Habeas Corpus Blog

Two Recent Seventh Circuit Decisions

By Matthew Keller

A quick post on a couple of Seventh Circuit decisions issued in the past couple of weeks:

     First, the Seventh Circuit quickly put the kibosh on habeas petitions asserting claims based on Alleyne v. United States (U.S. Jun. 17, 2013), the recent Supreme Court decision holding that Apprendi extends to facts mandating a mandatory minimum sentence. 

     In Simpson v. United States, No. 13-2373 (7th Cir. Jul. 10, 2013), the Circuit disposed of Levence Simpson’s request to file a successive § 2255 motion based on Alleyne.  Simpson received a 20-year mandatory minimum sentence for drug offenses; the Seventh Circuit affirmed in 2003.  His first § 2255 motion, claiming ineffective assistance, was denied in 2006. 

     Then came Alleyne, which overruled Harris v. United States and held that a judge cannot find facts resulting in a mandatory minimum unless the defendant either admits those facts or waives his entitlement to have a jury make that determination.  After Alleyne, Simpson argued that he was entitled to a successive § 2255 based on the “new constitutional rule” created by that decision.

     The Seventh Circuit denied Simpson leave to file a successive § 2255.  The easiest way to do this would have been to limit it to Simpson's facts: in his case the jury had found, by way of a special verdict, that he conspired to distribute more than one kilogram of heroin and more than 50 grams of crack (thus requiring the 20-year mandatory minimum). 

     But the Seventh Circuit, no-doubt envisioning a tsunami of Alleyne-based prisoner claims, went a bit further.  It conceded (as it had to) that Alleyne established “a new rule of constitutional law.”  But the Court noted that Alleyne did not satisfy the second requirement of § 2255(h)(2): that the Supreme Court make the new rule “retroactive to cases on collateral review.”  The Supreme Court did not do this; Alleyne came to the Supremes on direct, not collateral, review and the Court's decision says nothing about retroactivity.  For good measure, the Circuit noted that other extensions of Apprendi have been held to be non-retroactive. 

Taylor v. Ground, No. 12-2632 (7th Cir. Jul. 3, 2013)

     A week before Simpson, the Seventh Circuit granted a habeas petition based on an attorney's conflict of interest in a joint representation.  You don't see many of these claims, especially in big cities where public defender organizations and Criminal Justice Act panels generally do a good job of providing separate counsel where there is even a potential for conflicts.  So a habeas grant on conflict grounds coming out of Chicago deserves a bit of digging.*

* For all you history buffs, this months' NY State Bar Journal has a good article about the Boston Massacre trials, one of the most famous joint representations ever. John Adams represented both the British soldiers who fired into the crowd and the officer who was charged with giving the order to fire.  These days, such a joint representation would never be allowed.  But no one seemed all that concerned at the time.

     In Taylor, Levell Taylor was convicted of murder in Illinois and sentenced to 35 years for the 1996 gang-related killing of Bruce Carter.  On direct appeal, he claimed that his counsel operated with a conflict of interest by jointly representing both him and his brother, Lowell, in simultaneous murder trials.  In particular, Taylor argued that his lawyer’s refused to call certain exculpatory witnesses at his trial because those witnesses might have implicated Lowell.  This is a classic conflict claim, but the Illinois Supreme Court found no conflict and affirmed the conviction

    On § 2254 habeas review, the district court upheld the Illinois Supreme Court.  However, it granted COA on the issue: "[w]hether trial counsel's joint representation of Petitioner Levell Taylor and his co-defendant/brother, Lowell Taylor, violated Petitioner's constitutional right to the effective assistance of counsel under the Sixth and Fourteenth Amendments. . . .” 

     The Seventh Circuit disagreed with the district court. It found that the Illinois Supreme Court unreasonably applied US Supreme Court precedent by holding that Taylor’s interest in presenting exculpatory witnesses did not conflict with Lowell’s interest in preventing admission of inculpatory testimony. 

     The governing Supreme Court law, Cuyler v. Sullivan, 446 U.S. 335 (1980), requires a reviewing court to analyze whether there was a defect in counsel's strategy, tactics, or decision-making attributable to a conflict of interest.  According to the Seventh Circuit, the Illinois Supreme Court unreasonably applied Cuyler.  The Supreme Court:

"unreasonably declined to perform any analysis of Taylor's potential defense in assessing his Sixth Amendment claim. If it had, the court would have arrived at the inescapable conclusion that Taylor's potential strategy was sufficiently plausible such that his interests were at odds with those of his brother in deciding whether to pursue a unified assault on the State's evidence."*

*Specifically, the Circuit noted that three eyewitnesses identified Lowell as the shooter but did not see Taylor hand Lowell a gun. According to the Circuit, “these witnesses would have refuted the State's only evidence connecting Taylor to the crime.”

     The Circuit remanded for fact-finding required under Cuyler - whether the conflict of interest between the two brothers adversely affected the attorney’s performance.

     In the Second Circuit, pursuant to a decision called Curcio, the Court is required to explain to codefendants who wish to share counsel the risks of joint representation.  I don't know what the practice is in the Seventh Circuit, but it sounds as if there should have been more of an effort at the beginning to think through the conflicts between Taylor and his brother.  As this decision illustrates, it's better to get those issues out in the open early on rather than dealing with them after trial.   

   A quick post on a couple of Seventh Circuit decisions issued in the past couple of weeks:

     First, the Seventh Circuit quickly put the kibosh on habeas petitions asserting claims based on Alleyne v. United States (U.S. Jun. 17, 2013), holding that Apprendi extends to facts mandating a mandatory minimum sentence. 

     In Simpson v. United States, No. 13-2373 (7th Cir. Jul. 10, 2013), the Circuit disposed of Levence Simpson’s request to file a successive § 2255 motion based on Alleyne.  Simpson received a 20-year mandatory minimum sentence for drug offences; the Seventh Circuit affirmed in 2003.  His first § 2255 motion, claiming ineffective assistance, was denied in 2006. 

     Then came Alleyne, which overruled Harris v. United States and held that a judge cannot find facts resulting in a mandatory minimum unless the defendant either admits those facts or waives his entitlement to have a jury make that determination.  After Alleyne, Simpson argued that he was entitled to a successive § 2255 based on the “new constitutional rule” created by that decision.

     The Seventh Circuit denied Simpson leave to file a successive § 2255.  The easiest way to do this would have been to limit it to Simpson's facts: in his case the jury had found, by way of a special verdict, that he conspired to distribute more than one kilogram of heroin and more than 50 grams of crack (thus requiring the 20-year mandatory minimum). 

     But the Seventh Circuit, no-doubt envisioning a tsunami of Alleyne-based prisoner claims, went a bit further.  It conceded (as it had to) that Alleyne established “a new rule of constitutional law.”  But the Court noted that Alleyne did not satisfy the second requirement of § 2255(h)(2): that the Supreme Court make the new rule “retroactive to cases on collateral review.”  The Supreme Court did not do this; Alleyne came to the Supremes on direct, not collateral, review and the Court's decision says nothing about retroactivity.  For good measure, the Circuit noted that other extensions of Apprendi have been held to be non-retroactive. 

Taylor v. Ground, No. 12-2632 (7th Cir. Jul. 3, 2013)

     A week before Simpson, the Seventh Circuit granted a habeas petition based on an attorney's conflict of interest.  You don't see as many of these claims as you used to, especially in big cities where public defender organizations and Criminal Justice Act panels generally do a good job of providing separate counsel where there is even a potential for conflicts.  So they are interesting where they do arise (and especially where they are sustained).*

* For all you history buffs, this months' NY State Bar Journal has a good article about the Boston Massacre trials. John Adams represented both the British soldiers who fired into the crowd and the officer who commanded them to fire.  These days, such a joint representation would never be allowed, but no one seemed all that concerned at the time.

     In Taylor, Levell Taylor was convicted of murder in Illinois and sentenced to 35 years for the 1996 gang-related killing of Bruce Carter.  On direct appeal, he claimed that his counsel operated with a conflict of interest by jointly representing both him and his brother, Lowell, in simultaneous murder trials.  In particular, Taylor argued that his lawyer’s refused to call certain exculpatory witnesses at his trial because those witnesses might have implicated Lowell.  This is a classic conflict claim, but the Illinois Supreme Court found no conflict and affirmed the conviction.

 

 

     On § 2254 habeas review, the district court upheld the Illinois Supreme Court.  However, it granted COA on the issue: "[w]hether trial counsel's joint representation of Petitioner Levell Taylor and his co-defendant/brother, Lowell Taylor, violated Petitioner's constitutional right to the effective assistance of counsel under the Sixth and Fourteenth Amendments. . . .” 

     The Seventh Circuit disagreed with the district court. It found that the Illinois Supreme Court unreasonably applied US Supreme Court precedent by holding that Taylor’s interest in presenting exculpatory witnesses did not conflict with Lowell’s interest in preventing admission of inculpatory testimony. 

     The governing Supreme Court law, Cuyler v. Sullivan, 446 U.S. 335 (1980), requires a reviewing court to analyze whether there was a defect in counsel's strategy, tactics, or decision-making attributable to a conflict of interest.  According to the Seventh Circuit, the Illinois Supreme Court unreasonably applied Cuyler.  The Supreme Court:

"unreasonably declined to perform any analysis of Taylor's potential defense in assessing his Sixth Amendment claim. If it had, the court would have arrived at the inescapable conclusion that Taylor's potential strategy was sufficiently plausible such that his interests were at odds with those of his brother in deciding whether to pursue a unified assault on the State's evidence."*

*Specifically, the Circuit noted that three eyewitnesses identified Lowell as the shooter but did not see Taylor hand Lowell a gun. According to the Circuit, “these witnesses would have refuted the State's only evidence connecting Taylor to the crime.”
 

The Circuit remanded for fact-finding required by Cuyler - whether the conflict of interest between the two brothers adversely affected the attorney’s performance.

I don't know why counsel went forward representing both defendants.  Maybe there was a good reason, but where there was such a clear conflict in available defenses someone (if not defense counsel, then either the Court or the prosecutor) probably should have raised the issue at some point.

Habeas Corpus - Cert. Grant in Habeas Case

Last week, the Supreme Court granted cert. in A habeas case called Metrish v. Lancaster. It's a recipe for a reversal: it's a habeas grant coming out of the Sixth Circuit and cert. was granted to the State.

Here are the issues: 

(1) Whether the Michigan Supreme Court’s recognition that a state statute abolished the long-maligned diminished-capacity defense was an “unexpected and indefensible” change in a common-law doctrine of criminal law under this Court’s retroactivity jurisprudence, see Rogers v. Tennessee; and (2) whether the Michigan Court of Appeals’ retroactive application of the Michigan Supreme Court’s decision was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement” so as to justify habeas relief, see Harrington v. Richter.

The first issue is a little cryptic.  I believe that the State appears to be challenging the Sixth Circuit's conclusion that there was any type of constitutional violation at all.  It is framed as it would be on direct review.  That's a little different from the all too familiar question found in issue two: a lack of deference to the state court.  Not sure why it isn't framed in habeas terms.  Either way, the cert. grant portends bad news for the habeas petitioner.

In other apparently bad news, the Supreme Court issued opinions today, but did not issue one in Johnson v. Williams.  Just as a reminder, the question presented in that case is: 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.  From the argument, it appeared that the Court was going to avoid the question presented, which, if answered in the State's favor, will be an enormously horrible result for habeas petitioners.  

But if the Court was seeking to avoid the question presented, then it would have issued a short, simple opinion by now.  The longer it takes, the more I fear that this is going to be a split opinion with a terrible result.

Habeas Corpus - Alex's First Post

By Alexandr Satanovsky (posted by JK)

In last term’s Miller v. Alabama, the Supreme Court prohibited the mandatory LWOP sentences for juvenile homicide offenses. That holding, however, did not include additional procedural or substantive requirements. It did not resolve, for example, whether a full-dress penalty hearing is required (like that for adults facing the death penalty), or whether a judge’s summary imposition of LWOP—without elaborate justification—would suffice.

What the Court did say, in dicta to be sure, is that juvenile LWOP sentences should be very rare.

On Monday, the Supreme Court issued a GVR in Mauricio v. California, vacating the judgment of California's Second District Court of Appeal for reconsideration in light of Miller.  (The unpublished state court opinion is available here.)

Notably, Mauricio is not a mandatory LWOP case. Mauricio received a discretionary LWOP sentence, and claimed in state court that “the trial court erred in declining to exercise its discretion to sentence him to terms of 25 years to life, rather than LWOP.” (my emphasis). He argued that “the trial court, while understanding it had discretion, failed to properly balance all the relevant factors . . .”

The Court of Appeal disagreed and upheld the LWOP sentence.  It noted that “the trial court looked at all relevant factors,” including Mauricio’s age, “his lack of a prior criminal record,” and that “he was not an actual shooter.” 

(Mauricio also argued that the Eighth Amendment barred all juvenile LWOP. That claim was rejected by the Court of Appeal, and nothing in Miller undermined that resolution.)

 So, since Mauricio was not a mandatory JLWOP case, why the GVR? And what is the state court to do in light of Miller?  The GVR does not compel the state court to reach a different result.  However, it’s notable because it suggests that at least five Justices are inviting lower courts to tinker with the notion that Miller has a substantive bite, beyond its otherwise mechanical holding. 

The only conceivable issue that the state court may revisit is whether the trial court abused its discretion in issuing the LWOP sentence.  The state court could hold that discretionary juvenile LWOP determinations must be supported by additional process, akin to a capital penalty phase, or at least by a more thorough explanation for rejecting the non-LWOP option. Or it could use Miller as a springboard for barring all juvenile LWOP where the youth had a limited role in the homicide (cf. Enmund / Tison), as that seems to be the factual scenario in Mauricio.

* * *

Okay, so what may this front-end GVR say to habeas habeas practitioners?

One point concerns the interaction between Miller and the Teague bar. Is the Miller rule simply a mechanical rule of procedure, akin to Ring’s requirement that a jury must try a capital penalty phase, such that will render it inapplicable to cases that are final. (See Schriro v. Summerlin (2004)). Or is it more of a substantive bar on the imposition of a sentence, like Roper's prohibition on juvenile death sentences.   For a good discussion on Miller’s retroactivity, see this post on the Juvenile Justice Blog.

The GVR strongly suggests that Miller may in fact be more than a procedural rule (“LWOP cannot be mandatory”), but rather a substantive restriction (“even discretionary LWOP may be unconstitutional for some juvenile homicides”).  If that’s the case, Miller seems a lot more like Roper than Ring for purposes of retroactivity.  And that’s a huge deal for the many juvenile offenders serving LWOP sentences pursuant to mandatory schemes, whose cases were final before Miller.

Second, the GVR is noteworthy because it seems to affirm the Supreme Court’s promise to GVR front-end cases, as suggested explicitly in last term’s Greene v. Fisher.  In Greene, the petitioner’s last reasoned state court decision occurred before Gray v. Maryland (1998) (limiting admissibility of redacted co-defendant confessions), but the state conviction did not become “final” until after Gray. The Supreme Court held that, for purposes of 2254(d)(1), Gray cannot be clearly established law because it was issued after the state court decision. To reconcile the evident tension with Teague’s retroactivity framework, the Court faulted the petitioner for not seeking a GVR in light of Gray. The GVR in Mauricio suggests that the Court is vigilant in kicking back front-end cases that may be even slightly affected by a new rule.

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 - Decision in Greene - Oh Boy Reprise

The Supreme Court issued its opinion today in Greene v. Fisher.  And as I expected (or is feared the better word?), the Court concluded that "clearly established law" is the law in place at the time of the relevant state court merits adjudication.  It was unanimous.  It's available here.

It's a short, pretty straightforward opinion.  Basically, it comes down to the language of the statute.  The Court believes that the language of the statute compels the result.  While the Court makes it seem like this is such a no-brainer, it really isn't.  If it was, then this would have been decided years ago.  Not to overstate it, but I think it does alter a common understanding of habeas law.

And this decision will have ripple effects throughout habeas law.  In particular on retroactivity and, in my mind, exhaustion.

As for retroactivity, the Court states that "clearly established law" and retroactivity are two different concepts.  But they are completely intertwined.  This decision is going to necessarily overrule parts of Teague.  It is going to be interesting (and probably a little frustrating) to see how this plays out.

This decision reinforces the idea of preclusive effect of state court decisions that I wrote about.  Once again, the Court uses the term "relitigation bar" as it did in Richter.  The state courts now decides what the clearly established law is.  Here's an example: Let's say that an intermediate appellate court issues its decision.  While the defendant is seeking review from the State's highest court, the Supreme Court issues an opinion favorable to petitioner.  The State's highest court then decides not to review the case.  In that situation, even though the state courts had the opportunity to correct the problem, the courts decided (in kind of a retroactive fashion) that clearly established law should be the earlier date.  They get to decide that the intermediate appellate court decision gets preclusive effect.  That's problematic.*

*Certainly, a defendant in that situation could (and I emphasize could) seek review from the Supreme Court.  But there is absolutely no guarantee that the Supreme Court would grant cert. to the defendant in that situation.  The Court in Greene seems to believe it's a GVR is a certainty.  But we saw after the decision in Melendez-Diaz that it's not a certainty. The Court held many petitions, but did not grant all of them.  For example, it denied cert. in Rawlins but Rawlins was right on point with Melendez-Diaz.  So seeking cert. is not a certainty.  It also now has no effect on the clearly established law date.  It also has no effect on exhaustion, as seeking cert. is not part of that process.

And, in my mind, Greene has an impact on exhaustion.  First of all, this decision is inconsistent with the exhaustion requirement.  The idea of exhaustion was to give state courts the first crack at a constitutional violation.  Now a denial of discretionary review is absolutely meaningless to habeas review.  Why force a petitioner to seek discretionary review if that step will in most cases have no impact on federal review?  It shifts the equities.  A petitioner may want to seek review from the higher state court, but it shouldn't be required to in order to obtain habeas relief.

So the Court has continued down the path of placing even greater restrictions on habeas review.  Not unexpected, but very troubling.

 

Habeas Corpus - Perry v. New Hampshire - 11/2

Tomorrow, the Supreme Court will hear argument in the front-end case of Perry v. New Hampshire.  Here's the issue:

Do the due process protections against unreliable identification evidence apply to all identifications made under suggestive circumstances or only when the suggestive circumstances were orchestrated by the police?

While I haven't been covering this case too much, it has been getting a lot of attention around the internet.  And a lot of that is focusing on the unreliability of eyewitness identification evidence.  As the New Jersey Supreme Court recently concluded in its seminal case of State v. Henderson, this clearly is a factor that can impact upon the reliability of eyewitness evidence and it should be considered both at the suppression hearing and at trial.

However, I am not expecting the Supreme Court to issue a broad ruling discussing in general the unreliability of eyewitness evidence.  In fact, I am not even sure that a majority of this Court is particularly concerned about the growing body of work showing that eyewitness identification evidence is exceedingly unreliable.  So I am setting my expectations low with the potential that I will be pleasantly surprised.

And should that surprise occur, I will let Alex Satanovsky offer up one goodie and one question (with some editing):

1.  It seems to me that, under Teague, a favorable ruling in Perry would be exactly the kind of rare case that would qualify for retroactive application on collateral review.  It would be "watershed" new rule in criminal procedure, and it would be based squarely upon concerns for the truthfinding process.  As of yet, no such "new rule" has ever been made retroactive under this framework.  (In Wharton v. Bocking, a unanimous court struck down Ninth Circuit's retroactive application of the Crawford confrontation clause rule, holding that the departure from Roberts was not essential to the truthfinding process, thus not warranting for retroactive review).  But Perry could be different.  If Perry wins, it will be precisely because the unreliability is so perverse, so damning to truth-seeking, that the previous "state action requirement" necessary to suppress an unduly suggestive identification was simply gloss.   A whole lot of inmates would (rightfully) see this as an opening to reassert their factual innocence -- in a way that is qualitatively different than the previous situations where a defendant had argued that there had been a "watershed" rule -- (I'm thinking Crawford, Gant, JEB v. NC, . .. )

2.  But what about on habeas review?  The AEDPA only allows for retroactive application of rules that are "made retroactive" by the Supreme Court.  Is this supposed to incorporate-by-reference the Teague rule for the rare/watershed case, or does it supercede Teague, effecitvely requiring the Supreme Court to expressly announce --  "this new rule shall be retroactive"?

Anyway, I think the answer is not clear, and should be worth seeing whether this issue pops up in the background of the oral argument.

Thanks again, Alex.

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 - Greene v. Fisher Transcript and Quick Thoughts

The transcript for Greene v. Fisher is available here.

I read through it last night.  Wow.  This is really gonna happen.  The Court is going to make the temporal cutoff for "clearly established" law the date of the relevant state court decision.  If you think I am just being all doom and gloom here about the argument, just go read it.  Not a single judge was on petitioner's side.  The questions to the State's attorney were not very probing.  And the State's attorney did not even have to use up all of his time.   Indeed, the questioning made it seem as if this issue was not a difficult one at all, particularly in light of what happened last term in Pinholster.

This inevitable result is going to raise a lot of questions going forward.  The first, what is going to happen to the retroactivity rules?  The only way that this is going to work is for Greene to completely supplant Teague's "after conviction becomes final" retroactivity rule.   There's no way around that.  It's funny how petitioner had to ask to keep Teague, when the Teague rules were originally conceived as a way to make life harder for petitioners.  

But what about Teague's two exceptions to the retroactivity bar.  Do those still apply?  They are not in the statute.  And what about the situation where a Supreme Court case is decided after the relevant state court decision but does not state a new rule?  For example, in Portalatin, the Second Circuit decided that, in Apprendi and Blakely cases, Cunningham was such a decision.  Thus, Cunningham could be considered when reviewing a habeas petition where the conviction became final before it was decided.  Will this still be allowed?

Another impact will be exhaustion.  Why should the strict exhaustion rules remain in place?  In particular, the requirement that the defendant seek discretionary review where available.  Certainly, one policy underlying exhaustion would remain in place -- giving the State first shot at correcting the error.  But discretionary review is discretionary.  The overwhelming odds are that permission to appeal will be denied.  And that decision will soon be immune from federal review.  That's not equitable.  So why should a petitioner be required to seek discretionary review when the state has already issued the decision that will be up for habeas review and the almost certain denial of review will have no impact on the habeas proceeding?

These things and more will have to be sorted out in the future.  And just when I thought habeas law couldn't get any worse for petitioners . . .

Habeas Corpus - Greene v. Fisher Argument - Updated

On Tuesday, the Supreme Court will hear argument in the habeas case of Greene v. Fisher.  The question: what is the temporal cut off for clearly established under 2254(d)(1).

I ranked this case pretty high on my list of interest for this term. It was number two.  Here's what I said about it:

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.

To get a little more into the weeds, I believe that this issue presents a conflict between long-standing equitable principles of habeas corpus -- exhaustion -- and the preclusion issues that came up last term.  If the original intent of exhaustion wins out, then the date for clearly established law will be when the last state court reviews the case.  If preclusion wins out, then it will be the date of the last reasoned state court decision up for review on habeas. 

And, if it goes the latter way, then such a decision could potentially conflict with Teague retroactivity principles.  Under Teague, a Supreme Court decision cannot be applied retroactively to a convicion after the conviction has become final.  And that finality date was always looked at as the date that the direct appeal ended.  From what I remember, there was a recent debate in a capital case in the Supreme Court over whether it ended at the conclusion of state court review or did you include the time to seek cert (a-ha, found it; it was Smith v. Spisak).  But both of those dates is later than what the clearly established law date could end up being.

So, what happens if the clearly established law date is different from the retroactivity date?  Not sure.  I am still working through the potential logic and permutations.  Will it mean that the retroactivity date is gonna change?  It shouldn't really since it was originally set based on the equitable principles underlying habeas. But the retroactivity date would have to change in order to make everything work. 

Or does it mean that the "clearly established law principle" is simply going to subsume all of the Teauge rules?  But that could potentially mean that retroactivity would no longer even be available on habeas review as none of those rules are written into the statute.  It's an extreme view, but that seems like something that could actually happen.

Or maybe I am just overthinking all of this.

Either way, I truly believe that Greene is a very important case this term. I am very eager to see the transcript of that argument.

UPDATE: For more in depth analysis, you can check out these previews.

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]