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Once More, Into the "Adequate State Grounds" Breach

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Finally, it appears that the United States Supreme Court is prepared to clean up one of the messier areas of its jurisprudence, the question of when a state procedural default rule is an "adequate" ground for decision, precluding federal review of the underlying question. That is, when a federal claim is denied in state court because the defendant did not raise it when, where, and how the state rule requires it to be raised, under what circumstances can a federal court address the claim anyway.

The precedents in the area have drawn fire from many directions over the years. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969), was trashed in Justice Harlan's separate opinion and the Wright & Miller treatise (v16B, ยง4026) and effectively overruled sub silento in Beard v. Kindler earlier this term. Henry v. Mississippi, 379 U.S. 443 (1965), was blasted in Justice Kennedy's dissent in Lee v. Kemna, 534 U.S. 362 (2002). The incoherence of the whole body of jurisprudence is alluded to in the Hart & Wechsler casebook as employing "varying rubrics" to describe what is inadequate (5th ed. at 557).

I've taken a few shots at it myself over the years, trying to get the high court to address it from the Michael Morales case in 1996 to Walker v. Martin this term.

The issue was presented in Philip Morris USA v. Williams, but the Court dropped-kicked the case. In Kindler, they addressed one narrow aspect but deferred a broader ruling to a later case.

Walker v. Martin, No. 09-996, certiorari granted today, is very likely that case.

The question presented in the state's petition is:

Under state law in California, a prisoner may be barred from collaterally attacking his conviction when the prisoner "substantially delayed" filing his habeas petition. In federal habeas corpus proceedings, is such a state law "inadequate" to support a procedural bar because (1) the federal court believes that the rule is vague and (2) the state failed to prove that its courts "consistently" exercised their discretion when applying the rule in other cases?

I added two questions in CJLF's amicus brief supporting the petition:

Should the varying rubrics used to express when a state procedural default rule is adequate be replaced with a single standard of fair notice of the rule and reasonable opportunity to make the claim?

On habeas corpus, as distinguished from direct review, does the adequacy inquiry provide sufficient marginal benefit to justify its litigation cost, or should it be abandoned altogether, recognizing that the cause-and-prejudice exception covers the relevant policy considerations?

The Court's simple order granting the petition limits the question to that stated in the petition, so we will have to decide what is "fairly included." Certainly, the question is broader than the one presented in Kindler, relating only to the old Sullivan nonsense that discretionary rules are per se "inadequate."

We have finally cleared the hurdle of getting the Court to take up the question.  Now the battle is to get the right answer.

This could be huge, especially for capital cases, even though Martin is not a capital case. By declaring most state rules "inadequate," the Ninth Circuit has been able to multiply the issues that can be litigated in federal habeas, slowing down the process and creating more opportunities to err in the murderer's favor.

The following order was issued last Thursday by the California Supreme Court in the case of notorious multiple-murderer Dean Carter. (See 36 Cal.4th 1114 and 1215 for the facts of the crimes.) The claims denied as untimely, successive, or because they should have been raised on appeal should all be off the table for federal habeas. They may be, if the Supreme Court decides Martin correctly and broadly.

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The petition for a writ of habeas corpus, filed June 22, 2007, is denied as follows.

All claims, except claims 5 and 16 (subclaim C), are denied on the merits.

All claims are denied as untimely with the exception of claims 1 (subclaim D (with respect to Jurors Cigainero and Ridge)), 2 (subclaims C (with respect to the allegations concerning Fetal Alcohol Syndrome) and D (with respect to allegations concerning Tulio's alibi)), 3 (subclaims B, C, D, and E (insofar as they relate to allegations concerning child abuse and Fetal Alcohol Syndrome)), 5, 8 (insofar as it relates to allegations concerning Fetal Alcohol Syndrome), 13, 16, and 17. (In re Robbins (1998) 18 Cal.4th 770, 799, fn. 21; In re Clark (1993) 5 Cal.4th 750, 782-787.)

Except insofar as they allege ineffective assistance of counsel, claims 1 (subclaims A and B), 6 (subclaims C.1-C.3, and D), 9, 10 (subclaims A-H), 11, 12 (subclaims B-C), 14, and 15 are denied on the ground that these claims were raised and rejected on appeal. (In re Harris (1993) 5 Cal.4th 813, 829-841; In re Waltreus (1965) 62 Cal.2d 218, 225.)

Except insofar as they allege evidence of child abuse and Fetal Alcohol Syndrome, claims 2 (subclaims B, C, E, F, and G), 3 (subclaims B, C, D, E, and F), 4, 6 (subclaims B, C.1, C.2, C.3, and D), 7 (subclaims B and C), 8, 9, 10 (subclaim F), 14 (insofar as it alleges the trial court should have instructed the jury not to consider the other crimes against Kim, Knoll, Mills, Guthrie, and Jennifer S. as evidence during the penalty phase), and 15 (insofar as it alleges petitioner was denied a full hearing on his motion to suppress) are denied on the ground that these claims were raised and rejected in petitioner's prior petition for writ of habeas corpus (S096874). (In re Clark, supra, 5 Cal.4th at p. 767; In re Miller (1941) 17 Cal.2d 734, 735.)

Except insofar as they allege evidence of child abuse and Fetal Alcohol Syndrome or that prior postconviction counsel was ineffective for failing to raise them, claims 1 (subclaims A, B, C, and D (insofar as it alleges Juror McAlpine improperly met with the other jurors after his dismissal)), 2 (subclaim D (insofar as it relates to third party culpability concerning the murder of Tok Kim), 10 (subclaims A, B, C, D, E, G, and H), 11, 12 (subclaims B and C), 14 (insofar as it alleges that several standard guilt phase instructions were erroneous), and 15 (insofar as it alleges that trial counsel provided ineffective assistance) are denied on the ground that they are successive, as they could have been raised in petitioner's prior petition for writ of habeas corpus (S096874) but were not. (In re Robbins, supra, 18 Cal.4th at p. 788, fn. 9; In re Clark, supra, 5 Cal.4th at pp. 767-768; In re Horowitz (1949) 33 Cal.2d 534, 546-547.)

Except insofar as they allege evidence of child abuse and Fetal Alcohol Syndrome or ineffective assistance of counsel, claims 1 (subclaim D (insofar as it alleges Juror McAlpine improperly met with the other jurors after his dismissal)), 6 (subclaim B), 7 (subclaim B), and 8 are denied on the ground that they could have been raised on appeal but were not. (In re Harris, supra, 5 Cal.4th at pp. 825 & fn. 3, 826-829; In re Dixon (1953) 41 Cal.2d 756, 759.)

Claims 5 and 16 (subclaim C) are denied as premature without prejudice to renewal after an execution date is set. (People v. Abilez (2007) 41 Cal.4th 472, 536; People v. Lawley (2002) 27 Cal.4th 102, 169, fn. 25.)

To the extent claim 12 (subclaims B and C) alleges insufficiency of the evidence, it is not cognizable on habeas corpus. (In re Lindley (1947) 29 Cal.2d 709, 723.)

To the extent claim 15 alleges a violation of the Fourth Amendment, it is not cognizable on habeas corpus. (In re Sterling (1965) 63 Cal.2d 486, 487.)

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The court granted a motion to file cert under seal and with redacted copies to the public. Now what is that about?

http://goo.gl/NAGm

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