner of different circumstances. Our system operates largely on the theory that jury deliberations are (and should be) a black box. The frequency with which judges retroactively predict what a jury would have done under different circumstances (and the confidence with which they do so) violates that precept. To some extent this is necessary to conserve resources – the courts would be swamped if we had to retry every case where the jury didn’t hear evidence it should have (or where, in the more frequent case, the jury hears something it shouldn’t have). But make no mistake: the Brady materiality standard operates primarily as a practical resource-management tool. It is not a well-considered reflection on the ability of judges to accurately second-guess juries. 

Henderson v. Palmer (6th Cir. Sept. 12, 2013)

      In Henderson, the Sixth Circuit applied the prison mailbox rule to reverse the district court's finding that petitioner had procedurally defaulted on claims to the Michigan state courts.  Henderson was convicted of armed robbery and carjacking based in part on a lineup identification. Law enforcement officers claimed that Henderson's attorney was present at the lineup, but the attorney denied that he was there. Henderson claimed that his trial attorney was ineffective for failing to raise the issue at trial. However, state courts rejected his claims as untimely because the filing arrived one day late due to failings in the prison mail system.

     The Sixth Circuit reversed the district court's rejection of the 2254 petition because the lower court failed to apply Circuit precedent holding that “[w]here a pro se prisoner attempts to deliver his petition for mailing in sufficient time for it to arrive timely in the normal course of events,” that circumstance “is sufficient to excuse a procedural default based upon a late filing.”


Hooper v. Ryan (7th Cir. Sept. 9, 2013)

     For the last case, we move to the Seventh Circuit. In Hooper, the Seventh Circuit granted a §2254 petition, reversing the district court and effectively reversing a 32-year-old murder conviction on Batson grounds.

     At trial, the court drew a venire of 63 members, seven of whom were black. Two of the seven were removed for cause, and the prosecutor exercised peremptory challenges against the remaining five. The Seventh Circuit held that the Illinois Supreme Court applied Batson unreasonably in four respects. It’s worth going through all four grounds, both because a state Supreme Court making four mistakes on any one issue is notable, and because some of the mistakes would be funny if they were not so troubling.

     First, the Illinois Supreme Court unreasonably held that, under Batson, a trial court cannot “infer a prima facie case of discrimination from a racially disproportionate use of challenges.” The Seventh Circuit noted that Batson and subsequent rulings clearly allowed the use of peremptory strike statistics to support a prima facie case. Second, the Illinois court held that the five strikes against black venire members could not be discriminatory because the prosecutor also struck six white or Asian members. The Seventh Circuit held that, in addition to being legal error, the comparison of absolute strikes as opposed to their proportion relative to the racial makeup of the venire reflected “confusion about how to use numbers.” 

     We all know that lawyers are bad with numbers - otherwise we’d all be doctors, right? So perhaps that second error is somewhat understandable.  It’s a bit harder to excuse the third error. The Circuit held that it was error for the Illinois Supreme Court to reject the Batson challenge on the ground that the defendant, all three victims, and all principal witnesses were black. Not only was the Illinois Supreme Court plain wrong on this (three principal witnesses were white), the Circuit also pointed out that Batson and its progeny protect the rights of potential jurors (and the public at large) as well as the rights of defendants. The Circuit called the the Supreme Court of Illinois’ idea that “using race in jury selection is tolerable as long as the defendant, victims, and witnesses all are of the same race” a “serious legal blunder.”

     Finally, the Circuit held that the state court erred unreasonably in excusing the trial judge’s incorrect application of Batson’s three-step sequence of proof.

     The Seventh Circuit’s decision may force Illinois to free Hooper, who has served over 32 years for the murders and is now 67 years old. The Court acknowledged that it may be impossible for the state to conduct a “fruitful” Batson hearing more than three decades after the trial (not to mention a retrial). But I think the Court correctly reasoned that it could not let such an unacceptable decision stand. It may have helped that the Illinois Supreme Court decision under review was 24 years old – the Circuit was not throwing stones at the current court. It may have also felt that the trial was also tainted by its judge, Thomas Maloney, who was later convicted of bribery and spent the last 15 years of his life in prison. Maloney was not your ordinary crooked judge: a jury found that he fixed three gang murder trials. It’s not legally relevant to the Batson claim, but Maloney’s presence in the case was just one more taint on the appearance of justice.

 

SDNY Grants 2254 Resurrected by Martinez v. Ryan

by Matthew Keller

Court finds state trial counsel ineffective for failing to spot "straightforward" Massiah issue during trial.

Smith v. Fischer, No. 07 Civ. 2966 (S.D.N.Y. Jul. 16, 2013)

        In 2012, the Supreme Court held in Martinez v. Ryan that having an ineffective lawyer (or having no lawyer at all) in a state collateral proceeding could excuse a petitioner's failure to raise an ineffective-assistance-of-trial-counsel claim.  I thought this was a good decision because it would allow the lower federal courts to expend their scarce resources evaluating the merits of ineffectiveness claims rather than hashing out comparatively esoteric considerations of cause and prejudice.  In light of the onerous AEDPA standard, I didn't expect too many petitions to be granted after a merits review.  But last week, the Southern District of New York did just that.  Smith v. Fischer may very well be the first decision in the Second Circuit (or anywhere?) granting a 2254 habeas petition that had been resurrected by Martinez. 

        In March 2012, the district court denied Patrick Smith's 2254 petition as procedurally barred: the state court decision was based on Smith's failure to raise his ineffectiveness-of-trial-counsel claim in his first 440.10 (NY state collateral) motion.  Smith had filed that first collateral motion pro se. 

        A few weeks later, SCOTUS issued Martinez.  Two days after that, Smith moved for reconsideration.  It took the district court eight months, but this past January it decided that Martinez applied and, therefore, the court could reach the merits of Smith's petition.

The Case of the Serendipitous Snitch

        In 2003, a jury convicted Smith of intentional and felony murder for the killing of a security guard during an armed robbery.  Smith was sentenced to twenty to life.  He exhausted his direct appeals in June 2006 and filed his first 2254 petition in 2007. 

        The prosecution had faced substantial obstacles to trying Smith.  He was not arrested until seven years after the crime.  Indeed, the defense was able to have four counts of the six-count indictment dismissed on statute of limitations grounds.  The prosecution had eyewitness ID testimony, but that testimony  described someone who didn't resemble Smith very much and, in any event, those IDs were seven years old.  This gave the defense ample opportunity to impeach the State's identification witnesses based on the passage of time and degradation of memory.  Finally, during pretrial motion practice the trial court excluded Smith's incriminating statements to the police, further weakening the State's case.

        Then, a few weeks before trial, the prosecutor annouced a surprise witness - a jailhouse snitch to whom Smith allegedly confessed.  At trial, William Ferguson testified that, over the course of several days while they were incarcerated together, Smith told Ferguson about his involvement in the crime.  On cross, Ferguson admitted that he pressed Smith for information and attempted to gain Smith's confidence by "sharing his own background" and discussing his own crime.  On postconviction review, Smith's ineffective assistance claim was that trial counsel should have moved, pursuant to Massiah,* to exclude Ferguson's testimony because Ferguson was acting as the government's agent when he elicited the incriminating statements.

*  In Massiah v. United States (1964), the Supreme Court held that  the Sixth Amendment prohibits the government from eliciting statements from a defendant after the right to counsel has attached.  In United States v. Henry (1980), the Court held that an inmate who informs the government of a defendant's incriminating statements becomes the government's "agent" with  respect to later-elicited statements.

The 2254 Decision

        The Southern District reviewed Smith's ineffectiveness claim de novo.  It held that the state court did not make a merits determination of the ineffectiveness claim, even though the state court had referred to the claim as "meritless."  Prior to that, the state judge stated that it "declines to reach the merits of Defendant's [ineffective assistance of] counsel claims." The district court took the state court at its word. It held that the state court's "bare references"* to the merits of the claim following its assertion of a state procedural bar did not "undermine state court's ruling that it 'declines to reach the merits of case.'"

*    This appears to be a dig at the state court decision, which analyzed the "merits" of Smith's ineffectiveness claim in approximately 12 words: Smith's "bare claims of ineffective assistance do not meet the Strickland" standard.  

        The district court had little problem finding ineffectiveness on the part of trial counsel.  It held that "[t]he Massiah issue in this case is straightforward:"

"Mr. Ferguson testified at trial that [he] had agreed to testify for the prosecution before deliberately eliciting incriminating statements from Smith.  Mr. Ferguson's testimony on this issue was enough that defense counsel knew, or should have been aware, that a Massiah violation had occurred and that the statements should be suppressed."
 

        As for Strickland prejudice, the district court had this to say about the probability of an acquittal in the absence of Ferguson's testimony:

"due to the weaknesses the eyewitness testimony, which the trial judge noted, and the lack any scientific or physical evidence linking Mr. Smith to the crime, Petitioner has shown a 'reasonable probability' that he would have been acquitted but for his counsel's failure to suppress Mr. Ferguson's testimony under Massih.  Aside from Mr. Ferguson's testimony as to Mr. Smith's confessions, the evidence at trial consisted of eyewitnesses whose descriptions of the perpetrators were inconsistent with that of Mr. Smith, and whose memories had faded over the seven years between the and the trial. Mr. Smith was not arrested until six after the crime, and there was no physical or scientific evidence tying him to it. Given the limited evidence aside from the informant's testimony, the prosecutor emphasized Mr. Ferguson's statements in summation, including those statements which Mr. Ferguson elicited after he had agreed to testify. During deliberations, the jury asked for read backs of Mr. Ferguson's testimony . . . and returned a guilty verdict the following day. The state court judge who tried the case observed, '[i]t is reasonably clear to me, based upon the quality of the eyewitness testimony in this case, that the jailhouse informant had to be a reasonably important witness.'"  

         Perhaps anticipating that the Second Circuit might disagree that the state court decision was not on the merits, the district court held that the state court denial also didn't survive AEDPA deference: the state court's application of Strickland was "objectively unreasonable" because, "[g]iven the similar critical importance of Mr. Ferguson's testimony to the central issue before the jury in this case, no court could justifiably find that there was not a 'reasonable probability'  that, but for defense counsel's failure to suppress Mr. Ferguson's testimony, Mr. Smith might have acquitted."

        Finally, kudos to SDNY District Judge Sweet for calling it like he saw it here, once again demonstrating the benefits of life tenure free from electoral and other political pressures.  On the issue of whether the police had sent Ferguson in to get something from Smith, the judge was skeptical that it could be otherwise:  

"That Ferguson appeared as an informant on the heels of the trial judge's preclusion of Smith's statement to the police, that the police officers took no notes of their meeting with Ferguson or Ferguson's initial call to [an NYPD Detective], and that Ferguson, as an inmate, was able to have Smith brought to him in the library by a corrections officer all raise serious questions as to whether the police engaged in an intentional effort to secure Smith's incriminating statements."

        That's not Monday morning quarterbacking (which, to be fair, federal courts do indulge in from time to time when reviewing state court trial proceedings).  That's calling the state court out for a serious lapse in sound trial management.  That's what 2254 should be about.

Two Recent Seventh Circuit Decisions

By Matthew Keller

A quick post on a couple of Seventh Circuit decisions issued in the past couple of weeks:

     First, the Seventh Circuit quickly put the kibosh on habeas petitions asserting claims based on Alleyne v. United States (U.S. Jun. 17, 2013), the recent Supreme Court decision holding that Apprendi extends to facts mandating a mandatory minimum sentence. 

     In Simpson v. United States, No. 13-2373 (7th Cir. Jul. 10, 2013), the Circuit disposed of Levence Simpson’s request to file a successive § 2255 motion based on Alleyne.  Simpson received a 20-year mandatory minimum sentence for drug offenses; the Seventh Circuit affirmed in 2003.  His first § 2255 motion, claiming ineffective assistance, was denied in 2006. 

     Then came Alleyne, which overruled Harris v. United States and held that a judge cannot find facts resulting in a mandatory minimum unless the defendant either admits those facts or waives his entitlement to have a jury make that determination.  After Alleyne, Simpson argued that he was entitled to a successive § 2255 based on the “new constitutional rule” created by that decision.

     The Seventh Circuit denied Simpson leave to file a successive § 2255.  The easiest way to do this would have been to limit it to Simpson's facts: in his case the jury had found, by way of a special verdict, that he conspired to distribute more than one kilogram of heroin and more than 50 grams of crack (thus requiring the 20-year mandatory minimum). 

     But the Seventh Circuit, no-doubt envisioning a tsunami of Alleyne-based prisoner claims, went a bit further.  It conceded (as it had to) that Alleyne established “a new rule of constitutional law.”  But the Court noted that Alleyne did not satisfy the second requirement of § 2255(h)(2): that the Supreme Court make the new rule “retroactive to cases on collateral review.”  The Supreme Court did not do this; Alleyne came to the Supremes on direct, not collateral, review and the Court's decision says nothing about retroactivity.  For good measure, the Circuit noted that other extensions of Apprendi have been held to be non-retroactive. 

Taylor v. Ground, No. 12-2632 (7th Cir. Jul. 3, 2013)

     A week before Simpson, the Seventh Circuit granted a habeas petition based on an attorney's conflict of interest in a joint representation.  You don't see many of these claims, especially in big cities where public defender organizations and Criminal Justice Act panels generally do a good job of providing separate counsel where there is even a potential for conflicts.  So a habeas grant on conflict grounds coming out of Chicago deserves a bit of digging.*

* For all you history buffs, this months' NY State Bar Journal has a good article about the Boston Massacre trials, one of the most famous joint representations ever. John Adams represented both the British soldiers who fired into the crowd and the officer who was charged with giving the order to fire.  These days, such a joint representation would never be allowed.  But no one seemed all that concerned at the time.

     In Taylor, Levell Taylor was convicted of murder in Illinois and sentenced to 35 years for the 1996 gang-related killing of Bruce Carter.  On direct appeal, he claimed that his counsel operated with a conflict of interest by jointly representing both him and his brother, Lowell, in simultaneous murder trials.  In particular, Taylor argued that his lawyer’s refused to call certain exculpatory witnesses at his trial because those witnesses might have implicated Lowell.  This is a classic conflict claim, but the Illinois Supreme Court found no conflict and affirmed the conviction

    On § 2254 habeas review, the district court upheld the Illinois Supreme Court.  However, it granted COA on the issue: "[w]hether trial counsel's joint representation of Petitioner Levell Taylor and his co-defendant/brother, Lowell Taylor, violated Petitioner's constitutional right to the effective assistance of counsel under the Sixth and Fourteenth Amendments. . . .” 

     The Seventh Circuit disagreed with the district court. It found that the Illinois Supreme Court unreasonably applied US Supreme Court precedent by holding that Taylor’s interest in presenting exculpatory witnesses did not conflict with Lowell’s interest in preventing admission of inculpatory testimony. 

     The governing Supreme Court law, Cuyler v. Sullivan, 446 U.S. 335 (1980), requires a reviewing court to analyze whether there was a defect in counsel's strategy, tactics, or decision-making attributable to a conflict of interest.  According to the Seventh Circuit, the Illinois Supreme Court unreasonably applied Cuyler.  The Supreme Court:

"unreasonably declined to perform any analysis of Taylor's potential defense in assessing his Sixth Amendment claim. If it had, the court would have arrived at the inescapable conclusion that Taylor's potential strategy was sufficiently plausible such that his interests were at odds with those of his brother in deciding whether to pursue a unified assault on the State's evidence."*

*Specifically, the Circuit noted that three eyewitnesses identified Lowell as the shooter but did not see Taylor hand Lowell a gun. According to the Circuit, “these witnesses would have refuted the State's only evidence connecting Taylor to the crime.”

     The Circuit remanded for fact-finding required under Cuyler - whether the conflict of interest between the two brothers adversely affected the attorney’s performance.

     In the Second Circuit, pursuant to a decision called Curcio, the Court is required to explain to codefendants who wish to share counsel the risks of joint representation.  I don't know what the practice is in the Seventh Circuit, but it sounds as if there should have been more of an effort at the beginning to think through the conflicts between Taylor and his brother.  As this decision illustrates, it's better to get those issues out in the open early on rather than dealing with them after trial.   

   A quick post on a couple of Seventh Circuit decisions issued in the past couple of weeks:

     First, the Seventh Circuit quickly put the kibosh on habeas petitions asserting claims based on Alleyne v. United States (U.S. Jun. 17, 2013), holding that Apprendi extends to facts mandating a mandatory minimum sentence. 

     In Simpson v. United States, No. 13-2373 (7th Cir. Jul. 10, 2013), the Circuit disposed of Levence Simpson’s request to file a successive § 2255 motion based on Alleyne.  Simpson received a 20-year mandatory minimum sentence for drug offences; the Seventh Circuit affirmed in 2003.  His first § 2255 motion, claiming ineffective assistance, was denied in 2006. 

     Then came Alleyne, which overruled Harris v. United States and held that a judge cannot find facts resulting in a mandatory minimum unless the defendant either admits those facts or waives his entitlement to have a jury make that determination.  After Alleyne, Simpson argued that he was entitled to a successive § 2255 based on the “new constitutional rule” created by that decision.

     The Seventh Circuit denied Simpson leave to file a successive § 2255.  The easiest way to do this would have been to limit it to Simpson's facts: in his case the jury had found, by way of a special verdict, that he conspired to distribute more than one kilogram of heroin and more than 50 grams of crack (thus requiring the 20-year mandatory minimum). 

     But the Seventh Circuit, no-doubt envisioning a tsunami of Alleyne-based prisoner claims, went a bit further.  It conceded (as it had to) that Alleyne established “a new rule of constitutional law.”  But the Court noted that Alleyne did not satisfy the second requirement of § 2255(h)(2): that the Supreme Court make the new rule “retroactive to cases on collateral review.”  The Supreme Court did not do this; Alleyne came to the Supremes on direct, not collateral, review and the Court's decision says nothing about retroactivity.  For good measure, the Circuit noted that other extensions of Apprendi have been held to be non-retroactive. 

Taylor v. Ground, No. 12-2632 (7th Cir. Jul. 3, 2013)

     A week before Simpson, the Seventh Circuit granted a habeas petition based on an attorney's conflict of interest.  You don't see as many of these claims as you used to, especially in big cities where public defender organizations and Criminal Justice Act panels generally do a good job of providing separate counsel where there is even a potential for conflicts.  So they are interesting where they do arise (and especially where they are sustained).*

* For all you history buffs, this months' NY State Bar Journal has a good article about the Boston Massacre trials. John Adams represented both the British soldiers who fired into the crowd and the officer who commanded them to fire.  These days, such a joint representation would never be allowed, but no one seemed all that concerned at the time.

     In Taylor, Levell Taylor was convicted of murder in Illinois and sentenced to 35 years for the 1996 gang-related killing of Bruce Carter.  On direct appeal, he claimed that his counsel operated with a conflict of interest by jointly representing both him and his brother, Lowell, in simultaneous murder trials.  In particular, Taylor argued that his lawyer’s refused to call certain exculpatory witnesses at his trial because those witnesses might have implicated Lowell.  This is a classic conflict claim, but the Illinois Supreme Court found no conflict and affirmed the conviction.

 

 

     On § 2254 habeas review, the district court upheld the Illinois Supreme Court.  However, it granted COA on the issue: "[w]hether trial counsel's joint representation of Petitioner Levell Taylor and his co-defendant/brother, Lowell Taylor, violated Petitioner's constitutional right to the effective assistance of counsel under the Sixth and Fourteenth Amendments. . . .” 

     The Seventh Circuit disagreed with the district court. It found that the Illinois Supreme Court unreasonably applied US Supreme Court precedent by holding that Taylor’s interest in presenting exculpatory witnesses did not conflict with Lowell’s interest in preventing admission of inculpatory testimony. 

     The governing Supreme Court law, Cuyler v. Sullivan, 446 U.S. 335 (1980), requires a reviewing court to analyze whether there was a defect in counsel's strategy, tactics, or decision-making attributable to a conflict of interest.  According to the Seventh Circuit, the Illinois Supreme Court unreasonably applied Cuyler.  The Supreme Court:

"unreasonably declined to perform any analysis of Taylor's potential defense in assessing his Sixth Amendment claim. If it had, the court would have arrived at the inescapable conclusion that Taylor's potential strategy was sufficiently plausible such that his interests were at odds with those of his brother in deciding whether to pursue a unified assault on the State's evidence."*

*Specifically, the Circuit noted that three eyewitnesses identified Lowell as the shooter but did not see Taylor hand Lowell a gun. According to the Circuit, “these witnesses would have refuted the State's only evidence connecting Taylor to the crime.”
 

The Circuit remanded for fact-finding required by Cuyler - whether the conflict of interest between the two brothers adversely affected the attorney’s performance.

I don't know why counsel went forward representing both defendants.  Maybe there was a good reason, but where there was such a clear conflict in available defenses someone (if not defense counsel, then either the Court or the prosecutor) probably should have raised the issue at some point.

Second Circuit Grants Habeas Claim for Ineffective Assistance

Your attorney doesn’t have to be found guilty of murder to be ineffective, but it helps.

by Matthew Keller

     It is a fundamental tenet of criminal defense that your client’s unrelated bad acts cannot be used against him.  To do so would unfairly tempt a jury to find guilt not on the charges, but on the “bad man” theory that, if someone did wrong in the past, it’s more likely that they did wrong in the case at hand.

   Do lawyers deserve the same treatment?  According to the Second Circuit, apparently not.  Last week, in Gonzalez v. United States, 10-3630-pr (2d Cir. July 10, 2013), the Court remanded Pedro Gonzalez’s case for resentencing for the second time.  The only difference between the first and second remands: in the interim, the attorney was convicted of murdering his wife. 

The $35,000 No-Frills Retainer

     Pedro Gonzalez owned a small contracting company in upstate New York.  However, it appeared he had become involved in a drug trafficking operation that used drugs and cash to bribe a corrupt immigration official in exchange for green cards for illegal immigrants.  In 2001, he pled guilty to eight narcotics and bribery charges for his part in the scheme.  At his plea hearing, Gonzales admitted that he had made several deliveries of cocaine or heroin and that he had “produced over two kilograms of heroin throughout the course of this conspiracy.”  Consequently, a judge ordered him imprisoned for seventeen and a half years. 

     At his sentencing, Gonzales asked for his plea back.  He told the court that his attorney, Carlos Perez Olivo, had not sufficiently explained to him the charges or the plea process.  Gonzales claimed that Olivo, after accepting a $35,000 retainer, told Gonzales to sign the Plea Agreement without allowing Olivo to read it or even explaining to him what it was.  Olivo then told Gonzales to “‘agree with everything that was being said’ at the plea hearing in order ‘not to upset the judge’ or risk losing benefits the government had promised.”  In addition, Olivo did not submit a sentencing memorandum and did not meet with Gonzales prior to sentencing.  During the sentencing Olivo spoke only two sentences in favor of a sentence at the low end of the Guidelines range. 

      In a follow-up letter to the Court, Gonzales also offered what sounded like a defense to the charges or, at least, a reasonable mitigation argument. He explained that he became involved with the conspiracy after one of his employees introduced him to “a friend” who offered Gonzales legal services in order to obtain green cards for his undocumented workers.  The friend assured Gonzalez that it was all legal.

     Not quite.  Gonzalez went to a meeting at an Albany restaurant, he said, for the purpose of learning more about what the immigration lawyer could offer.  Instead he met a group of people who thereafter “threatened and used” him in order to compel his participation in their narcotics activities.  Gonzales said that a Government informant “called me and told me if I did not get the drugs for him, they were going to kill me.”  This is a compelling narrative: the bad guys, through threats and coercion, strong-arm a hardworking small businessman into doing their dirty work.  If Gonzales could support his version of events, he had a strong defense of duress.*

   *The Sentencing Guidelines also recognize a coercion basis for a downward departure where “the defendant committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense.” See USSG § 5K2.12.)

First Habeas Motion

     Soon after he was sentenced, Gonzales filed an initial § 2255 motion claiming ineffective assistance of counsel based on Olivo’s failure to appeal the court’s denial of the motion to withdraw the guilty plea.  The district court denied the motion on grounds that Gonzalez’s plea agreement contained a valid appeal waiver.  Gonzalez then sought, and the Second Circuit granted, a COA on the issue of whether Gonzalez had asked Olivo to file an appeal – the Circuit remanded for factfinding on that issue.  On remand, the government submitted an affidavit from Olivo, “stating at length that he had not been paid and, far more briefly, that Gonzalez had told Olivo that Gonzalez did not wish to appeal.”  Apparently, Olivo believed that no respectable lawyer could be expected to pursue a defense for just $35,000.

     In February 2006, over four years after he was sentenced and his motion to withdraw his plea was denied, the district court credited Olivo’s affidavit and again denied Gonzalez's § 2255 motion.  Gonzalez again sought a COA, and the Second Circuit again granted it to review “whether the district court properly decided the factual question – i.e., whether Gonzalez asked Olivo to file a notice of appeal – solely on the basis of affidavits.”

     While that appeal was pending, things started to fall apart for attorney Olivo.  In August 2006, he was disbarred in New York State for, among other things, defaulting on a former client’s appeal and, to avoid the consequences of that default, misrepresenting to the client that the appeal was meritless.  (It also turned out that Olivo previously had forfeited a license to practice law in Puerto Rico due to similar charges of malfeasance). Three months later, Olivo was shot and his wife was tragically murdered.  Olivo told police that the two of them were driving to their home in Chappaqua from New York City when another car ran them off the road and shot at them.  His wife was struck in the back of the head; authorities described Olivo’s wounds as “minor.”

     Maybe it was the disparity in the alleged assassin's accuracy that caused authorities to focus their investigation on Olivo.  Whatever the reason, he didn’t help his case by holding a creepy yard sale in which he sold his dead wife’s boots, pajamas and other personal items.  He was charged, and later convicted, of the murder.

     While Olivo’s murder case was proceeding, in February 2007 the district court granted Gonzalez’s § 2255 motion and vacated his sentence.  However, the court resentenced him to the same terms as the initial sentence.  Gonzalez again appealed, asking (again) for his plea back and, barring that, for a new sentence based on Olivo’s ineffective assistance.  The Second Circuit affirmed in November 2008, but granted leave for Gonzalez to file a second § 2255 motion “[i]n view of the existence of facts, not previously available, that might relate to the performance of counsel (including those that might bear on counsel’s effectiveness at the time of Gonzalez's guilty plea).” 

The Second § 2255 Motion

     In his second habeas motion, Gonzalez “drew the court's attention to the new fact that in 2008, Perez-Olivo was convicted of murdering his own wife and was currently serving a prison term of 25 years to life.”  Despite that new information, and despite a 63-paragraph sworn affirmation “describing in detail the events leading to his arrest, beginning with his being contacted by one of the government's confidential informants,” the district court denied the motion.  The district court implicitly conceded that Olivo had been Strickland deficient with respect to both the plea and sentencing but, it held, there was no prejudice: the court concluded that Gonzalez “fail[ed] to show that the deficient representation he received from trial counsel adversely affected the length of his sentence.”

     Last week, the Second Circuit reversed.  With respect to Gonzalez’s plea, the Court arguably created* a new rule in its Strickland jurisprudence: “the fact that an attempt was made to withdraw the guilty plea and go to trial may not be dispositive on the issue of IAC prejudice; however, it is a factor that must be considered by the court in assessing whether there is a reasonable probability that but for substandard performance by counsel, the defendant would have chosen to eschew the plea and go to trial.”  With characteristic pithiness, the Circuit reasoned that in determining “whether there was a reasonable probability that, absent [counsel’s] allegedly substandard performance, Gonzalez would have gone to trial, the district court did not mention the plainly relevant fact . . . that Gonzalez had actually attempted to . . . go to trial.”   

     *  I say that this is “arguably” a new rule because it is just as arguably dicta.  The court held that the record was devoid of evidence of deficient conduct.  In essence, the Court said that, despite having twelve years to develop his duress claims, Gonzalez had not presented any proof that “Olivo failed to investigate any aspects of the case that could have led to a successful defense by Gonzalez if the charges against him were tried.” 

 

     Gonzales fared better, however, with his ineffectiveness claims regarding sentencing.  The Circuit reversed the district court’s finding of no Strickland prejudice:

“[t]he hypothetical sentencing arguments proffered by Gonzalez's new counsel, along with the district court's reference to some of them as potentially ‘effective’ arguments, suffice to undermine our confidence in the outcome of Gonzalez's original sentencing and thus to show that the reasonable-probability standard with respect to the sentencing claim was met.”

 

     What role, ultimately, did Olivo’s murder conviction play in the Second Circuit’s decision?  Your answer to that question probably says something about whether you are at heart a legal realist or a formalist. But ask yourself: if there was no evidence to support a duress defense, what can Gonzalez possibly have used to justify a departure on that basis?  The Guidelines provision provides for a downward departure where the evidence does not support a "complete" duress defense, but Gonzalez still needed some hard evidence to support his claim that the other conspirators threatened him.  If you accept the Court's conclusion that Gonzalez again failed to come forward with such evidence, the only difference between this remand and the previous one is Olivo's murder conviction.   

     Logically, Olivo’s murder conviction - and his deficient performance in other cases - do not prove that he was ineffective in Gonzalez’s case.  But the Second Circuit’s two remands of this case for a second and third look suggest that the Court is (wisely, I think) not prepared to trust Gonzalez’s fate to a disbarred murderer.

Judge Garaufis (EDNY) Takes NY Trial Judge to Task; Prevents State From Retrying Old Murder Case

By Matthew Keller

 

Lopez v. Miller, No. 02 Civ. 3988
(E.D.N.Y. M&O filed Jan 16, 2013)

        When I read this case out of the federal court in Brooklyn back in January, I was excited to post about it.  But eventually so much time passed that I was afraid any post would be time-barred (like AEDPA, HCB's head honcho JK sets a high standard for timely blogging).  But the Supreme Court's decision in McQuiggin v. Perkins a couple of weeks back opened a door for me.  That case confirmed that there is an actual innocence exception to AEDPA's one-year limitations period.  However, Lopez v. Miller applied this exception back in January . . . and went on to grant a 2254 petition based on ineffective assistance of trial counsel.  A couple of months later, the court took the extraordinary step of forbidding New York from retrying the defendant, and ordered his release.  In response to Justice Scalia's anti-habeas diatribe in the McQuiggin dissent (discussed in JK's recent post on McQuiggin), I think it's appropriate to illustrate the type of case that McQuiggin now allows federal courts around the nation to address.

        Judge Garaufis’ opinion in Lopez is interesting for several reasons.  As I've already said, it foreshadowed McQuiggin by applying an actual innocence exception to an untimely habeas petition.  In doing so the court was following the Second Circuit's ruling last year, in Rivas v. Fischer (see HCB post here), that such an exception was required by due process.  Lopez is also rare in that the court grounded its habeas grant on a § 2254(d)(2) finding that the state court decision was based on unreasonably determined facts, as opposed to an unreasonable application of Constitutional law.

        Lopez is also noteworthy for reasons outside of habeas corpus law.  First, it has federalism implications; rarely does a federal judge take a state’s criminal justice system (and, especially, a state judge) to task as roundly as Judge Garaufis did here.  Garaufis wrote that the state court judge’s unexplained refusal to hold an evidentiary hearing to explore new evidence of innocence was “baffling” and resulted in a loss of important evidence (by the time the federal court hearing, two alibi witnesses were unavailable).    
 

        Second, Lopez is a stark example of justice delayed being justice denied.  Mr. Lopez filed his original § 2254 petition pro se in 2002.  Eleven years later a habeas court ruled that his state court murder conviction must be vacated because it resulted from a self-evidently bad witness ID, a lying prosecutor, and a baffling indifference to both of these by the state court judge. 

 
A “Rotten” Case 

        “The case of William Lopez began twenty-three years ago. It was rotten from day one.”  So begins Judge Garaufis’ 85-page M&O describing Lopez’s conviction for the 1989  murder of a Brooklyn drug dealer.  Pursuant to that conviction Lopez spent 23 years in prison.  Garaufis is unusually free with criticism of how New York state's criminal justice machinery operated in this case:  at one point he notes that, “the prosecution’s evidence was flimsy to begin with and has since been reduced to rubble by facts arising after trial.”  But he saves the real fireworks for the conclusion:
 

“Lopez’s habeas case presents a number of close legal issues, both because of the stringent standards governing federal habeas review and because of the unavailability of many key players. But what is far from close in the court’s view is that Lopez has been wronged by the State of New York. This wrongdoing has ranged from an overzealous and deceitful trial prosecutor; to a series of indolent and ill-prepared defense attorneys; to a bewildering jury verdict; and to the incomprehensible [New York Supreme Court] Justice Demarest, who so regrettably failed time and time again to give meaningful consideration to the host of powerful arguments Lopez presented to her. The result is that a likely innocent man has been in prison for over twenty-three years. He should be released with the State’s apology.”
 

The State should apologize?!?  I'm no historian, but I can't help thinking that it was humbling commands like this from Supreme authorities (i.e., the Crown) to the States that led in part to the American revolution.  Maybe that's why, even today, such direct criticism of state government by federal authorities is still rare.  And criticism in defense of a man convicted of murder?  Even when a man has been exonerated, many states in our nation treat him with slightly-concealed disdain (by, for instance, passing laws denying compensation to an exoneree who “contributed” to their wrongful conviction via a coerced confession or a guilty plea).*  What could have Judge Garaufis so exercised that he would suggest that a State actually apologize? 

            *  Such laws are an affront to our country’s tradition of liberty.  But I digress.  

Justice Delayed . . . A Really Long Time

       Lopez has a long procedural history that is worth summarizing.  Elvirn Surria dealt drugs in Brooklyn.  Late one night in 1989, two men shot and killed him in a Coney Island crackhouse.  A jury convicted Lopez of murder based entirely on the testimony of two witnesses, only one of whom identified Lopez in court.  That witness, Janet Chapman, testified that she saw the shooting through a half-open doorway.  She also testified that she had smoked ten to twelve vials of crack in the two hours prior to the shooting. The second witness came face-to-face with the shooter, and spoke with him, but could not recognize Lopez when she saw him in the courtroom.  During the trial New York Justice Carolyn Demarest stated that it was “not possible this defendant could have committed the crime” based solely upon the second witness’ testimony.

        Fast forward ten years.  Lopez’s state court appeals have all been denied.  In July 2002, he filed a pro se § 2254 Petition.  Almost two years later, in April 2004, the district court dismissed the petition as time-barred, since it was filed more than a year after the 1996 passage of AEDPA.  (Query number 1: Even granting the huge backlog of habeas cases in the Eastern District of New York, how on Earth does it take a federal court two years to determine that 2002 comes after 1997?) 

        Lopez moved for reconsideration of the dismissal, arguing actual innocence.  Shortly after his trial, Chapman told Lopez’s brother that she had falsely ID’d Lopez because of pressure from the police.  Ultimately, she provided an affidavit recanting her ID and stating that she testified falsely based on the trial prosecutor's promise that she’d get out of jail on drug charges if she testified.  And the kicker: Chapman also stated that “the district attorney told me never to tell anyone that we cut a deal about my testimony in exchange for my freedom.” 

        Judge Garaufis was concerned enough about these allegations that he granted the motion to reconsider and, in 2005, appointed a lawyer to investigate.  Fast forward another four years.  During that time counsel learned, among other things, that Chapman had died (Query number 2: why did that take four years to figure out?)  In 2009, Lopez moved to stay and abey his habeas petition so that he could exhaust state remedies.  A year later, Justice Demarest denied Lopez’s motion to vacate his conviction on the grounds that there was “strong evidence of guilt” at Lopez’s trial.

        One year after that, in November 2011, Lopez filed an amended 2254 petition.  In July 2012, Judge Garaufis ordered an evidentiary hearing on Lopez’s gateway actual innocence claim and his 2254 claim of ineffective assistance.  The court heard testimony from Lopez, his brother, and the trial prosecutor, Tess Allen.  In January 2013, the court reopened the hearing to allow new evidence from Cesar Diaz, who appeared via video conference from the Dominican Republic. Diaz, who was present at the scene of the murder, was shown a mug shot of Lopez taken soon after the crime and testified that he was “certain” that the person in the picture was not the shooter.

        Based on the new evidence presented at the habeas hearing, the court found Lopez’s gateway actual innocence claim to be credible (that is, “supported with new reliable evidence . . . not presented at trial”) and compelling (in that it warranted a conclusion that “more likely than not any reasonable juror would have reasonable doubt” if it had heard the new evidence), as required by the Second Circuit’s decision in Rivas.  In fact, the court stated that the new evidence was largely beside the point: “Even without the benefit of Lopez’s new evidence, a reasonable juror would likely have serious questions about Lopez’s guilt.”  The court called the case as presented to the jury a “toss-up at best” and took another swipe at Justice Demarest’s conclusion (in denying state post-judgment relief) that there was “strong evidence of guilt.”  That finding, the district court said, “contains no explanation and is, frankly, outlandish given the circumstances described above. The court gives it no deference.” 

Through the Gateway. . . .

        After the court admitted Lopez through the actual innocence gateway, it sustained his claim of ineffective assistance on the infrequently-used 2254(d)(2) ground that Justice Demarest’s decision denying Lopez’s IAC claim was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Essentially, the court found that Justice Demarest could not effectively evaluate the claim because she had refused to hold a hearing to resolve a credibility dispute between Lopez’s trial lawyer, who said he interviewed two potential alibi witnesses, and the witnesses themselves, who said he did not.  The failure of the state court to resolve this credibility dispute via a hearing led to a “materially incomplete” state court analysis and, as a result, the state court decision was unreasonable. 

        The court then moved to the merits of Lopez’s IAC claim and found that trial counsel had been ineffective in failing to call either of two potential alibi witnesses.  Judge Garaufis ordered New York to release Lopez within sixty days “unless [it] has, by that point, taken concrete and substantial steps expeditiously to retry [him].”

        Following the decision, New York re-arraigned Lopez on murder charges, but after that failed to "offer[ ] any other proof that it intends to promptly retry him."  Accordingly, on March 20, 2013, Garaufis ordered Lopez to be "immediately and unconditionally released" from custody.  He also ordered that "the State is BARRED from retrying him for the August 31, 1989, murder of Elvirn Surria" and "the State shall EXPUNGE Lopez’s conviction from its records and all references to him in the public record."  The court stated it was taking the rare step of forbidding a retrial because it was "convinced that this is one of the extraordinary cases that warrants an unconditional discharge with no future threat of retrial."  In justifying its order, the court took a final shot at New York's handling of the case:  "due to the errors of a State court judge, a State prosecutor, and counsel, Lopez was subjected to an unconstitutional deprivation of liberty for twenty-three years."

        I have to say that Lopez did not have a slam-dunk IAC claim.  Judge Garaufis seemed to recognize this - he found that trial counsel was not deficient for failing to interview the potential alibi witnesses (there wasn't sufficient evidence to figure out whether he had) but rather for failing to call them at trial.  But counsel had explained to Justice Demarest at the trial that he had considered calling them but had decided that the jury would likely not find them credible.  In my experience, federal habeas courts almost always defer to such strategic decisions by trial counsel.  In any event, I think its safe to say that this IAC claim could have gone either way.  What really drove the district court, I think, was the state court's repeated failures to examine the case as the evidence of a wrongful conviction mounted (especially the evidence that the prosecutor had deceived the trial court about its deal with Chapman).  Here, the district court was able to justify the habeas grant on an iffy IAC claim in light of several breakdowns during trial.  So we will have to keep waiting for the case where a defendant with a credible and compelling claim of innocence does not have a colorable claim of a Constitutional violation. 

Postscript

        As far as I can tell, New York State has not yet apologized to Lopez.  And as the history of this case shows, the State did not do much to help him, even after it became clear that there were serious problems with his conviction.  But karma finds a way: New York ultimately did play a role in helping to free Lopez.  Another exoneree, Jeffrey Deskovic (released in 2006 after serving 16 years for rape and murder based on a coerced confession), used some of his $8M settlement with the State to start a foundation to assist other inmates with credible innocence claims.  Deskovic's foundation partly funded Lopez's habeas case.  

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 - 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 - The Good

I had mentioned that there was both good and bad during my break from blogging.  I already talked about the really, really bad.

Let's shift to the good.  The Second Circuit granted a habeas petition back on December 1 in Cornell v. Kirkpatrick.

The issue actually is pretty simple.  IAC based on counsel's failure to object based on venue grounds.  Petitioner was charged with two rapes.  Only one of the rapes occurred in the county in which he was tried.  The prosecutor acknowledged this in his opening and closing, and, according to the Second Circuit, the evidence established that one of the rapes did indeed occur in a different county.  The prosecutor had proceeded under the "automobile exception" to the venue statute.  But the Court of Appeals had strictly limited that exception to situations where it was literally "impossible" to determine the actual county.  It is pretty clear (or at least clear enough) that this happened in the county that housed Rochester and its environs -- not the county in which the case was prosecuted.

One other note: the court only granted relief on the conviction for the rape that took place in the other county.  The court determined that this error had no spill over effect on the rape case that was prosecuted in the appropriate county.

Honestly, this seems like a pretty easy case to me.  It really is an issue that should have been resolved back in state court.  But when faced with a situation like this -- a winning, purely legal issue, where relief should be granted even though the evidence of guilt in a highly inflammatory case is strong -- state courts are often hesitant to do what's right.  One reason why federal habeas relief remains so vital to the system.  Such a shame that the Supreme Court seems so dead set on rendering it powerless.

I read a nice discussion of the Cornell decision here.

Here are the details:

 Cornell v. Kirkpatrick, 10-561-pr 

• Reversing Denial of Habeas; Habeas Granted on
• Argued: 8/23/11; Decided 12/1/11; Published Opinion by Straub
• Panel: Newman, Cabranes, Straub
• Lower Ct. Info: 06-CV-0734, 2010 WL 161429 (WDNY Jan. 13, 2010) (MAT)
• In Circuit: Circuit Ct. COA
• Issue: (1) whether appellant was prejudiced by counsel's failure to object to venue in Ontario County; (2) whether counsel was ineffective for failing to request that a venue charge be delivered to the jury

 

Habeas Corpus - District Court Review - Habeas Grant!

Another habeas grant in the district courts!  The case is called Cross v. Perez.  There's a lot going on in the case: Can a defendant waive his right to file a habeas petition when he pleads guilty?  Does IAC invalidate such a waiver?  IAC during plea negotiations.  Whether out-of-state convictions can be used as predicate felony convictions in New York.  The defendant knowing more about the law than the trial attorney.

The facts are actually pretty simple: during plea negotiations, the prosecution wanted to use three different New Jersey convictions to enhance petitioner's sentence.  Defense counsel did not put up a fight.  Petitioner stood up and said, wait, none of the New Jersey convictions qualify as predicate felony convictions under New York law.  He handed up to the court case law to support his position.  The prosecutor, defense counsel and the court were willing to accept that two of them did not, but believed that one of them did -- aggravated assault against a police officer.  Petitioner disagreed but let the issue go.  He was offered a plea with a sentence for a second violent felony offender.  As part of the plea, he agreed to waive his right to bring a federal habeas petition.

He brought one anyways.  In his petition, he argued that he received IAC during plea negotiations because the NJ conviction did not qualify as a felony in New York and his attorney's deficient performance rendered involuntary the waiver of his rights.

The DJ agreed.  First, the DJ concluded, in what appears to be a relatively novel conclusion, that a petitioner could waive his rights to bring a federal habeas petition but that IAC could render such a waiver involuntary.  There is a lenghty discussion on this issue in the opinion.  The DJ then found that the NJ conviction did not qualify as a New York felony because it criminalized conduct as a felony that would not be a felony in New York. 

And here's where the case runs into Lafler v. Cooper: the DJ also concluded that petitioner would have been offered and would have accepted a lower offer as a first time violent felony offender.  The DJ orders specific performance of a plea offer that was not actually ever made.  So that's a little controversial.  Let's see if the State appeals.  Despite the opinion being dated October 4th, an amended judgment was entered on October 20, so the time to appeal has not yet run out.

Here are the details:

Cross v. Perez  

• Habeas Granted
• 11-CV-1186, 2011WL 4711466 (EDNY Oct. 4, 2011) (BMC)
• Issues: IAC in plea negotiations based on counsel's failure to challenge use of out-of-state conviction to enhance petitioner's sentence

 

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)