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Holding the Line On Finality?

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U. Tex. Law Professor Steve Vladeck has this post at SCOTUSblog on yesterday's argument in Davila v. Davis.  This is the case of a Houston gang member who wanted to get a member of a rival gang, so he opened fire with an AK-47-type weapon on a porch full of women and children having cake and ice cream at a child's birthday party.  Steve thinks Texas will prevail, and the question is how narrowly or broadly.  I was also encouraged by the argument transcript, but I am glad to have this independent, in-person observation.

After the break are the background of the case and my notes on the argument transcript.
The U.S. Supreme Court today denied certiorari in the case that sought to block implementation of the "fast track" for the processing of federal habeas corpus petitions by state death-row inmates.  See the docket for Habeas Corpus Research Center v. U.S. Dept. of Justice, No. 16-880.  The Ninth Circuit threw the case out a year ago, holding that the District Court had no jurisdiction to issue the injunction that it did.  See this post from last March.

The law firm of Orrick, Herrington & Sutcliffe has been representing the interests of murderers against those of victims and law-abiding people contra bono publico in this case as well as the Proposition 66 case.  One can only wonder if America has completely run out of deserving poor people to represent pro bono, given how many blue chip firms are devoting their unpaid representation hours to the interests of people who thoroughly deserve the fate they are facing and who are in their present situation solely because they chose, as an act of free will, to take the life of an innocent person.

In retrospect, though, Orrick did actually achieve something "for the public good."  As a result of the delay they caused, the initial precedent-setting decisions in applications under Chapter 154 will be rendered by a Department of Justice headed by Jeff Sessions rather than Eric Holder or Loretta Lynch.  In the long run, that may well be worth the delay.
Unsurprisingly, the U.S. Supreme Court held today in Buck v. Davis that it was ineffective assistance of counsel for the defense lawyer to call an expert witness in the penalty phase to testify about "statistical factors," one of which could be construed to be a statement that a defendant was more likely to be dangerous in the future because he is black.

I don't read the testimony that way.  The underlying fact that the expert testified to was:  "There is an over-representation of Blacks among the violent offenders."  That is a regrettable but undeniable demographic fact.  Still, most jurors (and many lawyers) do not have the logical sophistication to distinguish between that fact and the forbidden inference, and it should not have been introduced into the trial at all.

Justice Thomas in dissent notes that the Court had to leap over many procedural hurdles in its result-driven quest to grant relief to this one murderer, but he predicts these gymnastics will be narrowly applied only to unusual cases like this one.  I hope he is right, but I have my doubts.  If time permits, I will blog more about this case later.

Memo to the Texas Legislature:  How many problems does your "special issues" sentencing system have to cause before you wake up, dump it, and sentence on the basis of aggravating v. mitigating factors like most states do?  Asking jurors to predict "future dangerousness" is a legal minefield, and Texas has stepped on too many mines already.

Green Light for the Habeas Fast Track

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When the Antiterrorism and Effective Death Penalty Act of 1996 was enacted, the "fast track" under Chapter 154 was thought to be among the primary reforms.  In essence, states which provided qualified and adequately funded counsel for their state collateral reviews in capital cases (which is not constitutionally required) were promised an expedited trip through federal habeas corpus.

Many obstacles have prevented the implementation of this chapter as originally conceived.  First, the original chapter had a hostile reception in the courts, as the courts which would be subject to its deadlines misconstrued it to avoid applying it.  In 2006, Congress amended the law to abrogate some specific misinterpretations and to take the decision of whether a state qualified away from the conflicted habeas courts and give it to the U.S. Attorney General with review by the D.C. Circuit.  The AG was further charged with adopting regulations to implement the statute.
Last March, as noted here, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit reversed the clearly erroneous ruling by Judge Claudia Wilken enjoining the implementation of the regulations for the federal habeas corpus "fast track."  See the earlier post for details.

Today the Ninth finally denied the petition for rehearing en banc (i.e., to have the case reconsidered by an 11-judge panel). 

The other side can ask the U.S. Supreme Court to take the case, but it is unlikely they will.
One of the key reforms in Proposition 66 is a requirement that one of a death row inmate's challenges to his conviction and sentence be assigned to the original trial judge.  The challenge in question is called "habeas corpus" and is separate from the appeal on the trial record, which will continue to go to the state supreme court.

Today, the California Supreme Court, quoting an earlier Court of Appeal ruling, said, "When the judge assigned to examine and rule on the habeas corpus petition is the same judge who presided at the petitioner's criminal trial, 'there is no judge better suited for making a determination of the issues raised in [the] petitioner‟s petition' ...."  This statement appears in today's unanimous ruling in Maas v. Superior Court, S225109, a case concerning when a habeas corpus petitioner may challenge the assigned judge.

This confirms what we have been saying all along.  To decide a challenge to a conviction efficiently and fairly, the best judge to assign it to in nearly all cases is the one already familiar with the case by virtue of having presided over the trial.  Habeas corpus petitions rarely involve claims of judicial misconduct, but when they do Proposition 66 provides for assignment to a different judge for good cause.  This is just one of the common sense reforms that would be enacted by Proposition 66 to make the system work.  These reforms are opposed without valid reasons by people who simply do not want the system to work.

Be Careful What You Ask For

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When a defendant has gotten off with less than he or she deserves with a plea bargain, it is not a good idea to have the entire judgment vacated and go back to square one.  From the Ninth Circuit's decision yesterday in Fox v. Johnson, No. 13-56704:

Candace Lee Fox pleaded guilty to second-degree murder in 1984 in California Superior Court and, pursuant to a plea agreement, was sentenced to a term of imprisonment of fifteen years to life. Approximately five years later, Fox successfully petitioned to withdraw her guilty plea after establishing that the sentencing court failed to inform her that she would receive a mandatory term of lifetime parole as a direct consequence of her plea. At her subsequent trial, Fox was convicted of first-degree murder, first-degree burglary, and the special circumstance that the murder was committed in the course of a burglary. She was sentenced to life imprisonment without the possibility of parole. In this 28 U.S.C. § 2254 habeas proceeding, Fox now argues that the State originally promised her a term of imprisonment no greater than seven and one-half years in exchange for her plea, and asks for specific performance of that purported agreement.

We refuse Fox's request and affirm the district court, because Fox chose in the state habeas proceedings to seek vacation of her conviction, rather than specific performance of the purported plea agreement. She therefore has no due process right to specific performance of the rescinded agreement.
Habeas corpus is the correct procedure for persons who claim they are wrongly imprisoned.  For any other civil rights claim in federal court by a state prisoner, the correct procedure is a suit under the civil rights law, 42 U.S.C. §1983.  The line between the two is not always clear.

Today the U.S. Court of Appeals for the Ninth Circuit, sitting sort of en banc, decided Nettles v. Grounds, No. 12-16935:

Damous Nettles, a prisoner serving a life sentence in California prison, appeals the district court's dismissal of his habeas petition for lack of jurisdiction. The petition challenged a disciplinary violation on constitutional grounds and claimed that the failure to expunge this violation from his record could affect his eligibility for parole. We conclude that because Nettles's claim does not fall within the "core of habeas corpus," Preiser v. Rodriguez, 411 U.S. 475, 487(1973), it must be brought, if at all, under 42 U.S.C. § 1983.
Judge Ikuta wrote the opinion, joined in full by Judges Rawlinson, Clifton, Callahan, and Randy Smith.  Judge Hurwitz concurred in part.  Judge Berzon dissented, joined by Chief Judge Thomas and Judges Fletcher, Murguia, and Nguyen.

USCA9 Corrects DP Error En Banc

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It should not be news that a federal court of appeals sitting "en banc" has corrected an erroneous decision by a three-judge panel.  That's what the en banc process is supposed to do.  However, in the Court of Appeals for the Ninth Circuit it has long been rare that a rogue panel decision wrongly overturning a death sentence was even reviewed en banc, much less corrected.  At times, petitioning for such a rehearing has been considered such an exercise in futility that some AG offices would not even bother but would instead go straight the Supreme Court.  (The Supremes don't like that.)

Today we have the Arizona case of Eric Mann.  Mann baited two men to his house to sell them cocaine for $20,000, took the money, and then shot them both.
Judge Lawrence Waddington (L.A. Superior Court, Ret.) has this provocative essay at LinkedIn.  He goes through the well-known (to readers of this blog) misuse of habeas corpus jurisdiction by the Ninth Circuit and calls for an end to it.

The time has come for the Supreme Court to reinterpret federal habeas corpus law and remove the 9th Circuit from any further jurisdiction over state court decisions. Not only will removal reduce the endless appeals of 9th Circuit mandated retrials and the cost and interference with state sovereignty, the record would confirm finality of state court judgments and stop the endless reversals resulting in injustice. No reason justifies two jurisdictions trying the same case twice.
I agree that federal habeas review of state court judgments is doing more harm than good in California and in some other places.  I don't think the Supreme Court has the authority to make the call any more, though.  During the period from Reconstruction through the mid-twentieth century, the Supreme Court did expand the use of habeas corpus to make it a mechanism to collaterally attack in federal court the judgments of state courts of general jurisdiction.  That use of the writ was not permitted at common law or under the initial federal system, and contrary to myth it was not authorized by the 1867 act.  (That is a long story I have written about extensively elsewhere and won't repeat here.)  However, a lot of legislative water has passed under the bridge since then.  In 1996, Congress expressly considered the three-way choice of de novo review, no review, or deferential review and chose the latter.  I don't think it is up to the judiciary to alter that choice, particularly not on a state-by-state or circuit-by-circuit basis.

Politically, I don't think it would be wise to bring the matter up in Congress at all at this time.  The final product could easily move us in the wrong direction.
Without dissent, the United States Supreme Court has once again summarily reversed the decision of the U.S. Court of Appeals for the Ninth Circuit.  "Summarily" means the error was so obvious that the high court could reverse on the state's petition alone, without setting the case for full briefing and argument.

The rule in the federal courts and every state is that a criminal defendant who can make a claim on his initial appeal on the trial record must do so or lose it.  He can't wait for a subsequent "collateral" attack (habeas corpus or a substitute for it) to make such a claim.  The technical term for rules such as this is "procedural default," but it may be more easily understood as the "speak now or forever hold your peace rule."  There are generally exceptions to mitigate the harshness of these rules.  For example, a strong showing of actual innocence of the crime is an exception in both federal and California courts.

When a state prisoner has completed his state appeals and seeks relief in federal courts, Supreme Court precedent has long required the federal court to respect the state's procedural default rules.  For many years, the Ninth Circuit has evaded this requirement for California prisoners by blithely declaring the state's rules "inadequate."  In 2011, the Supreme Court reversed one such evasion in Walker v. Martin, a unanimous opinion by Justice Ginsburg.  The language was broad enough to fully restore California's rules and we thought that battle was won.  Astonishingly, the Ninth Circuit brushed Martin aside, held that it only applied to the kind of rule specifically at issue in that case, and declared that it did not apply to California's much more common default-on-appeal rule described in the previous paragraph. 

I thought that was a shocking -- and intentional -- evasion of controlling Supreme Court precedent by a lower court that simply did not like the result.

Today we learned that the Supreme Court thinks so, too.

Reversal in an Ugly Batson Case

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When cases with ugly facts reach the U.S. Supreme Court, they sometimes cause damage that lasts a very long time.  Foster v. Chatman, No. 14-8349, decided this morning, is a case with ugly facts.  How much damage it will do to states seeking to preserve their judgments in other cases where the defendant's collateral attack is much weaker remains to be seen.

At the root of this case is a horrible crime, with no real doubt that Foster committed it.  Not only did he confess, but the victim's possessions were recovered from his home and from the homes of his sisters, to whom he had doled out some of the loot.

Until 1986, there was no constitutional prohibition against the prosecution taking race into account in exercising its peremptory challenges in jury selection in individual cases, although a pattern of such use that had the effect of excluding black veniremen from jury service overall was actionable.  That changed when the Supreme Court decided Batson v. Kentucky.  The Foster case was tried only four months later.
The U.S. Supreme Court decided six cases today.  Only one summary disposition involves criminal law.

Kernan v. Hinojas, No. 15-833, is a Ninth Circuit habeas corpus case involving that court's failure to give deference to the California Supreme Court's summary denial of an original petition in that court.  This is an area the high court has gotten into several times, and to some extent it is specific to California's odd system of original habeas petitions in reviewing courts, so I won't go into detail here.

In the "curious incident of non-barking dogs" department, the certiorari petition in Johnson v. Lee, No. 15-789 was on the conference list Thursday but was absent from today's orders list.  The online docket now shows it to be on the list for this coming Thursday, the fourth conference for this case.

The case involves the Ninth Circuit's brushing aside of California's rule (similar to those nearly all states and the federal courts) that a claim that could have been made on appeal and wasn't is forfeited.  This number of "relists" is a possible indication that the Supreme Court is going to reverse summarily, and it is trying to agree on an opinion.  A certain notorious wascally wabbit suggested that course of action would be appropriate in this case.
The U.S. Supreme Court issued two criminal law decisions this week, neither of which is surprising or particularly controversial.

Monday, the Court decided Welch v. United States, No. 15-6418:

Last Term, this Court decided Johnson v. United States, 576 U. S. ___ (2015). Johnson considered the residual clause of the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e)(2)(B)(ii). The Court held that provision void for vagueness. The present case asks whether Johnson is a substantive decision that is retroactive in cases on collateral review.
Answer: Yes.

Today, the Court decided Molina-Martinez v. United States, No. 14-8913, regarding what to do on appeal when the trial court messes up on the often complex Federal Sentencing Guidelines and nobody notices until the appeal.  The Court disapproved the Fifth Circuit's requirement that the defendant "must identify 'additional evidence' to show that the use of the incorrect Guidelines range did in fact affect his sentence."

USCA6 Summarily Reversed Yet Again

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The "massive resistance" of some federal judges (particularly in circuits divisible by 3) continues, and today the U.S. Supreme Court found it necessary once again to summarily reverse a decision of Sixth Circuit for brazenly exceeding the limits Congress has placed on its authority.

In 1996, Congress decided that the opinion of the lower federal courts on disputed questions of federal law was really not more reliable than the opinions of the state courts.  Too many correct judgments were being wrongly overturned, and the Supreme Court could not correct all the errors.  Yet Congress was not willing to let go of the safety valve of federal habeas corpus review of state convictions altogether.  The compromise was that federal courts could overturn a state conviction based on a claim rejected on the merits by the state courts if the state court decision was clearly wrong, beyond the bounds of reasonable disagreement.  If the issue is arguable, the state court decision stands.

Many federal judges are unwilling to let go of their prerogative to substitute their opinions for those of state judges on close questions, and they regularly violate the law governing the limits of their authority in order to "correct" what they see as violations of other rules of law.  The highest-profile incidents tend to be in capital cases, but it occurs in noncapital cases as well, and that brings us to today's Supreme Court decision in Woods v. Etherton, No. 15-723.

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