Habeas Corpus Blog

Circuit Court Rundown – October 13, 2013

by Matthew Keller

Some more recent habeas rulings from the Courts of Appeals. In this post, I focus on the Sixth Circuit, which over the past month has issued a series of generally helpful procedural rulings:
 

Gillis v. United States (6th Cir. Sept. 9, 2013)

     Gillis offers good advice on one possible method for avoiding filing deadlines for 2255 motions and, more generally, is a good reminder of the value of reading rules of procedure. Often there are little nuggests in there that may get you out of an occasional fix.

     The petitioner was convicted in 2007 of dealing crack near a school in violation of 21 U.S.C. 841 and 860(a). The court initially sentenced him to 262 months, but in 2009 it lowered the sentence to 191 months following a remand to reconsider application of the Guidelines' career-offender provisions. Gillis asked his attorney to appeal his new sentence, but counsel failed to file a timely notice. In May, 2011, Gillis filed a pro se § 2255 motion claiming ineffective assistance. The district court dismissed the motion as barred by the one-year deadline of § 2255(f). Gillis waited 201 days to appeal that denial, and the Government moved to dismiss the appeal as untimely.

     The Sixth Circuit held that the appeal was timely.  The district court never entered a separate judgment after denying the § 2255 motion, and therefore Gillis effectively had 210 days to appeal. The 210 days adds up as follows: Federal Rule of Civil Procedure 58(a) requires a separate judgment for all decisions or orders, except for five exceptions.  A § 2255 motion is not one of those exceptions. Therefore, the district court’s judgment was not considered “entered” until 150 days after it denied the § 2255 motion. See Fed. R. App. P. 4(a)(7)(A)(ii) (defining “judgment” as entered 150 days after entry in the civil docket in the absence of a separate judgment required under Civil Rule 58(a)). Then, you add to that 150 the standard 60 days to appeal provided for in Federal Rule of Appellate Procedure 4(a)(1)(B) (and Rule 11(b) of the Federal Habeas Rules). Because Gillis filed his appeal within the 210-day window, his appeal was timely.

     For those of us practicing primarily in the Second Circuit, there is a wrinkle here.  The Sixth Circuit noted that the Second is the only Circuit that has held, in a 1993 case, that , Civil Rule 58(a) does not apply to § 2255 motions because of the “quasi-criminal” nature of such motions. See Williams v. United States, 984 F.2d 28, 29–31 (2d Cir. 1993). However, there is a good argument to be made that Williams was wrongly decided. Federal Habeas Rule 11(b) is clear that Fed. R. App. P. 4(a) governs appellate filing deadlines. That rule, in turn, defines the entry of a judgment with reference to Fed. R. Civ. P. 58(a). There is thus no basis in the governing Rules for the Second Circuit’s “quasi-criminal” gloss. The other circuits to consider the issue have recognize this: the Third, Fourth, Tenth, Eleventh, and D.C. Circuits all agree with the Sixth Circuit’s 210-day rule.

     Unfortunately for Mr. Gillis, AEDPA’s filing deadlines are not as forgiving as the rules of Federal and Apppellate Procedure. Here the latter rules gave Gillis an extra six months to appeal the denial of his § 2255 motion. But the former, as the Court noted, “are not so lenient with regard to the timeliness of his § 2255 motion in the first place.” Gillis had 14 days from his resentencing in December 2009 to file a direct appeal. (Fed. R. App. P. 4(b)(1)). His lawyer did not do so, and his conviction became final (and the one-year AEDPA clock began to run) on December 26, 2009. That clock ran out on December 26, 2010, but Gillis did not file his pro se § 2255 motion until May 20, 2011. 

     Gillis tried to argue that the one-year AEDPA clock should not have begun until the Sixth Circuit dismissed his untimely direct appeal in January 2011. The Sixth Circuit (correctly) found that this was not the way things work: “[i]f the one-year AEDPA statute of limitations could be extended by filing a late notice of appeal and getting that late appeal dismissed,” the Court said, “there would not be much left to the statute of limitations.”  

Ajan v. United States (6th Cir. Oct. 3, 2013):

     In another ruling on 2255 procedure, the Sixth Circuit joined the Fourth, Eleventh and D.C. Circuits in holding that a COA is not required to appeal the relief granted after a successful § 2255 motion.

     Ajan was originally sentenced to 646 months for various drug, kidnapping and firearm offenses. However, his § 2255 motion was granted, and his sentence vacated, after the parties agreed that one of the § 924(c) firearm convictions was not an offense under the charged statute. Without conducting new sentencing proceedings, the district court ordered entry of an amended judgment reflecting a new sentence of 346 months (the total term for the remaining offenses). Ajan appealed without obtaining a COA.

     The Sixth Circuit held that a defendant need not obtain a COA to appeal the remedy following a successful § 2255 motion, because the granting of the motion results in a “new judgment” and therefore a new right of direct appeal. The court held that this follows from the Supreme Court’s 2010 decision in Magwood v. Patterson. Magwood held that an appeal from a successful § 2254 petition was not a second or successive petition because a “new judgment” is entered when the § 2254 is granted. The Circuit held that this rule applies with equal force to § 2255:

“Ajan’s successful § 2255 petition led to a new judgment — the Amended Judgment — which did not exist at the time his § 2255 petition was brought. It is the Amended Judgment that Ajan appeals. Because Ajan seeks to challenge the relief granted — i.e., whether the relief was ‘appropriate’ under § 2255, whether the new sentence was in conformity with the Constitution or Sentencing Guidelines, etc. — he is appealing a new criminal sentence and therefore need not obtain a COA”

Jefferson v. United States (6th Cir. Sept. 12, 2013)

     Petitioners often seek equitable tolling of AEDPA’s statute of limitations.  The Sixth Circuit also had some good news for petitioner's on that score as well, at least in the context of Brady claims.

     Kenneth Jefferson was originally convicted in federal court in 1999 for his role in a gang selling crack out of Ypsilanti, Michigan throughout that drug’s boom years of the 1980s and 1990s. He was sentenced to twenty years. The Sixth Circuit affirmed his conviction on direct appeal, and the conviction became final ninety days later, on May 12, 2003. However, Jefferson did not file his § 2255 motion until August 2004, making it untimely.

     Here’s where it gets tricky (apologies for the bumpy procedural history, but its necessary). Throughout the post-trial process, Jefferson and his codefendants asserted that the Government withheld the promises it had made to several cooperating witnesses regarding the benefits they would receive in exchange for their help in prosecuting Jefferson and others. They also asserted that these CWs lied at trial about the benefits they were promised, and that the Government knew about this perjury and sat by silently. These claims were given some support when, in March 2004, one of the CWs stated to the judge that he expected the AUSA to recommend a downward departure in his case. This set in motion an internal investigation by the local US Attorney’s office, which ultimately concluded that the AUSA had in fact met with some CWs without their counsel present, and made some, “at least tacit, promises of further sentencing reductions.” The investigation also concluded that the AUSA “had witnesses testify without revealing the additional understandings; moved orally at sentencing or in Rule 35 motions for downward departures; and had the sentencing records of these witnesses sealed.”

     Jefferson then filed a series of additional motions (and supplements to pending motions), and continued to receive belated Giglio information from the Government. At some point he was given an attorney to help him with his claims.  At first, the district court denied Jefferson’s § 2255 motion and the various supplements to it arguing for a new trial based on the Brady, Giglio and Napue violations highlighted by the US Attorney’s investigation. The Court rejected Jefferson’s attempts to toll the start date for his one-year AEDPA limitations period from May 2003 (when his conviction became final) to either September 2004 (when a decision was issued in an unrelated case detailing disclosure violations by the same AUSA), or to September 2005 (when the government revealed information from its internal investigation essentially confirming the Brady/Giglio violations in Jefferson’s case).*

* Jefferson argued pursuant to § 2255(f)(4) that his one-year clock ran from the date “on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.”

     The court rejected the September 20004 date on the ground that “a decision in an unrelated terrorism case could not constitute the factual predicate for prosecutorial-misconduct claims in Jefferson’s case.” And it rejected the September 2005 date because Jefferson had filed his motions in March 2005, which severely undercut an argument that he was not on notice of his claim until five months after he filed it.

      On its first trip up to the Circuit, the court reversed. It agreed that neither the 2004 nor the 2005 dates could serve as the factual predicate of his claims. But, the Circuit held, the district court “did not resolve the critical question of whether Jefferson’s additional claims were brought within one year of ‘the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.’” The Court therefore remanded for consideration of “the statute of limitations and the possible application of equitable tolling.”

     The district court complied, gave Jefferson’s motion additional consideration, and again denied it.  This time, the court essentially deployed the “kitchen sink” reasoning the habeas practitioners are so used to: the claims are untimely, they do not warrant equitable tolling and, in any event, they are meritless. Case closed. 

     On appeal last month, the Sixth Circuit reversed the district court’s procedural rulings, but ultimately agreed that the claims failed on the merits. It found that, given the “realities of the prison system,” Jefferson could not have discovered the basis for his Brady/Giglio claims prior to 2005. Importantly, the Court rested this holding on the nature of the Government’s disclosure obligations under Brady:

“We hold that § 2255(f)(4)’s due-diligence standard did not require Jefferson continuously to seek out evidence that the government had a constitutional duty to disclose (evidence that, despite specific requests by the defense for the information, the government represented did not exist). We reject the district court’s determination that because Jefferson suspected undisclosed promises as early as 2000, his failure to seek information from “the cooperating witnesses themselves or their acquaintances” and his failure to seek sentencing records—which the prosecutor had sealed—rendered his diligence insufficient. We do not fault Jefferson for failing to scavenge for evidence of undisclosed promises when he already repeatedly asked for disclosure and the evidence was unconstitutionally withheld by the government.”

     On the merits, the Circuit held that Jefferson’s Brady claims failed on the materiality requirement, the bane of so many Brady/Giglio claims. Where the Government withholds impeachment material for cooperating witnesses, such claims almost always fail for the same reason, which goes something like this: “these witnesses were bad guys ratting out their friends to save their own asses. Both sides knew it, the Court knew it, and the jury sure as hell knew it. If the jury chose to believe them anyway, it probably would have still believed them if it knew they were promised $10 (or ten years off their sentence) instead of $5 (or 5 years off).”

   As Ive said on this blog before, I disagree with the wide application of the assumption that juries would do the same thing if they had more or different information to all manner of different circumstances. Our system operates largely on the theory that jury deliberations are (and should be) a black box. The frequency with which judges retroactively predict what a jury would have done under different circumstances (and the confidence with which they do so) violates that precept. To some extent this is necessary to conserve resources – the courts would be swamped if we had to retry every case where the jury didn’t hear evidence it should have (or where, in the more frequent case, the jury hears something it shouldn’t have). But make no mistake: the Brady materiality standard operates primarily as a practical resource-management tool. It is not a well-considered reflection on the ability of judges to accurately second-guess juries. 

Henderson v. Palmer (6th Cir. Sept. 12, 2013)

      In Henderson, the Sixth Circuit applied the prison mailbox rule to reverse the district court's finding that petitioner had procedurally defaulted on claims to the Michigan state courts.  Henderson was convicted of armed robbery and carjacking based in part on a lineup identification. Law enforcement officers claimed that Henderson's attorney was present at the lineup, but the attorney denied that he was there. Henderson claimed that his trial attorney was ineffective for failing to raise the issue at trial. However, state courts rejected his claims as untimely because the filing arrived one day late due to failings in the prison mail system.

     The Sixth Circuit reversed the district court's rejection of the 2254 petition because the lower court failed to apply Circuit precedent holding that “[w]here a pro se prisoner attempts to deliver his petition for mailing in sufficient time for it to arrive timely in the normal course of events,” that circumstance “is sufficient to excuse a procedural default based upon a late filing.”


Hooper v. Ryan (7th Cir. Sept. 9, 2013)

     For the last case, we move to the Seventh Circuit. In Hooper, the Seventh Circuit granted a §2254 petition, reversing the district court and effectively reversing a 32-year-old murder conviction on Batson grounds.

     At trial, the court drew a venire of 63 members, seven of whom were black. Two of the seven were removed for cause, and the prosecutor exercised peremptory challenges against the remaining five. The Seventh Circuit held that the Illinois Supreme Court applied Batson unreasonably in four respects. It’s worth going through all four grounds, both because a state Supreme Court making four mistakes on any one issue is notable, and because some of the mistakes would be funny if they were not so troubling.

     First, the Illinois Supreme Court unreasonably held that, under Batson, a trial court cannot “infer a prima facie case of discrimination from a racially disproportionate use of challenges.” The Seventh Circuit noted that Batson and subsequent rulings clearly allowed the use of peremptory strike statistics to support a prima facie case. Second, the Illinois court held that the five strikes against black venire members could not be discriminatory because the prosecutor also struck six white or Asian members. The Seventh Circuit held that, in addition to being legal error, the comparison of absolute strikes as opposed to their proportion relative to the racial makeup of the venire reflected “confusion about how to use numbers.” 

     We all know that lawyers are bad with numbers - otherwise we’d all be doctors, right? So perhaps that second error is somewhat understandable.  It’s a bit harder to excuse the third error. The Circuit held that it was error for the Illinois Supreme Court to reject the Batson challenge on the ground that the defendant, all three victims, and all principal witnesses were black. Not only was the Illinois Supreme Court plain wrong on this (three principal witnesses were white), the Circuit also pointed out that Batson and its progeny protect the rights of potential jurors (and the public at large) as well as the rights of defendants. The Circuit called the the Supreme Court of Illinois’ idea that “using race in jury selection is tolerable as long as the defendant, victims, and witnesses all are of the same race” a “serious legal blunder.”

     Finally, the Circuit held that the state court erred unreasonably in excusing the trial judge’s incorrect application of Batson’s three-step sequence of proof.

     The Seventh Circuit’s decision may force Illinois to free Hooper, who has served over 32 years for the murders and is now 67 years old. The Court acknowledged that it may be impossible for the state to conduct a “fruitful” Batson hearing more than three decades after the trial (not to mention a retrial). But I think the Court correctly reasoned that it could not let such an unacceptable decision stand. It may have helped that the Illinois Supreme Court decision under review was 24 years old – the Circuit was not throwing stones at the current court. It may have also felt that the trial was also tainted by its judge, Thomas Maloney, who was later convicted of bribery and spent the last 15 years of his life in prison. Maloney was not your ordinary crooked judge: a jury found that he fixed three gang murder trials. It’s not legally relevant to the Batson claim, but Maloney’s presence in the case was just one more taint on the appearance of justice.

 

Habeas Corpus - District Court Review - An End to Discovery?

Back in February, I had written about the case of Quezada v. Brown (previously known as Quezada v. Smith).  It's a groundbreaking case in which the Second Circuit has already issued a published opinion interpreting several aspects of the second or successive 2244 statute for the very first time.

After the Second Circuit granted authorization to allow petitioner to bring a second or successive petition raising a Brady claim and a claim that the prosecution knowingly presented false evidence, petitioner made a request for discovery in the district court and the DJ granted it.  Discovery in the case proceeded forward.

While the parties were engaged in discovery, Pinholster was decided.  Relying upon that case, Respondent moved for reconsideration of the order granting discovery, arguing that Pinholster prevents any further discovery in a habeas corpus proceeding.  Their argument: if the 2254(d)(1) analysis is restricted to the record before the state court, then there is no need for discovery in federal court.

Petitioner responded that Pinholster was not a discovery case, so it was not a change in law justifying reconsideration.  In other words, Pinholster had not changed the standard for when discovery should be ordered.  He also argued that there were other reasons in a habeas case for ordering discovery beyond the question of whether or not petitioner had met the 2254(d)(1) standard, including (but, of course, not limited to) whether or not petitioner could establish a miscarriage of justice to overcome a procedural default.

The district court has yet to issue an opinion on the State's reconsideration motion. 

This is a really important question that has resulted in a split in the district courts around the country.  But it does make me really worried.  If Pinholster can be read as stifling discovery (especially in a case like Quezada where it just seems so clear from the smoke that there's a fire), it's just another way in which Pinholster has created inequity in habeas law.

Habeas Corpus - Published Opinion - Habeas Does Not Lie For Deficiencies in State Court Collateral Proceedings

Last Friday, the Second Circuit issued a published opinion in a case in which the petitioner had made a request for authorization to file a second or successive petition.  The decision is Word v. Lord, 11-111-op. 

Petitioner sought to pursue a claim that her due process rights were violated when the Appellate Division denied her error coram nobis petition.  Oddly, she had previously raised a similar claim in 2004 and authorization was granted, but the district court denied the petition concluding that her challenge concerned only state post-conviction proceedings and therefore was not subject to federal habeas review.

In a short per curiam, the Second Circuit came to the same conclusion as the DJ in the earlier petition.  The court held that, consistent with the majority of Circuit Courts to address the issue, that "errors in state post-conviction proceedings do not provide a basis for redress under § 2254."  This is based on the recognition that "the Constitution does not compel states to provide post-conviction proceedings for relief."

 

 

Habeas Corpus - Habeas Cases From Around the Country

Saw some interesting habeas cases from other places over the past few weeks. . .

Last week, the Third Circuit re-affirmed its prior decision to grant habeas relief to Mumia Abu-Jamal on the grounds that the instructions in his capital sentencing phase were unconstitutional.  The court had originally granted habeas relief, but the Supreme Court vacated the decision in light of Smith v. Spisak.  On remand, the Third Circuit stuck to its prior conclusion, saying that it was not inconsistent with Spisak. 

Interesting habeas grant out of New Mexico a few weeks back in a case called Case v. Hatch, 2011 WL 1126335 (D.NM Mar. 28, 2011).  Petitioner was able to establish under 28 U.S.C. 2244(b)(2)(B)(i) & (ii) that the facts underlying a Brady claim "if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense."  After concluding that this gateway standard had been met, the court then granted habeas relief on the Brady claim.  This is a rare occurence.  The facts are also really interesting, as it appears that law student investigators were the ones who unearthed the Brady material.  You can download the decision here -- Download Case v. Hatch.

Briefly, here's an article about a habeas petition being filed in a high-profile murder case in Las Vegas from the '90's in which a grandmother was convicted of killing her husband.

It's a 2255 motion, but here's an article about a Fourth Circuit decision in the infamous Jeffrey MacDonald case, dramatized in the made for tv movie/Karl Malden vehicle "Fatal Vision." (of course, it was a book first, but I was a big fan of the movie, which also starred Eva Marie Saint and one of my all-time favorites, Gary Cole).  I mention it, not just because of its pop culture relevance (and the actual innocence issues hovering over the case), but because the decision concerns whether the lower court properly applied the standards for evaluating a second or successive 2255 motion, which appear to be the exact same as those for evaluating a second or successive 2254 petition under 2244(b)(2) (analyzed above in Case v. Hatch).  So, it does have relevance to 2254 cases.  The Fourth Circuit decision is here.

 

Habeas Corpus - District Court Review - A Lesson In Discovery

Back in 2010, the Second Circuit took the unusual step of granting a petitioner's request to file a second or successive habeas petition.  In addition to granting the request, the case was notable because the court issued a published opinion in which it interpreted, for the first time, certain aspects of the second or successive authorization provision. 

The name of that opinion was Quezada v. Smith and I talked about it here. 

Now, in the district court, the case has taken an unusual and fascinating turn. 

Just to briefly go over the relevant facts again, petitioner was convicted of murder based primarily on the testimony of Sixto Salcedo.  However, Salcedo later recanted.  In addition, another person, Freddy Caraballo, had come forward and stated that petitioner had not been the one who pulled the trigger. 

At a hearing in state court, Salcedo testified that contrary to his trial testimony, he had not seen the shooter's face. He also testified that, prior to the trial, a time when he was on parole, a detective had told him that he had to testify against Quezada or else he would put him away for 10 years.  Salcedo also testified that the detective kept him confined in a hotel during the trial.

Turning back to the habeas part of the case . . .

In December 2010, after the Second Circuit granted authorization, petitioner filed a habeas petition in EDNY raising two claims (and these are taken directly from the habeas petition): (1) "The use of perjured testimony to secure Mr. Quezada's conviction violated his right to due process"; and (2) "The State's failure to disclose the coercive conditions under which Sixto Salcedo testified at trial violated Mr. Quezada's right to due process." 

The case is now called Quezada v. Brown, 08-CV-5088 (EDNY) (KAM).

Shortly after filing the petition, petitioner moved for discovery.  Discovery in habeas cases does not happen all that often.  It is governed by Rule 6 of the Rules Governing Habeas Corpus Cases Under Section 2254 (yes, those rules exist and that is the actual full name of the rules; I'll just say RGHCCUS2254 from here on out). 

The rule allows for discovery with leave of the court if good cause is shown.  The request for discovery must be specific and provide the reasons for the request.  It also must include "any proposed interrogatories and requests for admission, and must specify any requested documents."  The Supreme Court has stated that this rule was intended to effectuate its 1969 decision in Harris v. Nelson, in which it stated, "where specific allegations before the court show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is ... entitled to relief, it is the duty of the court to provide the necessary facilities and procedures for an adequate inquiry."

Here is where the case took a really unusual turn.  In response to the discovery request, the State acknowledged for the first time that it possessed documents that actually supported Salcedo's claims about his pre-trial conditions as a witness.  Specifically, the State acknowledged that they had documents showing that they did seek and obtain a material witness order for Salcedo.  In addition (and even more shockingly in my mind), the State admitted that they had excerpts from a log book entitled "Hotel Custody."

So, in response to the discovery motion, the State completely validated the reasons for why discovery should occur!  These documents provided corroboration for Salcedo's prior testimony in the hearing.  As a lawyer, it is just so rare to see your adversary make your arguments look even better than they were when you started.

In his reply, petitioner explained exactly why these admissions were just so shocking.  Back in the state court proceeding where Salcedo made all of his claims about his pre-trial conditions, the State argued that his testimony was incredible.  But these documents tend to show that they were far from incredible.  More like pretty credible.  The documents, as petitioner points out, strongly suggests that the State may have other stuff to validate Salcedo's claims. 

In response to the motion, the DJ held oral argument last Tuesday. Someone recently asked me if oral argument in the district court is rare in habeas corpus cases.  It's a good question.  I have previously noted that Judge Gleeson in EDNY holds oral argument on almost every petition.  But outside of that judge, in my experience, it is pretty rare to see a DJ or MJ hold oral argument in a habeas case. 

And the big news is that, as reflected on the docket sheet, the judge granted the motion for discovery at the end of the hearing, "subject to petitioner narrowing and specifying his requests to the extent possible." That qualification seems consistent with RGHCCUS2254 Rule 6.

So an interesting twist in an already groundbreaking case.  So far, the district court proceedings have more than validated the Second Circuit's decision to grant authorization.  I will be keeping a close eye on this case.

Habeas Corpus - Authorization Granted - Updated X 2

Boy, did I miss something big last week.

On Thursday, the Second Circuit granted a request to file a second or successive petition in a published opinion.*  The case is called Quezada v. Smith and it is available here.  The opinion was written by Newman and joined by Hall and Restani, CIT.

*I missed it because it had a docket number that ended in "op."  Habeas appeals always end in "pr."  I am not quite sure why this one ends with different letters, but now I know to check these opinions as well.  [Update: From the comments, "op" stands for "original proceeding" and obviously would apply to a request for authorization to file a second or successive petition.  I feel bad that I didn't know that]

It's an important decision.  The attorneys for petitioner are quoted in the New York Law Journal article as saying that this could be the first published opinion from the Second Circuit that discusses the court's gatekeeping function under section 2244(b).  I believe that is the case.  Notably, the court didn't cite to any other Second Circuit cases discussing the gatekeeping provision. 

The court does a lot of stuff in Quezada.  First, the court tackles on its own the question of whether or not this was even a second or successive petition.  Quezada's first petition was dismissed as untimely.  There is no doubt that that counts as a decision on the merits.

But the court asks whether it is required to revisit a dismissal of a first petition as untimely when an application for a second or successive petition is filed. More specifically, does the court need to ask whether "the initial dismissal now appears to be erroneous because the law on which that dismissal was predicated is unarguably no longer good law." 

The court says, no.  It only needs to revisit the issue "upon allegations of unusual procedural errors" that prevented the petitioner from having a court address the merits of the claims.

That did not happen in Quezada's case, but it's a good thing for habeas petitioners overall that the Second Circuit is willing to consider this question at all.

Turning to the gatekeeping function, it is a very favorable ruling for habeas petitioners.  Quezada was convicted of murder based on a single witness, who later recanted.  In addition, another person had come forward and stated that Quezada had not been the one who pulled the trigger.  One of the constitutional claims was based on a due process claim that petitioner had been convicted on the basis of perjured testimony.  This claim, at least as far as the application was concerned, was based on a Second Circuit decision.  In response, the State argued that the application should be denied because it did not meet the standard of 2254(d).

The Second Circuit rejected the argument.  It said that, as a gatekeeper, it was only required to see whether petitioner's claims would meet the standard of 2254(b) 2244(b) [a commenter picked up this typo] not whether the claim would ultimately have a chance of prevailing in the district court.  The gatekeeping provision does not incorporate 2254(d), so it did not need to consider that question in determining whether authorization should be granted.  That's a good ruling.

The State then argued that the underlying factual claim was unreliable, so authorization should be denied.  The Second Circuit rejected that argument as well.  It looked to the statute and concluded that petitioner only needed to make a "prima facie" showing that he had met the requirements of the statute.  The ultimate determination of whether the recantation should be credited was for the district court.  Once again, that's a good ruling.

The court concluded that authorization should be granted on the false evidence claim as well as a Brady violation.

Nice win for Quezada and a good decision for habeas petitioners.

 

 

 

Habeas Corpus - "A Procedural Conundrum"

I wanted to quickly revisit the habeas grant in Graham v. Portuondo discussed yesterday around here.

A question underlying the IAC ground is whether the particular claim of IAC is properly before the court.  There was a slightly tricky procedural history.  As I mentioned yesterday, the deficient performance affected two separate parts of the case: petitioner's competency and a potential EED defense. 

The original petition only raised ineffectiveness as to competency.  But, after counsel had been assigned, petitioner added the claim of a potential EED defense. 

If I didn't make it clear yesterday, Judge Weinstein focused on the EED defense claim when determining whether there had been prejudice and the judge decided that he did not need to consider the competency aspect of the IAC claim.  I guess I should have made that more clear.

In the final part of the opinion, Judge Weinstein included the following section: "4. Exhaustion and Second Petition -- A Procedural Conundrum."  The judge pointed out that, if the two different IAC claims are essentially different forms of the same claim, then his decision is fine.  If they are separate, his opinion is no good.  The EED claim was unexhausted and would have be to considered a part of a "second or successive petition" that would need authorization from the Second Circuit to proceed.

Judge Weinstein's answer to the conundrum is pretty clever - look at the Second Circuit remand.  He points out that, if these were two separate claims, then the Second Circuit would have affirmed the dismissal of the petition (albeit on a different ground than the one set forth in his original decision).

However, the Second Circuit did not take that position and, instead, remanded the case for an evidentiary hearing on the EED claim.  So the judge deduces that the Second Circuit has already concluded that they are essentially the same claim. 

But if they are two separate claims, the Second Circuit decision provides an answer for that, too.  He suggests that, by remanding for a hearing on this particular issue, "the Court of Appeals might have decided to cut through one of the AEDPA's Gordian Knots* and moved the case towards a conclusion that saved years of litigation." So it can be assumed that the court had actually granted permission to bring a second or successive petition.

*To be honest, I decided to write this post because I loved the whole "AEDPA Gordian Knots" stuff.  As well as the "Procedural Conundrum" language.  Good times.

Judge Weinstein sums it up like this: "Whatever way the conundrum is analyzed, the district court's present duty seems clear under the mandate: hold the evidentiary hearing, and if the petitioner's present contentions are established, grant the writ." 

Which is precisely what he did.

Habeas Corpus - Magwood = Huh? (Updated)

Court decides Magwood.  And it's another habeas win!  And, as I predicted, it was a 5-4 result.

But the breakdown is one of the oddest lineups I have ever seen in a habeas case.  Truly.

Here's the holding: the defendant's habeas application is not a "second or successive" petition because it challenges a new judgment for the first time.

That's the result I was hoping for as I thought that it really was the most reasonable reading of the habeas statute.  And it did not implicate federalism concerns.

But, to my surprise, Thomas wrote the opinion.  Let me repeat that, Thomas wrote an opinion in favor of a habeas petitioner.  And he was joined by Scalia, as well as Stevens, Breyer, and Sotomayor.

And here's who dissented: Kennedy, CJ Roberts, Ginsburg, and Alito.

Wow.  That's a crazy breakdown.  I can't wait to see the opinion.

UPDATE: The opinion can be found here. 

Habeas Corpus - Magwood Argument Today

At 11:00 a.m. this morning, the Supreme Court is going to hear oral argument in the habeas case of Magwood v. Patterson. 

As stated today at SCOTUSblog, the issue is: whether, when a person is re-sentenced after having obtained federal habeas relief from an earlier sentence, a claim in a federal habeas petition challenging that new sentencing judgment is a “second or successive” claim under 28 U.S.C. § 2244(b) if the petitioner could have challenged his previous sentence on the same constitutional grounds.

My previous discussion of the case was here.

Habeas Corpus - Interesting Supreme Court Case

Next week, the Supreme Court will hear argument in the capital habeas case of Magwood v. Patterson.

The issue is whether a habeas petitioner can raise a claim in a petition challenging a judgment of resentencing where he could have raised the claim initially in the first petition that vacated his original sentence.

SCOTUSblog's preview is here.

Actually, my statement of the issue does not quite capture the facts.  The petitioner was sentenced to death.  On habeas, he was granted relief and the sentence was vacated.  He was then resentenced to death.  On direct appeal from the judgment of resentencing, he raised for the first time a constitutional challenge that he could have raised on the original appeal from the judgment but did not.  The state courts appeared to have rejected this claim on the merits in the appeal from resentencing.

Even though this is a capital case, it will impact every type of habeas case. I believe this  situation could arise in almost any criminal case.

I actually think the arguments on both sides make sense.  So this will be a close call.  Could even be a 5-4 breakdown.  My initial take is that this should not be considered a second or successive petition.  I think the fairest reading of the statute is that, because he was challenging a new judgment, then it is not a second or successive petition, regardless of whether or not he could have raised the issue earlier.  While I think petitioner has the better argument here as to the reading of the statute, Respondent's arguments are probably more in line with the oppressive goals of the AEDPA, which seeks to limit petitioners to a single habeas petition.

From my own federalism/policy point of view, it does not make sense to me that the federal court would put up a procedural block here where the state court did not.  If the state court had no problem with a defendant raising the claim at that point in the proceeding, then I don't see why the federal court should be more strict.  It feels like a gratuitous kick in the gut, if you will.

In the end, I believe the outcome will be colored by the judge's view of the goals of habeas.  For the judges who view habeas as a crucial component of the criminal justice process, I am guessing that they'll read the statute as petitioner sees it.  For those judges who think that the AEDPA was the best thing to happen since cable television,  I am guessing they'll say that the policy goals of the AEDPA should dictate the outcome. 

What to say about the judge who doesn't fall into either camp?  It's probably that judge's vote that everyone will be fighting for.