Habeas Corpus Blog

Habeas Corpus - Checking In on Sessoms

By JK

Hello again, internets.  Been a long while since I posted something.  Too long.  Let's just blame the sequester.  I hope to start posting more regularly.  Fortunately, Matt has been putting up a lot of good stuff over the past few months so the group blog remained active as I adjusted to life under sequestration.  Which looks like it will painfully continue for the foreseeable future. And don't even get me started about the likely shutdown.  Grrrr. 

Back in August 2012, the legendary Betty Fletcher wrote the 6-5 en banc decision in Sessoms v. Runnels, granting habeas relief based on the police obtaining a statement from a defendant after he had invoked his right to counsel.  

Petitioner, a 19-year-old, was taken into custody and, before he was given his Miranda rights, the following exchange occurred: 

Sessoms: There wouldn't be any possible way that I could have a — a lawyer present while we do this?

[Detective]: Well, uh, what I'll do is, um —

Sessoms: Yeah, that's what my dad asked me to ask you guys ... uh, give me a lawyer.

The California courts rejected his right to counsel claim because, in their view, he had not made an unambiguous request for an attorney.  Judge B. Fletcher* concluded that California unreasonably extended this standard to this situation.  According to Judge Fletcher, the "unambiguous" request test applies after Miranda has been given.  But before the rights are read, a request such as the one here is sufficient to assert the right to counsel under clearly established Supreme Court law that focus on pre-Miranda invocation of the right to counsel.  Beautifully reasoned opinion.

*I use "B. Fletcher" here since her son William Fletcher is also a judge on the Ninth Circuit.  So saying Judge Fletcher used to be imprecise.  At this point, if you write Judge Fletcher, you should probably be referring to W. Fletcher.

But, come on.  Let's have some real talk (NSFW due to language, I believe). In the real world, this was obviously a request for an attorney.  Breaking out, as I typically do, my uncommon sense meter, who in their right mind would not believe that this kid was asking for an attorney?  Even the police officers in this case believed that he was, as they responded to his request by convincing this young guy that having an attorney present was not in his best interest.  Feels like irony lives somewhere in there.  It rates pretty high on the meter.

Sadly, this great decision was Judge B. Fletcher's last habeas opinion.  She passed away in October 2012.

The warden sought cert. in the Supreme Court and it sat up there for the second half of the Court's term.  Then at the end of June 2013, the Supreme Court GVR'd the case based on Salinas v. Texas -- the uncommon sense case that says that you have to speak in order to remain silent.  To note, Sessoms had a different name up in the high court due to a new warden: Grounds v. Sessoms.  

Sadly again as a result of the GVR, Judge Fletcher's opinion is no longer on the books. My sense is that the GVR was a compromise among the liberal and conservative judges to avoid having to deal with a case that is not an ideal candidate for a summary reversal.  On a cynical and grisly level, it's possible that the conservative judges may also have decided to take a gamble and send it back down knowing that the lineup in a close 6 to 5 opinion was going to change now that Judge B. Fletcher could no longer participate.  But no judges would actually think that way, would they?

On remand, the Ninth Circuit ordered further briefing on whether Salinas is relevant to Sessoms. Obviously, it isn't.  And I think that's probably why the court framed the question as whether that case is "relevant" as opposed to what "impact" it had on the case.

I checked the lineup for the new en banc panel (you have to scroll down a ways on the Ninth Circuit's en banc page to find it).  The lineup remains the same, except Judge M. Margaret McKeown has now replaced B. Fletcher.  She is a Clinton appointee and has been around for awhile.  I have been told that it's a pretty good draw for the habeas petitioner.

Going be interesting to see what happens here.

 

Habeas Corpus - Sitting By Designation

By JK

Got a little bit of a backlog with recent Ninth Circuit habeas decisions.  Been a bunch.  I hate to group them all into a single post, so I plan on doing several relatively short ones.

Back on February 6, 2013, the Ninth Circuit issued its published opinion in Dyer v. Hornbeck.  The court affirmed the denial of habeas relief despite a Miranda violation.  

When I first saw the decision, I had to do a double take as the author of the opinion was Judge Robert Sack -- of the Second Circuit.  Looks like I was not the only one who headed West.  Of course, Judge Sack was only sitting by designation.  But it was nice to see a familiar name as I did argue a couple of habeas appeals before him.  I wanted to say, "Hey, Judge Sack, remember me?  You once complimented me and my adversary for doing a good job during an oral argument . . . (voice trailing off)"*

*Sorry to mention this type of ego-related thing, but it was a nice moment.  And it happened with both my former boss and my future wife in the audience.

In any event, you may have noticed that I said flatly "despite a Miranda violation."  Intentional.  The interesting part about the decision was the concurrence.  Judge Milan Smith explained that had this been a direct appeal, he would have found a Miranda violation.  However, since it was being decided under the deferential standard of review, relief had to be denied.  We've all seen this type of thing before. 

The frustration of that inspired me to create a new tag line for habeas review:

AEDPA - Tolerating Constitutional Violations Since 1996!

I'll use it when appropriate.  

 

 

 

Habeas Corpus - Argument Transcripts

The transcripts are available in the three habeas cases heard today.

Here's Maples.  Here's Martinez.  And here's Fields.

I skimmed through them.  And now I am feeling down.  I don't think that petitioner is going to win any of these cases. At the risk of moving into "famous last words" territory, at least these cases won't make life worse for habeas petitioners.

I think I can some up each of them in a sentence:

Maples - even with the extraordinary facts, they aren't extraordinary enough to excuse the procedural default

Martinez - it would just be too difficult as a practical matter to create the right to the effective assistance of counsel in a collateral proceeding

Fields - it is not clearly established law that being in prison means you are "in custody"*

*Okay, that was an intentionally absurd oversimplification.  But not too far off.  Here's the more accurate sentence: it was not clearly established law that an inmate is "in custody" for Miranda purposes when police officers separate him from the general population in order to question him about a crime.

Habeas Corpus - Welcome Back, Supreme Court! - Term Preview - Edited

The Supreme Court's October 2011 Term begins this week.  And it's going to be a very active one for habeas cases.  There are already eight cases on the Court's docket.  I am really excited about a couple of those.  I also dread what the outcome is going to be in a couple others.  And at least one I don't really have much of an idea as to what it's all about.  There are also a couple front-end criminal cases of note.  So it's going to be a big term in habeasland. 

And remember, Habeas Day at the Court will be this Tuesday, when the Court intends to hear three (Maples, Martinez, Howe) of the eight.

Since I love lists, here is a list, in descending order, of this Term's habeas cases on the scale of "what I find most interesting" (in other words, 1=most interesting; 8=least interesting)  I'll note my feeling about the outcome of the case as either (a) excited; (b) dread; or (c) uninterested.

The List:

(1) Martinez v. Ryan (to be argued on 10/4)- Excited

Issue: whether a criminal defendant has the right to counsel at a state post-conviction proceeding in order to raise claims (mainly IAC) that can't be raised on appeal

I hate to swim with the current on this one, but it's hard to argue that this isn't the most interesting (and important) habeas case on the Court's docket this year.  It certainly has the greatest potential impact on criminal law.  Not as big as something like Gideon v. Wainwright (right to counsel in criminal cases) or Douglas v. California (right to counsel on appeal if indigent), but it will be the next biggest thing.  No matter which way it goes, it's going to be a fun opinion.  I'd love to see a split court here as the question may come down to how each individual Justice views the role of counsel in the criminal justice system.  Fun, fun, fun.

(2) Greene v. Fisher (to be argued on 10/11) - Dread/Excited

Issue: when is the temporal cut-off for clearly established law under 2254(d)(1)

For such a simple issue, it does seem odd that I would rank it so high.  But this case is going to have the biggest day-to-day impact on habeas cases.  And it raises abstract questions about the interplay between the AEDPA and the retroactivity rules of Teague v. Lane (i.e., whether those latter rules still exist or will the Court's interpretation of 2254(d)(1) in Greene supersede them).  Which makes me excited for this case.  But I have larger feelings of dread about it as I expect a very anti-petitioner decision here. And you can read more about my feelings of dread about this case in this article that I wrote over the summer.

(3) Maples v. Thomas (to be argued on 10/4) - Excited

Issue: whether there was cause for petitioner's procedural default based on (essentially) attorney and state court negligence

The issue in this case is not really that interesting, but the underlying facts are.  This is the case where the Big City law firm dropped the ball on petitioner's case and the state courts did absolutely nothing to straighten out the problem.  And there was so much unfairness to petitioner that it led multiple national news outlets to take up his cause.  And, around here, it led me to create (the little used, but still enjoyable) "uncommon sense meter" -- the rates cases on the scale of whether it defies common sense that some ridiculous procedural rule can allow a court to overlook an obviously unfair result.  This is a case where good facts could chip away at what otherwise is bad law for petitioners.

(4) Lafler v. Cooper (to be argued on 10/31; being heard with Missouri v. Frye)- Dread

Issue: whether a petitioner who was convicted after a trial can argue IAC based on counsel's failure to give proper advice during the plea bargaining stage of the case

This is also a case with a big potential impact on the criminal justice system.  There is plea bargaining in every case and in almost every case that eventually goes to trial, a plea offer was made at some point in the case.  Counsel is supposed to both communicate that offer to the defendant and give advice on it.  The question here is whether petitioner should be able to get any relief when counsel messes that up.  And, if so, whether any relief is available after the defendant is convicted after trial or does that conviction somehow moot out the deficient performance in the plea bargaining stage.  The fairest result here would be that a petitioner should still be able to raise the claim even after a jury verdict.  But, based on the Court sua sponte adding this particular issue to the Frye case, I have a bad feeling about where this is going.

(5) Howes v. Fields (to be argued on 10/4) - Excited

Issue: whether a prisoner, who is excluded from the prison population and questioned, is always "in custody" for Miranda purposes

I am excited about this case since it is a real substantive law habeas case.  Lafler is too, but that substantive law could be extinguished based on where the case goes.  Not this case.  It is a basic up or down vote.  I have searched my memory and I simply can't remember the last up vote on a habeas case in the Supreme Court where the final decision ended up as a grant for the petitioner.  I don't see that as the most likely outcome here.  But there is a chance for that, which gets me excited.  On the other hand, it is a cert. grant from the Sixth Circuit, and that typically means . . . bad news for the Sixth Circuit.*

*I forced my wife to watch the original Bad News Bears again the other day.  I think that is my second favorite movie of all time.

(6) Gonzlez v. Thaler (to be argued on 11/2) - Dread/Uninterested

Issue: (i) was a COA appropriate on a habeas procedural issue? and (ii) something about what date to use to determine when a petition is timely under the statute of limitations

This case kind of scares me a little.  The Court sua sponte added the COA question.  I am not sure why since the Court has already held that a COA would be appropriate in this situation.  Maybe the Court was not satisfied that the circuit court properly followed the rule in determining whether to issue a COA on a procedural issue.  I should probably look at the briefs for some guidance on that.  But there is a potential that this case could place a further restriction on habeas law.  As for the other issue, I re-read the lower court decision and I still don't get it.  It seems very state-specific as to what date should be used as the end date of the appeal.  And each one is a totally legitimate way of looking at it.  Does the Supreme Court need to step into that mess and say that it needs to be the same date in all cases, regardless of the state's individual procedure?  It seems like a waste of time.  State law should control on that question in my mind.  States' rights!  (That's tongue in cheek -- secessionist talk is best left to southern governors with presidential aspirations)

(7) Wood v. Milyard (recent cert. grant) - Dread

Issue: can a circuit court raise statute of limitations defense sua sponte*

*There's those words again.  I talk about how much I love the term sua sponte about midway through this post.

I really dislike the statute of limitations.  To be fair, a statute of limitations isn't the worst thing ever.  But the one-year one is truly oppressive.  I wish it would go away or get ameliorated (like turned into a two or three year limitations period).  But my personal feelings aren't relevant.  I don't think the federal courts dislike it too much.  And, even though it is a defense that the State can use and not a jurisdictional bar, I worry (in the extreme) that the Supreme Court will uphold a circuit court's power to do this.  In a fair world, they won't.  I mean it's typically frowned upon for an appellate court to go around raising defenses sua sponte where a litigant hasn't relied on it below.  But, of course, everything is skewed in habeasland.

(8) Martel v. Clair (to be argued 12/6) - Uninterested/Excited(?)

Issue: can court-appointed habeas counsel be replaced in a capital habeas proceeding

This case appears to boil down to a statutory interpretation issue.  And it's a statute that I am not too familiar with.  So my interest level is not high.  But maybe, just maybe, the opinion could branch out into issues that I am more interested in.  If the Court's opinion could potentially be applicable to the question of replacement of court-appointed counsel in a non-capital case (i.e. when a court grants a petitioner's motion for assignment of counsel under the "likely merit" standard), I'd be interested in that.  And, because the issue presented seems broad (although I don't think in the end that it is), there is a small chance that the Justices could once again veer off into the more abstract concept of an attorney's role in the criminal justice system.  Which could be fun.  But I won't get my hopes up.

[edited the Gonzalez paragraph for clarity]

Habeas Corpus - Supreme Court Argument Today

Just a quick mention that the Supreme Court will be hearing oral argument today in the front-end case of J.D.B. v. North Carolina.  Here are some details:

J.D.B. v. North Carolina, 09-11121 (front-end case)

• Argument Date: 3/23/11
• SCOTUSblog page
• Issue: Whether a court may consider a juvenile’s age in a Miranda custody analysis in evaluating the totality of the circumstances and determining whether a reasonable person in the juvenile’s position would have felt he was not free to terminate police questioning and leave?

Habeas Corpus - District Court Review - Habeas Grant Plus COA!

2011 gets off to a great start with a big habeas decision up in WDNY in a sexual assault case. 

It's big for several reasons.  First, habeas was granted on two issues: IAC and a Miranda violation.  Although there was a habeas grant, petitioner did not receive relief on all of the counts for which he was convicted.  Petitioner was convicted of sexually assaulting three different women.  Habeas was granted on the counts related to only one of the women.  The remaining convictions remain in place.

However, the judge granted a COA on a second IAC claim related to the convictions that remain in place despite the habeas grant. 

Another reason why this decision is big is more literal: the decision itself is massive.  I was given a pdf of the decision and it numbers 146 pages!  That's equivalent to 65 pages on Westlaw -- without headnotes.  That's crazy long.

The issue that really captured my attention was the Miranda issue.  It's an unusual factual situation, but not so novel that it went beyond clearly established law on Miranda.  The judge makes a very convincing argument that the state courts' analysis was unreasonable.  In fact, the judge shows that those courts did not even consider the relevant standards.

Here are the details:

Jackson v. Conway, 05-CV-0571, 2011 WL 65943 (WDNY Jan. 11, 2011) (VEB)

• Habeas Granted; COA Granted
• Issues: Habeas Grant: IAC based on counsel's failure to consult medical expert in sexual abuse case; Miranda violation based on un-Mirandized statements given to a child protective services caseworker made while petitioner was in custody; COA Grant: IAC based on counsel's failure to introduce favorable laboratory and DNA reports
• Notes: counseled; parties consented to proceed before MJ

ANALYSIS: The facts were pretty odd.  Petitioner was charged with sexually assaulting his wife, his ex-wife and his teen-aged daughter, referred to in the decision as CJ, on the same night in the same apartment.

At the precinct, police officers questioned petitioner after giving him Miranda warnings, but he invoked his right to remain silent.  He was placed in a holding cell.  Soon afterwards, one of the detectives facilitated an interview between a child protective services caseworker and petitioner.  During the interview (which officers watched), petitioner made inculpatory statements "regarding his extremely unconventional sexual relationship with his wife and ex-wife and his belief that he was the "Alpha Male" of the family."  In addition, petitioner had agreed with the caseworker that it was "'possible he was so drunk that he wouldn’t have remembered if he raped [CJ]' and that '[h]e said it was a possibility . . . he said he could have been the one to rape [CJ].'"  These statements were admitted at trial.

Defense counsel never consulted, nor called, a medical expert to assist the defense in interpreting CJ's medical records, which indicated that she had an "abrasion" (which was at one point in the records described as an "irritation") to her "vaginal introitus."  In addition, counsel did not admit into evidence laboratory and DNA reports that indicated that no physical or medical evidence linked petitioner to the sexual assaults of his wife and ex-wife.

In addition, at trial, the prosecution presented "surprise" expert medical testimony.  In other words, the prosecution called an un-noticed expert witness to interpret the medical records, even though the prosecution had told the defense before trial that there would be no expert medical testimony.

The state courts summarily rejected petitioner's IAC claims.  As for Miranda, the hearing court concluded that the case worker was not acting as a law enforcement agent.  The Appellate Division concluded that the filing of a child abuse petition did not trigger petitioner's right to counsel.

In the habeas petition, the MJ granted habeas relief as to the CJ convictions on the grounds of IAC and Miranda.  The judge concluded that counsel was ineffective for failing to consult, or call, a medical expert.  Not only would an expert have helped the defense interpret the ambiguous medical findings, which the MJ showed were not necessarily consistent with a sexual assault, but it would have helped the defense rebut, or at least be prepared for, the prosecution's surprise expert witness.*  The MJ concluded that this deficient performance prejudiced the defense.

*The MJ described the prosecutor's actions in calling the surprise medical expert "disturbingly unethical misconduct."

On the other hand, the MJ concluded that counsel's failure to admit the favorable reports did not prejudice the defense with respect to the wife and ex-wife since the reports would not have "sufficiently strengthened the defense's case, or undermined the prosecution's proof," particularly since the wives both testified that petitioner did not ejaculate and had trouble maintaining an erection.  However, the MJ granted a COA on this issue.

The MJ also granted habeas relief on the CJ convictions as to the Miranda issue.  I found this issue to be really interesting.  The MJ framed the question under the Miranda rule as whether the case worker was "'aware of the potentially incriminatory nature of the disclosures sought' . . . that is, whether she possessed the requisite 'investigative intent.'"  After reviewing the relevant Supreme Court decisions discussing the applicability of Miranda to non-law enforcement questioners, the MJ stated that the case worker clearly was aware that she was seeking to obtain inculpatory, investigative information from petitioner:

the investigating officers in Jackson's case arranged and facilitated the meeting between Jackson and Caseworker Bonisteel, which took place in the jail where Jackson was being detained in custody. The inference is inescapable that the purpose was to elicit an incriminating response from the suspect who had just hours before, specifically invoked his Fifth Amendment privilege against self-incrimination and refused to talk about the alleged crime. Caseworker Bonisteel-not Jackson-mentioned the crime and specifically questioned Jackson about it with the clear intent of eliciting information from him. Both Caseworker Bonisteel, and the Greece Police Department officers who were eavesdropping on the conversation, knew that Caseworker Bonisteel's visit was reasonably likely to elicit an incriminating response from Jackson-indeed, that is why they were eavesdropping on the interview, and their eavesdropping demonstrated planning. Furthermore, I find that clear and convincing evidence, 28 U.S.C. § 2254(e)(1), rebuts the presumption typically accorded to the state courts' factual determinations. I also find that the state court unreasonably applied clearly established federal law, namely, Mathis v. United States and Estelle v. Smith, and Rhode Island v. Innis, insofar as the state courts concluded that Jackson was not subjected to the functional equivalent of interrogation by an agent of law enforcement. Indeed, the state courts' conclusions were “contrary to” the clearly established Supreme Court precedent of Mathis v. United States, a case which is squarely on point with the instant matter.

It's a really fascinating analysis.  If you decide to read any part of this lengthy decision, I'd suggest reading the subsection entitled "2. Applicability of Miranda to the Interview with the Caseworker."

So a good start to 2011.  This case will be added to the Pending Second Circuit Cases page.

Habeas Corpus - Habeas GVR

Thanks to reader DB I see that I missed a Supreme Court GVR in a habeas case back on October 12.

The case is called Doody v. Schiro, 596 F3d 630 (9th Cir. 2010).  In the decision, the Ninth Circuit granted habeas relief based on Miranda and voluntariness grounds.  In other words, there was a Miranda violation and, notwithstanding the Miranda violation, the statement itself was involuntary under the due process clause.

The Supreme Court GVR'd the case on the basis of Florida v. Powell, a decision from earlier this year in which the Court basically held that a Miranda violation does not necessarily occur when the cops don't get the Miranda warnings exactly right.  That's a slight oversimplification, but mostly true.  Looked at another way, in Powell, the question was not whether they were misleading, or ambiguous, or confusing, but simply whether they were adequate.

But that's not the issue in Doody.  There, the question was whether the warnings were clear and understandable.  And they were a complete mess.  Here's how the court described them:

During his administration of the warnings, Detective Riley emphasized that Doody should not “take them out of context,” and implied to a juvenile, who had never heard of Miranda, that the warnings were just formalities. This misdirection was coupled with repeated assurances that the detectives did not necessarily suspect Doody of any wrongdoing. Most significantly, in informing Doody of the right to counsel, Detective Riley deviated from the form containing the juvenile Miranda warnings, and ad libbed that Doody had the right to counsel if Doody was involved in a crime. Indeed, Detective Riley instructed Doody that he had the right to counsel “if you were involved in it ... but if you were, then that's what that would apply to[.]” The implication from this improperly qualified, unclear, and confusing warning was that Doody only had the right to counsel if he were involved in a crime. In such a circumstance, the invocation of one's right to counsel would be tantamount to admitting one's involvement in a crime. Overall, the fact that Detective Riley's explanation of a one-page Miranda warning form consumed twelve transcribed pages of text is a testament to the confusion generated by the detective's obfuscation.

So I am not quite sure I can agree with the GVR here.  Powell seems to have nothing to do with the situation here.  Oh well.

Getting back to Doody, the dissent in that case took issue with the paragraph quoted above, believing that the court did not follow its AEDPA responsibilities - a common complaint against the 9th Circuit.  As DB predicted in his e-mail to me, I got a big kick out of the majority's response:

Our colleagues in dissent chastise us for reaching these conclusions, accusing the majority of “once again pay[ing] mere lip service to AEDPA and then proceed [ing] as though it did not exist.” See Dissenting Opinion, p. 663. The dissent would prefer that we simply parrot the findings made during the state court proceedings and call it a day. However, if we succumb to the temptation to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat rubber stamp, pucker up, and kiss The Great Writ good-bye.

Judge Kozinski in his concurring opinion also took on the AEDPA standard and said, "I write separately because I believe that deference is neither a blindfold nor a bandana."  Interesting.  I must admit when I first read it, I thought he had written "banana."  That would have made no sense, but it would have been far more interesting to try and explain.  "Bandana" fits a little better.

Shifting back to the GVR, it seems inappropriate for a different reason.  Setting aside the Miranda issue, the 9th Circuit also concluded that the statement was involuntary as a matter of due process.  So, even if the 9th Circuit is wrong about Miranda, Powell has no impact on the voluntariness argument.

Based on the questionable GVR, I am guessing we will see the 9th Circuit stick to its prior decision.