Habeas Corpus Blog

Second Circuit Ruling on Double Jeopardy / 2241 Petitions

Hoffler v. Bezio, 726 F.3d 144 (2d Cir. Aug. 8, 2013)

by Matthew Keller

 

       There are many newer issues on my list to discuss here, but I wanted to go back to a Second Circuit decision from last summer. Hoffler is interesting for many reasons: it addresses sexy Double Jeopardy issues likely to come before the Supreme Court at some point, and it also discusses a couple of important habeas jurisdictional and procedural claims of equal (more?) interest to the (no offense, dear Readers) geeks who peruse this site.

        The case concerns the December 2003 murder of Christopher Drabik. Michael Hoffler, a cocaine dealer from upstate New York, was charged with first-degree witness elimination murder on the theory that he contracted to have Drabik killed, and participated in the murder himself, in order to prevent Drabik from testifying against him at a trial on drug charges.*

* While I do not expect many potential witness murders to read this post, take note: it doesn't work. Even without Drabik as a witness, a jury found Hoffler guilty on the drug charges and the court sentenced him to a 17 to 34 year term. 

        A jury convicted Hoffler of Drabik’s murder, but the NY appellate court reversed because of what can only described as a rookie mistake. When the jury venire was sworn prior to voir dire, it was given the oath required of an empaneled petit jury, not the prospective juror oath.The appellate court found that, because this "structural" error infected the entire trial proceeding, there could be no harmless error. The court remanded for a new trial.

        Determined to get some more mileage out of the mistake, Hoffler’s attorney argued on remand that a retrial was barred by Double Jeopardy. The thrust of the claim was that, having presented insufficient evidence of witness elimination murder at the first trial, Double Jeopardy precluded New York from a second bite at the apple. The appellate court did not reach Hoffler’s insufficiency claim. On remand, Hoffler claimed that the court’s failure to address the sufficiency issue precluded a second trial.*

*This claim is based on a 1978 Supreme Court decision, Burks v. United States (Double Jeopardy bars retrial where conviction reversed due to insufficiency).

        The trial court rejected Hoffler’s claim but, before sitting through the retrial, allowed Hoffler to return to the appellate court. It, too, rejected the Burks claim, concluding that, in fact, Hoffler hadn’t been placed in jeopardy at his first trial because the failure to properly swear the jury venire rendered all subsequent proceedings a nullity. Hoffler collaterally attacked that decision in his habeas petition to the district court.

        The district court denied Hoffler’s petition by upholding the state court decision: the jury oath error invalidated the entire trial, making it “patent” that Hoffler was never placed in jeopardy at his original trial. And the sufficiency of the evidence issue was not a problem, because the state appellate court had a “sound reason” for not considering the sufficiency challenge:

“Since the Appellate Division determined that no trier of fact could properly consider the evidence offered at Hoffler’s [first] trial, any discussion regarding the evidence presented to that improperly empaneled body may well have been viewed by that court to be advisory in nature,” and it is “well-settled that the giving of [advisory] opinions is not the exercise of the judicial function of New York appellate courts.”

Second Circuit to the District Court: "Um, no."

        The Second Circuit found the district court’s reasoning neither patent nor sound. It affirmed the district court, but on completely different grounds. First, it found that Hoffler had in fact been placed in jeopardy at the first trial. Even though the venire panel was not sworn in accordance with New York law, that error rendered the conviction merely “voidable” at the defendant’s election, not “void.”* Thus the court that heard the first trial retained “fundamental power or basic jurisdiction” over the murder charge.

* The Circuit dove deep to explain this conclusion, engaging in a lengthy discussion going all the way back to Blackstone and the common law preference for void rather than voidable judgments to promote “the law’s longstanding opposition to retrying an acquitted defendant.” I'm almost certainly nitpicking, but query whether that preference is relevant to the retrial of a convicted defendant. To be clear, I think the Circuit found the least contorted way out of the legal pickle presented here. But resort to Blackstone for the answer to this question? To go back even further, the Circuit doth protest too much.  

Harmless Error Resurrected

        Having come out in favor of Hoffler on the Double Jeopardy issue, the Second Circuit now had to deal with the sufficiency claim. Hoffler appeared to be on solid ground here: although jeopardy does not terminate when a conviction is reversed for trial error, it does terminate upon a reversal due to insufficient evidence at trial. This is the Burks rule: the Double Jeopardy Clause protects a defendant from being subjected to a second opportunity by the government “to supply evidence which it failed to muster in the first proceeding.” And in a 1992 case, United States v. Wallach, the Second Circuit interpreted Burks broadly to require a determination of sufficiency prior to retrial:

“A reversal on the basis of insufficiency of evidence, like an acquittal, bars a retrial, and a reversal of a conviction on grounds other than sufficiency does not avoid the need to determine the sufficiency of the evidence before a retrial may occur.”

        You might think that this seals the deal in favor of Hoffler: we have a “reversal of a conviction on grounds other than sufficiency,” (here the jury oath error) and a state appellate court that “avoid[ed] the need to determine the sufficiency of the evidence before a retrial may occur.” Hoffler’s free to go then, right?

        Of course not. The Second Circuit was not going to give a pass to Hoffler, a convicted witness murderer, for any reason, and certainly not because the Rensselaer County Court stopped listening for a few seconds on a Monday morning while his clerk swore in a jury venire prior to voir dire. Accordingly, the Court found a way out of Wallach:

“Nowhere in [Wallach], however, did we indicate whether we were identifying a prudential rule for the courts of this circuit or a generally applicable constitutional requirement.”

        Indeed, the Circuits are split on this issue. According to the Second Circuit’s count, the Third, Eighth, and Tenth Circuits have found it to be a constitutional requirement, while the First, Fifth, Sixth, Seventh, Ninth and Eleventh Circuits have adopted, as a prudential rule, mandatory appellate review of sufficiency challenges prior to retrial. The Second Circuit declined to answer the question.* Instead, the Circuit held that, even if sufficiency review prior to retrial was a constitutional requirement, the failure to review Hoffler’s sufficiency claim was “necessarily” harmless because Hoffler’s claim was meritless.** 

* Why not weigh in on the issue here? My guess is that at least one panel member believed that would have involved overruling Wallach, something the Second Circuit can only do en banc.

** At this point you have to ask: why didn't the NY Appellate Division reject Hoffler's sufficiency claim in the first instance? It's as close to a zero-risk ruling as you can get. The standard is so high for a defendant that there is almost no chance of reversal. And while answering only the minimum to dispose of a case is a great rule, all of this Burks precedent suggesting that this is an exception to that rule has been out there for a long time. The closest the Circuit came to criticizing the Appellate Division is that sufficiency review was warranted, “at a minimum, as a matter of prudent policy.” I can only conclude that the state court did not think through the ramifications of its omission.   

        The Circuit did what the state appellate court should have done. Of course the trial evidence against Hoffler was sufficient: Hoffler had a “strong motive” and ample means to murder Drabik. After a thorough review of the evidence, the Circuit held that “the totality of these circumstances” allowed a reasonable jury to infer that Hoffler solicited Drabek’s murder, and then aided in its commission, in order to silence Drabik prior to Hoffler’s drug trial.

Coda       

        I cannot finish this post without noting the procedural rulings, which also involve some clever strategic thinking on the part of New York here. Hoffler initially raised his habeas claims in a § 2241 petition. A little brother to the usual § 2254 petition, § 2241s are appropriate in limited circumstances and, as the district court noted:

“whether a petition for a pretrial writ of habeas corpus is properly brought pursuant to § 2241 or § 2254 has never been squarely addressed by the Second Circuit.”

Importantly, the district court concluded that § 2241 was the appropriate vehicle for Hoffler’s petition and, as a result, the state court decision did not get AEDPA deference. Yet New York did not appeal that issue to the Circuit.

It turned out that was the smart thing to do, because the state appellate court decision was not great for New York, either. That court reversed Hoffler’s conviction and held that the trial error was “not subject to harmless error” – a phrase that must send shivers down a prosecutor’s spine. By not challenging the form of the petition or, more to the point, the standard of review*, New York made it easier for the Second Circuit to undo the state court’s pro-defendant Double Jeopardy ruling. It will be interesting to see how the New York courts deal with the Second Circuit’s decision.

* The district court, following holdings in the First, a Fifth, Ninth and Tenth Circuits, ruled that there is no AEDPA deference in § 2241 proceedings. But the Circuit reminded everyone that that question is “unsettled in this circuit.”

 

Habeas Corpus - Legally Sufficient Depraved Indifference

Following up on the future of legal insufficiency claims, I also want to talk about the present state of legal insufficiency claims in depraved indifference cases.  I wrote a global post about depraved indifference cases last year after the Second Circuit had granted habeas relief on a legal insufficiency claim in a depraved indifference case in Rivera v. Cuomo.  For this post, I'll assume a basic familiarity with that law.  If not, go read that global post for background.

I had such high hopes for these, but the Second Circuit took it all away.  First, they reversed themselves in Rivera mostly on the basis of the decision in Cavazos v. Smith (but I have a theory that it was more due to panel's fear of the decision getting summarily reversed by the Supreme Court).  Then the court rejected legal insufficiency claims in Parker v. Ercole and Garbutt v. Conway. 

And then there was the decision last week in Epps v. Poole.  The Second Circuit once again rejected a legal insufficiency claim in a depraved indifference case.*

*I would be remiss if I didn't mention my frustration with a sentence in the court's opening paragraph in Epps.  Here's what the court said:  "the petitioner advanced the somewhat perverse argument that he should be released from state custody because the evidence suggests he is in fact more culpable than the jury had found him to be."  This is unfair.  Completely.  The defendant was only put in the position to make the "perverse" argument because the prosecution overcharged them.  They were not depraved indifference cases, plain and simple, and the prosecution should not have sought the dual indictment.  And, particularly in a case like Rivera, the prosecution did not even prosecute the case, at all, as a depraved indifference case.

All of these cases were pre-Feingold when the New York State Court of Appeals officially changed the definition of depraved indifference.  And the Second Circuit has now made pretty clear that habeas petitioners are going to have a really tough time winning on these claims.  In these cases (except maybe in Rivera where the court did not really explain in detail why it was reversing itself), the Second Circuit basically combed through the factual record to find some shred of evidence that the killing was not completely and unambiguously an intentional act. 

But some of the reasoning is kind of a stretch.  For example in Parker there was this:

We find particularly relevant the fact that Parker fired a single shot from inside a house, at some distance across the street, into a crowd of people, and did not pursue Johnson, the victim, even when it initially appeared that Johnson was not mortally wounded by the shot.

So?  Sounds like the petitioner intentionally shot a person who he intended to shoot with a shotgun.  Pretty intentional to me.  Do shooters often pursue their victims after shooting them?  Is that rational?

And then there is Garbutt.  The facts were: "Garbutt approached Blanchard, with whom he had had a turbulent romantic relationship, in anger, carrying a large knife, and in the presence of Blanchard's daughter, Tolbert. He grabbed Blanchard away her from her daughter as he demanded her attention. During the resulting physical struggle, he pulled out the knife and began slashing, hitting both Blanchard and Tolbert."

Once again, sounds pretty intentional to me.  But here is the Second Circuit's reasoning:

[A] reasonable jury could equally have found that Garbutt had struck out in blind anger, without specifically intending to cause death, but with an awareness that his conduct could have deadly consequences for either Blanchard or Tolbert or both. The jury could further have inferred from the fact that Garbutt ran away before verifying that Blanchard had died that he had not intended to kill her. Moreover, a reasonable jury could also have found that Garbutt's violent and callous response to Blanchard's refusal to follow his orders, which endangered not only her but also Tolbert, manifested exactly the sort of depraved indifference to human life that New York case law continues to treat as a mental state sufficient for a murder conviction.

That's a head scratcher.  Once again, there's that "not checking that the job was done" logic.  That is not rational to me.  But, overall, the premise is off.  The guy pulled out a large knife and intentionally stabbed the victim who he was angry at.  He didn't wave the knife around in some reckless way knowing that it could kill somebody.  He was angry at someone and deliberately struck the person with a large knife multiple times.  How is that "exactly the sort of depraved indifference to human life" that New York looks to?  I don't think that's a particularly rational position.

But that's where we are at with depraved indifference cases.  Rationality="tiniest shred of evidence that can be found" or "some kind of tenuous basis for saying that it was not exactly intentional".  I guess under the "double deference" standard there's legal support for how the Second Circuit has been analyzing these.  It's going to be a tough hill to climb for pre-Feingold depraved indifference petitioners. 

Habeas Corpus - Legal Insufficiency No More?

In one of my more recent posts (meaning one of the few that have appeared this calendar year), I mentioned that it was a pretty good term for habeas in the Supreme Court.

But that's not entirely true.  There was the early opinion in Greene that was pretty horrible. 

And then there was the Court's treatment of legal insufficiency claims.  Based on how hard the Court came down on some circuit courts that had granted habeas on legal insufficiency claims, it is a legitimate question to consider whether this type of claim really is no longer viable on habeas review.

It started with the first opinion of the Term back in October 2011, Cavazos v. Smith.  The Court summarily reversed a Ninth Circuit opinion which had granted habeas on legal insufficiency grounds.  The Court spent most of the opinion detailing the ways in which the Ninth Circuit messed up the legal insufficiency analysis.  But the Court stated something that ended up being something new.  It stated: "When the deference to state court decisions required by § 2254(d) is applied to the state court's already deferential review, there can be no doubt of the Ninth Circuit's error below." 

In later cases, this became the "double deference" standard for legal insufficiency claims.  We have seen the "double deference" standard before, notably in IAC claims.  Essentially, it means that deference must rise to the level of near preclusion.  In the real word, I am not sure how this type of double deference actually works.  A reader has mentioned this to me before, but no matter what it is, it's not technically double deference, i.e. deference layered upon deference.  That's kind of silly and not really possible.  It is really heightened deference.  But even that is hard to quantify (or would it be qualify? I guess it could be either, or maybe it's both? see what I mean?).

In any event, there is now a great, great deal of deference when a federal court is reviewing legal insufficiency claims on habeas review.  And the Court followed up Cavazos with two recent summary reversals that emphasized this double deference standard.  Those were Parker v. Matthews and Coleman v. Johnson.  In the former, the Supreme Court went to town on the Sixth Circuit.  In the later, the Court upset a Third Circuit habeas grant.

Reading through all three, I can't say that there is a consistent theme as to how to apply a double deference standard.  Most of the Court's complaints in all three cases really focused on the lower court's misapplication of the regular old legal insufficiency standard, not an insufficiently deferential application of the legal insufficiency standard (whatever that may be). 

For example, here's the main complaint in Johnson:

Under the deferential federal standard, the approach taken by the Court of Appeals was flawed because it unduly impinged on the jury’s role as factfinder. Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors “draw reasonable inferences from basic facts to ultimate facts.” This deferential standard does not permit the type of fine-grained factual parsing in which the Court of Appeals engaged.

One can find examples of this type of garden-variety problem with the insufficiency analysis in each of the summary reversals.  And while the analysis in those cases obviously looked at other factors, none of them really focused on a problem of double deference.

Nevertheless, double deference is now the rule.  And, on legal insufficiency, this means deference to both the juries and the state courts.  It's a pretty heavy burden on a habeas petitioner to succeed on this type of claim.  I am worried that it will be the exceedingly rare case where that burden can be met.

Habeas Corpus - The Really, Really Bad

As I mentioned in my return post, there was some good and bad during my absence.  And I'd register one recent Second Circuit decision as really, really bad.  I thought I'd start with that since a reader asked about it in a comment to my return post.

Last Friday, in an opinion that left me absolutely speechless, the Second Circuit reversed itself on the habeas grant in Rivera v. Cuomo. The original opinion in Rivera granted habeas based on insufficient evidence of depraved indifference.  It really was one of those situations where the lack of evidence to establish that crime was clear.  While a habeas grant, the court wasn't really going out on a limb in making that conclusion.  I have just re-read it.  It was a point-blank shooting!  There is no way, particularly under the facts of Rivera, that such an act can constitute depraved indifference.  It was just one of those cases where the state courts refused to do what was right legally, probably because of the disproportionately favorable consequences of such a decision for the criminal defendant.

But now the Second Circuit has reversed itself.  And the court did it in a really troubling fashion.  In an exceedingly brief opinion, the court does not even acknowledge it got anything wrong about the analysis. No, here's the entire reasoning why they are reversing itself:

Respondents filed a petition for panel rehearing or rehearing en banc, and the United States Supreme Court decided Cavazos v. Smith, which strongly reasserted "the necessity of deference to state courts in § 2254(d) habeas cases." 132 S. Ct. 2, 5 (2011). In light of Respondents' petition and the Supreme Court's guidance in Cavazos, we have revisited our original decision to ensure that we had afforded the state courts and the jury the full extent of the deference they are owed under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 112 Stat. 1214. See Cavazos, 132 S. Ct. at 3 (emphasizing the double deference owed in § 2254(d) habeas cases). After much reflection, we now reverse course. Applying the law as it existed after Rivera's conviction became final in July 2004, we find that although evidence of "significantly heightened recklessness," People v. Sanchez, 98 N.Y.2d 373, 380 (2002), was slim, at best, giving the state courts and the jury the utmost deference, we cannot find that the evidence was so completely lacking that no rational jury could have found Rivera guilty of depraved indifference murder. See Cavazos, 132 S. Ct. at 1-5; Renico v. Lett, 130 S. Ct. 1855, 1862 (2010).

I have absolutely no connection to this case, but even I felt that proverbial punch to the stomach.

Sorry, but this just doesn't smell right.  There is nothing in Cavazos that has an impact on this case.  Sure, Cavazos was a legal insufficiency case.  But the facts of that case were completely different.  That had to do with a federal court wrongly evaluating the impact of expert testimony.  The stuff about deference for a legal insufficiency claim was well established before that case.  I just re-read the Second Circuit's opinion (again) and I think the court made perfectly clear that the facts in Rivera's case, no matter how they could possibly be interpreted, cannot support a depraved indifference conviction.  It was legally impossible.  That was the court's point.

So there is something weird going on here.  But I really don't know what it is.  Clearly, the panel lost the confidence of their conviction that appeared in the original opinion.  But the reasons they give don't explain it.  Not even close.  Were they worried that the decision in Rivera would open the floodgates in other depraved indifference cases? (I am guessing no).  Were there whispers among the judges that an en banc was going to happen, and these judges did not want to be embarrassed by a reversal? (Slightly more likely). Has the Supreme Court's philosophical change on habeas that began last term and has continued into this term with a string of condescending summary reversals that directly insults the lower court panel scared the circuit courts? (Also, slightly more likely).

No matter what the explanation, this is a real nadir for habeas in the Second Circuit.

Habeas Corpus - Tragic Summary Reversal from Supreme Court - Edited X 2

After being re-listed a dozen times (I have to assume that's a record), the Supreme Court finally issued a summary reversal in Cavazos v. Smith.  It was a per curiam opinion with Ginsburg writing a dissent, which Breyer and Sotomayor joined.

Cavazos Smith was convicted of killing a 7-week old baby under a "shaken baby syndrome" theory.*  Cavazos Smith was the baby's grandmother.  That alone is pretty tragic, but it is quite clear from the opinion that pretty much every federal judge who reviewed the case had serious problems with the conviction.  The main evidence against Cavazos Smith, outside of an ambiguous statement to a caseworker, was expert medical testimony, much of it focusing on "shaken baby syndrome."  The defense presented experts to contest the shaken baby theory. 

*Update: I mistakenly referred to petitioner as Cavazos, instead of Smith, throughout the post.  A little embarrassing.

Right there, this case makes me uncomfortable.  I will quote a 2008 court case from Wisconsin called Wisconsin v. Edmunds: "a significant and legitimate debate in the medical community has developed in the past ten years over whether infants can be fatally injured through shaking alone, whether an infant may suffer head trauma and yet experience a significant lucid interval prior to death, and whether other causes may mimic the symptoms traditionally viewed as indicating shaken baby or shaken impact syndrome."  Since the conviction here was from 1997, that applies to Cavazos Smith.  In fact, Justice Ginsburg mentions this in her dissent.

 

The Ninth Circuit had granted habeas relief to Cavazos Smith two prior times, but each was vacated by the Supreme Court.  So this was number 3.  And now the Supreme Court has summarily reversed the habeas grant.  This time, the Court concluded that the Ninth Circuit misapplied the sufficiency of the evidence standard set forth in Jackson v. Virginia.  Here are the first two paragraphs:

The opinion of the Court in Jackson v. Virginia, 443 U. S. 307 (1979), makes clear that it is the responsibility of the jury—not the court—to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury’s verdict on the ground ofinsufficient evidence only if no rational trier of fact couldhave agreed with the jury. What is more, a federal court may not overturn a state court decision rejecting a sufficiency of the evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decisionwas “objectively unreasonable.” Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 5) (internal quotation marksomitted).

Because rational people can sometimes disagree, theinevitable consequence of this settled law is that judgeswill sometimes encounter convictions that they believe tobe mistaken, but that they must nonetheless uphold.  The Court of Appeals in this case substituted its judgment for that of a California jury on the question whether theprosecution’s or the defense’s expert witnesses more persuasively explained the cause of a death. For this reason, certiorari is granted and the judgment of the Court of Appeals is reversed.

Skipping the rest of the majority opinion, what's remarkable to me is the core theory of Justice Ginsburg's dissent.  She says that this was not the type of case for the Court to exercise its discretionary authority to review.  She pointed out that the Court typically limits cert. to questions of law, and should not simply reach out to correct a misapplication of law, especially where the interest of justice do not support it.  Here's what she says:

Beyond question, the Court today reviews a case as tragic as it is extraordinary and fact intensive. By takingup the case, one may ask, what does the Court achieve other than to prolong Smith’s suffering and her separationfrom her family. Is this Court’s intervention really necessary? Our routine practice counsels no.

This seems pretty novel to me.  I don't remember a Justice ever framing the decision to grant cert. as a weighing of the different equitable interests.  Certainly, they play a role.  But I have never read it argued so explicitly by a Justice.  Should litigants now be asserting these types of interest of justice factors in seeking cert. or asking that cert. be denied?  Maybe.

But there is a lot more to say about this per curiam.  And now I am going to pass the mic to reader Alexandr Satanovsky who provides the following analysis (from three separate e-mails -- I only edited a couple of typos):

[T]here is something about the candor in the opinion's introduction that I find enjoyable:

“[A] federal court may not overturn a state court decision rejecting a suf­ficiency of the evidence challenge simply because the fed­eral court disagrees with the state court. . . .[Under AEDPA] judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold.”

Cavazos v. Smith 565 US __ (Oct 31 2011) (slip op at 1) (per curiam).

[T]his is especially telling candor, I think, because of the issue: Jackson sufficiency of evidence.   It is not like other garden-variety constitutional errors (e.g. IAC, miranda, voluntariness, Brady, various procedural due process claims), which already have a second layer of prejudice analyis (or "harmless error") built in on direct review.   Or even better, like constitutional claims that do not even conduct prejudice analysis --(e.g., Batson, Double Jeopardiy (Renico v. Lett, 2010)).  These can better be characterized as "technicalities," or at least attenuated from the important issue of guilt/innocence.   But not so with sufficiency of evidence claims, which in a very real sense involve "judges [who] will sometimes encounter convictions that they believe to be mistaken".

Consider also Cavazos, slip op. at 7, where the Court expressly admits that "[d]oubts about whether Smith is in fact guilty are understandable."  Honestly, I've read a lot of AEDPA decisions where the state prevails in the Supreme Court.   But I don't recall a single majority opinion making this kind of gesture toward costs of AEDPA.   See also slip op at 8 (an unusual gesture to the clemency process).  (Compare with, e.g. Renico v. Lett (2010), which is cited frequently in this opinion, but makes no reservations about an innocent person being wrongly jailed; see also Renico (Stevens, J. dissenting) (protesting that an innocent person was in jail due to the extra-deferential AEDPA interpreatation)).

Another thing worth noting, not sure if others have commented (haven't read much commentary), is Kagan's absence from the dissent.   An optimistic view would be that, perhaps, knowing the fate of the disposition, Kagan joined the PC opinion, perhaps even wrote it, so as to make this acknowledgment of the bitter costs of AEDPA.  The cynical view, of course, is that Kagan is simply not Justice Stevens when it comes to AEDPA, etc. 

I should also note that, putting all biases aside, I think any rational reader of the Cavazos majority and dissent can only conclude that Smith is probably wrongly imprisoned.  I think this is largely due to the fact that Ginsburg marshalls a lot of facts, which the majority expressly refuses to do.  The majority opinion's unusual equivolence toward a possibility of actual innocence, discussed earlier, is also a sure factor.   

[Finally] Dissenting opinion's hint at IAC-type issues.  It's really a phenomenal tangent, as it is totally irrelevant from the issue at hand. (See Ginsburg, J., dissenting op. at 8)  Again, making this opinion quite unique:  I've never encountered SCOTUS citing an attorney by name, and noting their bar discipline (maybe I havne't read some of the seminal IAC cases very closely) -- but this is anomolous, especially since Cavazos is not an even an IAC case.  Coupling this problem with the evolving science on shaking baby syndrome, it seems to me, would make for an interesting argument in a "second or successive" petition which is justified due to actual innocence.

Thanks, Alex. UPDATE: Alex's section was edited for clarity.  Alex also points out that petitioner Smith has already been released from prison, which could explain the majority's "equivolence" towards her plight.

[T]his is especially telling candor, I think, because of the issue: Jackson sufficiency of evidence.   It is not like other garden-variety constitutional errors (e.g. IAC, miranda, voluntariness, Brady, various procedural due process claims), which already have a second layer of prejudice analyis (or "harmless error") built in on direct review.   Or even better, like constitutional claims that do not even conduct prejudice analysis --(e.g., Batson, Double Jeopardiy (Renico v. Lett, 2010)).  These can better be characterized as "technicalities," or at least attenuated from the important issue of guilt/innocence.   But not so with sufficiency of evidence claims, which in a very real sense involve "judges [who] will sometimes encounter convictions that they believe to be mistaken".

Consider also Cavazos, slip op. at 7, where the Court expressly admits that "[d]oubts about whether Smith is in fact guilty are understandable."  Honestly, I've read a lot of AEDPA decisions where the state prevails in the Supreme Court.   But I don't recall a single majority opinion making this kind of gesture toward costs of AEDPA.   See also slip op at 8 (an unusual gesture to the clemency process).  (Compare with, e.g. Renico v. Lett (2010), which is cited frequently in this opinion, but makes no reservations about an innocent person being wrongly jailed; see also Renico (Stevens, J. dissenting) (protesting that an innocent person was in jail due to the extra-deferential AEDPA interpreatation)).

Another thing worth noting, not sure if others have commented (haven't read much commentary), is Kagan's absence from the dissent.   An optimistic view would be that, perhaps, knowing the fate of the disposition, Kagan joined the PC opinion, perhaps even wrote it, so as to make this acknowledgment of the bitter costs of AEDPA.  The cynical view, of course, is that Kagan is simply not Justice Stevens when it comes to AEDPA, etc. 

I should also note that, putting all biases aside, I think any rational reader of the Cavazos majority and dissent can only conclude that Smith is probably wrongly imprisoned.  I think this is largely due to the fact that Ginsburg marshalls a lot of facts, which the majority expressly refuses to do.  The majority opinion's unusual equivolence toward a possibility of actual innocence, discussed earlier, is also a sure factor.   

[Finally] Dissenting opinion's hint at IAC-type issues.  It's really a phenomenal tangent, as it is totally irrelevant from the issue at hand. (See Ginsburg, J., dissenting op. at 8)  Again, making this opinion quite unique:  I've never encountered SCOTUS citing an attorney by name, and noting their bar discipline (maybe I havne't read some of the seminal IAC cases very closely) -- but this is anomolous, especially since Cavazos is not an even an IAC case.  Coupling this problem with the evolving science on shaking baby syndrome, it seems to me, would make for an interesting argument in a "second or successive" petition which is justified due to actual innocence.

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 - District Court Review - Habeas Granted!

In the comments to my post about the Second Circuit's habeas grant in Rivera, reader DB pointed out that there had been another recent habeas grant on a depraved indifference claim in a case called Johnson v. Bellnier. I have now read it and its a really important decision.

But first, let me note that, even though I tried to keep up to date with recent habeas developments over the summer, I had not heard about the decision.  Actually, I had not yet looked through the decisions from the week in which it was issued, and that week turned out to be a pretty busy one in the district courts - a habeas grants and two COA's.  There had not been a COA in the district courts in months.  I'll put those up in a separate post.

Here, I am going to quickly talk about Johnson.  First, the details:

Johnson v. Bellnier, 09-CV-381, 2011 WL 3235708 (EDNY July 27, 2011) (KAM) (RER)

• Habeas Granted in Part
• Issues: (1) whether petitioner had shown a miscarriage of justice in order to overcome a procedural default; (2) legal insufficiency on depraved indifference
• Notes: Adopting R&R in part (available at 2010 WL 7100915)

ANALYSIS: DJ grants habeas relief concluding that the evidence was legally insufficient to establish depraved indifference murder.

But that's not what makes this an important decision.  It is the procedural default ruling that really matters.  Both the MJ in his R&R and the DJ here conclude that petitioner can overcome the procedural default (i.e. failure to raise the claim at trial) because a fundamental miscarriage of justice would result if his case is not reached on the merits.  We have seen that result before (in Petronio and Fernandez v. Smith).  This issue is now currently before the Second Circuit in a case called Garbutt v. Conway (see Pending Second Circuit Cases page).  But the DJ ruled against the petitioner on this issue in Garbutt.  So now we have another DJ going in the other direction.  That's really helpful.

Hopefully, this case will be heard with Garbutt (assuming the State appeals).  At the very least, this decision is now out there and could have an influence on the court.

 

Habeas Corpus - HUGE Habeas Grant from Second Circuit [Updated]

Been extremely busy with stuff, so haven't had a chance to post around here.  But the blog is still on.  Hopefully, I will be able to start posting more regularly in the near future.

Today, the Second Circuit published an opinion granting habeas on a depraved indifference/legal insufficiency claim.  So it's not just a habeas win, but a habeas grant!  It's a case that I have had my eye on from the moment I read the district court's decision.  I wrote about that decision here.  I was upset about two things: (1) the DJ got the procedural question all wrong, way wrong; and (2) the DJ did not grant a COA.  But as I had hoped, the Second Circuit did grant a COA.  And now the court has reversed the DJ and granted the petition.  Makes me very happy.

First, here are the details:

Rivera v. Cuomo, 10-224-pr

• Argued: 5/13/11; Decided: August 9, 2011; published opinion by McLaughlin
• Panel: McLaughlin, Pooler, Parker
• Lower Ct. Info: 05-CV-1699, 2009 WL 4929264 (EDNT Dec. 21, 2009) (SLT)
• In Circuit: Circuit Court COA
• Issues: whether, under the law as it existed when Appellant’s conviction became final, the evidence was legally sufficient to support a conviction for depraved indifference murder in violation of New York Penal Law § 125.25(2)

ANALYSIS: I haven't had a chance to make it through all of the opinion.  I actually am not too familiar with the merits of the case.  But all that really needs to be quoted here is the opening paragraph of the opinion:

Petitioner-Appellant John Rivera (“Rivera”) was convicted of one count of depraved indifference murder in violation of New York Penal Law § 125.25(2).     He now appeals from a judgment   entered in the United States District Court for the Eastern District of New York (Townes, J.) denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.  On appeal,Rivera argues that the district court erred in holding that the applicable law of depraved indifference murder was the law in  effect when Rivera was convicted on September 19, 1997.    We agree, and hold that the district court should have applied the law as it existed at the time Rivera’s conviction became final, i.e., once the period in which Rivera’s time to file a writ of certiorari to the United States Supreme Court expired.    Rivera also argues that, in July 2004, the evidence adduced at trial was legally insufficient to support a conviction for depraved indifference murder.   Again, we agree, and hold that, at the time Rivera’s conviction became final in July 2004, no reasonable jury could have found Rivera guilty of depraved indifference murder.  Accordingly, the judgment of the district court is REVERSED and REMANDED with instructions to grant Rivera’s petition for a writ of habeas corpus.

Update: Reader JE just submitted a great comment which I thought should be moved up here so that nobody misses it:

Another big part of the decision is that Hafeez and Gonzalez were found to be substantive changes in the law rather than mere fact-specific applications of Register. Pretty much every district court to consider the issue thus far has ruled the other way. No more.

Habeas Corpus - Petition of the Day from Last Week

Last week, SCOTUSblog featured, as its petition of the day, the cert. petition in a case I covered around here, Langston v. Conway (back then it was called Langston v. Smith).  That was a notable case around here because it was a habeas grant and the opinion itself had some great logical analysis.  The case concerned the whether the evidence was sufficient to establish that petitioner used guns in furtherance of his possession of those guns.

According to SCOTUSblog, here is how the State has framed the issue:

Whether a court of appeals violates the sufficiency-of-the-evidence test laid out in Jackson v. Virginia (1979) when it judges the sufficiency of the evidence by reference to the arguments made in the prosecutor's summation, rather than in light of the evidence presented at trial; and 2) whether the decision below failed to accord the proper deference mandated by 28 U.S.C. § 2254(d)(1) to a state appellate court which held that the evidence was sufficient.

Issue two is pretty garden-variety and I don't think that's applicable to the Second  Circuit's decision.

Issue one, on the other hand, is pretty interesting.  Do you judge sufficiency on the State's theory presented at trial or can you judge sufficiency on any old theory that the State throws at the court on habeas review (because that's what happened)?  That is an extension of the principle the Supreme Court established in Richter, namely that the Supreme Court can conceivably consider almost any ground in determining whether the state court's decision was reasonable.  But does that concept apply when the State attempts to change their whole theory of the case in federal court?  That seems particularly nuts to me, but it could be the direction in which habeas is going.  Of course, the State's argument would be more compelling if there actually was a theory on which to support the conviction in that case.  But I don't think that there was.

Habeas Corpus - Pending Second Circuit Cases

Just did a global update to the Pending Second Circuit Cases page.

Two notes.  First, in the recent COA grant in Reily v. Ercole, petitioner has yet to file a notice of appeal.  It's now gone beyond the 30 days.  Docket sheet says that the decision and judgment were sent to petitioner and petitioner appears to be held in same facility as the one listed on docket sheet. 

But this is not the first time in the history of this blog where a COA was granted in a pro se case, the decision was sent to the right facility, but no notice of appeal was filed.  It suggests a couple of possibilities: (1) pro se inmate never received decision even though it was sent to right place; (2) pro se inmate received decision and did not know that, after a COA grant, he was required to file a notice of appeal; or (3) pro se inmate didn't care to go further in the litigation.  Obviously, I think (3) is not what's happening.  I think (1) is most likely.  But it could be (2). 

In any event, I think the best way to handle these situations would be for the DJ to assign counsel before granting a COA. Notice won't be an issue, counsel should know what the next step would be after a COA grant, and, if petitioner doesn't want to continue, counsel would be in the best position to learn that.

Second note: petitioner's counsel in Garbutt v. Conway has filed a motion to expand the COA.  I am keeping a close eye on this case since it is a depraved indifference case raising one of the procedural questions that comes up in many of those types of cases.  The previous COA grant was on the issue of whether a habeas court can address a procedurally defaulted depraved indifference claim on the ground that a manifest injustice would occur if the claim was not addressed.

In the motion to expand the COA, petitioner is seeking to include the issue of whether the state court's finding the claim was unpreserved represented an "adequate" state law ground for affirming the conviction. 

I hope that the motion is granted.  This pops up in many of these depraved indifference cases.  It's usually pretty fact specfic, but it would be nice to see the Second Circuit provide some guidance on this issue.