Recently in Habeas Corpus Category

The US Supreme Court today unanimously reversed a decision of the Sixth Circuit, overturning a Michigan murderer's conviction on habeas corpus.  The Michigan Legislature passed a reform of mental defenses in 1975, but the state Court of Appeals failed to recognize that the statute had abolished the "diminished capacity" defense.  It was not until 2001 that the Michigan Supreme Court corrected that error, and the underlying question in Metrish v. Lancaster was whether that correction could apply in the retrial for a 1993 murder.  The case is described in more detail in my post after the oral argument.

The Supreme Court's jurisprudence on retroactivity of court decisions (as opposed to statutes), is less than crystal clear, and one might make a reasonable argument on the merits that this retroactive application crosses the fuzzy line.  Under Congress's 1996 reform of federal habeas corpus (AEDPA), though, that is not the question for the federal court.  The Michigan state courts decided the merits question, adversely to Lancaster.  "To obtain habeas corpus relief from a federal court, a state prisoner must show that the challenged state-court ruling rested on 'an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.' Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 12-13)."

Where the merits question is close, the AEDPA question is easy.  The state court decision was well within the bounds of "fair minded disagreement."  The Sixth Circuit decision to the contrary was beyond wrong.  It was lawless.

When the U.S. Supreme Court makes a new rule of law favoring criminal defendants, it applies to all cases not yet final on direct appeal.  If the rule is one of substance rather than procedure, it applies to cases final on appeal but pending on habeas corpus as well.

How about when a state supreme court corrects a misinterpretation of the law by lower courts, an error that had favored defendants?  Does the defendant have a vested right to the case law as it existed at the time of the crime?

The Ex Post Facto Clause prohibits legislatures from enlarging the definitions of crimes or eliminating defenses retroactively.  For case law, the picture is more muddled.  The case of Bouie v. City of Columbia, during the civil rights struggle, involved a sit-in demonstration that was not a criminal offense at the time of the demonstration, but the state courts expanded the definition of the relevant offense to include it.  The Supreme Court said that violates due process of law.  More recently, in Rogers v. Tennessee, the high court allowed retroactive application of a decision dumping the old rule that a crime is not murder unless the victim dies within a year and a day.

Metrich v. Lancaster, argued today in the high court, involves the Michigan law of diminished capacity. 

When Congress passed the Antiterrorism and Effective Death Penalty Act of 1996, one of the principal provisions was the new Chapter 154 of U.S.C. Title 28.  The new chapter was based on a proposal drafted seven years earlier by a committee headed by retired Justice Lewis Powell.  In return for providing counsel on state collateral review, with qualification standards and adequate funding, states would receive a number of advantages to expedite their cases in federal habeas corpus.  Among these were time limits on both the district court and the court of appeals.

It didn't work out that way.  The lower federal courts were hostile to a law that would place time limits on them.  Most egregious of the decisions was Spears v. Stewart, 283 F.3d 992 (CA9 2002).  The Ninth Circuit found, correctly, that Arizona met all of the requirements for qualification that are written into the text of the statute, but it wrongly denied Arizona the benefits of qualification because it found a violation of a requirement of timely appointment that it read into the statute.

In 2006, Congress amended the law.  It took the decision on qualification away from the courts subject to the time limits -- which have a conflict of interest -- and gave it to the Attorney General with de novo review by Court of Appeals for the D.C. Circuit, the one federal circuit that does not do state-prisoner habeas cases.  In addition, Congress expressly provided that the requirements in the statute are the only requirements for qualification.  Neither the AG nor the court can make up additional requirements.  Finally, in a seemingly innocuous provision, Congress directed the AG to "promulgate regulations to implement the certification procedure ...."  Congress did not authorize regulations to impose additional requirements for certification, obviously, having expressly forbidden any additions.

The orders list is here.  The Supreme Court took up one civil case.  No action on the Phillips cross-petitions from California, noted here.

In Marshall v. Rogers, 12-382, the Ninth Circuit was reversed for failure to observe Congress's limitation on habeas corpus in the so-called "deference" provision.  The high court once again has reversed the Ninth summarily and unanimously, meaning not a single justice thought the Ninth was right, and this conclusion is so obvious as to not require full briefing or oral argument.  Here is the first paragraph:

Respondent Otis Lee Rodgers, challenging his state conviction, sought a writ of habeas corpus from the United States District Court for the Central District of California. He claimed the state courts violated his Sixth Amendment right to effective assistance of counsel by declining to appoint an attorney to assist in filing a motion for a new trial notwithstanding his three prior waivers of the right to counseled representation. The District Court denied respondent's petition, and he appealed to the Court of Appeals for the Ninth Circuit, which granted habeas relief. 678 F. 3d 1149, 1163 (2012). Because the Court of Appeals erred in concluding that respondent's claim is supported by "clearly established Federal law, as determined by the Supreme Court of the United States," 28 U. S. C. §2254(d)(1), its judgment must be reversed.

When Congress enacted §2254(d), it specifically provided that the reasonableness of the state court's resolution of an issue will be judged only by its conformity with U.S. Supreme Court precedents, not federal court of appeals precedents.  The federal courts of appeals are not "higher" courts over the state courts in the sense that their precedents are binding, and Congress acted decisively to prevent them from making their precedents binding in practice by granting habeas relief whenever a state court disagrees.  A study I did shortly before the law passed showed that, in capital cases in the Ninth Circuit, the Supreme Court ultimately resolved these disagreements in favor of the state court's decision most of the time.

But many federal judges still don't get it:

Matthew Hale headed a profoundly racist group called the World Church of the Creator.  He lost a trademark suit with another, older group of the same name.  He had two responses:  (1) change the name of the group to the Creativity Movement, and (2) put out a contract of the life of the judge.

Number 2 got him in trouble.  He was convicted of soliciting a crime of violence and obstructing justice.  The Seventh Circuit affirmed on direct appeal in 2006, 448 F.3d 971.

He's back on collateral review.  Among his claims are, you guessed it, ineffective assistance of counsel.  The Seventh Circuit was unimpressed again.  "Hale's other principal contention is that, before taking over his own defense, he received ineffective assistance of counsel. He complains about almost everything counsel did or did not do." 

Among the failings of counsel was not challenging all the black people off the jury.  Of course there is the minor problem that doing so is unconstitutional, see Georgia v.
McCollum, 505 U.S. 42 (1992), and possibly a criminal offense.  See 18 U.S.C. §243.  In addition, Judge Easterbrook points out that the Creativity Movement hates such a wide variety of people that it would not be possible to challenge them all.

Sheri Qualters has this story at NLJ (registration required).  The case is Hale v. United States, No. 11-3868 (Mar. 5, 2013).

Last month, we had this post on the case of Trevino v. Thaler, on the question of when alleged ineffectiveness of state habeas counsel would be deemed sufficient cause for a federal court to consider a claim never made or not properly made to the state courts.  Until last year, the answer was virtually never under the landmark 1991 precedent of Coleman v. Thompson. 

Martinez v. Ryan made an exception for states, including Arizona, which have rules forbidding ineffectiveness claims to be raised on direct appeal.  The Court described the exception it was creating as narrow.

Trevino was argued yesterday.  The transcript is here.  There is a lot of discussion about variations among states in how an ineffectiveness claim may be raised, how they may be raised in Texas, and what difference any of these variations should make in the federal rule.

There is a corollary to Murphy's Law:  "Once you open a can of worms, the only way to get them back in is to use a larger can."  The Court opened a can of worms in Martinez.  It decided to make an exception to Coleman's straightforward rule based on the workings of a state's review process and is now faced with complex task of deciding how to apply that to every variation that comes down the pike.  They are not looking forward to that.  See p. 13.

I hope their decision is to reseal the can.  Something like this:  "The Martinez exception applies only to its specific limits in that decision, and we are not expanding this exception or making any new ones.  Coleman is still the law everywhere else."

Last week I previewed the argument in McQuiggin v. Perkins, on whether a claim of actual innocence can overcome the habeas corpus statute of limitations. The argument was held yesterday.  The transcript is here.  Adam Liptak has this story in the NYT.

As noted in the preview, the case is a poor vehicle for resolving the question because Perkins' claim of innocence is weak, to put it mildly.

On Monday, the Supreme Court hears arguments in McQuiggin v. Perkins, No. 12-126, on the question of whether a claim of actual innocence allows an exception to the federal habeas statute of limitations.

At SCOTUSblog, Jordan Steiker has an argument preview on the case.  Steiker is a hard-core anti-death-penalty true believer, so you have to take everything he says with a grain of salt.  (Perkins is not a capital case, but capital punishment always looms in the background of habeas cases.)

From reading the opinions in Chaidez v. United States this morning one thing becomes very clear.  Justice Kagan understands the rule of Teague v. Lane.  Justice Sotomayor does not.  It's not just that she misapplies it in a close case.  She genuinely fails to understand what it is about.

Once upon a time, judges pretended that they did not make law but merely discovered what the law had always been.  Once we got past that conceit, judges had to grapple with the question of when changes made through case law would apply retroactively.  Initially, the Warren Court came up with a subjective, hard-to-predict approach that sounded more like legislating than adjudication.  That was the Linkletter-Stovall rule.  Justice Harlan went along at first but later proposed a more categorical approach.  All new rules of procedure would apply to cases on direct review, but not on habeas corpus to cases where the judgment has already become final on appeal.  The Supreme Court adopted the first half in Griffith v. Kentucky in 1987 and the second half in Teague v. Lane in 1989.

When is a rule "new"?  The Supreme Court adopted an expansive definition.  A rule is new if it was not dictated by precedent existing at the time the judgment became final.  A rule can be a logical extension of existing principles and precedents and still be "new" for Teague.  This is the part Justice Sotomayor apparently doesn't get.

Lots of criminal law action from the high court this morning:

Chaidez v. United States held that the Supreme Court's extension of ineffective assistance claims to cover misadvice or nonadvice about immigration consequences of conviction in Padilla v. Kentucky was indeed a "new rule" and hence not retroactive on habeas corpus to overturn final convictions.  CJLF filed an amicus brief in this case.

Evans v. Michigan held that a directed verdict of acquittal bars retrial under the Double Jeopardy Clause, even if the directed verdict is based on an error of law.

Johnson v. Williams held that when a state court rejects the defendant's state-law arguments and does not expressly mention a federal claim, the court is rebuttably presumed to have rejected the federal claim on the merits for the purpose of the federal habeas "deference" rule, 28 U.S.C. §2254(d).  In this case the presumption was not rebutted because the state court of appeal applied a state supreme court decision that did consider the federal implications.

Henderson v. United States held that, for the purpose of the "plain error" rule allowing a party to raise on appeal a plain error he did not raise in the trial court, "plain" is determined at the time of the appeal, not the time of the trial.  A trial court decision contrary to a later Supreme Court decision can thus be a "plain error."

As noted in yesterday's post, the Texas Attorney General filed a writ of mandamus under the Crime Victims' Rights Act to get a federal district judge to decide a long-delayed successive habeas petition in a capital case.  The statute requires the Court of Appeals to decide within 72 hours.  Given that deadline falls during the weekend, it would be pushed back to the next business day, which is Tuesday.

Today, the district judge decided the case, mooting the petition.  The opinion is here.  Ladd is not retarded.  Petition denied.

In footnote 1, the judge notes defensively, "The court acknowledges the Director's complaint about the court's delay in deciding this case. However, because of the court's caseload, the undersigned judge must often choose between thoroughness and timeliness. In order to be thorough and careful, the court may, on occasion, set aside complex matters for an extended period due to the weight of the court's caseload."

The caseload excuse doesn't cut it.  A case where justice is being delayed for the very worst kind of murder is priority one.  All or nearly all of the other cases are lower priority.

Nonetheless, I know there is a caseload issue in federal district courts.  So here is a case management tip for federal judges.  If you have too much to do, stop doing things Congress and the Supreme Court have told you that you shouldn't be doing.  Like misusing habeas to retry state criminal cases.  Your job is only make sure there hasn't been a major malfunction of the state court system, not to pick at specks and not to overturn any result you would have decided differently had it been your case in the first instance.  It isn't.

Cullen v. Pinholster merely confirmed what should have been obvious on the face of the statute.  You apply §2254(d) at the threshold on the state court record.  Did the state court resolve the petitioner's claim on the merits?  If so, did it completely botch it, rendering a decision so obviously wrong that it is beyond serious dispute.  If so, it won't take much time to decide.  A decision that wrong practically screams off the page.  If not, deny that claim. 

If all claims are denied this way, procedurally defaulted, or just plain garbage (not exclusive categories, BTW), deny the petition.  Even in capital cases, state-prisoner habeas petitions needing discovery and evidentiary hearings should be the exception, not the rule.  Most should be denied on the pleadings within months, not years, of filing.

Opponents of reform of the process for reviewing capital cases often claim that long, intensive reviews are needed to prevent injustice in these cases.  Putting aside whether that is generally true and whether the delay itself causes injustice, there are undeniably some judges who simply sit on cases, sometimes for years.

For federal courts, Congress has provided that victims of crime have "The right to proceedings free from unreasonable delay."  18 U.S.C. §3771(a)(7).  Congress amended the statute in 2006 in the Adam Walsh Act to include habeas corpus proceedings as well as federal criminal prosecutions.  §3771(b)(2).

The statute further provides that when the victim or the government on behalf of the victim makes a motion for relief, "The district court shall take up and decide [the motion] forthwith."  §3771(d)(3) (emphasis added).

Robert Ladd murdered Vicki Ann Garner in Tyler, Texas over 16 years ago.  His standard appeal, state habeas, and federal habeas reviews were completed 10 years ago.  He has been allowed a second federal habeas review to hear a claim that he is retarded and thus exempted from the death penalty by Atkins v. Virginia, which established a retroactive new rule.  Okay, the statute on successive petitions permits that.  See 28 U.S.C. §2244(b)(2)(A).

But the evidentiary hearing and post-hearing briefing were completed over seven years ago, and U.S. District Judge Richard Schell has been sitting on the case ever since.  In June of last year, the state made a motion to rule on the petition, and Judge Schell has been sitting on that for over seven months.

When courts issue writs of mandamus to executive officers, they wax eloquent about the need for government officials to respect and obey the law.  Nobody is above the law, etc., etc.  But too often it is the judges who simply ignore laws they don't like.  Clearly, the right of the victim to proceedings free from unreasonable delay has been violated here.  By no stretch of the imagination is seven months "forthwith."

The state and the victim's sister have filed a petition for writ of mandamus in the Fifth Circuit. Let us hope respect for the law reaches a higher level there.

The 1991 decision in Coleman v. Thompson is one of the most important protections for the finality of criminal judgments in U.S. Supreme Court jurisprudence.  Without it, there could be an endless stream of collateral attacks on a judgment, with each lawyer claiming the supposed ineffectiveness of the lawyer before as "cause" for the earlier default of the claim.  Coleman drew the line on such "ineffectiveness as cause" claims at the first appeal.

California has not followed Coleman for state habeas corpus, and the result has been a disaster.  Even though successive petitions are very rarely granted, they are filed in nearly every case.  They regularly claim ineffectiveness of the first habeas lawyer as cause for default, and the "ineffectiveness" generally consists of nothing more than the first lawyer not bringing a claim the second lawyer wants to bring.  The California Supreme Court put some limits on these petitions last August in In re Reno, but not enough yet.  See this post.

The U.S. Supreme Court made two narrow exceptions to Coleman last term.  Maples v. Thomas made an exception for clients actually abandoned by their lawyers, fortunately a rare occurrence.  Martinez v. Ryan made an exception for states that actually bar all ineffectiveness claims from direct appeal, an odd little rule that a state should quickly jettison.

Now in Trevino v. Thaler, petitioner seeks to expand Martinez into an exception that swallows the rule.  That would be a disaster, as the California experience demonstrates.

Today CJLF filed an amicus brief opposing this change.

Today's lone Supreme Court decision, Sebelius v. Auburn Regional Medical Center, relates to Medicare and SSI funding.  However, the specific question is equitable tolling of a limitations period, an issue that comes up a lot in habeas corpus cases.  So I thought I would note it here for the benefit of anyone researching a tolling issue.

No more opinions are likely until the February argument calendar, after the Washington's Birthday holiday.

In the capital appellate defense playbook, to delay is to win.  If review of a capital case can be dragged out so long that the inmate dies of natural causes, that is a de facto commutation to a life sentence and hence a victory.

A gambit the defense side has been running for a while is to claim that the petitioner/inmate is too crazy to assist his lawyer in the habeas proceeding.  Hence, that proceeding must be stayed indefinitely, while the stay of execution remains in place.  This argument has been accepted in the notorious 9th Circuit and "9th upside down" 6th Circuit.

Today, the Supreme Court unanimously reversed both circuits in Ryan v. Gonzales, No. 10-930, joined with Tibbals v. Carter, No. 11-218.

These two cases present the question whether the incompetence of a state prisoner requires suspension of the prisoner's federal habeas corpus proceedings. We hold that neither 18 U. S. C. §3599 nor 18 U. S. C. §4241 provides such a right and that the Courts of Appeals for the Ninth and Sixth Circuits both erred in holding that district courts must stay federal habeas proceedings when petitioners are adjudged incompetent.

Justice Thomas delivered the opinion of the Court.  There are no separate opinions.