Recently in Habeas Corpus Category

One of the reasons that the U.S. Court of Appeals for the Ninth Circuit is so often reversed by the Supreme Court (and often summarily, unanimously, with a harsh rebuke, or all of the above) is that the full court chronically fails to correct the errors of rogue panels when they favor a state prisoner, especially in capital cases.

Last December I noted that a 2-1 majority of a 3-judge panel (Thomas and Reinhardt, Kozinski dissenting) had overturned yet another death sentence, after four previous reviews of the case by other courts had found no reason to disturb the judgment.

Today, wonder of wonders, the Ninth agreed to rehear the case pseudo-en-banc, i.e., before an eleven-judge panel comprised of the chief judge and ten randomly selected judges.  Unfortunately, the automatically selected chief judge is the author of the erroneous opinion, so Arizona will need to draw six persons of sense out of ten.  That is less than even money in the Ninth, but not out of the question.  We do know that a majority of the pool voted to rehear the case.
Rory Little has this summary at SCOTUSblog of the criminal and related cases for the coming Supreme Court term.  What I found most interesting, though, is what is not there.  Not a single case of a state prisoner challenging his conviction or sentence in federal court has been scheduled for oral argument next term.

The full list of cases taken up for the next term so far is here.  Not a single "CFH" on the list.  There are two "CSH" cases, where the Supreme Court has taken a habeas corpus (or equivalent) case directly from the state courts.  There are four "CSY" cases, straight criminal appeals from state courts.  (Two of these arise from the same case, and a third presents a common question with the two.  CJLF has filed a single brief in all three.)  There are three "CFY" cases, federal criminal appeals.

Federal habeas for state prisoners lies at the crossroads of federalism, criminal law, and protection of individual rights, and that intersection has been the site of many collisions.  It has occupied a disproportionate amount of the Supreme Court's docket for many years.  Maybe not this year.

There are, of course, many more cases to be added.  Daniels v. Webster, discussed in this post by Ian Sonego, is a federal-prisoner habeas case that is highly likely to be added to the docket.

In addition to argued cases, there are summary dispositions, and chastising federal courts that just can't stand the fact that Congress took them down a peg in 1996 will doubtless be among those.  Even so, this could be the lightest term for state-prisoner federal habeas in some time.

As Rory notes, the reason for the Supreme Court to take criminal and habeas cases directly from the state courts is to get straight to the underlying issue without dealing with the limitations placed on the federal habeas remedy by Congress or the Supreme Court itself.  Perhaps the Court believes that the major questions of habeas procedure and limitations have largely been addressed and wishes to devote more attention to the underlying criminal law and procedure questions.
Is it a crime for a governor to threaten to veto a funding bill because he does not believe the head of the office being funded can be trusted to use the money appropriately?  Of course not.  We elect governors and other officials to make such judgments.

Yesterday, the Texas Third Court of Appeals threw out one of the charges brought against former Governor Rick Perry.  This WSJ editorial summarizes the case:

A special prosecutor in notorious Travis County essentially charged Mr. Perry for exercising his constitutional right to oppose and veto an act of the legislature. Mr. Perry threatened to veto a funding bill for the Travis County District Attorney's Public Integrity Unit unless D.A. Rosemary Lehmberg resigned. She had been arrested and pleaded guilty to drunk driving, but she refused to resign and Mr. Perry followed through with the veto. The charges boil down to criminalizing routine political debate and controversies.
The procedural mechanism invoked by Perry is a pretrial writ of habeas corpus.  Under Texas case law, this procedure can only be used for facial challenges to statutes, not "as applied" challenges.  The Court of Appeal held that the Coercion of Public Servant statute was unconstitutional on its face.  It regulates speech, and its prohibition of threats is not limited to "true threats" within the meaning of the U.S. Supreme Court cases on that point.

Perry's challenge to the charge of Abuse of Official Capacity is not cognizable in this proceeding, so that one will have to be thrown out at some point down the line.

Guest post by Ian Sonego:

The en banc Seventh Circuit has ruled 6-5 that a federal prisoner under a death sentence may circumvent the prohibition upon successive collateral attacks in 28 U.S.C. § 2255(h), which is similar to 28 U.S.C. § 2244(b)(2)[limiting successive habeas petitions filed by state prisoners in federal courts], by filing a habeas petition under 28 U.S.C. § 2241 in the district where he is incarcerated instead of the district where he was convicted and sentenced. Webster v. Daniels, 784 F.3d 1123 (7th Cir. May 1, 2015)(en banc)(No. 14-1049).

Federal prisoners under death sentences are incarcerated in the federal prison in the State of Indiana, which is within the Seventh Circuit.
Judge Alex Kozinski has a preface to the current issue of Georgetown Law Review that has been the subject of much discussion.  Eugene Volokh has reproduced it, minus the footnotes, in a series of posts at the Volokh Conspiracy.  The first one is here.  Volokh describes Kozinski as a "conservative" in the title of the initial post and a "libertarianish conservative" in the text, but lately he has been more libertarian than conservative, at least in criminal law.

Reading the brief segment on habeas corpus, and specifically on the "deference" standard of 28 U.S.C. § 2254 (in this post on VC), I thought of our old friend the elephant in the living room.  That is the huge problem that everyone knows about and no one wants to talk about, so they talk about other things.

Here is the Volokh version (sans footnotes) in the indented block quotes with interlaced comments by your humble blogger.  AEDPA refers to the Antiterrorism and Effective Death Penalty Act of 1996.

Prior to AEDPA taking effect in 1996, the federal courts provided a final safeguard for the relatively rare but compelling cases where the state courts had allowed a miscarriage of justice to occur.
Cases where the federal courts prevented a miscarriage of justice were rare.  But what about the cases where the federal courts caused a miscarriage of justice?  That is the elephant in the living room.  Are you going to address that?  Are you even going to mention it?

Harmless Error

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What does it mean that an error is harmless?

Well, here is what seems to be a pretty good example.  Suppose a jury is told that the perpetrator's DNA matches the defendant's, and that the chance of that being a coincidence is 1 in 43,000,000,000,000,000,000,000.  Later, an error is discovered in the database from which that figure was generated.  It should have been 1 in 40,000,000,000,000,000,000,000. Does that matter?  Either one equals waaaaaaay less than reasonable doubt.

If I understand this AP article by Michael Graczyk correctly, that is the claim that caused the Texas Court of Criminal Appeals to stay the execution of Clifton Lamar Williams for the brutal beating, stabbing, and arson death of Cecelia Schneider, 93, of Tyler, Texas.

Still, to the extent there is any confusion on an issue affecting the actual guilt determination, it is right to be super careful.  On the other hand, we should have a rule against last-minute stays on issues that have nothing to do with guilt, say no less than 30 days before the execution.

Oral Argument in Jones v. Davis

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USCA 9 has scheduled oral argument in Jones v. Davis for August 31 at 9:30 in Pasadena.  We don't know who the panel is yet.

This is the case where a federal district judge in California said that because the opponents of the death penalty have been successful in obstructing the will of the people they now get to throw it out altogether.  See prior posts:

August 21, 2014, with links to earlier posts.

Jones v. Chappell Appeal, August 26, 2014

Jones v. Chappell Brief, December 2, 2014

CJLF Brief in Jones v. Davis, December 11, 2014

The panel is critical.  If we get a majority of persons of sense, the decision will be reversed at this point.  If not, we will have to go higher -- possibly (but not likely) the Ninth Circuit pseudo-en-banc, and failing that to the Supreme Court.  I am confident that the Supreme Court will take the case and reverse if it comes to that, but hopefully we will get a reversal earlier.
In Davis v. Ayala, the Supreme Court today once again touched on the question of how the habeas corpus reforms enacted by Congress in 1996 interact with the limitations created in case law in the two decades prior.

Ayala claimed that the prosecution exercised peremptory challenges of jurors based on racial bias.  The trial judge permitted the prosecutor to state his legitimate reasons for the challenges to the judge, without the defense attorney present, and rejected the defense's claim.  On appeal, the California Supreme Court said that it was error under state law to exclude the defense.  It did not answer the question of whether that was a federal constitutional error because, if it was, it was harmless beyond a reasonable doubt, the standard required on direct appeal under Chapman v. California.  That is, the record was sufficiently developed that the court could say it would have made no difference if defense counsel had been in the room.

Three years before AEDPA, when federal courts in habeas corpus were still redeciding from scratch issues already fully considered by the state courts, the Supreme Court decided in Brecht v. Abrahamson that a judgment would not be overturned on collateral attack unless there was actual prejudice.

With the enactment of AEDPA and the "deference" standard, should a federal court decide (1) if the state court's "beyond a reasonable doubt" holding was "reasonable"; (2) if there was "actual prejudice" under Brecht; or (3) both?


From the Answers to Questions Practically No One Is Asking File ... Did a statute enacted almost 20 years ago abrogate a Supreme Court decision rendered almost 40 years ago with hardly anyone noticing, even though this involves a very heavily litigated area of law?  Nope, even the Ninth Circuit won't buy that.
Before a prisoner can file a habeas corpus petition in federal court collaterally attacking his state conviction, he must first exhaust all his remedies in state court.  See 28 U.S.C. §2254(b).  Additional rules governing federal habeas corpus require that the federal court look at why the state courts denied relief.

The "procedural default" rule says that if the prisoner failed to make his claim in the manner and within the time required by established state rules, and the state courts rejected his claim for that reason, the federal court cannot consider the claim either unless one of the exceptions to the rule applies.  (Actual innocence is an exception.)  What does the federal court do when the last state court decision simply says "denied" but an earlier decision has a full explanation?

Way back in 1991, in the case of Ylst v. Nunnemaker, CJLF helped establish the "look through" rule.  Is that rule still in effect?  The Supreme Court today turned down a case on that question, but Justice Ginsburg shared some thoughts on the question even while agreeing that this case was not the right vehicle to resolve it.

The John Doe Murderer

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Pseudonyms such as "John Doe" are sometimes used in court cases, usually to protect the innocent.  The Ninth Circuit recently issued an opinion in a capital case in which it referred to the murderer as John Doe, supposedly to protect him from victimization within prison.

But anyone who wants to know the name of the perp can find out easily.  Here are the first two paragraphs of the opinion from March 31:

In 1984, a house in California was burglarized and a number of items were stolen. K.H. and M.H. resided there with M.H.'s young children, a live-in babysitter, L.R., and her daughter. Petitioner John Doe,1 who was living at the time in a vacant house adjacent to the property, was arrested in connection with the burglary, but then released.

Soon after, while K.H. and M.H. were not at home, their house was burglarized again. L.R. was murdered, having been beaten, stabbed, and strangled. Her body was found supine on the bed in the master bedroom, with her hands bound behind her back. She was naked from the waist down, with her legs open, and a vibrator near her body. A number of items were stolen.
Go to Lexis, limit to California, and search for "babysitter & strangled & vibrator" and the California Supreme Court's opinion on direct appeal, with the perp's real name, pops up.  If you don't have Lexis or one of its competitors, the same can be done with Google Scholar case law.

Today the Ninth Circuit denied rehearing en banc and reiterated its reasons for the "John Doe."

Will the U.S. Supreme Court take the case?  It's an uphill battle to get them to take a pre-AEDPA, fact-bound, ineffective assistance case, but it's not out of the question.  The opinion is written by the frequently reversed Judge Reinhardt, and that's always a plus.
I am not making this up.  It's from PBS.


You gotta love the use of the word, "normally."
We continue to make small gains in the ability of victims of crime to have their voices heard in cases affecting the criminal justice system.  On March 12, I noted that the California Court of Appeal had rejected the attempt of the California Department of Corrections to throw out the suit of two victims' families to force it to adopt a lethal injection protocol.

Meanwhile, back in federal court, the fight continues over the attempt to squelch the federal "fast track" on capital habeas cases, the never-implemented major reform of the Antiterrorism and Effective Death Penalty Act of 1996.  Since USDoJ is not interested in fighting this as vigorously or expeditiously as is needed, I moved to intervene on behalf of Marc Klaas, the father of a murdered little girl.  Unsurprisingly, the other side's favorite district judge rejected the intervention motion, so I filed an appeal from that order plus a protective appeal from the injunction on the merits of the case. 

The capital defense lawyers, being represented contra bono publico* by the Orrick firm, moved to have the merits appeal dismissed before briefing.  Today the appellate commissioner denied that motion.  On its face, the denial is "without prejudice to renewing the arguments in the briefs," but since the whole point is to preclude the briefing, that is a win for the good guys.

Yet Another Summary AEDPA Reversal

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The U.S. Supreme Court has yet again summarily and unanimously reversed a decision of a federal court of appeals for failure to observe the limitation that Congress placed on its authority to second-guess decisions of state courts.

If two courts disagree on a question of law, which court's opinion should prevail?  Within the hierarchy of appellate review, the "higher" court's opinion prevails.  That is what we mean when say that questions of law are reviewed "de novo."  (For questions of fact, the judge or jury at trial gets broad deference.)

When a federal court considers the decision of a state court on habeas corpus, though, the situation is different.  A federal district court or court of appeals is not "higher" than the state supreme court in this sense.  Congress has never placed any federal court but the Supreme Court above the state courts in the sense of appellate jurisdiction.

So what do we do when a habeas petitioner claims in federal court that he is in jail illegally, but his legal argument has already been considered and rejected by the state court on appeal or state collateral review, and the U.S. Supreme Court has either refused or not been asked to review the state court's decision directly?  It's complicated.
Yesterday the U.S. Supreme Court took up once again the question of whether its decision in Miller v. Alabama, that LWOP sentences for under-18 murderers must be discretionary and not mandatory, applies retroactively to overturn sentences that were correctly decided on appeal under the law existing at the time.  The previous case on this question, Toca v. Louisiana, became moot when Toca's sentence was commuted. 

The new case is Montgomery v. Louisiana, No. 14-280.  This case is a better vehicle than Toca, as the facts are more typical of an LWOP case.  Montgomery murdered Deputy Sheriff Charles H. Hurt in 1963, when Montgomery was 17.  He could have been executed in the electric chair at the time, but the jury granted him leniency.

The question presented as phrased by the petitioner/defendant is, "whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison?"  The Court added its own question, "Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U. S. ____ (2012)?"

Note the "die in prison" phrasing.  Apparently death is no longer different.

My initial impression is that the answers are "no" and "yes."  Since the parties are agreed on the jurisdictional point, the Court may appoint an amicus to argue the "no."

In other action, Court decided two civil cases today.  Still waiting on the Facebook threats case, Elonis v. United States.  Possibly tomorrow.

Yesterday the Court turned down the Wisconsin voter ID case, Frank v. Walker, No. 14-803.

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