Habeas Corpus Blog

Habeas Corpus - Reinhardt Opinions - Part I

By JK

If there is one judge who has been viewed as the poster child for the Ninth Circuit run amok in habeas cases, it's Judge Stephen Reinhardt.  His name has become nearly synonymous with summary habeas reversals from the Supreme Court.

However, I have great admiration for the judge's work in habeas cases.  Despite some nasty reversals from the Supreme Court, he refuses to relent in his pursuit of fairness in habeas cases.

In two recent opinions, he has done great work in showing that the Supreme Court's recent attempts to restrict habeas corpus can be navigated around to reach the fair result. I'll talk about the first one in this post, and the second one in a later post.

Back in 2011, the Supreme Court in Harrington v. Richter defined unreasonable under 2254(d)(1) in a ridiculously harsh way using a multi-layered "fairminded judge" standard.  If taken literally, the "fairminded judge" standard would mean that a habeas petitioner would have to essentially show judicial incompetence or bad faith in order to get habeas relief. And both the States and federal judges have used it this way.  I have bemoaned this standard, criticizing it for its harshness and for the fact that it silently overruled Williams v. Taylor's rejection of nearly the exact same standard.  In fact, the Court in Williams stated that the term "unreasonable" could not be defined.

But nothing like this can deter Reinhardt from getting to the fair result.  Back on September 5, 2013, Reinhardt authored the decision in Dow v. Virga.  He granted habeas relief based on a Napue claim.* And he grants it under the Richter "fairminded judge" standard.**

*A Napue claim is where the prosecutor knowingly elicits false testimony and fails to correct it.

**Actually, it's a little more complicated than that.  He first finds that the state courts used the wrong legal standard making its decision contrary to federal law.  But he said that, in the alternative, even if the state used proper standard, it was an unreasonable application of Napue.

But the best part is how Reinhardt dismisses my complaint that Richter changed the unreasonableness standard under 2254(d)(1).  And I am happy to have Reinhardt show me that I am wrong.  Reinhardt explains that "fairminded" really is not that important and that the crux of the matter is whether the state court decision was "unreasonable."  In other words, his take is that Richter did not change the word "unreasonable" to mean anything other than "unreasonable."  Here's what he said:

The “fairminded jurist” standard is an objective standard of law, not a reference to the quality of the judge making the decision. The standard, therefore, does not require us to evaluate whether the individual jurists are “fairminded” in the sense that they are generally impartial and honest adjudicators, but rather whether there could objectively be fairminded disagreement as to the outcome dictated by the Supreme Court’s clearly established law. Fairminded jurists can make mistakes in legal reasoning or judgment, and if such a mistake is beyond reasonable legal disagreement, the “fairminded jurist” standard is satisfied. Were we to apply a fairminded jurist standard literally, a federal court could never reverse a state court’s habeas decision. For every state appellate court contains at least one fairminded jurist, if not a majority of its supreme court or appellate court members who voted to reject the petitioner’s arguments. When we reverse a state court’s habeas decision we are surely not saying that all the state court justices whom we are reversing are not fairminded jurists, but rather that objectively the answer is one that a fairminded jurist should reach.

So habeas practioners take note: Reinhardt has shown the way around Richter.  At least temporarily.

Habeas Corpus - Around the U.S. (Abridged Version) - Corrected

Just a couple of things I've seen lately.

There was a somewhat recent habeas grant out of the Western District of Pennsylvania based on prosecutorial misconduct.  According to this article, "the prosecutors relied almost entirely on the testimony of a single witness who claimed to have witnessed Munchinski rape and shoot the two victims. However, the federal court judge said in her ruling that the alleged witness's story changed so often 'that one wonders whether he witnessed the murders at all.'"

The MJ who decided the petition also granted petitioner's request to be released from custody pending a new trial.  Petitioner had been in prison for 25 years.  The name of the case is Munchinski v. Wilson.

A really interesting habeas case out of Michigan referred to as the "Mother's Day Murder."  According to this article and video, a 7 Action News reporter in Detroit found a new eyewitness for the defense.  On Mother's Day 1999, a woman was shot while parked in a minivan with her three children aboard.  She later died.  Turns out the police never interviewed (at least) one of the children in the car.  This reporter found this child (who is obviously much older now) and he says that he could identify the shooter and his description of the shooter does not seem to match the description of either person who was convicted of the crime.  Most troubling to me was that it appears that the main evidence against the two people convicted of the crime were witnesses who claimed to hear the two defendants talk about the murder.  Those people later recanted saying that the police threatened them to implicate the defendants.

The habeas angle: the case is currently at the habeas stage in federal court.  The DJ assigned to the case has granted a stay to allow petitioner Justly Johnson to pursue the newly discovered evidence issue in state court.

Finally, on October 31 November 2, the Supreme Court is going to hear argument in the habeas case of Gonzalez v. Thaler.  Appeal and Habeas has a preview.

Habeas Corpus - Interesting Summary Order

Summary order from the Second Circuit today.  It was in Bennett v. Miller, 09-3471-pr. The order is here.

The court concluded that there were two constitutional errors -- improper admission of an impermissibly suggestive identification and prosecutorial misconduct based on the prosecutor's repeated reference to false evidence.  Disappointingly, the court concludes that both errors were harmless.  Rather than give my own analysis, I am just going to cut and paste the court's analysis on the identification issue after I give the details.  The court did not go into too much analysis about the prosecutorial misconduct, other than calling it "egregious."

Bennett v. Miller, 09-3471-pr  [updated 3/04/11]   

• Affirming Denial of Habeas
• Argued: 3/2/11; Decided: 4/1/11 (summary order)
• Panel: Jacobs, Leval, Raggi
• Lower Ct. Info: 06-CV-1488 (EDNY Aug. 4, 2009) (SLT) (unpublished)
• Issues: (1) whether the admission of eyewitness identification evidence was impermissibly suggestive or unreliable to consitute a due process violation; (2) whether the prosecutor's misconduct in summation in which the prosecutor misstated the evidence, deprived petitioner of a fair trial

Impermissible suggestive identification evidence:

The circumstances surrounding Ellis’s identification were extremely suggestive. Ellis never identified Bennett prior to trial; he twice failed to make an in-court identification while on the stand; and only after he watched from the galley when the prosecutor identified Bennett as the shooter did Ellis undertake to make an in-court identification. These circumstances made it “all but inevitable that [Ellis] would identify [Bennett].” Foster v. California, 394 U.S. 440, 443 (1969).

“[R]eliability is the linchpin in determining the admissibility of identification testimony,” Manson, 432 U.S. at 114; even an unduly suggestive identification may satisfy due process if it was nevertheless reliable. The reliability factors in Biggers guide the inquiry, see Biggers, 409 U.S. at 199-200, even though they are not the only hallmarks of due process, see Brisco v. Ercole, 565 F.3d 80, 94 (2d Cir. 2009). As a bouncer, Ellis had a good vantage point and a duty to be attentive; but these factors are outweighed by [1] the vague description of the young men he gave to officers on the night of the shooting, [2] the one-year gap between the shooting and the identification he made at trial, [3] his inability to make an identification during his first appearance on the stand, and [4] the “corrupting effect of the suggestive identification itself.” Manson, 432 U.S. at 114.

 

Habeas Corpus - Around the U.S. - Updated

Not much over the past week.

The only thing I saw was an article about a habeas grant in Michigan based on ineffective assistance of counsel and prosecutorial misconduct.  The interesting angle is that the crime was committed in 1986 - almost 25 years ago.  The result is some classic quotes in the article:

From the prosecutor:

"It's disheartening as a representative of victims in the criminal-justice system ... and this case never seems to get closure"

"The fact that I am the fourth elected prosecutor to deal with this case on appeal in the prison system, I think, is a testimony to the lack of finality in the criminal appellate system"

From the defense attorney:

"It hasn't gotten the full light of day until now . . . .  And I think it's a victory for justice"

From the victim's father:

"I just think something stinks"

Update: More on the case here. 

 

Habeas Corpus - Huge Habeas Win

Big, big day in habeasland yesterday.  Judge Irizarry officially granted Jabar Collins' habeas petition (discussed previously here), ordered that he be released, and, took the rare, and incredible, step of barring the prosecution from retrying Collins based on evidence that the prosecution withheld evidence, coerced witnesses and lied to the court and the jury.

The headline from the New York Law Journal article (available for free(!) today) says it all: "Judge Order's Inmate's Release, Blasts D.A.'s Lack of Remorse."  According to the article, the DJ stated that the prosecution's actions in the case were "shameful."  Wow.

What's interesting is that an evidentiary yesterday was take place yesterday to explore the prosecutorial misconduct.  Instead, petitioner's counsel and the DA's office reached an agreement on Monday night for the relief that the court granted.  Here's the quote from defense counsel: "I was looking forward to confronting [the prosecutor] with his affidavit and his statements at the trial, and comparing those with the truth.  Obviously, in the final analysis, the district attorney's office didn't want to expose Mr. Vecchione to cross-examination."  Despite the habeas grant and the harsh words from Judge Irizarry, the Brooklyn DA, Charles Hynes, was defiant.  He stated that his office would not conduct any internal investigation of the case.  He also rejected the suggestion that his office conceded to avoid putting the trial prosecutor on the stand.

More media coverage of the case can be found in the Times, the Daily News, and the Post. 

Now that the petition has been officially granted, it becomes habeas grant number 4 in the district courts this year.

Not to make too sweeping a statement here, but this grant shows precisely why habeas corpus remains a vital check on the criminal justice system.  For whatever reasons, the state court did not correct this injustice, despite what appears to be a mountain of evidence showing misconduct.  Fortunately for Mr. Collins, even though habeas corpus has been tragically diminished in so many ways, it still had enough life in it to get him the relief that he deserved.

Habeas Corpus Granted - Gueits v. Kirkpatrick

Gueits v. Kirkpatrick, __ F.Supp.2d __, 2009 WL 1491077 (EDNY May 27, 2009) (BMC) (JO)

"Gueits may well have committed or been complicit in the assault with which he was charged; at best, he was by his own account unwilling to help the Victim of that assault when she was in desperate need of his aid. Whatever the truth, it is clear that he was convicted of the crime and is now imprisoned as the result of the denial of his constitutional right to counsel. The prosecution in this case was marred by a cynical approach that produced an unreliable conviction and that ignored strong evidence that another man may have committed both the assault for which Gueits is now in prison as well as the rape that has gone unpunished. The result is not only unfair to Gueits, but also to the victim whose rapist apparently remains at large and to the public.  The [State's] indifference to this obvious injustice is nothing short of astonishing."  -- Magistrate Judge Orenstein

You may be asking yourself at this point, how did this case get to the point where a federal judge had to make such a provocative statement?

This really is an unusual and compelling case.  I'll go into more details about the really unique facts of this case below the fold.