Recently in Habeas Corpus Category

CJLF Brief in Jones v. Davis

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CJLF has filed an amicus brief in the case where a federal district judge ruled that the long delays in executing murderers in California are a violation of the defendant's rights.  The delays are a violation, of course, but not of the defendant's rights.  The delays are a violation of the rights of the victims, which includes the family of deceased victims, under both a federal statute, 18 U.S.C. § 3771, and the California Constitution, Article I § 28. The remedy is for judges both state and federal to get off their duffs, stop tolerating stalling by the defense, and move these cases along.

If Virginia can execute the D.C. Sniper in less than six years from sentence to execution, other states can do the same no matter how complex the case.  In the rare case of actual doubt that we have the right guy, fine, delay as long as it takes to eliminate the doubt, and commute the sentence if it can't be eliminated.  In all other cases, i.e., the vast majority of cases, there is no need to delay more than six years.  That is plenty of time to resolve all genuine claims. 

After all, if we know to a certainty that the defendant is a murderer, there is no possibility of a miscarriage of justice in the sentence.  The question in the penalty phase is whether to give him what he deserves as a matter of justice or let him off with less as an exercise of mercy.  That is an important question, and its decision must be made carefully and reviewed carefully, but the outcome cannot be an injustice to the defendant.

The idea that we need to spend more time and resources reviewing the sentences of certainly guilty murderers sentenced to death than we spend reviewing the convictions of possibly innocent people sentenced to life in prison is absurd.
Usually, the way to have a lower court's decision reviewed by a higher court is to appeal.  In the U.S. Supreme Court, an actual "appeal" in the technical sense is usually not available, and a petition for writ of certiorari is used instead.

Sometimes, though, neither of these procedures is available, and the aggrieved party must resort to an "extraordinary writ," a petition for a writ of prohibition or mandate.  In form, this is a new suit by the petitioner against the lower court itself, designated the "respondent."  In practice, the opposing party in the lower court is designated the "real party in interest," and that party defends the lower court's action.  That avoids the need for a court to appear as a party, generally regarded as unseemly.

And now, for something completely different....

In re Ryan, U.S. Supreme Court No. 14-375, is a petition by Arizona's prison chief against the Ninth Circuit for sitting on a case after it should be over.  As usual, the opposing party in the court below, the Arizona Federal Defender on behalf of murderer Graham Henry, filed an opposition.  But yesterday, the Supreme Court asked the Ninth Circuit itself to file a response.

Truth and Journalism

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Bill noted yesterday how a hoax was printed as fact to bolster a position on the campus rape debate.  Before commenting on the story, let me make very clear that CJLF has a long history of supporting the rights of victims of rape.  It is a terrible crime, and the victims deserve justice.  We have further supported shield laws to protect victims from being revictimized.  Our commitment to victims' rights remains undiminished.  That said, however, the current movement regarding campus sexual assault is going to extremes that will do little to help actual victims, threatens grave consequences against people who have done nothing wrong, and may well end up hurting real victims as a backlash creates renewed skepticism of those who come forward.

Now, Rolling Stone never has been an exemplar of objective journalism, but reporting inflammatory allegations without the most elementary fact-checking is well below the standard we should expect of any national magazine.  An editorial in the Wall Street Journal today pinpoints the underlying problem here:

The larger problem, however, is that Ms. Erderly was, by her own admission, looking for a story to fit a pre-existing narrative--in this case, the supposed epidemic of sexual assault at elite universities, along with the presumed indifference of those schools to the problem. As the Washington Post noted in an admiring profile of Ms. Erdely, she interviewed students at several elite universities before alighting on UVA, "a public school, Southern and genteel."
In other words, Ms. Erdely did not construct a story based on facts, but went looking for facts to fit her theory. She appears to have been looking for a story to fit the current popular liberal belief that sexual assault is pervasive and pervasively covered-up.
Kevan Brumfield murdered Police Corporal Betty Smothers in Baton Rouge, Louisiana in 1993.  He went on trial in 1995.  Six years earlier the Supreme Court decided in Penry v. Lynaugh that mental retardation (now called intellectual disability) is a mitigating factor that the jury must be allowed to consider but not a categorical exclusion.  Brumfield's lawyers put on no evidence of retardation, instead arguing other factors as mitigation, and he was sentenced to death.

Seven years after the trial, the Supreme Court decided in Atkins v. Virginia that retardation would be a categorical exclusion after all.  The high court did not apologize for its flip-flop.  On state collateral review, the trial judge denied the petition on the basis of the trial record.

What to do on federal habeas?  The deference standard of 28 U.S.C. §2254(d) allows a federal court to grant relief despite a state court's denial on the merits if the state court's "adjudication of the claim ... (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 

But what if the argument is that the state court's unreasonableness was in not allowing evidence, rather than assessment of evidence?  Can a rule to deal with that issue be crafted without opening the door to federal micromanagement of state collateral review or the wholesale relitigation that the AEDPA reforms were enacted to prevent?

Jones v. Chappell Brief

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The California Attorney General yesterday filed this brief in Jones v. Chappell, the case of the strange District Court order reaching out to declare California's death penalty unconstitutional because of delays.

Warden Chappell has left the building, and the acting warden is Kelly Mitchell.  The case will be Jones v. Mitchell for the time being.
"My client did not help those guys commit the robberies, and besides that he only helped because they forced him."

In Joshua Frost's trial for robbery, his lawyer wasn't that blatant, but he did want to argue that Frost was not an accomplice and alternatively qualified for the defense of duress.  The trial judge would not let him argue that, based on a Washington Supreme Court opinion saying that a defendant must admit the elements before asserting a duress defense.  The Washington Court of Appeals affirmed.  The Washington Supreme Court clarified that its precedent was not that strict and the argument should have been allowed.*  However, a majority of that court concluded that this type of error is subject to "harmless error" review, and based on its review of the evidence there was no effect on the outcome of the trial.

On federal habeas corpus, the magistrate judge, the district judge, and a majority of the initial 3-judge court of appeals panel agreed that this type of error is one of the great many subject to harmless error review, not one of the select few "structural" errors reversible without such consideration.

The Ninth Circuit granted rehearing en banc, and a bare majority (6-5) found that the state court's decision that this error is not structural was an unreasonable application of clearly established Federal law.  Finding state court decisions "unreasonable" when the Ninth merely disagrees with them on debatable points is something that court has been reversed for by the Supreme Court time and time and time again.  They never learn.  Today we chalk up yet one more in Glebe v. Frost, No. 14-95 (per curiam).  As in White v. Woodall, decided last term, the federal appeals court stretched existing Supreme Court precedent into new territory, and reasonable judges can disagree as to whether it should be extended there. There is no dissent.

SCOTUS Stays Missouri Execution

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Last night the U.S. Supreme Court acted on two petitions from Missouri rapist and triple murderer Mark Christeson.  See description of the crime here.  There is no doubt about the justice in this case.  Guilt is conclusively proved by DNA, and the crime clearly warrants the penalty.  The Court is apparently satisfied that the lawyers purporting to represent Christeson actually do.  See prior post here.

In Supreme Court case 14-6878, the Supreme Court denied review of Eighth Circuit case 14-2220.  That case has to do with disclosure and compounded pentobarbital.

In Supreme Court case 14-6873, the Supreme Court granted a stay to allow it to decide whether to review Christeson's habeas petition, denied as untimely by the district court.  The Eighth Circuit denied a stay in case 14-3389. 

This case presents issues of representation of prisoners.  The Supreme Court opened a can of worms in its Martinez and Trevino decisions when it said that ineffectiveness of state collateral review counsel can be "good cause" for a federal court to consider a claim defaulted in state court.  If the same lawyer represents the prisoner in both proceedings, can he be expected to argue his own ineffectiveness?  But how many new lawyers are we going to appoint for one defendant?  We already say that trial counsel can't continue into habeas for this reason.  Is every defendant going to get another new lawyer for federal habeas, and will justice be delayed and denied in every capital case while that lawyer gets up to speed?  That could be some time, given how complex capital cases can be.

Note that this problem is not entirely limited to capital cases.  Martinez was not a capital case.  The problem of justice being delayed while the case is litigated is limited to capital cases, but the underlying conflict issues are not.

The Christeson case involves the related issue of appointed counsel missing the deadline to file the federal habeas petition, as distinguished from the state-court procedural defaults in Martinez and Trevino.
Looks like criminal law and law enforcement are going to be a bigger part of this Term of the U.S. Supreme Court.  The Court's Monday orders list took up for full briefing and argument three criminal and related cases:

Chappell v. Ayala, No. 13-1428, the Ninth Circuit decided in favor of California death row inmate Hector Ayala.   The case involves the interaction between harmless error analysis and the deference owed to state court decisions when an inmate takes his rejected claims to the federal courts on habeas corpus.  If I'm not mistaken, the Ninth Circuit's batting average in California capital cases, once certiorari is granted, is .000.

Los Angeles v. Patel, No. 13-1175:  Does a hotel have a privacy interest in its guest register, so that police cannot inspect it at will even though a local ordinance says they can?  There are a lot of heavily regulated industries that have such requirements.  The government can go through an auto wrecking yard checking the VINs for stolen vehicles, for example.  No warrant or particularized basis of suspicion required.  How about hotels?

Henderson v. United States, No. 13-1487:  What to do with a defendant's guns when, as a result of his conviction, he can no longer legally possess them?

Jennings v. Stephens Argument, Continued

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The argument transcript in Jennings v. Stephens is now available.

On page 27 counsel for the petitioner (i.e., the prisoner) seeks to refute an argument that I made initially and the state picked up on.  If the petitioner prevails in district court and there is no filter at all, then a petitioner who filed a potload of arguments, most of them frivolous, can argue them all on appeal as long as he prevails on one.  See pages 9 and 14 of CJLF's brief.  He seeks to assure the Supreme Court this scenario would be rare.  I don't know about Texas, but it is certainly not rare in capital cases in California.  Burying the courts in a mass of arguments, most patently meritless, defaulted, or both, is standard procedure here, as the California Supreme Court described in In re Reno.  It's all part of the strategy to throw as much sand in the gears as possible.

Much of the discussion in this case involves the effect of a decision granting habeas relief in U.S. District Court when the case goes back to the state court.  The state's position is that the district court decision settles every issue decided between the parties for the purpose of retrial, so if that court says the prisoner is right on claim A but wrong on B, C, D, E, and F, he has to appeal a decision he won if he doesn't want what he believes to be errors on B through F repeated at the retrial.  The whole idea of prisoner who won his new trial in the federal district court's decision appealing that decision strikes me as very strange.

The general rule in litigation is that a decision of a court on an issue settles that issue between the parties unless that decision is appealed and reversed on appeal.  This is called issue preclusion or collateral estoppel.  A better answer to the problem the state poses in this case is to simply to say that this rule does not apply in habeas corpus.  In olden times, a decision on habeas corpus did not have res judicata effect, so a prisoner could go from one judge to another asking relief, and none would be bound by the denial of relief by the others.  The Supreme Court could, and in my view should, partially revive this rule for federal habeas for state prisoners and say that the federal district court's authority in issuing a conditional release order is limited to saying "either release him or give him a new trial," period.  Whether the state courts want to respect the federal judge's conclusions in the opinion that went into that order should be up to them.  Whether the federal courts would overturn the judgment on habeas again if they do not would be a new case, with the AEDPA deference standard playing a large role.

Another big issue is whether ineffective assistance of counsel is one claim or a separate claim for each alleged error of counsel.  I think there is one legal right to have an effective attorney, and a claimed violation of that right is one claim, at least as to each phase of the case.  That would simplify things considerably, and Justice Breyer notes our brief  to that effect at pages 48-49.

Update, 10/17:  Rory Little has this analysis of the argument at SCOTUSblog.

Jennings v. Stephens Argument

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The U.S. Supreme Court is hearing argument today in Jennings v. Stephens. We noted this case in the week preview last Friday.  Rory Little has a preview at SCOTUSblog, with some complimentary things to say about CJLF's brief.

The transcript should be available this afternoon.

Time and Again

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Opening its new term, the U.S. Supreme Court has once again unanimously chastised the notorious Ninth Circuit for once again ignoring the limits placed by Congress on its authority to second-guess reasonable decisions on debatable questions of law by the state courts with primary jurisdiction over a case.  The opinion begins (emphasis added):

When a state prisoner seeks federal habeas relief on the ground that a state court, in adjudicating a claim on the merits, misapplied federal law, a federal court may grant relief only if the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U. S. C. §2254(d)(1). We have emphasized, time and again, that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat.1214, prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is "clearly established." See, e.g., Marshall v. Rodgers, 569 U. S. __, __ (2013) (per curiam) (slip op. at 6). Because the Ninth Circuit failed to comply with this rule, we reverse its decision granting habeas relief to respondent Marvin Smith.
The case is Lopez v. Smith, No. 13-346.

There is a broad spectrum of viewpoints on the Supreme Court today, but when there is not a single justice who thinks the court of appeals' decision is correct, when the error is so obvious that it doesn't even require full briefing and argument, and when the same pattern recurs "time and again," there is something gravely wrong with some of our courts of appeals (mostly those divisible by 3).

The continuing violation of this provision by some of the lower federal courts is the largest-scale defiance of federal law since the "massive resistance" campaign in the wake of Brown v. Board of Education (1954).  Except this time federal courts are perpetrators of the violations instead of enforcers of the law.

Evading Congress's Landmark Habeas Reform

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Yesterday, the Ninth Circuit granted rehearing en banc in a case it decided last year and the Supreme Court turned down last June.  Judge Tallman, joined by Judges O'Scannlain, Callahan, Bea, and Ikuta, takes the unusual step of dissenting from a grant of rehearing en banc. 

If one is remembered for the rules one breaks, then our court must be unforgettable. By taking this capital habeas case en banc now--after certiorari has been denied by the Supreme Court and well after the deadline for en banc review by our court has passed--we violate the Federal Rules of Appellate Procedure and our own General Orders. We also ignore recent Supreme Court authority that has reversed us for doing the same thing in the past. No circuit is as routinely reversed for just this type of behavior. We ought to know better.
Aside from the specific procedural question in this case is a deeper question.  Congress passed a landmark law in 1996 for the specific purpose of a making capital punishment effective.  One of the reforms was to crack down on successive petitions -- the filing of a new federal habeas petition after the first one has been denied.  This was, initially, one of most effective reforms in the package.  It was upheld by the Supreme Court with remarkable swiftness, two months after enactment of the law.  See Felker v. Turpin, 518 U.S. 651 (1996).  (CJLF filed an amicus brief.  See footnote on p. 654.)

However, the effectiveness of the reform has been diluted in recent years by the use of various procedural devices to reopen the old petition instead of filing a new one.  The Supreme Court has not been tough enough in restricting this practice.  Habeas corpus is not just another civil case.  Congress spoke clearly when it said that once a case is finished it should be reopened only for certain very compelling circumstances (like, for instance, we got the wrong guy).  An arguably insufficient consideration of "mitigating" evidence that has nothing whatever to do with the crime, which is what Henry is about, is not a good enough reason to further delay already badly delayed justice.  Congress has decided that, and the courts need to respect that.

Jones v. Chappell Appeal

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Last week I noted the appeal in Jones v. Chappell, the case holding that because of the delays in carrying out justice in the worst murder cases in California we must now forgo that justice altogether. The docket number in the Ninth Circuit is 14-56373.  The appellant's opening brief is due December 1.  The answer brief is due December 29.  The reply brief is due January 12.  These are all Mondays.

Some people have asked me about a stay.  There is nothing to stay.  There is no injunction affecting other cases.  There is no final judgment in this case.  This is just a ruling on one claim in one case.  To the extent the judge's order purports to vacate Jones's death sentence directly, it is void.  A federal district court judge has no authority to vacate a judgment in a state criminal case as such.  He can only issue a conditional release order, saying that the warden must release a person unless he is retried or resentenced, and the judge in this case has not done that yet.

BTW, Ninth Circuit case 14-56302 is the Soos/Justice appeal noted here, and that case will surely go away shortly.  Update: Today Mr. Soos and Dr. Justice filed their response to the Court of Appeals' order to explain what the heck they are doing appealing a case to which they are not parties.

Pretrial Habeas Corpus and Gov. Perry

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Once upon a time, the use of habeas corpus in criminal cases was almost entirely pretrial.  A person jailed pending trial for alleged conduct that he contended was not a crime could get that issue reviewed via habeas corpus.  The most famous American case involved two men accused in the Aaron Burr conspiracy.  See Ex parte Bollman and Swartwout, 8 U.S. 75 (1807).  The writ could be used post-trial to attack the jurisdiction of a court of limited jurisdiction, such as a court-martial of a defendant who claimed to be a civilian, but collateral attack via habeas corpus on a conviction by a court of general jurisdiction was simply not available.  It was over 40 years after the formation of the federal courts before anyone tried, and the attempt was swiftly shot down in Ex parte Watkins, 28 U.S. 193 (1830).

Today the situation is very much the opposite.  We don't see a lot of pretrial habeas corpus these days, but Texas Governor Rick Perry is doing it old school.  Eugene Volokh has this post with a link to the application. Perry is in "custody," a jurisdictional requirement for habeas corpus, because he is out on bond.

Jones v. Chappell Appealed

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The California Attorney General today filed a notice of appeal in the Jones v. Chappell case.

Earlier posts on this case:

The Lackey Claim, Again

Summing up the Jones Death Penalty Case

Why Jones v. Chappell is Wrong, Part 2

Why Jones v. Chappell is Wrong, Part 3 -- Teague v. Lane

Time to Appeal Jones v. Chappell, Ms. Harris

Does a California District Attorney Have Standing to Intervene in a Federal Habeas Corpus Case?

Further Strange Developments in Jones v. Chappell

The Attorney General said in a press release, "I am appealing the court's decision because it is not supported by the law, and it undermines important protections that our courts provide to defendants. This flawed ruling requires appellate review."  Undermines important protections?  Well, certainly "not supported by the law," "flawed," and "requires appellate review" are correct.  With apologies to Meatloaf, three out of four ain't bad.

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