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 - En Banc Rehearing Granted

By JK

On February 25, 2013, the Ninth Circuit granted a habeas petitioner's request to rehear his case en banc in a case called Frost v. Van Boening.  

Over dissent, the Ninth Circuit had originally affirmed the denial of habeas relief based on petitioner's claim that the restrictions placed on his attorney's arguments during summation violated his right to counsel.  Here's how the dissenting judge characterized what happened:

"Ladies and Gentlemen of the jury, there are two separate and distinct reasons why you should find my client not guilty. Unfortunately, I may explain only one reason to you. (And a silent p.s.: I wish I could argue reasonable doubt to you, but I can't!)." This hypothetical summation mimics the extraordinary circumstances of Frost's closing argument, the legal equivalent of counsel having one hand tied behind his back. Due to a misunderstanding of state law, the trial judge forced Frost to "opt for one or the other" legitimate defense— arguing duress or putting the government to its burden of proof. This undisputed denial of the constitutional right to present proper argument on alternative defense theories created a Hobson's choice that violated Frost's Sixth Amendment Right to Counsel and his Fourteenth Amendment Due Process rights.

Should be a really fascinating en banc argument.

Habeas Corpus - What A Relief!*

By JK

Last week, the Supreme Court announced that I don’t have to talk to my client’s anymore!*

* Anytime you see an asterisk (*) in this post, it means sarcasm. That means the title, too. Double asterisks (**) will mean footnotes.

It’s going to save all of us habeas litigators so much time and resources!*  No more travel to visit clients!* No more letter writing!* No more phone calls!*

In Ryan v. Gonzales, the Supreme Court held that a petitioner who is incompetent has no right to a stay of his habeas case during the period that he is incompetent. The Ninth Circuit had concluded that a capital habeas petitioner’s statutory right to counsel under 28 U.S.C. § 3599(a)(2) meant that he had to be competent so that he could communicate with his attorney and effectuate that relationship.**

The Supreme Court said that that's just crazy talk.  It stated that a statutory right to counsel in a habeas case did not give the habeas petitioner any right to provide input into the habeas litigation. Justice Thomas, speaking for a unanimous court, stated, “Attorneys are quite capable of reviewing the state-court record, identifying legal errors, and marshaling relevant arguments, even without their clients’ assistance.”

** The Sixth Circuit had provided a separate statutory justification for finding that incompetency compelled a stay. The Court dismissed it pretty summarily and it’s not really worth mentioning.

So there it is: once counsel is assigned to a case, the habeas case goes on with or without the petitioner. Who cares if the habeas petitioner has no capability of comprehending what’s going on? It’s not his case anymore. It’s the lawyer’s. Just because the petitioner has to face the consequences of the result does not mean he has the right to be competent to hear it.

I really have one word for this: cold. Ok, maybe two words: breathtakingly cold. I can even break out the uncommon sense meter on this one: try to explain to a layperson what this means: you are in prison on death row and you are challenging the conviction, but you don’t even have to be, essentially, a sentient human being while it all plays out in court. Even more, your attorney gets to litigate the case while you are away with absolutely no input from you.  Cold and contrary to common sense.

Of course, the result is not particularly surprising. In my mind (as I have discussed before), it flows from Jones v. Barnes (even though, surprisingly, that decision makes no appearance in Gonzales). A habeas case is record-based, like a direct appeal. So the attorney is the one who makes the decisions. Input from client would not technically be necessary.

That’s logically fine. But here is where the absence of a true liberal voice can be seen in the current Supreme Court. Justices Brennan and Marshall dissented in Jones (and Justice Blackmun agreed with Brennan and Marshall overall, but concurred in the result). Those two (+1) judges would not have found the Ninth Circuit’s reasoning to be crazy talk. Having counsel assigned to a case, even a record-based type of situation, does not mean that the defendant disappears from the case. In their eyes, the function of an assigned attorney (at least under the Sixth Amendment) should be “to protect the dignity and autonomy of” the defendant. Those judges considered these values “central to many constitutional rights,” including those under the Sixth Amendment. The right to counsel is not an “all-or-nothing right.” Counsel should be assisting the defendant, rather than doing everything on his or her own. While this view is not particularly practical, it certainly is far more empathetic and dignified.  

It’s safe to say that a true liberal judge would have seen similar concerns in Gonzales. It’s pretty depressing that not a single judge would voice any of these concerns.

Of course, no habeas practitioner would want to proceed like this. It’s both unethical and unprofessional to litigate a habeas case without input from the client. It really seems a bit shocking to me that the Supreme Court has now condoned such a practice, at least when the client is incompetent. The Court’s (apparently unanimous) disdain of habeas has now run so deep that it is willing to sacrifice some of the dignity of the legal profession** in furtherance of that contempt. 

** [insert joke here] - but, against all odds, I still believe in the dignity of the profession

I guess on the brightside the Court didn’t completely prevent federal judges from granting a stay based on incompetency. Federal judges still have the discretion to do it. But the Court indicated that this discretion really should be guided by the judges’ “docket[ ]” concerns. The Court did not suggest in any way that a judge should consider whether or not she felt comfortable with forcing a case to go forward while the petitioner has no current understanding of what’s going on.  In fact, the Court specifically precluded a stay in the extreme situation where the petitioner may never have any understanding of what’s going. And just when you thought the Court couldn’t get any colder . . .

Habeas Corpus - Today's Summary Orders - Martinez - Edited (Big Time)

The other summary order from today was in Martinez v. Kirkpatrick, 11-2019-pr.

This actually was a habeas win!  Rare these day.  And in a summary order.  I can kind of see why, though.  The decision kind of ends up being in the form of an interim order.  It also kind of sidesteps a big hurdle.  So when that is done in a summary order it means that it did not actually happen, like the sound of a tree falling in the woods in habeasland.  Or something like that.

Petitioner argued that his right to counsel was violated since counsel had labored under a per se conflict of interest.  Counsel had used methamphetamine during petitioner's trial and, at the time, was being investigated and later prosecuted by the same DA's office for his use of the drug.  In the alternative, petitioner asked for an evidentiary hearing to determine whether there was an actual or a potential conflict of interest.  The state court had mistakenly rejected the argument on a procedural ground so there was no factual record of the conflict.*

*The state court had concluded in a 440 proceeding that the conflict of interest claim had to be rejected because it had been raised and rejected previously.  But that was not true.

The Second Circuit rejected the per se conflict claim, but granted the request for a remand to hold an evidentiary hearing. 

That's a little problematic.  Pinholster prevents such an evidentiary hearing.  The Second Circuit does not mention Pinholster at all.  Rather, it says that the hearing is necessary because no factual record was created in state court. 

But as I have said before that's just a part of the unworkable unfairness of Pinholster.  The state court's decision not to hold a hearing has preclusive effect.  The factual record is the one that was before the state court, even though further factual investigation was necessary.  That's the ridiculous conclusion of Pinholster.  This claim also clearly does not meet the ridiculously high (and impractical) standard of the habeas statute for an evidentiary hearing.  So the Second Circuit was not authorized to grant one.  But summary orders don't count, so it doesn't really matter.

Silver lining: maybe the Second Circuit is saying that Pinholster only applies when the state court rejects a claim on the merits.  But if the state court mistakenly rejects a claim on a procedural ground leaving no factual record, then an evidentiary hearing can be held.  Not sure that squares with Pinholster, but maybe this is one out from that unfairness.

You know what, strike all of what I said before.  I was mostly wrong and the Second Circuit was mostly right.  I was wrong because Pinholster only applies when there has been an adjudication on the merits.  That's really the holding: in order to assess the 2254(d) standard of review, the federal courts are confined to the state court record.  My big bad there.

And the Second Circuit appears to be mostly right.  But maybe not.  I guess the question is, when the state court does not adjudicate a constitional claim on the merits, does the 2254 standard for an evidentiary hearing apply?  If it does, then no hearing is authorized here.  If it does not, then a hearing would be okay.  I am not sure how open or closed this question is.  There's Schriro v. Landrigan, which predates Pinholster.  So, to the extent that it survives Pinholster (and I am not sure that it did), that decision would not stand in the way of the hearing.  But it doesn't specifically authorize it either.

But I think the Second Circuit is probably right.  It does not seem fair to preclude an evidentiary hearing here where the state court erroneously rejected the claim on a procedural ground.  Of course, that is no more unfair than a state court refusing to hold a hearing and denying a claim on the merits when a factual hearing was necessary to fairly adjudicate the claim.  But maybe when the state court erroneously refuses to even get to the merits, there is some room for a federal court to review the constitional claim based on facts developed in an evidentiary hearing in federal court.  The federal court won't be restricted under the standard of review.  The review will be de novo.  So I guess it does make logical sense.

Habeas Corpus - Second Circuit Updates

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

The most notable update is that, after a review of the upcoming calendars, a case has been added.  It's called Carncross v. Lempke,11-435-pr.  It's one of those unpublished district court COA's.  But it's even more frustrating than the typical one that gets missed.  This was a 30-page opinion denying habeas in which the DJ granted a COA.  Further, this was a relatively infamous case as it got some media attention (petitioner was convicted of aggravated manslaughter after he led the police on a high speed car crash during which an officer crashed into a tree and died) and was reviewed by the New York State Court of Appeals (People v. Carncross).  It makes no sense to me that this would go unpublished.

Here are the details:

Carncross v. Lempke, 11-435-pr 

• Status: To be argued 11/17/11, A panel
• Lower Ct. Info: 10-CV-522 (NDNY  Jan. 20, 2011) (LEK) (unpublished order)
• In Circuit: Dist. Ct. COA
• Issues: whether the trial court wrongfully deprived petition of his right to utilize counsel of his choice in the related criminal action