Habeas Corpus Blog

Extending Martinez

By JK

Let’s turn the lights back on around here. . .

Recently, the Supreme Court granted cert. on a really interesting habeas issue:  whether Martinez extends to ineffective assistance of appellate counsel claims.  Case is called Davila v. Davis.  SCOTUSblog page here.

Let’s start with a Martinez refresher: in 2012, the Supreme Court held in Martinez v. Ryan that the ineffective assistance of post-conviction counsel can represent cause to overcome a procedural default on an ineffective assistance of trial counsel claim.  In other words, a petitioner can argue that his post-conviction counsel was ineffective for failing to raise or properly litigate a trial counsel ineffectiveness argument.  If he can establish that, then he can obtain federal review of the trial counsel ineffectiveness claim (I am going to use IAC from here on out, it’s a lot of words to keep spelling out).

That’s the law now for trial IAC claims.  But what about appellate IAC claims?  Does the reasoning of Martinez extend to those types of claims?

I am going to steal this clever framing from a colleague, but in some ways it boils down to this: It’s the Ninth Circuit vs. the rest of the country on this one.  The Ninth Circuit in a case called Nguyen v. Curry held that Martinez extends to these types of claims.  Every other court has said no. 

Based on the infamy of the Ninth Circuit, one may think that it is the kiss of death for the habeas petitioner to have the Ninth Circuit on his side.  But I wouldn’t jump to that conclusion so quick here.  The Ninth Circuit is not always wrong when it issues a pro-habeas petitioner interpretation on a procedural issue.*  That is not inconsistent with recent Supreme Court law, as the Court has actually been relatively generous in expanding habeas procedural issues under the Roberts Court (e.g. Martinez, Maples, McQuiggin). Ironically, Martinez was out of the Ninth Circuit and the Supreme Court reversed the Ninth Circuit for failing to rule in favor of the habeas petitioner.

*Of course, they do still get reversed on their pro-habeas petitioner procedural rulings as well.  This decision from last term is a good example.

Here’s why the petitioner could win.  The logic of Martinez supports its extension to IAC appellate claims looked at in broad terms.  One of the main motivating factors underlying Martinez was that the initial post-conviction review proceeding was the exclusive forum in which a petitioner was allowed to raise IAC trial claims.  A petitioner should be provided with an attorney to assist him with raising that type of constitutional claim.  Just like IAC trial claims, the initial review collateral proceeding is the first opportunity for a petitioner to raise an IAC appellate counsel claim.  Significantly, Justice Scalia in his dissent in Martinez acknowledged that the holding of Martinez would obviously apply to IAC appellate counsel claims.  He went so far as saying that the majority’s assurance that the holding was limited to the issues before it “insults the reader’s intelligence.”

But let me also advocate for the devil here.**  Is there something different between these two types of claims?  There is an argument to be made that there is.  As Justice Kennedy reasoned in Martinez, IAC trial claims often require investigation into matters outside the trial record.  Something that a habeas petitioner cannot do while incarcerated.  But appellate counsel claims don’t require that type of investigation.  Appellate issues are based exclusively on the lower court record.  Outside of having legal experience, wisdom, and skill, habeas petitioners do in theory have the issues at their disposal while incarcerated (assuming they have the trial record with them).

** No, I obviously do not believe the State is the devil.  It’s a play on words on the expression “playing devil’s advocate.” [Insert winky face emoticon here]

But I don’t find that reasoning particularly persuasive.  As I imply in that final sentence, habeas petitioners are not in a good position to raise these claims.  They don’t generally have the legal ability to identify appellate issues.  They are incarcerated.  They don’t have a lot of access to legal materials.  They don’t often have complete records from their trial.  Yet, criminal defendants have the constitutional right to the effective assistance of appellate counsel (yes, spelled it out there, but it seemed appropriate).  These claims can only be brought in the initial review collateral proceeding.  Representation by counsel in those proceedings to raise a violation of a guaranteed constitutional right seems pretty vital to me.

Martinez was 7 to 2.  If the court remains at 8, it will take a shift of four members of the majority for the Court to reject the Martinez extension.  But I guess it is more complicated than that.  If the habeas petitioner loses three, then it is 4 to 4.  The individual petitioner will lose in that situation, but at least petitioners in the Ninth Circuit would still be happy.  And the issue would remain undecided.  

If the Court gets back up to 9, the numbers game would change a little.  Assuming the new judge votes like Scalia, that will add another judge to the anti-Martinez extension crew.  In that situation, a three-judge shift will mean a lose for all habeas petitioners.

So it really boils down to whether the habeas petitioner will lose all of Roberts, Kennedy, and Alito.  Only needs to hold on to one for the win here.*

* Yes, I am assuming Ginsburg, Kagan, Breyer, and Sotomayor are reliable votes here. 

If you want to read more about this, I enjoyed this write up about the case.

Habeas Corpus - Cert. Grant in Habeas Case

BY JK

Earlier today, the Supreme Court granted cert. in a habeas case, Jennings v. Stephens, on a procedural question:

Whether the Fifth Circuit erred in holding that a federal habeas petitioner who prevailed in the district court on an ineffective assistance of counsel claim must file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected even though the Fifth Circuit acquired jurisdiction over the entire claim as a result of the respondent’s appeal.

What does this mean?  2253 requires that a petitioner obtain a COA in order to appeal to the circuit court.  The State is not required to obtain one.  If a district court grants habeas relief, the State is automatically entitled to appeal.  When the State appeals, what happens to the grounds that were denied in the district court?  Does the habeas petitioner need to get a COA to have the circuit court review any of those issues?

In this case, the petitioner raised one IAC claim with three different allegations of deficient performance.  The district court agreed with two of them, but rejected the third.  The State appealed from the grant on the two deficient performance grounds.  The Fifth Circuit agreed with the State and reversed the district court on those two grounds.  When petitioner attempted to argue, "Wait there's one other allegation of deficient performance on which to affirm the judgment," the Fifth Circuit said no chance, you didn't get a COA on that particular allegation of deficient performance.

After reading the petition, it's clear that petitioner is contending that only in this limited circumstance -- where it is a single ground in the district court -- no COA is necessary.  Because the cert. grant was to the habeas petitioner, he could see some success on this issue.

But that leaves upon the broader question of whether a COA is necessary when, in a State's appeal, the petitioner asks that the Circuit court review a separate ground that the district court denied.  I have only read the cert. petition (not the State's response), but it appears that there is a circuit split on this broader issue.  In contrast to the Second and Fifth Circuits, the Seventh Circuit does not require a habeas petitioner to seek a COA on other grounds in a State's appeal.  In Szabo v. Walls, 313 F.3d 392, 397 (7th Cir. 2002), the impure-opinion-writing Judge Easterbrook reasoned (with internal citations omitted):

Since 1996 both state and federal prisoners have needed certificates of appealability to obtain appellate review of adverse decisions in collateral attacks. 28 U.S.C. 2253. But the statute deals only with appeals by prisoners; it does not mention arguments by prisoners as appellees offered in support of relief they have obtained.  Section 2253(c)(1) begins: “Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from—”. Szabo has not taken an appeal, nor did he need to do so. An appellee may defend his judgment on any ground properly preserved in the district court. Szabo does not ask for additional relief, so he was entitled to proceed exactly as he has done. Two opinions— (ed. cites edited out, but it was one from the Ninth and one from the Fifth) —assume that a certificate of appealability is needed for a prisoner's cross-appeal, and this is a plausible understanding of 2253(c) (though neither court discussed the question). But no court has demanded that a prisoner obtain a certificate of appealability in order to present an extra issue in a case already before the court on*398 the state's appeal, and we are content to apply 2253 as it is written. It serves a gatekeeping function, and once a case is properly before the court of appeals—for state and federal governments need not obtain certificates of appealability, see Fed. R. App. P. 22(b)(3) —there are no remaining gates to be guarded.

So I guess the big question here will be whether the Supreme Court takes on the broader issue or keeps it limited.  The merit briefs may provide some indication on how broad the issue before the Court will be.

Habeas Corpus - En Banc Entertainment

By JK

Hello again internet universe.

The Ninth Circuit’s fascinating work in its recent en banc cases has inspired me to jump back into the blogosphere and share some news/thoughts about those recent cases.

Let’s start with some news.  Last year, I wrote about the en banc decision in Sessoms.  Briefly, in a close 6-5 en banc opinion, the Ninth Circuit granted habeas relief on the ground that the petitioner had invoked his right to counsel at the beginning of an interrogation.  The Supreme Court GVR’d it based on Salinas v. Texas.  I found that surprising as Salinas really had nothing to do with the issue in Sessoms.  The biggest wrinkle for Sessoms after the remand was that the author of the 6-5 opinion, the legendary Betty Fletcher, has passed away.  She has been replaced with McKeown. 

The case has now been scheduled for a new en banc argument.  This is going to happen next Tuesday, March 18 at 10:00 a.m. in San Francisco.  You can watch it live through the Ninth Circuit’s website.*

*A long, long time ago, I spent a great deal of time comparing the different websites of the circuit courts (I had done it for all of the New York federal district courts).  It was actually sort of related to work (at least that’s what I told myself), but mostly I just enjoy wasting time on the internet.  The Ninth Circuit had far-and-away-not-even-close the best website.  I am not just saying that because I practice in that court now.  It’s just really well done – easy to navigate, well-organized, nice to look at, has a ton of great info.  It makes me happy to visit it on a daily basis.  A nice perk of this job as now I actually get to say it’s work related!

Speaking of Sessoms, I was recently told about a supremely entertaining article about the case called “Sherlock Holmes and the Mystery of the Pointless Remand,” written by Professor James Duane.  Click the following link to read it: Download Duane article.  Totally worth the time.  The entire article is written as a conversation between Holmes and Watson.  The premise is that the “pointless” GVR in Sessoms points to a larger truth – the Supreme Court intends to summarily reverse Sessoms once it gets back in front of them. 

Sessoms is far from the only en banc habeas action in the Ninth Circuit.  Late last year and earlier this year, the Ninth Circuit issued two, count ‘em two, en banc opinions interpreting Martinez v. Ryan.  And each one, like Sessoms, has a really unique wrinkle.

The first was Detrich v. Ryan.  Detrich was a highly splintered opinion with no true majority opinion.  There was a main opinion, two concurring opinions, and a dissenting opinion.  What was called the main opinion was written by Judge William Fletcher.  Judge Fletcher broke down Martinez and explained what the standard of review should be when reviewing a Martinez claim.  Essentially, what does cause and prejudice mean when a petitioner relies upon ineffective assistance of post-conviction counsel to overcome a procedural default?  Even for a habeas-lover like me, it’s a pretty gnarly opinion.  There’s multiple layers of deficient performance analysis stacked on top of “but for” causations, that it’s a real challenge to follow.  And what makes it even harder to follow is that it was not really presented in a true majority opinion.  So the wrinkled question after Detrich was, does Judge Fletcher’s opinion, which was not joined by a majority of the en banc panel, now set forth the proper analysis for Martinez claims in the Ninth Circuit? 

The Ninth Circuit answered that question last week in a case called Claibourne v. Ryan.  Using a novel approach for the Ninth Circuit (which it adopted from other circuits), the court simply counted votes on the relevant issues, including the dissent votes, to see what conclusion got the most number of votes. 

It came out like this.  Two good results for habeas petitioners, one bad one: 

(1) where it is necessary to consider whether a procedural default should be excused under Martinez in a case where the district court’s holding that there had been a procedural default preceded Martinez, and the result is uncertain, we should remand the matter to the district court to let it to conduct such a review in the first instance, if the result is uncertain.   Good result.

(2) to demonstrate “cause” – the first part of the showing of “cause and prejudice” required in order to excuse a procedural default under Coleman – the petitioner must show that his post-conviction relief counsel was ineffective under Strickland.  This is the bad one and is different from what Fletcher wrote in the main opinion in Detrich.  What this one means is that a petitioner must show that post-conviction's counsel was defective and that the outcome of the post-conviction proceedings would have been different.

(3) “prejudice” for purposes of the Coleman “cause and prejudice” analysis in the Martinez context requires only a showing that the trial-level ineffective assistance of counsel claim was “substantial.”  Good result.

The other Martinez en banc opinion was Dickens v. Ryan.  That case didn’t spend too much time on the Martinez standard, but instead focused on when a petitioner can use Martinez to overcome a procedural default.  It boiled down to this: if a petitioner presents new evidence to a federal court to improve a claim that had been previously presented to the state court, does that make the claim in the federal petition an unexhausted “new” claim such that a petitioner can rely upon Martinez to overcome the procedural default that he would inevitably face in state court if he attempted to raise the new claim?  The Dickens opinion says yes.  It's a great opinion for habeas petitioners.

My favorite part about the opinion was its language about Martinez vs. Pinholster.  Long-time readers will know that this has been a favorite issue of mine for awhile.  It’s also something that Alex has written about on here.  The Ninth Circuit makes quick work of it. And the winner is . . . Martinez!  Here’s the relevant discussion:

We reject any argument that Pinholster bars the federal district court's ability to consider Dickens's “new” IAC claim. The state argues that the district court cannot consider new allegations or evidence proffered for the first time to the district court. In Pinholster, the Supreme Court made clear that a federal habeas court may not consider evidence of a claim that was not presented to the state court. 131 S.Ct. at 1398. However, this prohibition applies only to claims previously “adjudicated on the merits in State court proceedings.” Id. at 1401; see also 28 U.S.C. § 2254(d).

Pinholster does not bar Dickens from presenting evidence of his “new” IAC claim, because the claim was not “adjudicated on the merits” by the Arizona courts. While the Arizona courts did previously adjudicate a similar IAC claim, the new allegations and evidence “fundamentally altered” that claim, as discussed above. See, e.g., Aiken, 841 F.2d at 883. Pinholster says nothing about whether a court may consider a “new” claim, based on “new” evidence not previously presented to the state courts. See 131 S.Ct. at 1401 n.10. Indeed, the Pinholster court expressly declined to “decide where to draw the line between new claims and claims adjudicated on the merits.” Id. Thus, Pinholster does not affect earlier cases like Vasquez, Aiken, and Nevius, or a federal habeas court's ability to consider new evidence where the petitioner successfully shows cause to overcome the procedural default. 

Short and sweet. And patently logical.

What’s the wrinkle in this case?  Well, soon after the opinion was issued, the petitioner died.  En banc opinions are beginning to look cursed, huh?  As a result of the death, the State moved to vacate the opinion.  Earlier this week, the Ninth Circuit denied the motion stating:

[J]udicial precedents “are not merely the property of private litigants,” but are “valuable to the legal community as a whole.”  . . . The precedent set by the en banc panel in this case will undoubtedly affect cases now pending before this court. We see no reason to undo this precedent and force future panels to duplicate our efforts by re-deciding issues we have already resolved within the contours of article III.

So Dickens remains good law.  And good law it is for habeas petitioners.

The en banc machine got kicked back into gear again this week.  The Ninth Circuit agreed to rehear en banc a capital case, McKinney v. Ryan, that raised the following issue: is an Eddings error structural or is it subject to harmless error?  An Eddings error occurs when a state court refuses to allow  certain mitigating evidence during the penalty phase because that evidence was not causally connected to the crime.  Eddings stated that all mitigating evidence must be considered (I hope I am getting this right, I am a non-capital habeas person).  For years, Arizona had violated this clearly established law.  For years, the Ninth Circuit found the error structural.  But recently, a panel found that an Eddings error was harmless.  The dissent in McKinney indicated that there was now an intra-circuit split on the issue and it should be heard en banc.  Ask and ye shall receive.

Finally, there is one other pending en banc case called Frost v. Van Boenning.  It was argued last June. Reviewing the en banc petition, it appears that the issues are very standard-of-review heavy that only a true devotee of habeas will appreciate. Here's the main issue from the petition: "The New 'Super AEDPA Requirement' of Factual Identity with Supreme Court Precedent Conflicts with Supreme Court and Ninth Circuit Decisions and Presents an Issue of Exceptional Importance."  That's an issue I have also complained about on here for years (I called it the "troubling trend").  And it's something that one of my former colleague's at Brooklyn Law School, Ursula Bentele, wrote about in depth. Frost is still pending.  More info on Frost here.

Alito and Error Correction

    By Alexandr Satanovsky

    Today's Supreme Court order list contained two written opinions by Justice Alito. The first was his Statement Respecting Denial of Certiorari in the non-habeas civil case of Martin v. Blessing, the second was his dissent from the denial of certiorari in the Sixth Circuit's Rapelje v. McClellan.

    Notably, in the former non-habeas case, Justice Alito concludes by emphasizing that he "do[es] not disagree with the Court’s refusal to review" because "we are not a court of error correction[.]" Indeed, Alito's unremarkable proposition tracks Supreme Court Rule 10, which outlines the "considerations" in whether to grant cert., noting that "misapplication of a properly stated rule of law" is of lowest priority.   Ironically, in the very next page in today's order--the first page of Justice Alito's dissent in McClellan--he faults the Sixth Circuit for its "serious misreading" of Richter, and faults the Court for leaving the decision "uncorrected." He concludes that he would "grant the petition and vacate the decision below because the Sixth Circuit made a severe error of federal law."

    So the question that should be resolved is whether and under what circumstances can the Supreme Court act as a court of error correction?  If practice is an indicator, error correction is often appropriate provided that the petition is from a decision of a federal appellate court, preferrably the Sixth or Ninth Circuit, that erroneously grants federal habeas relief.  It would just be really nice if this practice was codified, perhaps by a formal amendment to Rule 10.

 

Habeas Corpus - Previewing (kind of) the October 2013 Term - Updated

By JK

Next Monday, the Supreme Court is going to kick off its October 2013 Term.  And for the first time in a few years, it does not have any heavy duty habeas cases on the docket.  That could potentially change with the results from today's long conference (to be released on October 1).  

But for now, the Court only has two agenda-driven-Sixth-Circuit-error-correction cases on its habeas docket.  Both of these concern review of habeas grants out of the Sixth Circuit and both will get reversed.  The only question is whether any bad law for habeas petitioners, beyond the typical "no deference" analysis, will come with them.

Actually, I shouldn't be so negative.  Burt v. Titlow could expand upon Lafler in a positive way.  I guess we will see from the argument next week whether there is any chance for that.  Unfortunately, I am not sure that there is any hope in the Woodall case.  That looks like a standard 2254(d)(1) reversal.  But maybe that one can buck the trend.

Here they are (issues are presented as they are in the States' cert. petitions):

(1) Burt v. Titlow, 12-414

• To Be Argued 10/8/2013
• Issues: (1) Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in holding that defense counsel was constitutionally ineffective for allowing respondent tomaintain his claim of innocence; (2) whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea; and (3) whether Lafler v. Cooper always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.

(2) White v. Woodall, 12-794

• To Be Argued 12/11/2013
• Issues: (1) Whether the Sixth Circuit violated 28 U.S.C. 2254(d)(1) by granting habeas relief on the trial court's failure to provide a no adverse inference instruction even though the Supreme Court has not "clearly established" that such an instruction is required in a capital penalty phase when a non-testifying defendant has pled guilty to the crimes and aggravating circumstances; and (2) whether the Sixth Circuit violated the harmless error standard in Brecht v. Abrahamson in ruling that the absence of a no adverse interference instruction was not harmless in spite of overwhelming evidence of guilt and in the face of a guilty pleas to the crimes and aggravators.

UPDATE: The Court issued an order list from the long conference today and no cert. grants in habeas cases.  So it remains, for now, a relatively inactive habeas docket for the Court.

 

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.

 

Supreme Court Punts the Martinez / Pinholster Issue For Now (opinions in Schad and Gallow)

By Alexandr Satanovsky

[Reposted from 6/28 with stylistic edits, and updated below]

On Monday, the Supreme Court summarily reversed an evidentiary hearing order in Ryan v. Schad.  Notably, the Supreme Court did not reach the merits of Ninth Circuit's order remand: that an evidentiary hearing is appropriate to consider the impact of Martinez on a maldeveloped claim that was not procedurally defaulted.

The Supreme Court avoided two of the Warden's three questions presented, which also echo the chief legal grief expressed by the judges dissenting from the denial of en banc rehearing. 

Instead, the Supreme Court reversed the Ninth Circuit on a legal technically that was made available by the happenstance of Schad's procedural posture.  That is -- and this is somewhat complicated -- by the procedural background behind the merits of the remand order: (1) the adjudication was completed by February 28, 2012,* (2) Schad’s motion take advantage of the intervening case of Martinez came months after it could have been filed, and was ultimately denied, and (3) the Ninth Circuit seemed to sua sponte decide to reconsider that motion by means of construing another motion as a re-urging of the prior Martinez motion.  Bizarre.  All the while, the Ninth Cirucit refused to issue the mandate in light of what obviously seemed like a final judgment in the § 2254 proceedings.  The Supreme Court found that this ran afoul of its precedents on withdrawing (or withholding) the mandate after the completion of federal habeas proceedings in Bell v. Thompson, and Thompson v. Calderon.

* The PC opinion's procedural history indicates that Schad filed a rehearing petition on that date, after the three judge panel refused to grant relief on the basis of Pinholster. There is no notation of a cert. off of that decision.

What this really means is that the Supreme Court chose to punt yet another** substantive and difficult legal question: whether a Martinez-type cause (an incompetent state collateral lawyer) may provide relief from the Pinholster limitation of federal fact development, and/or the § 2254(d) deferential review, in the same way as it provides relief from a procedural default. 

** See also Fisher v. University of Texas (punting the question of the legal availability of explicit affirmative action in education); Hollingsworth v. Perry (punting the question of the extent of the Fourteenth Amendment's limitation on exclusion of same-sex marriage)

UPDATE (6/29/2013):

Denying cert. in Gallow v. Cooper, the Supreme Court indicated that the Martinez-Pinholster issue is not quite ripe for its determination.  The denial was accompanied by a two-page statement of Justice Breyer (joined by Justice Sotomayor).

Justice Breyer endorses balancing the Martinez-Pinholster equities by construing the procedural default doctrine in a broader, more functional and less formalistic manner. Under this approach, a claim is procedurally defaulted when a petitioner, although technically pleads the claim, "fail[s] to obtain a hearing on the merits . . . because state habeas counsel neglected to 'properly presen[t]' the . . . claim in state court."  

 It seems to me, this will require the Supreme Court to revisit yet again the scope of an "adjudicat[ion] on the merits" for purposes of § 2254(d), as well as the issue of what judicial actor gets to decide whether a claim was adjudicated on the merits..

For example, consider a situation involving a claim "pled" in state court, but so poorly that the it is doomed for all intents and purposes. If the state court says it is denying the claim "on the merits," does it really? Does that statement automatically bind federal courts to § 2254(d) and Pinholster limits on review? The most equitable answer is surely no. A state court should not have unfettered authority to say magic words to invoke the cloak of § 2254(d) and Pinholster. Instead, whether there was a merits adjudication of a claim, within the definition of the federal statute--§ 2254(d)--should ultimately be an objective question of federal law, to be decided by a federal court. If--in light of the state court habeas rules, pleadings and evidence proferred--the claim is insufficiently pled to warrant relief, a federal court should not conclude that it was adjudicated on the merits, no matter what the state court says. To be sure, state courts often deny claims on the merits in the alternative to an obvious procedural bar such as abusiveness or untimeliness. But that is unremarkable, so long as the defaulted claim was sufficiently pled for genuine merits determination.

On the other hand, Justice Breyer's statement makes no pass at the notion that, if there is no doubt as to an adjudication on the merits under § 2254(d), a federal court may use Martinez to bypass the required deferential review.  As I discussed previously, because § 2254(d)--unlike the procedural default doctrine--is a statutory command, a federal court has very limited ability to recognize equitable exceptions. 

Habeas Corpus - Relist Watch

BY JK

As much as I hate to bump Matt's awesome post about the Lopez case from the top of the blog, I did have a few minutes and wanted to mention something from this week's SCOTUSblog's relist watch.

A couple of months ago, I mentioned the Martinez v. Pinholster battle going on in the Ninth Circuit.  It came to a head in a case called Schad v. Ryan, where a bunch of conservative judges issued an opinion dissenting from the denial of rehearing.  

Relist Watch on SCOTUSblog indicates that the cert. petition in Schad (now known as Ryan v. Schad) has been relisted several times.  Here's what RW say about it:

So as not to disturb the fundamental rule of nature that as the number of relists approaches four, at least one has to be a habeas case, the Court relisted Ryan v. Schad, 12-1084, yet another state-on-top habeas case out of the Ninth Circuit, and with a long pedigree to boot:  It was relisted in the early days of Relist Watch, and then GVR’d a couple years ago in light ofCullen v. Pinholster.  In its current form, a panel majority consisting of Judges Schroeder and Reinhardt reconsidered the prior denial of Schad’s latest GVR request, and ordered the case to be sent back to the district court for reconsideration of “new evidence” relevant to his ineffective-assistance-of-counsel claim in light of Martinez v. Ryan.  The Ninth denied rehearing en banc, with eight of the court’s more conservative judges dissenting.  Can’t imagine why this has caught the Court’s attention.

To note, two weeks ago, Alex wrote about a different cert. petition, in Gallow v. Cooper that raises a similar issue.  As Alex indicated in his post, the resolution of the tension between Martinez and Pinholster seems inevitable.  Will it be in one of these two cases?



Habeas Corpus - Supreme Court Provides Innocent State Prisoners a Glimmer of Hope

By JK

Last week, in a 5-4 decision, the Supreme Court decided McQuiggin v. Perkins.*  The Court held that a Schlup gateway “actual innocence” showing can overcome the one-year statute of limitations time bar. Ginsburg wrote the (nice) majority opinion and Scalia wrote the (troubling) dissent. 

*As I was adding the link, I just realized that McQuiggin (kind of) rhymes with Chief Wiggum. Can't say that about the parties in too many S.Ct. decisions.  Alas, the shorthand for the case technically should be Perkins, as McQuiggin is the name of the warden.  I am guessing, though, that more people will refer to this case as "McQuiggin" rather than "Perkins".

The majority's opinion is a satisfying result for habeas fans.  It’s completely consistent with the equitable principles of habeas law. It’s also consistent with the way that the rest of habeas law is structured, as an actual innocence claim can be used to overcome any other procedural shortcoming.

Important to note what exactly the Court did hold here: there is an actual innocence exception to the statute of limitations.  It stands on its own as it's own procedural thing. As a habeas attorney pointed out to me at one point, the petitioner in this case mistakenly argued that actual innocence could be ground on which the time limit could be equitably tolled. But that’s not what’s going on here. Equitable tolling is one exception. Actual innocence is another. They are now two separate exceptions available to a habeas petitioner. A petitioner can rely on actual innocence to get over the timeliness hump even if there are no grounds to equitably toll the limitations period.

Another important part of the opinion was that the Court concluded that, unlike equitable tolling, there is no diligence requirement. Rather, any argument about the staleness of the innocence evidence or the length of time it took a petitioner to either find the evidence or present it to a court is simply a factor to weigh in determining the strength of petitioner’s claim of actual innocence. In fact, as the Sixth Circuit held below, a diligence requirement for this type of claim is completely illogical. It was really nice to read the Court actually agreeing with something the Sixth Circuit had said.

One interesting note is that the petitioner won on the law, but lost the case. The Court deferred to the district court’s conclusion that his showing was insufficient to meet the Schlup standard. As a lawyer, it’s an odd feeling to get this type of opinion. You feel good that you were right on the law, but you feel horrible that you lost the case. And the loss dulls whatever excitement you may have had that you were right. At least short term. With some perspective and time, it becomes easier to say that at least I made good law for other people, even if it didn’t help my client. It’s probably toughest on the ego, though, as it actually does count as a loss.

Speaking of the loss column, let’s talk about the dissent. It really is a p.r. disaster for the anti-habeas crowd. It’s a tough sell to a lay person that it's okay for someone who can prove their innocence to have to rot in jail. I have seen many people in the media frame it that way. It just makes these judges appear cruel. I guess you have to hand it to the dissenters, they don’t care about how they look in the public eye.  But it’s exactly what I felt when Scalia dissented from the denial of cert. in Cash v. Maxwell (one of those cases where the system clearly went horribly off the tracks) – is this really a situation where the judges want to take a stand against the habeas petitioner? The equities clearly are on the side of the petitioner.

But beyond the p.r. mess, I didn’t really find the arguments in the dissent that persuasive. Scalia’s main claim is that this is the first time that the actual innocence exception has been applied to a statutorily created procedural hurdle, as opposed to a judge-created procedural hurdle. It boils down to an accusation of judicial activism. But it’s a pretty hollow complaint. While his argument, on its own terms, is hyper-technically accurate, it’s not really accurate in the grand scheme of things. Exhaustion is part of the statute, and actual innocence can be used to overcome a procedural default along the way to exhausting a claim. While one step removed, it’s really not that different logically. And of course the irony is that the Supreme Court has been highly active for years in creating procedural rules that don’t exist in the statute. Because equity and fairness (in most situations to the State and its courts). But these concerns obviously can go in the other direction, and the majority was relying upon these principles to make a ridiculously harsh statute more equitable.  

To note, Scalia even has to acknowledge that the Court has already created an exception to the statute of limitations, namely equitable tolling. He differentiates it from actual innocence in that equitable tolling has been around for a long time. Yawn. The actual innocence exception to overcome procedural hurdles has been around for years, and is as old as many of the procedural hurdles that the Court has created. Further, innocence has always been at the heart of modern habeas law – meaning for over 60 years. And, once again, equity and fairness. That’s why equitable tolling typically is allowed for a statute of limitations. It’s the exact same reason the actual innocence exception has now been allowed by the Court in the habeas context -- the imprisonment of an innocent person is one of the greatest inequities that our society faces.

But I haven’t even reach the real cynical part of the dissent. For years, I have been joking on here that much of what the Court does seems to be motivated by nothing more than hatred for habeas corpus. I thought it was only hyperbolic. Turns out it was true.  

At the end of the dissent, Scalia launches into an anti-habeas diatribe (so extreme that Alito won’t even join it). He states:

It has now been 60 years since Brown v. Allen, in which we struck the Faustian bargain that traded the simple elegance of the common-law writ of habeas corpus for federal-court power to probe the substantive merits of state-court convictions. Even after AEDPA's pass through the Augean stables, no one in a position to observe the functioning of our byzantine federal-habeas system can believe it an efficient device for separating the truly deserving from the multitude of prisoners pressing false claims. "[F]loods of stale, frivolous and repetitious petitions inundate the docket of the lower courts and swell our own. . . . It must prejudice the occasional meritorious applicant to be buried in a flood of worthless ones." Id., at 536-537.

The "inundation" that Justice Jackson lamented in 1953 "consisted of 541" federal habeas petitions filed by state prisoners. Friendly, Is Innocence Irrelevant? Collateral Attack on Criminal Judgments, 38 U. Chi. L. Rev. 142, 143 (1970). By 1969, that number had grown to 7,359. Ibid. In the year ending on September 30, 2012, 15,929 such petitions were filed. Administrative Office of the United States Courts, Judicial Business of the United States Courts 3 (Sept. 30, 2012) (Table C-2). Today's decision piles yet more dead weight onto a postconviction habeas system already creaking at its rusted joints.

Talk about blaming the victim. The only reason that habeas is somehow “creaking at its rusted joints” is because Justice’s like Scalia broke it with those “byzantine” procedural hurdles. It’s like the current Republicans in Congress complaining that government doesn’t work after they cut the funding necessary to make the Government work.  

Really, he is just unhappy that the Court breathed a small bit of life into habeas. And it really is a very tiny bit. But at least it’s something.

I’ll just close by saying this: This blog has been around for over four years now and we have seen plenty of examples on here of why habeas review remains a vital and necessary element of the criminal justice system. And contrary to what Scalia suggests, I will say as a full-time habeas litigator that meritorious habeas cases are not prejudiced from a flood of stale habeas petitions. Not in the least. They are prejudiced – solely – from the harsh standards of the AEDPA, which has ensured that many constitutional violations do not get remedied.  Get rid of the AEDPA and you will see a miraculous disappearance of, not just the creaking, but also the rust from the joints -- and fast.  If only Billy Mays was still around to sell this simple remedy.

  

Martinez v. Pinholster: Coming to SCOTUS Soon?

By Alexandr Satanovsky

When a Strickland-deficient state postconviction lawyer fails to raise a substantial ineffective assistance of (trial) counsel ("IATC") claim, the federal courts will excuse the default in habeas. But what if the state lawyer does fairly present the IATC claim, but loses after shamelessly failing to develop the factual basis? This is the "Martinez v. Pinholster" tension, which JK discussed a few months ago, now percolating in some federal courts of appeal.

The eventual Supreme Court resolution of this conflict seems pretty inevitable, and some tea leaves may appear very soon: This very question* is presented in Gallow v. Cooper, a noncapital, state-on-bottom cert. petition out of the Fifth Circuit.  It is noteworthy because it is now scheduled for its fifth cert. conference, which is very rare and typically indicative of something brewing.  

* Gallow presents the following question: "Can a federal court consider new evidence to support a state prisoner’s application for habeas relief under 28 U.S.C. §2254(d), when the state court record was not developed as a result of incompetent and likely conflicted post conviction counsel[?]"

Curiously, neither the parties' briefing nor the opinion below engage the biggest knot in the Martinez-Pinholster dispute: whether the Supreme Court has the authority to carve out common-law equitable exceptions to statutes, and if so, whether it can recognize an exception that was not in the common law at the time the statute was enacted, and whether it can be predicated merely on an attorney's deficient performance, as opposed to a traditional and more compelling basis like miscarriage of justice.

The difference is with the nature of the limitation that the prisoner seeks to overcome: procedural on one hand, and the §2254(d) inquiry on the other. The former is a court-made common law doctrine intended to promote comity and respect valid state procedural rules. The latter is a statutory command, which significantly limits the Supreme Court's authority to craft exceptions. The closest authority discussing Court-made exceptions to a statutory command are Holland v. Florida and McQuiggin v. Perkins, both concerning the Congress-enacted statute of limitations.  In each case, the Court justified its exception (equittible tolling for extraordinary circumstances, and actual innocence, respectively) by noting that it was established in the judicial common law against which Congress drafted the statute; if Congress sought to abrogate the equitable exception, it would have been more explicit. In this case, the problem is different: the Martinez exception neither implicates a miscarriage of justice nor was established at the time Congress drafted §2254(d). 

I don't think anyone would disagree that, as a matter of policy and equity, a petitioner whose deficient state collateral lawyer failed to raise an IATC claim should be treated differently from one whose lawyer raised (and lost) an inexcusably maldeveloped claim. Both are victims of their respective state lawyers' incompetence, but for the former Martinez will provide the windfall of de novo federal review, while for the latter, because of a state court ruling on the merits, there is neither de novo federal review nor even deferential review aided by more facts. 

Perhaps there is a better way for the Supreme Court to resolve this inequity without mechanically recognizing an "exception" per Martinez. Martinez works against a judicially-crafted bar (procedural default), but if recent cases are any indication, it will not fare so well against a statutory limit (§2254(d), as interpreted by Pinholster). 

To harmonize the equities of Pinholster and Martinez, the Court could provide more clarification to the amorphous language in §2254(d)(1)-(2): What exactly is a "claim adjudicated on the merits"?  What can make for an "unreasonable" determination of the facts, or an "unreasonable" application of Strickland? For example, the Court could hold that it is "ureasonable" for a state court to evalute the the merits of a fact-intensive IATC claim on poorly developed pleadings. Alternatively, as alluded to in Pinholster, the Court could clarify what constitutes a "claim" under §2254(d), and hold that whenever the factual grounds in a federal pleading are different enough to create a substantial chance of being outcome-determinative compared to facts pled in state court, then the federal pleading is a new claim, to be analyzed under Martinez. Ultimately, even if the equitable principles embodied in Martinez may not justify a court-decreed exception to a clear statutory provision, they are quite persuasive for a court's interpretion of an ambiguous statutory provision.

Or, of course, there is one solution that is the simplest of all: the Court could revisit what it chose to punt in Martinez, and hold that prisoners have a federal constitutional right to counsel in all initial-review proceedings. This approach, plainly it seems to me, would compel that §2254(d) limits be bypassed upon a showing that a constitutional violation tainted the state court's adjudication.

*    *    *

So what is the deal with Gallow?  My prediction is that the Court will deny certiorari, possibly with dissenting and concurring opinions. This is a prisoner's cert. petition, and there is absolutely no chance of a summary reversal that would necessarily alter the Pinholster'd §2254(d) review. The Martinez-Pinholster resolution will come eventually, likely after more courts of appeals flesh out these difficult issues, which the Fifth Circuit surely did not in Gallow.