Habeas Corpus Blog

Habeas Corpus – Rhines Stays

By JK

It is my policy to not discuss any of my cases on this blog.  I also try not to discuss any cases in which the petitioner is being represented by someone in my office. 

But I want to briefly violate that policy and mention the Ninth Circuit’s decision from last week in Blake v. Baker.*  In the first case ever to address this issue, the Ninth Circuit concluded that ineffective assistance of post-conviction counsel, i.e. a Martinez argument, can establish good cause to justify a Rhines stay and abeyance to allow a petitioner to present an unexhausted claim to state court.

* To note, I did not work on this case at all.  The petitioner is represented by members of the Capital Habeas Unit in my office.  I am in the Non-Capital Unit.

Rather than talk about the specifics of Blake, I’ll just briefly mention what this means generally.*  A petitioner files a petition with both exhausted and unexhausted claims.  This is what’s known as a mixed petition.  A federal court is required to dismiss a mixed petition without prejudice.   Unfortunately, if the petition gets dismissed, even without prejudice, then the case is over.  It is much more likely than not that any attempt by petitioner to resuscitate the petition in federal court after exhausting the unexhausted claims in state court will be outside the one-year statute of limitations.  This leaves the petitioner with few choices.  He can either dismiss the unexhausted claims and solely proceed on the exhausted ones.  Or he can move for a stay and abeyance, known as a Rhines stay (because it was created in a case called Rhines v. Weber).  To obtain a stay, a petitioner must show, among other things, good cause for failing to exhaust the claim previously.

* Actually, I have talked about all of this before.  And in more detail.  But it can't hurt to cover it again.

Blake now establishes that a Martinez argument can establish good cause to justify a stay.  Great decision for habeas petitioners.

But there is a likely reason why the decision in Blake is the first of its kind.  A stay typically isn’t necessary for a Martinez argument.  Rather, the typical situation is more like that in Dickens v. Ryan.  A petitioner raises an unexhausted ineffective assistance of trial counsel claim.  There is absolutely no doubt that the state court would find the claim procedurally defaulted because it was not raised previously.  Thus, a return to state court is futile.  In such a situation, the unexhausted claim is “technically” exhausted.  A technically exhausted claim does not get addressed on the merits in federal court.  Rather, the claim is considered procedurally defaulted.  In other words, the federal courts just acknowledge an “anticipatory” default on that claim.  Because the claim is procedurally defaulted, the petitioner is required to show cause and prejudice to overcome the default.  At that point, the petitioner raises the Martinez argument.  In most situations, the federal court will just jump to this step, rather than force the petitioner to go back to state court to obtain the inevitable procedural default first.  That’s what happened in Dickens.

But that’s not what happens here in Nevada.  The district court here makes the petitioner go back to state court to get the procedural default.  The court’s justification for this is that Nevada “allows” second or successive habeas petitions if the petitioner can show “good cause” and prejudice.  So essentially, the district courts here believe that because Nevada has a similar cause/prejudice structure, the petitioner should be required to first present that cause and prejudice to the state court before it gets presented to the federal court.  If there is cause and prejudice, the state court will get the chance to address the merits of the claim in the first instance. 

Personally, I disagree with this.  I don’t think it’s consistent with Supreme Court authority on the issue (such as Harris v. Reed, or at least O’Connor’s concurring opinion in Harris).  But it’s an interesting debate that I am going to have to face repeatedly in my cases.   

Nevertheless, Nevada is most likely not the only State with unusual post-conviction rules.  For those States where the federal courts do believe that a return to state court is necessary, then Blake will provide tremendous assistance to those petitioners.

Trevino Grant, Haynes Stay, and the Future of Martinez v. Ryan

By Alexandr Satanovsky

    It took the Supreme Court just seven months since handing down Martinez v. Ryan to grant cert. in Trevino v. Thaler, a case that may expand the Martinez rule beyond its most limited interpretation.

    To appreciate Trevino's possible significance, let's step back and consider the potential range of Martinez's doctrinal impact. At its most narrow and limited, Martinez applies only when two conditions are met: (1) the prisoner is raising a substantial trial IAC claim, and (2) state law requires such a claim to be initially reviewed in a collateral proceeding, not direct review. At its broadest, Martinez may apply when (1) the prisoner is asserting any substantial claim on collateral review -- IAC, Brady, jury tampering, etc., and (2) such a claim is most naturally reviewed in a collateral proceeding, determined by whether the factual basis of the claim requires development beyond the trial record. 

    The narrow view has carried the day in the lower courts, and quite understandably: Martinez limited itself to its facts, i.e., an IAC claim brought under a scheme that barred IAC from the direct appeal. But this view is doctrinally incoherent: First, there is no compelling reason to treat IAC claims as unique from other claims, like Brady, that require investigation and extra-record development, which is obviously too burdensome for an incarcerated petitioner. Second, it makes little sense to resurrect legal formalism by approving a distinction between those states (like Arizona), which impose a formal bar to the direct review of certain claims, and others (like Texas), which--although do not formally bar the claims--realistically  render them impracticable on direct review.

*    *    *

    Up until October, there was little suggestion that Martinez may mean something more than the narrow interpretation described above. But that all changed when the Supreme Court stayed a bunch of executions to consider cert. petitions re: Martinez's applicability to Texas, and eventually granted the Trevino petition. And this past Monday, Justices Scalia and Sotomayor issued brief statements concerning the Haynes v. Thaler stay issued several weeks ago.  

    This past month's developments, I think, make for a good prospect that Martinez will be expanded beyond its limited facts. For the following reasons (which, to be sure, are nothing more than my reading of the proverbial tea leaves), I think Trevino will be a stride in the direction of the broad, doctrinally coherent view of Martinez.  

1.  The Genesis of the Martinez Exception: To get some idea as to what the Court may have been thinking when it issued Martinez, consider the following:  First, there was no circuit split for the Court to address when it chose to grant cert. It was a non-capital case and the petition did not gesture toward a gross miscarriage of justice. Indeed, the thrust of the cert. petition was nothing beyond a call for a change in the law on cause-and-prejudice (well, a call for a constitutional right to collateral counsel, which the Court sidestepped), uncannily resembling a merits brief. Second, the ultimate disposition of Martinez was clean and concise: a 7-2 split, one majority opinion and one dissent.

    This "genesis" of the Martinez rule suggests to me that it was deliberately planned, possibly even prior to the cert. grant.  In other words, Martinez was not a haphazard product of untoward necessity, as may be the case when there is a flagrant circuit split (or other non-merits reason for cert.), and when the disposition involves multiple fractured opinions. And if we grant that Martinez was a delibarate decision to change the law, I find it difficult that Court sought nothing more than to carve out an uber-limited and doctrinally incoherent exception.

2. Revisiting the Rule in Trevino: Returning to Trevino, it's notable how quickly the Court chose to revisit and clarify Martinez. It has been just over seven months, with no circuit split and modest percolation. As with Martinez, the most sensible explanation for the Trevino grant, I think, is that the Court wants to change the law and correct the Fifth Circuit's unduly narrow interpretation. If the Court agreed with the Fifth Circuit's narrow approach, I doubt that it would have granted cert so early. Instead, it would have waited for another circuit (read: the Ninth) to hold that Martinez applies to a state that formally allows IAC claims on direct review, and reverse that decision.

3. Scalia's Dissent to the Haynes Stay: Finally--and this last point only little probative value--it is interesting to look at Scalia's statement, dissenting from last month's stay on the Martinez issue.  His gripe with the Stay was not that Haynes's IAC claim may not procedurally benefit from Martinez, but that his IAC claim was, in any event, meritless:

"Even if the Fifth Circuit is incorrect and Martinez does implicate Texas’s system of postconviction review, a stay is unwarranted here because Haynes presents no plausible claim for relief. His complaint is that his trial counsel was ineffective at sentencing. The absolute most to which he would be entitled under Martinez is excuse of his procedural default of this claim, enabling a federal district court to adjudicate the claim on the merits. But that is precisely what the District Court already did on federal habeas review[, finding the claim to be meritless.]" 

Neither Haynes, nor any other stay issued in anticipation of Trevino, had a noted dissent arguing, e.g., that the Court's "limited exception" in Martinez, should be allowed to percolate, before staying otherwise lawful judgments in the name of hastily clarifying the law.

Habeas Corpus- In-Chambers Opinions

While working on last week's Weekly Review, I saw something unusual.  On my final review of the cases decided that week, a new case popped into the list, right at the top.  What first caught my eye was that it had a Supreme Court cite, which for the summer was quite unusual.  Even stranger was that I had heard nothing about any Supreme Court activity -- outside of course for the Davis case and Sotomayor's first vote.

I took a closer look and saw that it was an opinion written by Breyer.  That also seemed odd in my mind.  There weren't any pending cases.  Why is there a written opinion by Breyer?

Then I went to the Supreme Court's website to track it down and, at first, couldn't find it.  However, there is a link in the opinion section on the website to "In-Chambers Opinions."  (Whenever I write those words, I always hear a big booming voice in my head saying the words, not sure why).  I clicked on the link and there it was.  It's entitled O'Brien v. O'Laughlin, available here.

It's a pretty short, simple opinion in a habeas case denying a stay to Respondent in a case in which the First Circuit granted habeas relief and ordered the immediate release of petitioner.  There is nothing too novel about it, just a straight-forward denial of a stay, which happens all the time.  Breyer basically says to the Superintendent that, on balance, the interests are against him, particularly since Breyer does not believe there is any chance that the full Court would grant a cert. petition in the case.  However, Breyer did grant the Superintendent's request for the imposition of bail.  He remanded the case to the District Court for that court to set the amount.

So what was that all about? 

First, I think we need to ask what an In-Chambers Opinion is?

The Supreme Court describes it on its website like this:

An in-chambers opinion is written by an individual Justice, usually the Justice for the Circuit from which the case arises, to dispose of an application by a party to the case for interim relief, e.g., for a stay of the judgment of the court below, for vacation of a stay, or for a temporary injunction.

That's what they are. 

But the more crucial question is why issue one here?  I did a little bit of searching and it turns out that they are really rare.  During this term, only two were issued.  And even that seems to be a high number.  According to this blog post at Legal Times, there hadn't been any since the 2006 Term.  These opinions are rarely, if ever, cited.  I guess earlier this year an In-Chambers opinion was cited (related to the Chrysler bankruptcy), which may have been an all-time first.

I recommend reading the full blog post at the Legal Times.  It's pretty interesting.  Especially the crazy story about Justice Douglas at the end of the post.

From reading that post, my take on O'Brien v. O'Laughlin is that Breyer wanted to explain to the Superintendent precisely why a stay was denied, and wanted to guide the district court's discretion in ordering bail.  I can't say that its unusual for a Superintendent to be denied a stay while seeking cert. in the Supreme Court.  In my experience, sometimes they get a stay, sometimes they don't.  But this was a slightly unusual relief order.  The First Circuit issued an unconditional relief order -- immediate and unconditional release.  That's pretty rare, particularly without setting any bail conditions while the cert. petition was pending.  Breyer obviously felt that the imposition of bail was a necessary step to decrease any potential risk of flight while the petition was pending.  In the opinion, he told the District Court to set bail at a level that Petitioner could afford.  So, essentially, Breyer agrees that the Petitioner should be released, but that there needs to be some type of supervision on him.  I should note that the parties agreed as to the remaining conditions that would be set in the release order.

I guess putting that all together, it does add up to a good candidate for the rare [in deep, booming voice] IN-CHAMBERS OPINION.