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Deadlines and Jurisdiction

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When is a filing deadline jurisdictional, and when is it a "mandatory claim-processing rule"?  The U.S. Supreme Court addressed that issue today in Hamer v. Neighborhood Housing Service of Chicago, No. 16-658.  This is a civil case, but criminal lawyers who handled federal habeas corpus petitions need to pay attention.  Federal habeas corpus cases are "civil" for this purpose.

The difference between the two types of deadlines arises mainly when the other party does not object.  An objection based on a "claim-processing rule" can be forfeited by failure to object, but a jurisdictional defect means that everything that happens in the case is void, objection or not.

USCA9 Chastised on AEDPA, Yet Again

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The U.S. Supreme Court issued its first two decisions of the October 2017 Term today.  As usual this early in the term, they are "per curiam" decisions reversing a lower federal court without setting the case for a new stage of briefing and oral argument and with an opinion "by the court" with no justice identified as the author.

Bill noted one of the opinions, in an Alabama capital case, earlier today.

The second case, Kernan v. Cuero, No. 16-1468, is yet another case of the Ninth Circuit failing to respect the limits Congress put on its authority to second-guess state court decisions in the Antiterrorism and Effective Death Penalty Act of 1996.

Proposition 66 Case Now Final

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Thumbnail image for Thumbnail image for Prop66.jpg

On August 24, the California Supreme Court upheld the death penalty reform initiative, Proposition 66, rejecting every one of the attacks made on it.  See this post.  However, the opponents filed a petition for rehearing, and the court gave itself 60 days to consider it.  See this post.

Today, the court denied rehearing, making only trivial modifications to the opinion.

This is a major victory, even if a delayed one.  The issues are nearly all of state law.  The only federal question was a bogus equal protection claim that the majority easily swatted down and the concurrences didn't even bother to mention.  There is no substantial basis for a certiorari petition to the U.S. Supreme Court.  This case is over.

So the effective date of Proposition 66 is today when it should have been almost a year ago, the day the voters enacted it.

Proposition 66 Upheld

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Prop66.jpgThe California Supreme Court today upheld the death penalty reform initiative, Proposition 66, rejecting the attacks on the initiative nearly across the board.  The court was unanimous in rejecting the attacks that would have invalidated the initiative in its entirely.  It divided 5-2 on the interpretation of the five-year limit and on the provision that allows superior court decisions in habeas corpus cases to be appealed to the intermediate courts of appeal rather than the state supreme court.

The case is Briggs v. Brown, S238309.

CJLF has this press release.

We have press coverage from Maura Dolan in the L.A. Times; Cheryl Miller in The Recorder; Sudhin Thanawala and Brian Melley for AP.

KOVR, CBS-13 in Sacramento has this report with me and archival footage of opponent Ron Briggs.

USCA5 Denies Stay to Texas Murderer

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The U.S. Court of Appeals for the Fifth Circuit has denied a stay of execution for Tai Chin Preyor.  Let's start with what he did:

Briefly, Preyor was convicted and sentenced to death in Texas in March 2005, for the 2004 capital murder of Jami Tackett during the course of committing or attempting to commit burglary. He stabbed her numerous times, severing her trachea, jugular vein, and carotid artery. He was arrested on the grounds of her apartment complex, covered in blood. The jury rejected his claim of self-defense, convicted him and sentenced him to death.
Here are the legal issues:

Tai Chin Preyor was convicted of capital murder and sentenced to death in 2005. He challenged his conviction and sentence on direct appeal, in state post-conviction proceedings, and a federal habeas proceeding. No challenges were successful. On July 17, 2017, ten days before his scheduled execution, he filed a motion under Federal Rule of Civil Procedure 60, seeking to reopen his federal habeas proceedings under Rule 60(d)(3) (fraud on the court) and/or Rule 60(b)(6) (extraordinary circumstances). He claimed that his former habeas counsel of record, Brandy Estelle, who had been retained to represent him by his mother, committed a fraud upon the court by acting largely as a puppet for Philip Jefferson, a now deceased California attorney who had been disbarred in 1990, and by concealing Jefferson's habeas involvement from the court. Preyor sought to have the district court restore him to the position he was in before Jefferson and Estelle filed the federal habeas petition on his behalf, so that he can now assert a new claim that his trial counsel rendered ineffective assistance by failing to investigate, discover, and present mitigating evidence of physical and sexual abuse and substance addiction.
The U.S. Supreme Court today released orders from its conference last week, opinions in several argued cases, and one summary per curiam opinion.  There were no criminal law cases accepted for review or decided after argument.  However, the summary opinion was yet another reversal of a federal court of appeals for failure to respect the limits Congress placed on its authority to overturn state judgments for mere disagreement with a state court on an unsettled question.

Virginia v. LeBlanc, No. 16-1177, involves the rule of Graham v. Florida that a person under 18 at the time of the crime cannot be sentenced to life without parole for a crime less than murder.  The Fourth Circuit had disagreed with the Virginia state courts on the question of whether the state's "geriatric release" program provided a sufficient possibility of release to satisfy the Graham rule.

The Court today holds only that the Virginia trial court's ruling, resting on the Virginia Supreme Court's earlier ruling in Angel, was not objectively unreasonable in light of this Court's current case law.

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.

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