Habeas Corpus Blog

Habeas Corpus - Huge Habeas Win in Supreme Court

I apologize for the lack of activity around here over the past two months.  Too busy to blog, basically.  But I have been keeping track of things.  I do intend to catch up on habeas stuff from the past few months.  Probably going to be awhile for all of that to happen.

But I could not resist blogging about today's huge habeas win in Martinez v. Ryan.  I listed Martinez as the most anticipated habeas case of the term.  And it did not disappoint.  Here's the holding, courtesy of Justice Kennedy:

Inadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.

What does that mean?  Well, according to Kennedy, it does not mean that a criminal defendant now has a constitutional right to the effective assistance of counsel at an initial-review collateral proceeding.*  But a habeas petitioner can now argue that an attorney's ineffectiveness at such a proceeding can represent the excuse for a federal court to review the merits of an IAC claim related to trial counsel that was not raised in state court.  Get it?

*Kennedy defines initial review collateral proceeding as a collateral proceeding (in NY we are talking about 440's) which provide the first occasion to raise a claim of ineffective assistance of counsel.  Most States relegate IAC claims to collateral proceedings.  New York does this too, for the most part.

I know it's a morass inside of a labyrinth of complicated habeas issues.  I find it difficult to break it down any more simply without going back to square one of habeas law and mapping it all out.  I'll just say, it's a big deal. 

Why is it a big deal?  One may ask.  Does it change anything?  Two may ask.  Will it change anything?  Three may ask.  I think that Three asks the most pertinent question.  And, in my mind, the answer to Three's question is definitely yes. I think, as Scalia lamented in his cutting dissent, it will lead to States assigning attorneys in most, if not all, initial-review collateral proceedings. 

What's interesting is that, while Kennedy tries to keep the holding narrow, the rationale behind the holding is really broad.  In fact, Kennedy does a great job of explaining why an attorney is necessary in these types of proceedings.  Here's what he says:

    Where, as here, the initial-review collateral proceeding is the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial, the collateral proceeding is in many ways the equivalent of a prisoner’s direct appeal as to the ineffective-assistance claim. This is because the state habeas court “looks to the merits of the clai[m]” of ineffective assistance, no other court has addressed the claim, and “defendants pursuing first-tierreview . . . are generally ill equipped to represent themselves” because they do not have a brief from counsel or an opinion of the court addressing their claim of error. . . .

    Without the help of an adequate attorney, a prisoner will have similar difficulties vindicating a substantial ineffective-assistance-of-trial-counsel claim. Claims of ineffective assistance at trial often requireinvestigative work and an understanding of trial strategy. When the issue cannot be raised on direct review, moreover, a prisoner asserting an ineffective-assistance-of-trialcounsel claim in an initial-review collateral proceeding cannot rely on a court opinion or the prior work of an attorney addressing that claim. . . . To present a claim of ineffective assistance at trial inaccordance with the State’s procedures, then, a prisoner likely needs an effective attorney.

    The same would be true if the State did not appoint an attorney to assist the prisoner in the initial-review collateral proceeding. The prisoner, unlearned in the law, may not comply with the State’s procedural rules or may misapprehend the substantive details of federal constitutional law. . . . While confined to prison, the prisoner is in no position to develop the evidentiary basis for a claim of ineffective assistance, which often turns on evidence outside the trial record.

So, there are really logical and highly equitable reasons for providing an attorney to help a defendant litigate that type of claim.  Of course, those reasons were around before Martinez and, sadly, are not what's going to motivate the States to assign counsel. 

Rather, the States are going to start assigning attorneys because it will provide them cover when they go to federal court.  It will essentially nip the cause argument in the bud.  The State will assign an attorney and when they get to federal court they will stand behind the attorney's actions, which will be given a great deal of deference under the IAC standard.  It is the most prudent action for the State to pursue, as opposed to taking the risk of having to litigate the merits of all of the underlying IAC-trial related claims in federal court.

I am guessing that a lot more needs to be (and will be) said about Martinez over the next couple of months.  I am going to process it some more and see if there is an easier way to break it down.  But for today, I'll just be happy about the habeas win. 

Habeas Corpus - Habeas Win in Supreme Court

Hooray!

There was a rare habeas win in the Supreme Court this past Wednesday.  It happened in Maples v. Thomas.  In an opinion by Ginsburg that was joined by six other judges, the Court concluded that petitioner, who had basically been abandoned by his attorneys at a critical stage of the state court proceedings, had established cause for a procedural default, namely the failure to file a timely notice of appeal from a state court denial of a collateral motion.

This was obviously the right result.  And I have said that for a long time.  In fact, I created my "Uncommon Sense Meter"* as a result of Maples. 

*Rating cases on the scale of how much it defies common sense that a procedural rule led to an obviously unfair result.

But I couldn't have said it any better than Ginsburg did in her opinion:

In these circumstances, no just system would lay the default at Maples’ death-cell door.

Scalia and Thomas dissented and would have been perfectly comfortable with holding the default against Maples.  So following Ginsburg's logic, these two judges simply do not believe in a just system.  Hey, I am not the one who said it.

Unfortunately, I am guessing that the good times won't last long.  The Court only concluded in Maples that there was cause for the default.  The case was remanded to the 11th Circuit to determine whether there was prejudice.  And this part is dripping with unfair irony: it will now be extremely hard for Maples to prejudice because Pinholster has rendered the system unfair. 

In Maples, the state court rejected Maples' IAC claim in state court without holding a hearing.  In fact, according to Ginsburg, the state court simply signed a pre-made order that the State had submitted in opposition to Maples' state collateral motion.

It is pretty safe to say that it will be very difficult, if not impossible, for Maples to establish prejudice with respect to his IAC claim without a detailed factual record to support the claim.  And, because the State refused to allow Maples to create that record -- even if that decision was completely arbitrary -- Pinholster now establishes that the state court's decision denying a hearing has preclusive effect on federal courts.  Petitioner now has no opportunity to make the necessary factual record to establish the IAC claim.  It's going to make it very hard to establish prejudice.

As I have said many times before, it is completely unfair to give state courts preclusive authority on such a decision.  I only wish the standard in habeas cases was "no just system could tolerate the result."  It would make the Court want to reconsider what they did in Pinholster (well, except for Thomas and Scalia).

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 - Lafler Transcript

I got a chance to read through the transcript of the oral argument in Lafler v. Cooper.  Have not yet read the transcript in the companion case of Missouri v. Frye.

From the argument in Lafler (I guess it will eventually be Cooper, who is the habeas petitioner - not gonna make that mistake again), I get the sense that the judges are willing to conclude that a defendant can advance an IAC claim based on an attorney's deficient performance during plea negotiations, even if the defendant subsequently was convicted after trial. 

The appropriate remedy is what the Court seemed to struggle over more.  In the district courts in New York, we have seen a lot of specific performance of the plea offer.  That is the easiest remedy to identify and apply, but is it the most equitable one?  I don't think most of the Judges feel that it was.  Another problem with the specific situation in Cooper is that both Breyer and Sotomayor seemed to think that counsel's conduct may not have been deficient, even though the State conceded that it had been.

When I get a chance to read Frye, I'll update this post with additional thoughts.

Habeas Corpus - Lafler v. Cooper - Reminder

Today at 10:00 a.m., the Supreme Court will be hearing argument in Lafler v. Cooper and Missouri v. Frye.  Once again the issues in the appeals are (essentially):

(1) Whether a defendant can raise an IAC claim based on deficient performance during plea negotiations even though the defendant was convicted after a trial; and (2) What remedy, if any, should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to constitutionally adequate procedures?

The SCOTUSblog preview for the case is here.

Habeas Corpus - Lafler v. Cooper - 10/31

Busy week and sitting coming up at the Supreme Court for habeas cases. Two habeas cases and four front-end criminal cases.  I'll provide a reminder of each as they come up.

On Monday, the Supreme Court will hear argument in the habeas case of Lafler v. Cooper.  The case will be heard in tandem with Missouri v. Frye.  There are two issues in common to both cases.  The first is, essentially, whether a defendant/petitioner can argue that he received IAC during the plea negotiation stage of a case even though he was convicted after a trial.  The second issue, which is exactly the same in both cases, is, assuming that such a claim can be made, what's the appropriate relief, if any.

I had not originally not ranked these cases particularly high in my preview on the scale of how interesting they were.  But after the recent habeas grant in Cardoza v. Rock on this very issue, the case has become a little more interesting to me.

 

Habeas Corpus - Depraved Indifference Overview - Updated

Recently, some readers have reached out to me with inquiries about depraved indifference cases.

There is no doubt that depraved indifference cases have popped up a lot around here.  In fact, the first substantive post on the blog had to do with a habeas grant in a depraved indifference case (it was later overturned by the Second Circuit).  A search of the blog shows that there have been dozens of posts that have mentioned this category of cases. 

So I thought it might be helpful to give an overview of what's happened and is happening in those type of cases.*

*For some reason, I felt uncomfortable trying to find a pithy title for a post about depraved indifference cases.  I have previously lamented the fact that pithy titles are not really my forte.  Only rarely do I find that right combination of brevity, cleverness, metaphors and/ or puns, that all come together in a perfectly pithy blog post title.  I am always amazed when someone can do it.  UPDATE: From the comments, this clever proposed title made me laugh: "I'm deprived on account of I'm depraved."  It's kind of perfect.

I am going to cover the following areas:

A. Background (discussing the change in law)

B. Relief

C. Habeas Review of the Merits

D. Procedural Default

E. Retroactivity

This is going to be a long post.  So, for the first time in a long time, I am going to put stuff below the fold . . .

Habeas Corpus - Second Circuit Preview - Week of October 24, 2011

One habeas case this week.  It's a submission.

Wednesday, October 26

Burchard v. Cuomo, 10-1045-pr 

• Status: To be submitted on 10/26/11
• Panel: Walker, Katzmann, Wesley
• Lower Ct. Info: 07-CV-0124, 2010 WL 681258 (WDNY Feb. 24, 2010) (MAT)
• In Circuit: Circuit Ct. COA
• Issue: IAC based on his trial counsel's alleged conflict of interest

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)