Habeas Corpus Blog

Extending Martinez

By JK

Let’s turn the lights back on around here. . .

Recently, the Supreme Court granted cert. on a really interesting habeas issue:  whether Martinez extends to ineffective assistance of appellate counsel claims.  Case is called Davila v. Davis.  SCOTUSblog page here.

Let’s start with a Martinez refresher: in 2012, the Supreme Court held in Martinez v. Ryan that the ineffective assistance of post-conviction counsel can represent cause to overcome a procedural default on an ineffective assistance of trial counsel claim.  In other words, a petitioner can argue that his post-conviction counsel was ineffective for failing to raise or properly litigate a trial counsel ineffectiveness argument.  If he can establish that, then he can obtain federal review of the trial counsel ineffectiveness claim (I am going to use IAC from here on out, it’s a lot of words to keep spelling out).

That’s the law now for trial IAC claims.  But what about appellate IAC claims?  Does the reasoning of Martinez extend to those types of claims?

I am going to steal this clever framing from a colleague, but in some ways it boils down to this: It’s the Ninth Circuit vs. the rest of the country on this one.  The Ninth Circuit in a case called Nguyen v. Curry held that Martinez extends to these types of claims.  Every other court has said no. 

Based on the infamy of the Ninth Circuit, one may think that it is the kiss of death for the habeas petitioner to have the Ninth Circuit on his side.  But I wouldn’t jump to that conclusion so quick here.  The Ninth Circuit is not always wrong when it issues a pro-habeas petitioner interpretation on a procedural issue.*  That is not inconsistent with recent Supreme Court law, as the Court has actually been relatively generous in expanding habeas procedural issues under the Roberts Court (e.g. Martinez, Maples, McQuiggin). Ironically, Martinez was out of the Ninth Circuit and the Supreme Court reversed the Ninth Circuit for failing to rule in favor of the habeas petitioner.

*Of course, they do still get reversed on their pro-habeas petitioner procedural rulings as well.  This decision from last term is a good example.

Here’s why the petitioner could win.  The logic of Martinez supports its extension to IAC appellate claims looked at in broad terms.  One of the main motivating factors underlying Martinez was that the initial post-conviction review proceeding was the exclusive forum in which a petitioner was allowed to raise IAC trial claims.  A petitioner should be provided with an attorney to assist him with raising that type of constitutional claim.  Just like IAC trial claims, the initial review collateral proceeding is the first opportunity for a petitioner to raise an IAC appellate counsel claim.  Significantly, Justice Scalia in his dissent in Martinez acknowledged that the holding of Martinez would obviously apply to IAC appellate counsel claims.  He went so far as saying that the majority’s assurance that the holding was limited to the issues before it “insults the reader’s intelligence.”

But let me also advocate for the devil here.**  Is there something different between these two types of claims?  There is an argument to be made that there is.  As Justice Kennedy reasoned in Martinez, IAC trial claims often require investigation into matters outside the trial record.  Something that a habeas petitioner cannot do while incarcerated.  But appellate counsel claims don’t require that type of investigation.  Appellate issues are based exclusively on the lower court record.  Outside of having legal experience, wisdom, and skill, habeas petitioners do in theory have the issues at their disposal while incarcerated (assuming they have the trial record with them).

** No, I obviously do not believe the State is the devil.  It’s a play on words on the expression “playing devil’s advocate.” [Insert winky face emoticon here]

But I don’t find that reasoning particularly persuasive.  As I imply in that final sentence, habeas petitioners are not in a good position to raise these claims.  They don’t generally have the legal ability to identify appellate issues.  They are incarcerated.  They don’t have a lot of access to legal materials.  They don’t often have complete records from their trial.  Yet, criminal defendants have the constitutional right to the effective assistance of appellate counsel (yes, spelled it out there, but it seemed appropriate).  These claims can only be brought in the initial review collateral proceeding.  Representation by counsel in those proceedings to raise a violation of a guaranteed constitutional right seems pretty vital to me.

Martinez was 7 to 2.  If the court remains at 8, it will take a shift of four members of the majority for the Court to reject the Martinez extension.  But I guess it is more complicated than that.  If the habeas petitioner loses three, then it is 4 to 4.  The individual petitioner will lose in that situation, but at least petitioners in the Ninth Circuit would still be happy.  And the issue would remain undecided.  

If the Court gets back up to 9, the numbers game would change a little.  Assuming the new judge votes like Scalia, that will add another judge to the anti-Martinez extension crew.  In that situation, a three-judge shift will mean a lose for all habeas petitioners.

So it really boils down to whether the habeas petitioner will lose all of Roberts, Kennedy, and Alito.  Only needs to hold on to one for the win here.*

* Yes, I am assuming Ginsburg, Kagan, Breyer, and Sotomayor are reliable votes here. 

If you want to read more about this, I enjoyed this write up about the case.

Habeas Corpus - Relist Watch

BY JK

As much as I hate to bump Matt's awesome post about the Lopez case from the top of the blog, I did have a few minutes and wanted to mention something from this week's SCOTUSblog's relist watch.

A couple of months ago, I mentioned the Martinez v. Pinholster battle going on in the Ninth Circuit.  It came to a head in a case called Schad v. Ryan, where a bunch of conservative judges issued an opinion dissenting from the denial of rehearing.  

Relist Watch on SCOTUSblog indicates that the cert. petition in Schad (now known as Ryan v. Schad) has been relisted several times.  Here's what RW say about it:

So as not to disturb the fundamental rule of nature that as the number of relists approaches four, at least one has to be a habeas case, the Court relisted Ryan v. Schad, 12-1084, yet another state-on-top habeas case out of the Ninth Circuit, and with a long pedigree to boot:  It was relisted in the early days of Relist Watch, and then GVR’d a couple years ago in light ofCullen v. Pinholster.  In its current form, a panel majority consisting of Judges Schroeder and Reinhardt reconsidered the prior denial of Schad’s latest GVR request, and ordered the case to be sent back to the district court for reconsideration of “new evidence” relevant to his ineffective-assistance-of-counsel claim in light of Martinez v. Ryan.  The Ninth denied rehearing en banc, with eight of the court’s more conservative judges dissenting.  Can’t imagine why this has caught the Court’s attention.

To note, two weeks ago, Alex wrote about a different cert. petition, in Gallow v. Cooper that raises a similar issue.  As Alex indicated in his post, the resolution of the tension between Martinez and Pinholster seems inevitable.  Will it be in one of these two cases?



Habeas Corpus - Good News

By JK

I am happy to report that my powers of prediction were off!  And this is good news for habeas petitioners.

Last week, in my post about Johnson v. Williams, I stated that a likely casualty of Williams would be Pearson v. Winston.  As I mentioned previously, in that case, the Fourth Circuit concluded that, where the state court failed to develop the factual record with respect to petitioner's claims, there was no adjudication on the merits.  In that situation, there would be de novo review and the federal courts could consider new evidence.  It seemed like a likely candidate for a GVR after Williams.

But the good news is that the Court denied the State's cert. petition on Monday.  Here's a link to the order list.  Thank you relist watch on SCOTUSblog for pointing that out.

So Winston remains good law and, for now, offers a potential path around Pinholster.

Habeas Corpus - New Cert. Grants

Just last week, I mentioned that the Supreme Court doesn’t have much on its habeas plate this term. Well, that changed a little Monday.  The Court granted cert. in two habeas cases:

(1) McQuiggin v. Perkins, 12-126

Issue: Whether, under the Antiterrorism and Effective Death Penalty Act of 1996, there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition, and if so, whether there is an additional actual-innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.

(2) Trevino v. Thaler, 11-10870

Issue: Whether Martinez v. Ryan applies when a State court system allows a defendant, in some circumstances, to bring an IAC claim on appeal as opposed to requiring all IAC claims to be brought in a post-conviction proceeding

There is a circuit split on the primary issue in McQuiggin, which truly surprises, and disappoints, me.  Seems like a no-brainer to me: it is an exception to every other procedural default.  Why treat the statute of limitations any differently?  Particularly in a situation where equitable tolling is already allowed.  While the cert. grant makes me nervous, I actually think that it could go as much as 7-2 in favor of the actual innocence exception (hope I don’t have to eat those words).  

The diligence issue is a much closer call. Oddly, the McQuiggin case only dealt with the diligence issue; the Sixth Circuit had previously held that the exception existed.  The Sixth Circuit held in McQuiggin that there was no diligence requirement, which actually makes a lot of logical sense in this context – the whole reason why the exception is necessary is because the petitioner wasn’t diligent in filing the petition.  A diligence requirement would nullify the exception in many circumstances.*  The court's language actually was: "[W]e find that such a reading [which would require reasonable diligence] would render the concept of equitable tolling nugatory."

*That's a small oversimplification.  I guess it could be that a habeas petitioner may not have been diligent in filing the habeas petition, but was diligent once he obtained new evidence.  The only problem with such a distinction is that several courts, including the Ninth Circuit, have held that "new evidence" under the actual innocence exception does not require newly discovered evidence, but simply "newly presented" evidence (i/o/w evidence that may have always been known, but was not presented at trial).  In that situation, the lack of diligence in timely filing the petition would apply equally to the actual innocence claim.  If I have to guess, I'd say that this situation has the potential to pop up much more often than a "newly discovered evidence" actual innocence claim. 

I am worried about the Trevino case.  It will either provide reinforcement and strength to the Martinez rule (hope, hope, hope) or it will painfully limit it down to a very narrow set of circumstances.  Really hard to predict at this point.  The oral argument will provide a very good indication of where this is going.  But my sense is that the Court will have to apply Martinez to this type of situation, or else it would give the States too big an out to avoid the effects of Martinez.

Habeas Corpus - Supreme Court Catch-Up - Updated

By JK

 

 

I know I am jumping into this a little late, but thought it was a good idea to at least put something up about the current Supreme Court term.  Overall, it’s not a very active term on the habeas front (unlike the past two years, which were quite memorably active). There are only three cases on the docket, two of which present the same issue.  And the Court has already heard oral argument on all three cases.

 

 

There are some front-end cases out there (I’ll wait for the decisions to mention them individually) and a quasi-habeas case that could have a huge impact on the criminal justice system (that’s the Chaidez case, which asks whether Padilla v. Kentucky applies retroactively).  And, of course, similar to last term, the Court could issue some summary reversals in habeas cases.  And there is time for more cert. grants for the current term. But overall, slow habeas term.

 

 

Turning to the three habeas cases themselves, the two cases heard together back on October 9, 2012 – Ryan v. Gonzales and Tibbals v. Carter – garnered the most pre- and post-argument attention (you can read about them here, here, and here).  The issues are whether a habeas petitioner must be “competent” during the pendency of the habeas proceeding and, if incompetent, how broad is the district court’s discretion to stay the proceedings until the petitioner becomes competent.  

 

 

I think it is an interesting question, not just from a substantive point of view, but also an ethical one. It’s stuff that I used to focus on with my students (notice the past tense there, no longer an active professor after the move out West).  The question is: whose appeal is it anyway?  The Supreme Court has stated that appellate attorneys are the ones who get to make the ultimate call on what issues to raise.  And I think that this ethical logic can get extended to the habeas post-conviction attorneys.  In both situations, the substantive arguments to be raised are (typically) record-based.  So input from the defendant or petitioner is not absolutely necessary.  And it’s even less once the petition/appeal gets filed and the attorney is left to litigate everything.  But as a matter of legal ethics and good client representation, client input should always be taken into account.  Should it really be that an attorney should be allowed to make the decisions and then litigate the case in a vacuum with no client input whatsoever?  That’s what the consequences would be if the Court says that habeas petitions can go on with an incompetent client.  I don’t think the Supreme Court should condone such a situation as a matter of legal ethics, despite the current Court’s distaste for almost all things habeas.  The transcripts of the argument in the cases can be found here and here.

 

 

The final habeas case is Johnson v. Williams.  It’s got an impressive sounding AEDPA-focused issue: Whether a habeas petitioner’s claim has been “adjudicated on the merits” for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim (copied from SCOTUSblog).  But from the argument, which occurred back on October 3, 2012 (transcript here), it appears that the Court is going to sidestep the issue and find the State court actually did address the federal-law basis for the claim.  End result will be a remand to the Ninth Circuit for that court to apply the 2254(d) standard of review.

 

 

What’s interesting about this case is that, at the argument, the State attorney refused to take the signals from the Judges that she was going to win on the narrow issue and repeatedly pressed on her broader argument (and I’m paraphrasing here) that if a state court sneezes, it has made a merits-based decision on every federal claim before it.  There were conflicting opinions over at SCOTUSblog as to whether this was an appropriate oral argument strategy.  Lyle Denniston believed, and once again this is paraphrasing, that the attorney was being needlessly inflexible and/or stubborn, at best, or maybe even obtuse, at worst.  But Tom Goldstein believed (written here paraphrasingly) that it was a conscious strategy – she could see she was going to win, so why not go for the broadest ruling possible.  Tough to know for sure.  My take: inflexibility may have simply been the strategy.

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 - Supreme Court today

Today, the Supreme Court will be hearing argument in the front-end case of Smith v. Cain (Brady violation) and the front-end Fourth Amendment case of United States v. Jones (is it unconstitutional for the government to use GPS tracking on a suspect without a warrant?).

Haven't covered these cases too much around here.  Particularly true about Jones since, under Stone v. Powell, habeas petitioners can't really raise Fourth Amendment claims in a habeas petition, except to the extent that the State gave them insufficient process to raise it or it was ineffective for counsel to raise the Fourth Amendment claim.  So it's twice removed from habeas as opposed to a front-end case, which is only once removed.

SCOTUSblog coverage of these cases can be found here (Smith) and here (Jones).

 

Habeas Corpus - Wednesday's Transcripts

The transcript in Gonzalez is available here.  And the one in Perry is available here.

Unfortunately, I haven't yet had a chance to read either.  But I did read through SCOTUSblog's review of the Perry argument and the New York Times article on the argument.  Wow.  Just wow.  I was skeptical that the Court would take the identification issues seriously, but I had no idea it would be that bad.  Beyond not really even caring much about the new research on the unreliability of eyewitness identifications, it appears as if some of the judges would like to cut back on the current safeguards. 

The logic seems to be that jurys are capable of sifting through all the factors that could potentially lead to an unreliable identification.  But that's precisely the point.  The research has shown that jurys believe eyewitness identification despite all of the reasons not to.  And that has led to more and more wrongful convictions. 

It's all so troubling.  Society's view on these matters seems to be going in one direction while the Supreme Court seems to be going in the other.  What's sad is that the Court used to lead on matters of fairness in the criminal justice system.  Now, it seems completely out of touch with the acknowledged problems facing the system.  It's a disturbing disjunction.

As for Gonzalez, from the SCOTUSblog review, it looks like the Court intends to focus on the COA issue and a majority of the Court does not seem ready to conclude that it is a jurisdictional requirement.  In other words, these judges seem to believe that a defect in a COA order can be cured.  As I said before, I just find the whole thing a little nutty.

 

Habeas Corpus - Around the U.S. - Part II

Some other stuff I've seen:

The Ninth Circuit Blog has created a great handbook for navigating the new habeas landscape as a result of the restrictive decisions from the Supreme Court's last term, namely Ricther, Pinholster and Moore. It's called "Recent Supreme Court And Ninth Circuit Habeas Decisions: Why We Need Full Factual Development And Preservation Of Issues In State Court Litigation" writted by Stephen Sady, Chief Deputy Federal Defender for the District of Oregon.

In a similar vein, a new article has been posted on SSRN called "Habeas After Pinholster" by Samuel Wiseman.  Looks like it is going to get published next year in the Boston College Law Review.  This is from the abstract:

By limiting federal review to the state record for claims already adjudicated in state court, Pinholster places an enormous premium on the adequate development of that record. In the wake of the decision, petitioners denied the ability to develop their claims in state court will seek alternative solutions. Indeed, several state defendants already have begun to pursue some of the potential paths around Pinholster, suggesting what is to come. The resulting challenges will raise fundamental, unanswered questions about AEDPA, the Suspension Clause, and the role of due process in postconviction review. This Article explores likely paths toward filling the gaps that Pinholster, together with the Court’s recent decisions in Boumediene v. Bush, District Attorney’s Office v. Osborne, and Skinner v. Switzer, has created in both the literature and the jurisprudence.

Here's a fascinating article about a habeas case up in Connecticut before DJ Charles Haight, who used to sit in SDNY.  Petitioner, who was convicted of committing a double murder, has maintained his innocence throughout the case.  But he's not the only one to say that he's innocent.  Both a police detective and the FBI, after an 18-month investigation, concluded that he was innocent and had been framed.  He has now been incarcerated for 21 years.

Not something new, but I did come across this comment from 2010 in the Yale Law Review about whether habeas corpus relief is available based on a reverse-Batson challenge (i.e. when the court improperly grants a prosecutor's Batson motion and overrules a defense peremptory challenge on the ground that it was racially-motivated).  It addresses the question of whether habeas relief is now unavailable after the Supreme Court's decision in Rivera v. Illinois.  It argues that it remains available (even though I think the common understanding is that it is not).

Appeal and Habeas has a post about a recent Ninth Circuit decision in which the court found equitable tolling of the statute of limitations where petitioner's attorney took $20,000 and never bothered to file the petition.

Habeas Corpus - Around the U.S. - Part I

Some stuff I've seen:

A preview of the upcoming Supreme Court arguments from the North Country Gazette.

Speaking of Lafler v. Cooper, the Buffalo News had an article about the arrest of a man who obtained habeas relief in WDNY back in 2006 based on IAC during plea negotiations in a drunk driving prosecution in which he had struck and killed some people while drunk driving.  He was arrested for leaving the scene of a car accident that injured three people.

An article from Erwin Chemerinsky about the need for empathy on the Supreme Court.  One situation he points to is what happened in Maples.

More Troy Davis/anti-AEDPA coverage here.  The article indicates that, back in 2009, Rep. Hank Johnson from Georgia introduced legislation called the Effective Death Penalty Appeals Act (I guess it would be called "EDPAA," pronounced as a word the same as "AEDPA").  It received 17 co-sponsors, was referred to a sub-committee, but never obtained a hearing.  Here's the text of the statute.  The only change it would have made would have allowed a court to grant habeas relief in capital cases if petitioner could show that he was innocent.  Significant, but does not really address most of the complaints about the AEDPA.  Or at least it does not address my complaints.

Blood boiling time: two lawyers, one of whom served in the Reagan and Bush I Justice Departments, give a full-throated endorsement of the death penalty in response to the criticism from people upset over the Troy Davis case.  In their mind, the only problem with the death penalty in this country is that people are wasting everyone's time complaining about it.  I wish that was an unfair oversimplification of their position, but it really isn't.  A reader responds, what if the person executed is innocent?  Their response (and I really am not making an unfair oversimplification here) -- too bad.  They say that you can't have "perfect justice, which is impossible.  But the administration of the death penalty in the United States is as close to perfect as it gets."  A footnote adds that three times a day, the writers remove their heads from the sand in order to eat.