Habeas Corpus Blog

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

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

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

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

The List:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[edited the Gonzalez paragraph for clarity]

Habeas Corpus - District Court Review - COA's Granted!

During the week of July 25, 2011, there were two COA's issued in the district courts.*  I am only going to mention the details below without analysis.  It's more about the D/D associated with one of the cases that I am going to refrain from any analysis here.  I am just going to list them here and then add them to the Pending Second Circuit Cases page.

*Of course, other COA's may have been issued that week (or in prior weeks/months) in unpublished orders.  As I have complained about before, those represent a gap in my knowledge about what's pending before the Second Circuit.

Pagan v. Brown, 07-CV-0453, 2011 WL 3235769 (EDNY July 28, 2011) (JS) (WDW)

• Habeas Denied; COA Granted
• Issues: whether the trial court impermissibly allowed a police officer to testify about petitioner's silence in response to police questioning (known as a Doyle violation)
  
• Notes: Adopting R&R (available at 2011 WL 3235840)

Mason v. Duncan, 02-CV-5729, 2011 WL 3251535 (SDNY July 27, 2011) (KMW)

• COA Granted
• Issues: whether petitioner's sentence as a persistent felony offender is unconstitutional
• Notes: D/D - I represent petitioner in this case

 

Habeas Corpus - Summary Order

Second Circuit issued a summary order today in Slavin v. Artus.  It's pretty short and it's available here.  The underlyng issue is a little interesting: does it violate a defendant's rights against self-incrimination to force him to show his tattoos to the jury?  However, the court quickly concludes that the State did not compel the tattoos themselves, so no Fifth Amendment violation.  It's as easy as no compulsion, no violation.

In any event, here are the details:

Slavin v. Artus, 10-0461-pr

• Affirming Denial of Habeas
• Argued: 3/8/11
• Panel: Walker, Parker, Livingston
• Lower Court Info: 05-CV-870, 2010 WL 185108 (EDNY Jan. 8, 2010) (JS) 
• Issue: Violation of right against self-incrimination

Habeas Corpus - Summary Order

Summary order today from the Second Circuit:

Grigg v. Phillips, 09-4039-pr

• Affirming Denial of Habeas (available here)
• Argued: 11/15/10
• Panel: Minor, Straub, Livingston
• Lower Court Info: 04-CV-663, 2009 WL 2983030 (EDNY Sept. 11, 2009) (JS)
• In Circuit: District Court COA
• Issues: Fifth Amendment violation based on references to Petitioner's post-arrest silence

Notes: Slight (but understandable) kick to the groin in this decision.  DJ concluded that constitutional error occurred, but error was harmless.  Second Circuit refused to acknowledge that a constitutional violation occurred.  Rather, it stated that it did not need to decide the issue since, even if there was a constitutional violation, it agreed with the DJ that the error was harmless.  From a judicial economy point of view, it makes sense for the court not to address the constitutional violation.  Nevertheless, petitioner does not even get the satisfaction from the court that his constitutional rights were violated, something that the DJ acknowledged.

One other note, the Second Circuit continues its unnecessary internal battle over the correct harmless error standard.  In a footnote it stated:

As we have noted in a previous case applying harmless error analysis in a habeas context, because Brecht preceded the enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), there is some ambiguity as to whether, in order to grant a habeas petition, a court would have to find not just that an error was not harmless under Brecht but also that the state court’s application of the federal harmless error standard, set out in Chapman v. California, 386 U.S. 18, 23 (1967), was “objectively unreasonable.” See Perkins v. Herbert, 596 F.3d 161, 176 (2d Cir. 2010). Because the distinction does not affect the outcome of the analysis in this case, we need not decide the issue.

As I have stated before, I think the Supreme Court has clearly settled this issue -- Brecht always applies.  But if the Second Circuit wants to continue to have this academic debate with itself, it can go ahead and do it.  I'll just keep linking to my prior post. 

Habeas Corpus - To Remain Silent You Must Speak

That is the counter-intuitive holding from yesterday's Supreme Court decision in Berghuis v. Thompkins (available here; I recommend the SCOTUSblog recap).  It is so absurd that it had the news anchor on my local WB station mocking it.*  I have always found that local news stations never mock anything that's pro-police.

*At the same time, I am not quite sure whether that particular newscast should mock anything.  As the anchor discussed the case, the newscast showed a montage of images which included video footage of the Supreme Court Justices from 1989(!) (it was unbelievable - the video showed Rehnquist, Marshall, White, O'Connor, Blackmun and Brennan; who's doing the editing around there?).  I guess it was just a lot of absurdity all the way around.

My initial reaction to the decision was, wait, isn't this habeas case?  How can the Supreme Court make new law in a habeas case?  What happened to the deferential standard that Scalia and Thomas think is the greatest legal concept since sovereign immunity?

So I was happy to see that Sotomayor nailed it in her dissent.  In her opening paragraph, she stated, "The broad rules the Court announces today are also troubling because they are unnecessary to decide this case, which is governed by the deferential standard of review set forth in the [AEDPA]."  Precisely.  If the majority wanted to deny habeas, all it had to do was somehow say that the state court decision was not an unreasonable application of clearly established law and leave it at that without establishing a new legal principle.

But what it suggests, at least from a quasi-conspiratorial point of view, is that maybe the clearly established law was so far in petitioner's favor that the majority couldn't honestly do that.  Sotomayor in her dissent makes a pretty strong case that the clearly established law was indubitably in petitioner's favor, at least with respect to whether petitioner waived his right to be silent.  In fact, she states, "Rarely do this Court's precedents provide clearly established law so closely on point with the facts of a particular case."  That's a pretty strong statement.

So if the clearly established law is clearly on petitioner's side, what can Supreme Court justices do if they desperately want to deny a petition?  Well, apparently, now they can simply change the clearly established law so that petitioner can't win.  In my mind, that's the biggest problem with Thompkins.  At least in habeasland.  The Supreme Court has now shown that it believes it has the power to make bad substantive law in order to deny a petition.  Of course, it is terribly unfair -- the AEDPA specifically prevents the federal courts from creating good substantive law in order to grant a petition.  But the Supreme Court believes it has the power to do the converse.  Hopefully, I am reading too much into this.   

Habeas Corpus - Supreme Court Arguments from this Week

SCOTUSblog has its recaps of the two habeas Supreme Court arguments from this week up here for Thompkins and here for Holland.

As for Holland, I like the recap's description of the "mood of the court":

The mood of the Court was perhaps best summarized by the Chief Justice, who commented during the state’s argument that it is very hard to argue against equitable tolling, but that there is also a need for a “constraining principle” so as not to “do away with” the statute of limitations entirely.

My discussion of the arguments is here.

Habeas Corpus - This Week in the Supreme Court

On Monday, the Supreme Court will hear argument in the habeas case of Berghuis v. Thompkins.  SCOTUSblog has its preview here.

These are the two issues in the case: 

(1) whether a defendant waives his right to remain silent when he is given a Miranda warning and orally acknowledges that he understands his rights, but he neither invokes nor waives them explicitly. 

(2) whether the Sixth Circuit accorded sufficient deference to the state court when it held that Thompkins’s lawyer was ineffective for failing to seek a limiting instruction specifying that a testifying witness’s acquittal in a separate trial based on the same crimes could only be used to make credibility determinations

My initial sense here is that this case represents another situation in which the Supreme Court granted cert. in order to slap around the Sixth Circuit a little. 

If I were to take on the substance, I fear that question (1) is going to drift into Musladin territory.*  There's a good chance that the debate here will be over whether the Sixth Circuit's conclusion sits upon "clearly established law" from the Supreme Court.  In other words, is the law clearly established that the defendant's actions here did not constitute a waiver of his right to remain silent? 

*Musladin = ever-shrinking definition of what constitutes clearly established law.

The facts were that the defendant never explicitly waived his rights and then during the subsequent interrogation was not particularly cooperative with the officers or responsive to questioning.

The Sixth Circuit relied upon the following two statements from the Supreme Court: “[t]he courts must presume that a defendant did not waive his rights; the prosecution’s burden is great"; and “[A] valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.”  The Sixth Circuit acknowledged that a waiver can be implied under Supreme Court precedent, "but a suspect’s uncooperativeness or refusal to sign even an advice of rights form certainly has relevance to determining whether Thompkins waived his rights." 

I know I am not giving it a full treatment here, but the Sixth Circuit's reasoning doesn't seem particularly assailable, at least in so far as they relied upon law that was clearly established.  While the Supreme Court may end up disagreeing with the Sixth Circuit on whether the state courts unreasonably applied the law to the facts, I am hoping that the Sixth Circuit did enough to insulate the analysis here from Musladin.*

*Why is this important?  As I have said around here before, Musladin is dangerous.  The expansion of Musladin can potentially swallow up the "unreasonable application" part of the standard of review in a good deal of cases. 

As for the ineffectiveness claim, it sounds like the typical Respondent whine (with associated feet stomping), "The federal courts didn't give the state court's enough deference!" 

I have read the decision and the Sixth Circuit seemed to be "doubly deferential" on the ineffectiveness claim.  At least, it used all of the proper deferential language.  I am guessing that that probably won't be good enough for the Supreme Court.  The Court will probably reverse the lower court on this point because, despite the language, the Circuit wasn't really being deferential. 

Based on the way that the Court has had it in for the Sixth Circuit lately in habeas cases, it's not hard to predict how this one's going to come out.  Let's just hope that it's not a horrendously bad decision for habeas petitioners.

Habeas Corpus - Front End Cases

And there were two front-end habeas decisions this week that focused on Miranda.

The one getting all of the attention was the crazy decision in Maryland v. Shatzer (opinion here), in which Scalia states that, once a defendant invokes his right to remain silent and there is a break in custody, he has a golden force field surrounding him for 14 days during which time the police cannot question him.  But after those 14 days, it's open season for interrogation.

It's a little silly.  And I can't see it applying in too many cases.  But it has sent the legal talking heads into orbit, so I guess that's fun.

For me, the biggest disappointment is that they chose 14 days, instead of, let's say, 16.  Because if they had chosen 16, then it would have given me a great reason to throw in a reference to my favorite Whiskeytown song, 16 days.  Oh what the heck, since it's out there already, I'll drop a "video" in here anyways:

The other decision was Florida v. Powell (opinion here) in which the Supreme Court stated that it was okay if the police don't give the Miranda warnings verbatim, even if it means that one of the particular rights that is supposed to be mentioned goes unmentioned.  Not an unexpected result from this Court, but, really, is it so hard to force the police to read all of these rights?  There are not that many of them and they take all of 45 seconds to say.  Fer crissakes, cops usually just read them off a piece of paper.  Talk about defining competence downward.  Even sadder -- Ginsburg wrote the opinion.  Let's just hope this "almost is good enough" idea does not get extended into other areas of law.

Habeas Corpus - Front End Case

Later this morning, the Supreme Court will hear argument in a "front end" of habeas corpus case.  

The case is Florida v. Powell.  Here's what SCOTUSblog has to say about it:

11 a.m. - At issue in Florida v. Powell (08-1175) is the police duty to expand “Miranda warnings” before questioning a suspect. Stanford Law School’s Samantha Bateman previewed the case on SCOTUSblog.

Habeas Corpus - Incarceration in prison=in custody for Miranda?

The Second Circuit issued a published opinion today in a habeas case answering that question in the negative.  And Musladin provided the answer. 

The case is called Georgison v. Donelli, 05-5885-pr, available here.  The panel was Miner, Wesley and Stanceu, a judge from the Court of International Trade.  Stanceu wrote the opinion affirming the lower court's denial of habeas.

Petitioner was in prison upstate on a robbery conviction when investigators came and spoke to him about an unrelated case.  No Miranda warnings were given and the investigators obtained an inculpatory statement.

Petitioner argued that his incarceration meant that he was per se in custody for Miranda purposes.  He relied upon the Supreme Court decision in Mathis v. United States, 391 U.S. 1 (1968), in which the Court concluded that a defendant's constitutional rights were violated when a tax inspector obtained a statement from him while he was incarcerated without first giving Miranda warnings.  Petitioner also relied on Estelle v. Smith, , which also held that an incarcerated habeas petitioner had been in custody.

The Second Circuit concluded that the Supreme Court had never clearly established the rule that incarceration meant per se in custody under Miranda.  It distinguished Estelle v. Smith and said that it was not clear from Mathis whether it had established a per se rule.  The court discussed a Supreme Court case which kind of rejected petitioner's per se approach and a one-judge dissent from denial of certiorari that stated that it was an open question whether the "bare fact" of incarceration was enough to trigger Miranda warnings.  That dissent had also stated that the Court had yet to clarify what in custody meant in a prison setting.

Judge Stanceu concludes, "Because the per se rule urged by Georgison is not clearly established federal law, the state courts here did not unreasonably decline to apply it. See Carey v. Musladin, 549 U.S. 70, 77 (2006) (“Given the lack of holdings from this Court regarding the [issue in question] . . . it cannot be said that the state court ‘unreasonably applied clearly established Federal law.’” (quoting 28 U.S.C. § 2254(d)(1))).

To its credit, the court did not end the inquiry there but goes on to see whether the state courts unreasonably applied the general "in custody" law.  The court concluded that the facts show that petitioner was not in custody.  The denial of habeas was affirmed.

I cannot decide whether I agree with this application of Musladin.  It seems a little problematic too.  I am not sure whether a Musladin question should be answered by relying so heavily on a single-judge dissent from a denial of certiorari.  I haven't seen that before.  It's not much of a precedent.  And I get this funny feeling that the question was probably more clearly established than how it was presented in the opinion.

In any event, the end result is that the Musladin monster ate another petition.