Habeas Corpus Blog

Habeas Corpus - Second Circuit Opinion Reversing Grant of Habeas

For the second time in the past few weeks, the Second Circuit has reversed a lower court's habeas grant.  A tad disappointing.  The name of the case is Whitley v. Ercole.

Here are the details:

Whitley v. Ercole, 10-3119-pr 

• Argued: 12/2/10; Decided: 6/8/11; Opinion by Livinston
• Panel: Raggi, Livingston, Chin
• Lower Ct. Info: 06-CV-10198, 2010 WL 2889124 (SDNY July 22, 2010) (AHK)
• Issues: admission of witness's prior testimony deprived prisoner of his due process and Confrontation Clause rights

ANALYSIS: In an opinion by Judge Livingston, he court reverses the grant of habeas concluding that the claim was procedurally defaulted in state court.  The Appellate Division had concluded that the specific claim was unpreserved.  Petitioner argued that the application of the state procedural rule in his case was not adequate.  More specifically, he argued that the finding that the claim was unpreserved was an "exorbitant" application of the contemporaneous objection rule.  The district court agreed.  The Second Circuit disagreed.  Petitioner loses.

After finding that the claim was procedurally defaulted, the court notes that it disagreed with aspects of the DJ's analysis that the error was harmful.  At least one comment in this section is a bit troubling.  The DJ had concluded that the evidence against petitioner was not substantial.  He had pointed out that there was no physical evidence and that most of the evidence against petitioner were statements from people with criminal records.  Judge Livingston concluded that the evidence against petitioner was not insubstantial.  She stated, "Government cases are frequently built on the testimony of those with criminal histories, and the absence of physical evidence is hardly atypical."

That is not a persuasive argument.  It is actually quite disturbing.  Simply because many prosecutions are based on this type of evidence does not improve the quality of the evidence or mean that this type of evidence is any more substantial.  It simply means that it's typical.  Notably, a good percentage of wrongful convictions are based on jailhouse confessions, a type of evidence that falls squarely into this category of evidence.

One final note, Livingston was also the judge who wrote the dissent in the most recent Second Circuit habeas grant.  That dissent argued that the constitutional violation in that case was harmless.  She seems to be creating a small body of work discussing harmless error analysis. 

Habeas Corpus - Huge Habeas Grant from Second Circuit

Second Circuit finally decided the longest pending sub judice habeas case (at least among the ones that I know about).

And this one is a habeas grant, not just a habeas win (see this post for an explanation about the difference between the two). 

First, here are the details:

 Wood v. Ercole, 09-2905-pr

• Reversing Denial of Habeas; Ordering Lower Court to Grant Habeas
• Argued: 9/8/10; Decided: 5/4/11
• Panel: Livingston, Lynch, CJJ, Sessions, DJ
• Opinion by Lynch; Dissent by Livinston
• Lower Court Info: 08-CV-4850 (EDNY June 10, 2009) (CPS)
• In Circuit: Circuit Court COA
• Issues: whether admission of petitioner's videotaped statement to police taken in violation of his Fifth Amendment rights to counsel and to remain silent was harmless error

ANALYSIS: This was a first-degree murder case where petitioner's statement was admitted against him in violation of his Fifth Amendment rights.  In fact, every court, including now the Second Circuit, has agreed that there was a constitutional violation here.

After deciding that there was constitutional error, the Second Circuit turns to harmless error.  The court settles a question that, in my mind, had already been settled.  The court states that harmless error in habeas review solely looks to the Brecht substantial and injurious effect standard.

The harmless error analysis is, obviously, fact-intensive.  I won't go into too much of it here.  But, as I have stated before, it's clear that Lynch loves to write and he uses some great language here.  In describing one of the prosecution's witnesses, he says that this guy was the "archetypal miscreant."  Nice.

The close of the opinion also caught my attention.  The court orders the following relief:  "For the foregoing reasons, we hereby REVERSE the district court’s denial of Wood’s petition, and REMAND back to the district court with instructions to grant the writ unless the State provides a new trial within a reasonable period."  Lynch then adds the following footnote:

Although some of our cases have spoken of vacating the state conviction upon granting habeas, see, e.g., Zappulla, 391 F.3d at 464, 475; Ramirez v. Jones, 683 F.2d 712, 718 (2d Cir. 1982), this Court only has the power to act on the body of the prisoner, not on the conviction itself, see Fay v. Noia, 372 U.S. 391, 430-31 (1963) (“Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him. Indeed, it has no other power; it cannot revise the state court judgment; it can act only on the body of the petitioner.”), overruled on other grounds by Wainwright v. Sykes, 433 U.S. 72 (1977); Gentry v. Deuth, 456 F.3d 687, 697 (6th Cir. 2006); Wilson v. Lawrence County, Mo., 154 F.3d 757, 761 (8th Cir. 1998); 39A C.J.S. Habeas Corpus § 387 (“A federal writ of habeas corpus binds state courts, insofar as it mandates a state prisoner’s release from custody, but it does not vacate the judgment of conviction . . . .”).

I am not exactly sure what to make of the footnote.  Technically, I guess it's true.  But I am not sure I see the point.  Let's assume that the federal court can't directly vacate the conviction.  But a conditional release grant is going to invariably result in the conviction getting vacated.  When a grant of habeas gets conditioned upon whether the State seeks a new trial, then the conviction gets vacated when the State pursues its option to seek a  new trial.  So it's all happening indirectly.  Which means that, if the federal court goes one step further than it should and says that the conviction is vacated, it doesn't really matter in the end.*  So I am not sure if the footnote was worth the time.

*The only time it will matter will be if the State chooses to leave the conviction in place and simply agrees to release petitioner.  But I'd estimate that that's going to happen in only .0001% of cases.  If my numbers are even remotely correct, then the footnote really wasn't worth it.

This is now the second Second Circuit opinion granting habeas that Lynch has written in his short time as a circuit judge.  That's a good start.

In dissent, Livingston says that the error was harmless since the evidence against petitioner was "very strong" and the majority failed to consider the evidence as a whole.

Habeas Corpus - Today's Orders

Today's order list from the Supreme Court is available here.

No cert. grants in habeas cases.  Hasn't been one for awhile now.

However, Sotomayor (joined by Ginsburg, Breyer and Kagan) issued a brief opinion respecting the denial of certiorari in a front-end case called Gamache v. California. It's a good one for criminal defendants.

The legal issue in the case was whether the jury's consideration during deliberations of evidence not submitted at trial was harmless.  In its decision, the California Supreme Court stated that the "'burden remained with the defendant to demonstrate prejudice . . . .'"  Gamache slip op. at 2-3 (emphasis in Gamache).

Sotomayor took this opportunity to remind the lower courts that the burden to show that an error is harmless is upon the prosecution, not the defendant.  She emphasized that the placing of burdens can be an outcome determinative.

But she concluded that the burden allocation would not have altered the lower court's prejudice analysis.  So, no need to review the case.

Nevertheless, a good reminder from four Supreme Court judges.

 

Habeas Corpus - Summary Order

Summary order today from the Second Circuit:

Grigg v. Phillips, 09-4039-pr

• Affirming Denial of Habeas (available here)
• Argued: 11/15/10
• Panel: Minor, Straub, Livingston
• Lower Court Info: 04-CV-663, 2009 WL 2983030 (EDNY Sept. 11, 2009) (JS)
• In Circuit: District Court COA
• Issues: Fifth Amendment violation based on references to Petitioner's post-arrest silence

Notes: Slight (but understandable) kick to the groin in this decision.  DJ concluded that constitutional error occurred, but error was harmless.  Second Circuit refused to acknowledge that a constitutional violation occurred.  Rather, it stated that it did not need to decide the issue since, even if there was a constitutional violation, it agreed with the DJ that the error was harmless.  From a judicial economy point of view, it makes sense for the court not to address the constitutional violation.  Nevertheless, petitioner does not even get the satisfaction from the court that his constitutional rights were violated, something that the DJ acknowledged.

One other note, the Second Circuit continues its unnecessary internal battle over the correct harmless error standard.  In a footnote it stated:

As we have noted in a previous case applying harmless error analysis in a habeas context, because Brecht preceded the enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), there is some ambiguity as to whether, in order to grant a habeas petition, a court would have to find not just that an error was not harmless under Brecht but also that the state court’s application of the federal harmless error standard, set out in Chapman v. California, 386 U.S. 18, 23 (1967), was “objectively unreasonable.” See Perkins v. Herbert, 596 F.3d 161, 176 (2d Cir. 2010). Because the distinction does not affect the outcome of the analysis in this case, we need not decide the issue.

As I have stated before, I think the Supreme Court has clearly settled this issue -- Brecht always applies.  But if the Second Circuit wants to continue to have this academic debate with itself, it can go ahead and do it.  I'll just keep linking to my prior post. 

Habeas Corpus - Related Stuff - Summary Order

Uneventful summary order from the Second Circuit today.  As promised, I have uploaded the pdf so that it can be downloaded.  I'll make a couple quick notes about the case below.

McBee v. Burge, 09-3679-pr

• Affirming Denial of Habeas
• Argument Date: 7/15/10
• Summary Order; Download Decision
• Panel: Jacobs, Parker, Hall
• Lower Court Info: 05-CV-4752, 2009 WL 2196768 (EDNY July 24, 2009) (DLI) (LB)
• In Circuit: District Court COA
• Issues: Harmless error as to Confrontation Clause violation

NOTES: This case was argued back in July.  Seems like an awfully long time for a pretty straightforward, three-page summary order.  Wonder why it took so long.

Also, it should be noted that the DJ, MJ and state court all concluded that there was a Confrontation Clause violation.  However, in kind of an annoying "kick-'em-when-they're-down-moment," the Second Circuit only "assume[s] without deciding" that there was a constitutional violation.

Habeas Corpus - Cert. Grant in Habeas Case

This morning, the Supreme Court granted cert. in a habeas case out of the Ninth Circuit called Belleque v. Moore.

According to SCOTUSblog, the issue is:

(1) Whether the Fulminante standard — that the erroneous admission of a coerced confession at the trial is not harmless — applies when a collateral challenge is based on a defense attorney’s decision not to move to suppress a confession prior to a guilty or no contest plea, even though no record of a trial is available for review, and (2) even if it does, is it “clearly established Federal law” for purposes of 28 U.S.C. § 2254(d)(1).

This issue needs a little unpacking.  What happened was that counsel clearly messed up in failing to suppress the petitioner's taped confession.  According to the Ninth Circuit, it was unconstitutionally obtained in two separate ways -- obtained as a result of an improper promise of leniency and in violation of his right to counsel.  Due to the existence of the confession, counsel advised petitioner to plead guilty.

The Ninth Circuit concluded that counsel was clearly unreasonable in failing to move to suppress.  It then incorporated the Fulminate harmless error standard into its prejudice analysis as to whether there was prejudice.  The court concluded that, even though petitioner confessed to two lay people, the taped confession was harmful under Fulminate.  If the statement had been suppressed, there was a reasonable probability that petitioner would not have pled guilty.

Honestly, the court's analysis is a little confusing.  So is the issue presented.  I think I am going to have to dig a little deeper into the Ninth Circuit's decision to try and get it straight in my mind.

Also note that part 2 of the issue raises a Musladin/clearly established law question -- my absolute favorite area of habeas law.  Fun times.  

Habeas Corpus - Habeas "Win" in Summary Order

Extended summary order yesterday from Second Circuit vacating lower court denial of habeas and remanding for further proceedings.  That makes it a "win" in technical terms but as you will see in the analysis below, it won't lead to a habeas grant, at least in the district court.

Bell v. Ercole, 08-3539-pr, March 4, 2010, available here

• Vacating Denial of Habeas
• Panel: Leval, Straub, Wesley
• Argued: January 25, 2010 (preview here)
• Issues: Juror misconduct; evidentiary rulings; prosecutorial misconduct

ANALYSIS: Kind of an unusual summary order.  Second Circuit vacates the district court denial of habeas because it was "unsatisfied" with the district court's analysis in its order denying the evidentiary rulings.  The Second Circuit stated that it found it very hard to review the decision and it wanted the court's reasoning to be stated more explicitly to allow for appellate review.

But this is why it is only a "win" in the technical sense.  Yes, the district court's denial was vacated.  But it was basically vacated with instructions to deny it again, only this time, do a better job.

I guess there is a chance that, on remand, the district court will change its decision once it engages in a more careful analysis of the claims. 

And the Second Circuit did open the door a little for a reconsideration of the harmless error analysis.  The court pointed out that, in the district court's harmless error analysis, it relied on a confession of an accomplice.  The court noted that it really would be improper under Bruton and the Sixth Amendment for this type of evidence to be admitted against the defendant.  The Second Circuit questioned whether this type of evidence actually had been admitted against petitioner.  So it asked the district court to explain a bunch of things about this supposed "accomplice confession."  One, whether it was appropriate for the district court to consider the accomplice confession since it was inadmissible hearsay.  Two, whether the court considered this confession on habeas review because petitioner failed to object to the district court considering it.  And three whether the accomplice confession linking petitioner to the crime had been implicitly admitted at trial without objection from petitioner.

Maybe, upon reconsideration, the district court will conclude that this confession should not play a role in the harmless error analysis and find that the evidentiary errors are not harmless.  Seems like the only possible course for habeas relief in the district court at this point. 

Habeas Corpus - Harmless Error Standards

Kind of a quirky published opinion yesterday from the Second Circuit. 

First, the central issue in the opinion is something you don't see all the time: whether the two significant constitutional errors at trial were harmless.  Having two significant constitutional violations in a single case is pretty unique.  Btw, these errors were the improper admission of a detailed confession taken after petitioner had invoked his right to remain silent and the improper admission of the complainant's grand jury testimony when the complainant refused to testify at trial.

But what's a little weirder about the opinion is that the court re-opens the question of what harmless error standard applies when the state court has engaged in its own harmless error analysis.  In my mind, that question was settled by the Supreme Court a couple of years ago. 

And then finally the court engages in an outcome-determinative harmless error analysis -- downgrading every type of harmless error analysis that looks at the impact of the evidence on the case, and basically equating harmless error analysis with solely looking at the strength of the prosecution's case.  It's a little dispiriting.  Try to explain to a layperson that a conviction can be upheld where there were two significant constitutional violations and the remaining evidence against the defendant consisted of circumstantial evidence and a shaky oral confession. 

The case is Perkins v. Herbert, opinion here, which was written by DJ Trager.  The court reversed the district court's grant of habeas.

Below the fold I'll go into a little more analysis . . .