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Habeas Delays


In 2004, Congress enacted a victims' rights statute for federal criminal cases, 18 U.S.C. § 3771. Among the rights are, in subd. (a)(7), "The right to proceedings free from unreasonable delay." Unlike many victims' rights statutes, this one actually has an enforcement provision, with a procedure for a petition for writ of mandamus by the victim in the event rights are denied and a 72-hour deadline to decide the petition.

On October 20, the Ninth Circuit announced proposed rules for a special caption on any such petition and notice by telephone, to help it comply with the 72 hour requirement. The proposed rules have a short comment period, ending November 3.

The rules are sensible, but why the rush now, when this statute has been in effect for two years? Well, it just might have something to do with the Adam Walsh Child Protection and Safety Act of 2006, Public Law 109-248, § 212 (July 27, 2006), which extends both the right and the remedy to habeas corpus proceedings. The right is actually not new in capital cases, as the Supreme Court set down a rule almost 15 years ago, "In a capital case, the grant of a stay of execution directed to a State by a federal court imposes on that court the concomitant duty to take all steps necessary to ensure a prompt resolution of the matter, consistent with its duty to give full and fair consideration to all of the issues presented in the case." In re Blodgett, 502 U.S. 236 (1992). However, in the Ninth Circuit, this rule has not been honored in the breach, and there has been no observance. Could it be that now that Congress has enacted a rule with some teeth, they are anticipating a flood of mandamus petitions? Might that anticipation be the result of awareness that they have been flouting the Blodgett rule the whole time?

Meanwhile, back at the ranch, the Stockton Record reports that the judge in the Michael Morales injection case has granted an extension to Morales's lawyers, further delaying justice in a case where it is already two decades overdue.


The Ninth isn't the only offender. The Cooey v. Taft (lethal injection in Ohio) litigation has been going on for years.

This observation may be off-base, but one thing that this statute might help with are ping-pong cases, where a habeas case is reversed and remanded for reconsideration.

I wonder if someone will be filing a mandamus petition to get the Ninth to decide the Kevin Cooper case. After all, justice in that case is well overdue.

Richard Cooey was scheduled to be executed on July 24, 2003. Six weeks before that, the Sixth Circuit removed Cooey's then counsel, one of them being Margery Koosed, then and now a professor with the University of Akron (Ohio) School of Law. Koosed and Nathan Ray had been removed due to the "court's dissatisfaction with both the quality of the appellate briefs and the oral argument [by Koosed] in Cooey v. Coyle and the amount of attorney's fees which were paid for Mr. Cooey's representation." Cooey v. Bradshaw, 338 F. 3d 615, 618-620 (2003)(Boggs, dissenting).

At the behest of Cooey's new attorneys, the District Court stayed the execution, so that the performance of his former attorneys could be evaluated.

During downtime afforded him by the reevaluation process, Cooey tried to escape, making it only as far as prison grounds outside the rec yard. The story, as reported in University of Akron newspaper, The Buchtelite, Vol. 123, Issue 11, Thursday March 3, 2005, goes on as follows: "Cooey and Maxwell White used black tape, bed sheets and newspaper to make a ladder for their attempted escape. Electrical tape and a sewing kit were also found on the inmates after their break-out attempt. Koosed [Cooey's former counsel] tried to take black electrical tape and a sewing kit into the prison the day before Cooey's attempted escape, according to prison reports. She was unable to take the items in." (Article headlined: "Prison Bans Law Prof", and subtitled "Margery Koosed not allowed to visit killer who attempted prison escape".

Although his new attorneys got his lethal injection litigation under way on December 8, 2004, Cooey v. Taft et al, Case No. 2:04-CV-01156, USDC SD Ohio, "Rick" (as Koosed likes to call him) must have lacked confidence in the new Team Cooey, because he and death row buddy Maxwell White made their break out attempt on February 3, 2005.

All of this background was necessary to correct a misunderstanding by federalist. Cooey's lethal injection litigation has not "been going on for years." It's only been going on for 1 year, 10 months and 2 weeks.

Middleamerican, thanks, I stand corrected.

Does "Rick" get a do-over for his habeas litigation on top of all this?

After the Sixth Circuit fired Nathan and Professor Marge for arrogant obfuscation, Rick's new attorneys received a stay of execution 12 hours before it was to occur, to afford Rick time to file a "do over" (that's a 60 (B)motion for the habeas nerds in the audience).

Relative to the do over, Rick's new attorneys were unable to articulate exactly why Rick should get his do over, because his first set of attorneys had made such a mess of things. But, the new Team Cooey was sure that somewhere in the boxes and boxes and boxes of paper, a viable claim must be hiding. They searched diligently for 2 years and 2 months (10-09-03 to 12-06-05, Cooey v. Anderson, USDC ND Ohio). The new Team Cooey thought they'd found lots of viable claims that had been skipped over by Professor Marge and Nathan.

The District Court disagreed, and denied Rick's do over, and did not grant a COA. Rick asked the Sixth Circuit for a COA on the do over denial, and they said no. (For the non-habeas nerds in the audience, this means that Rick's do over was an obvious waste of time, for everybody except Rick.)

Rick and the new Team Cooey might have suspicioned that the do-over was tanking, because they got the lethal injection litigation rolling well before the do over got squashed. Has it been mentioned that Rick filed his habeas petition in federal court on October 2, 1996?

What did Rick do to land himself on death row? While on leave after US Army basic training, Rick and his buddy disabled a car occupied by two college girls coming home from their waitressing jobs. Rick and his buddy kidnapped and raped them, while listening to their "Bad Company" cassette tape. In his confession to police, Rick said the girls wound up dead because he was concerned that his buddy wanted to kill them, so Rick pretended to kill them so that his buddy wouldn't actually kill them. Something went wrong and the girls wound up dead.

None of this was sufficiently troublesome to Professor Marge, who found it necessary to bring with her a sewing kit and electrical tape to her prison visit with Rick, who coincidentally was caught the next day over the prison fence with electrical tape and a sewing kit, but not the ones Professor Marge had the day before, because the prison people wouldn't let her take those items in for her visit with Rick.

Cooey should have been executed years ago. A 10 year habeas case, after AEDPA? I hope the Adam Walsh Act will help on that front and that breathing into life into the Blodgett rule helps otherwise.

Perhaps someone ought to cite Blodgett to the good Judge Frost. But he's too busy blaming the state for filing interlocutory appeals and making statements about society benefiting from allowing litigants who have slept on their rights to vindicate them.

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