Recently in Habeas Corpus Category

Sometimes, You Forget How Bad They Can Be

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But Ed Whelan of NRO's  Bench Memos reminds us:

2005--A split Ninth Circuit panel, in an opinion by notorious activist judge Stephen Reinhardt, rules in a habeas case (Musladin v. Lamarque) that under clearly established Supreme Court law a defendant on trial for murder was deprived of his right to a fair trial by an impartial jury when the trial judge permitted family members of the victim (or, as Reinhardt insists on referring to him in quotes, the "victim") to wear buttons bearing the deceased's photograph. (The panel will later substitute in a slightly different version of its opinion.)

In 2006, a mere two months after oral argument, the Supreme Court (in Carey v. Musladin) will unanimously reverse the Ninth Circuit.

How far some judges will go to re-invent the Constitution as a cudgel of callousness toward the families of murder victims is mind-bending. 

Jacques Billeaud reports for AP:

A man convicted of killing nine people, including six monks, during a robbery at a Buddhist temple in metro Phoenix was sentenced Friday to 249 years in prison, marking the end of one of the most notorious criminal cases in Arizona over the past 25 years.
The crime was committed in 1991.  The original conviction and effective-life sentence were upheld by the Arizona courts but overturned by the Ninth Circuit on a Miranda claim in 2011.  Judge Tallman noted in dissent:

The Arizona courts did everything we can demand of state courts. The trial court held a ten-day evidentiary hearing before concluding the Miranda warnings were adequate and the confession was voluntary. More importantly, the jury independently and necessarily concluded the confession was voluntary and reliable in convicting Doody for his role in the murders. The Arizona Court of Appeals affirmed this determination in a comprehensive, reasoned opinion. Its holding on the facts presented fell squarely within the bounds of Supreme Court precedent on voluntariness.
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In violation of AEDPA, the majority adjusts the scales and weighs the facts anew. This sort of appellate factfinding on habeas review is contrary to the congressionally mandated standard of review.
Notwithstanding the AP report, it's not the end.  There will be another appeal, another habeas petition.

Appeal in Habeas Fast Track Case

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Chapter 154 of title 28 of the United States Code was enacted by Congress as part of the Antiterrorism and Effective Death Penalty Act of 1996.  This law offered a simple deal to the states -- an expedited trip through federal habeas if they would offer qualified and adequately funded counsel in state collateral review, something they have no obligation to do.  Fed up with obstruction of this law by hostile federal courts who would be subject to the time limits, Congress in 2006 reassigned the decision on whether a state qualifies to the US Department of Justice with review by the DC Circuit.

After dragging its feet for seven years, DoJ finally adopted long-overdue regulations to implement this law last September, as noted here.

A lawsuit was quickly filed by the Federal Defender for Arizona and the California Habeas Corpus Resource Center.  As reported in the News Scan of December 6, Federal District Judge Claudia Wilken preliminarily enjoined the Department of Justice from implementing its regulations, further delaying the enforcement of a law that is already 17 years overdue.

Today, DoJ appealed from the order granting that injunction.
Tuesday, the US Court of Appeals for the Ninth Circuit took a bite out of federal court micromanagement of prisons in Griffin v. Gomez, No. 09-16744.

Griffin has been in prison since 1970 and was validated as an Aryan Brotherhood member in 1979.  Gang members can and do commit crimes while in prison, sometimes within the prison and sometimes by arranging them on the outside.  Griffin was therefore confined to the secure housing unit, known as the SHU.  He petitioned for release, claiming he had sworn off the gang and was a changed man.

"Procedurally, this case is a mess" (p. 17).  I'm sure judges say that a lot in chambers, but it's quite another thing to read it in the opinion.

Tamayo Execution Proceeds

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Edgar Tamayo was executed in Texas last night for killing Police Officer Guy Gaddis in 1994.  AP story here.  Prior post here.

The U.S. Supreme Court denied petitions for certiorari and stays of execution in two orders, here and here.  No dissent is noted for the first.  Justices Ginsburg, Breyer, and Sotomayor would have granted the stay in the second.  That is the last-minute Atkins claim of supposed mental retardation.  The Fifth Circuit held, correctly IMHO, that the District Court did not need to put up with this strategy of holding a claim until election eve.

Finally, we agree with the district court that Tamayo's claim was not brought within a reasonable time." See, e.g., In re Osborne, 379 F.3d 277, 283 (5th Cir. 2004). The [Supreme] Court's opinion in McQuiggin was issued on May 28, 2013, nearly 8 months ago. Tamayo waited until January 20, 2014, two days before his scheduled execution, to file this motion. The district court did not abuse its discretion in concluding that this was not a "reasonable time" and in denying the motion. [Footnotes omitted.]

Missouri Execution

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Nineteen years ago, Richard Drummond stopped on Interstate 70 to help some people whose car had broken down.  One of them, Allen Nicklasson, repaid the kindness by murdering Mr. Drummond.  Long overdue justice was carried out last night, but it took an order of the Supreme Court.

KTVI has this story.  Gov. Nixon's statement on denial of clemency is here.  Judge Beam's dissent to the Eighth Circuit's grant of a stay explains why the stay was wrongly granted. 

The Supreme Court vacated the stay 5-4, with Justice Ginsburg dissenting joined by Justices Breyer, Sotomayor, and Kagan.

Nicklasson had already had his full set of days in court.  He was trying to exploit Rule 60 of the Federal Rules of Civil Procedure to get around the tight limit on successive petitions imposed by Congress in 1996.  A majority of a three-judge panel would have let him get away with it, a majority of the Eighth Circuit judges refused to stop them, and one less than a majority of the Supreme Court would have also let him get away with it.  That is way too close for comfort.

This is Missouri's second single-drug pentobarbital execution.  The Guardian reports:

Missouri previously used a three-drug method for executions but changed protocols after drugmakers stopped selling the lethal drugs to prisons and corrections departments. The pentobarbital used in Missouri executions comes from an undisclosed compounding pharmacy - the Missouri department of corrections declines to say who makes the drug, or where.
In the case of White v. Woodall, to be argued next Wednesday, December 11, the U.S. Supreme Court is finally squarely faced with a situation that it has only mentioned in passing remarks (obiter dicta, in legal Latin) until now.  How does a federal court apply the so-called "deference" standard of 28 USC §2254(d)(1) when the "clearly established federal law" that the habeas petitioner seeks to invoke was established in a different context?  Can he stitch together pieces of cases into a legal quilt to extend the rule he needs to new territory and ask the federal court to declare the state court's refusal to do so "unreasonable," so as to satisfy Congress's standard for an override of the state decision in federal court?

I think the answer is "no," and despite some unfortunate dicta I think it is quite clearly "no."  Allowing this "extension" analysis would undermine the very core of the purpose of §2254(d), as the Supreme Court recognized in Yarborough v. Alvarado.

CJLF's brief is here.  The full set of briefs is on SCOTUSblog's case page.  Some further thoughts on the arguments of the defendant and NACDL follow the break.
The Supreme Court of Louisiana has held that Miller v. Alabama, which requires that a sentencing judge have discretion to sentence an under-18 murderer to something less than life without parole, is not retroactive to cases that were already final on direct appeal when Miller was decided.

Louisiana follows the rule of Teague v. LaneMiller is a procedural rule, not a substantive one, and it does not fall within the small (extinct?) class of precedents deemed "watershed" rules.

The case is State v. Tate, 2012-OK-2763.
When Burt v. Titlow was argued October 8, most observers had little doubt the state would prevail.  That is, the Supreme Court would reverse the Sixth Circuit's grant of habeas relief and reinstate Vonlee Titlow's conviction for murdering Don Rogers.  See, e.g., this post by Rory Little at SCOTUSblog.

The high court did just that today.  Opinion here.  The judgment is unanimous.  Justice Alito's opinion is joined by all except Justice Ginsburg, who wrote a brief opinion concurring in the judgment.  Here are a few notes on the opinion:

1.  The Court declines to clarify the relationship between AEDPA's two provisions on state findings of fact, §2254(d)(2) and §2254(e)(1).  My take is in CJLF's brief in Wood v. Allen, where the Court also ducked it.

2.  On state court decisions of questions of law, Justice Alito delivers a ringing endorsement of the principle of federalism, the competence of state courts to independently decide federal questions, and the strong standard of Harrington v. Richter.  By the way, federal district and circuit judges,  " 'there is no intrinsic reason why the fact that a man is a federal judge should make him more competent, or conscientious, or learned . . . than his neighbor in the state courthouse.' Stone v. Powell, 428 U. S. 465, 494, n. 35 (1976) (internal quotation marks omitted)."  So don't get too big for your britches.
On Wednesday, the Pennsylvania Supreme Court decided Commonwealth v. Cunningham, on the question of whether the U.S. Supreme Court decision in Miller v. Alabama is retroactive to cases already final on direct appeal before Miller was decided under the principles established by the Supreme Court under Teague v. Lane.

The court correctly decides that the answer to that question is no.  Under the Teague rule, new procedural rules such as Miller apply to cases still on direct appeal, but not to cases where the judgment is final on appeal.

An item originally in today's News Scan, which I have since deleted, summarized a news article that got the key date wrong.  It said Miller would not be retroactive to anyone sentenced before the date of that decision.

State courts can extend retroactivity in state collateral review further than Teague, the Supreme Court said in Danforth.  The Pennsylvania Supreme Court indicated that it was not deciding that question because the defendant did not ask it to.
Peter Hall of The Morning Call (Allentown, Penn.), reports:

Three men sentenced as teenagers to life in prison without parole will have an opportunity to convince federal judges they should be resentenced following a U.S. Supreme Court decision saying that practice is unconstitutional.

The U.S. 3rd Circuit Court of Appeals ruled Thursday the men can file appeals to their state sentences to determine whether the Supreme Court's decision applies in their cases.
First, it should be noted that the Supreme Court did not "say[] that practice is unconstitutional."  It said that having that sentence mandated by law, without discretion in the sentencer to opt for a lower sentence on the individual facts of the case, is unconstitutional.

The decision Thursday involves an arcane bit of federal procedure and is easily misunderstood.  The Third Circuit has not decided that Miller v. Alabama applies retroactively on federal habeas corpus to cases long since final on direct appeal.
As amended in 2006, the Antiterrorism and Effective Death Penalty Act requires the US Attorney General to certify if a state has provided counsel for indigent death row inmates for their state collateral review.  If so, the state gets the benefit of streamlined review in federal court.  The 2006 amendment also requires the AG to promulgate regulations for the procedure of this review, not the substance.  DoJ has dragged its feet for an astonishing and inexcusable seven years, derelict in its duty to implement a law that was passed to speed things up.

Last April, Arizona Attorney General Tom Horne got tired of waiting and applied without the regulations.  See this post.  After DoJ refused to decide until it finished its foot-dragging on the regulations, Horne took the case to the DC Circuit for review.  See this post.  That proceeding is still in its preliminary stages.

That was apparently the incentive necessary to get DoJ off its institutional duff.  On Friday night, when things are done in Washington that the doers don't want in the paper, the regs came out on the Internet.  They are in today's printed Federal Register here.  My comments from last March are here.

In the pattern typical of the Obama Administration, the regs defy the law where DoJ doesn't like what the law says.

Debate on Miller v. Alabama Retroactivity

The New York Times's Room for Debate feature has this debate on retroactivity of Miller v. Alabama, with yours truly holding up one side versus four others.  Our pieces were limited to 300 words.

Update:  Rereading William Baude's piece after seeing his comment to the original post, perhaps I should say there were three on the other side and one neutral.

Update 2:  Will has a post on the debate at the Volokh Conspiracy.

The Unwilling Petitioner

Yesterday, Howard Mintz of the San Jose Mercury-News reported on the case of David Allen Raley, one of the 15 California death row inmates who have completed all the usual reviews of their cases.  "Armed with a new order from the California Supreme Court, Raley has revived his appeals with a claim that he was mentally retarded at the time of his 1985 crime -- a finding that would spare him from execution under a 2002 U.S. Supreme Court decision."

Today, Mintz reports it is not Raley making the claim after all.  It is the lawyers appointed to represent Raley, over his vehement objection.

Death row inmate David Allen Raley on Monday asked a Santa Clara County judge to fire the court-appointed lawyers arguing that he should be spared execution because he is mentally retarded.

But it appears Raley's defense team will be allowed to press forward with the legal argument, whether the condemned killer likes it or not.

After clearing the courtroom to hear from Raley, Superior Court Judge Linda Clark, without commenting on the representation issue, moved forward with a special hearing to determine if Raley should be given a reprieve under a 2002 U.S. Supreme Court ruling that bars the execution of the mentally retarded.
The situation here is a bit murky.  We don't know what happened in chambers between the judge and Raley.  We don't know if this is the first time he raised his objection.  We don't know if his lawyers gave him notice of the claim they were making on his behalf so as to enable him to object earlier.

If a mentally competent inmate wants to fire his lawyers and dismiss his petition, he should be allowed to do so.  If this motion is made for the first time at the last minute, though, it may be just as well to proceed with the hearing, given that the preparation has been done, and the testimony will shed light on whether Raley is indeed competent to make the decision. 

If the day Raley was brought from Big Q for the hearing was the first day he knew that his lawyers were claiming he is retarded, they have some explaining to do.

Habeas Corpus and Obamacare

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Huh?  How can those two things be related?

Georgetown Law Professor Nicholas Rosenkranz has this op-ed in the WSJ contrasting President Obama's suspension of the Obamacare's employer mandate with President Lincoln's suspension of the writ of habeas corpus in the Civil War.

Article I, section 9, second clause of the Constitution says, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."

This is a prohibition, not an authorization.  Who does have the power to suspend the writ when the substantive requirement is met (as it surely was in 1861)?  There was a great constitutional controversy during the first two years of the Civil War as to whether the President could suspend the writ by executive order or whether it required an act of Congress.  Congress finally got around to it in 1863 and mooted that controversy.

There was a constitutional showdown over this between President Lincoln and his old nemesis, Chief Justice Roger Taney, author of the Dred Scott decision.  A Confederate sympathizer named Merryman was charged with treason and held by the military in Fort McHenry, the defense of which had moved lawyer Francis Scott Key to poetry a half century earlier.

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