Recently in Habeas Corpus Category

The California Supreme Court yesterday issued a pair of companion cases addressing state habeas claims by death row inmates.  Despite the state's argument to the contrary, the court reaffirmed its practice of accepting "shell petitions" in order to toll the statute of limitations for federal habeas petitions.  

In both cases, the inmates were sentenced to death and shortly thereafter requested habeas counsel, for which there is a statutory right in California.  In both cases, the court's appointment of counsel took a significant amount of time - in one case (In re Jimenez), it took the court eight and a half years for the court to appoint counsel, and in the other (In re Morgan) the court still had "not found qualified counsel willing to accept the appointment" after 13 years.  The court stated that these delays are common because "[q]uite few in number are the attorneys who meet this court's standards for representation and are willing to represent capital inmates in habeas corpus proceedings."  (The court's standards are listed in a footnote on page 6 of the In re Morgan opinion.)  Until the court finds suitable counsel, the court reaffirmed that the inmate may file a cursory "shell petition" to preserve his right to seek later relief in the federal courts.  The court also upheld its practice of, upon appointment of counsel, allowing the counsel to amend the habeas petition for up to 36 months.

Justice Corrigan wrote separately against the practice, noting that the practice of allowing shell petitions only burdens the court and the public by permitting capital inmates to "languish without representation for several years."  Justice Corrigan also stated that while the court is charged with the obligation to provide habeas counsel to these inmates, it "is not, however, [the court's] proper role to help one class of convicted inmates evade a federal statute of limitations."

As one who specializes in the law of habeas corpus, I thought I had heard every use, misuse, and abuse of the Great Writ. Nope. AP reports from Madison, Wisconsin:

A candidate for the Wisconsin Legislature who wants to use an expletive and a racially charged phrase to describe herself on the ballot has lost an appeal of a federal judge's order dismissing her lawsuit.

Ieshuh (eye-EE'-shu) Griffin appealed U.S. District Judge Rudolph Randa's decision rejecting her lawsuit on Thursday. She wants to describe herself on the ballot as "NOT the 'whiteman's b----."

The judge on Friday dismissed her appeal, saying no matter how creatively she argues the issue, she can't file her lawsuit as a habeas corpus action. Randa says those are reserved for people in custody, which Griffin is not.

Griffin said Monday she will attempt to appeal the order directly to the U.S. Supreme Court.

Not quite sure what this story means when it says she appealed the district judge's decision on Thursday and the judge (the same judge?) dismissed the appeal on Friday.  That doesn't make much sense.  In any case, Ms. Griffin can't appeal a district court's denial of a habeas corpus petition directly to the U.S. Supreme Court, because that court has no jurisdiction to hear such an appeal. She can file a writ petition there, but it will be denied.

Today the Supreme Court dropped the other shoe left from Burton v. Stewart, 549 U.S. 147 (2007).  When a state prisoner gets federal habeas relief on punishment but not guilt and is then resentenced, does the successive petition rule bar any claims in a new habeas petition that could have been raised in the first one?

No, says the Court in Magwood v. Patterson. Interesting lineup on this one. Justice Thomas writes the opinion, joined by Justice Scalia in full and by Justices Stevens, Breyer, and Sotomayor in all but one part. Justice Kennedy dissents joined by CJ Roberts and Justices Ginsburg and Alito. Justices Breyer, Stevens, and Sotomayor don't like the part of Justice Thomas's opinion that they think tends to undermine Panetti v. Quarterman, 551 U.S. 930 (2007).

I expect to have more to say on this interesting opinion later.

Finally, it appears that the United States Supreme Court is prepared to clean up one of the messier areas of its jurisprudence, the question of when a state procedural default rule is an "adequate" ground for decision, precluding federal review of the underlying question. That is, when a federal claim is denied in state court because the defendant did not raise it when, where, and how the state rule requires it to be raised, under what circumstances can a federal court address the claim anyway.

The precedents in the area have drawn fire from many directions over the years. Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969), was trashed in Justice Harlan's separate opinion and the Wright & Miller treatise (v16B, §4026) and effectively overruled sub silento in Beard v. Kindler earlier this term. Henry v. Mississippi, 379 U.S. 443 (1965), was blasted in Justice Kennedy's dissent in Lee v. Kemna, 534 U.S. 362 (2002). The incoherence of the whole body of jurisprudence is alluded to in the Hart & Wechsler casebook as employing "varying rubrics" to describe what is inadequate (5th ed. at 557).

I've taken a few shots at it myself over the years, trying to get the high court to address it from the Michael Morales case in 1996 to Walker v. Martin this term.

The issue was presented in Philip Morris USA v. Williams, but the Court dropped-kicked the case. In Kindler, they addressed one narrow aspect but deferred a broader ruling to a later case.

Walker v. Martin, No. 09-996, certiorari granted today, is very likely that case.

Today, a panel of the Ninth Circuit decided on remand the case of Belmontes v. Wong. The order in its entirety reads:

We have reviewed the briefs filed by the parties following the Supreme Court's issuance of its opinion dated November 16, 2009 in Wong v. Belmontes. In light of that opinion, we are compelled to affirm the district court's order denying the writ of habeas corpus.

How long will the Ninth sit on the rehearing petition? Should we start a pool?

Here is one from the Cases You Have to Look Up Just for the Name file.

Allah has filed an original habeas corpus petition in the U.S. Supreme Court, In re Allah, No. 09-11321. Allah is appearing pro se and gives his address as Coyote Ridge Correctional Center in the State of Washington.

The first question that strikes me is whether Allah has a "corpus" that one can have custody of. If so, why does He need the assistance of mere mortals to obtain His liberty?  Also, Allah has moved for leave to appear in forma pauperis. Does that mean Allah is indigent? I did not think so.

The Supreme Court today granted certiorari in the California death penalty case of Cullen v. Pinholster, No. 09-1088. AP story is here. The Ninth Circuit en banc opinion is here. The first three paragraphs of Chief Judge Kozinski's dissent are after the jump.

In the 1970s, the Supreme Court decided that states had to limit the death penalty to a defined subclass of murders. In Maynard v. Cartwright, the Court held that Oklahoma had defined an impermissibly vague subclass of murder as "especially heinous, atrocious, or cruel." Copying straight out of the Model Penal Code was no defense.

Today, the Supreme Court held in Holland v. Florida that equitable tolling will not operate to extend the statute of limitations on habeas petitions in cases of "a 'garden variety claim' of attorney negligence." (AP story here.) Equitable tolling only applies to a subset of attorney negligence. How is the subset defined? Applying Maynard to Holland, the Court fails its own test:

The Supreme Court decided today in Holland v. Florida that the habeas corpus statute of limitations in AEDPA is subject to "equitable tolling." Equitable tolling is supposed to apply only in extraordinary circumstances, but in the wrong hands it can amount to a de facto repeal of the statute of limitations. More on this later today.

It is not unusual for habeas petitioners, even those represented by counsel, to sue the wrong defendant (respondent). For example, in Holland v. Florida, No. 09-5327, pending in the Supreme Court, the named respondent is the State of Florida, even though the State is immune from suit under the Eleventh Amendment. "[T]he proper respondent is the warden of the facility where the prisoner is being held...." Rumsfeld v. Padilla, 542 U.S. 426, 435 (2004).

Government attorneys usually don't make a big deal of this, but here is a clever gambit that may have occurred to some. Wait for the statute of limitations to expire, move to dismiss the incorrect respondent, and then defend against an amendment naming the correct respondent on statute of limitations grounds. Would that work?

Fuhgeddaboudit. See Krupski v. Costa Crociere S. p. A., decided today by the U.S. Supreme Court.

No, not Officer Krupke of West Side Story.

Jill Zeman Bleed reports for AP: "Researchers at the William J. Clinton Presidential Library are working overtime to produce more than 160,000 pages of documents -- some of them possibly holding clues to the record of Supreme Court nominee Elena Kagan.... The nation's top archivist has said he hopes to start releasing documents by June 4."

We at CJLF are particularly interested in knowing whether Ms. Kagan had anything to say on the habeas reform portion Antiterrorism and Effective Death Penalty Act of 1996. More particularly, what was her input, if any, on President Clinton's preposterous signing statement to the effect that the deference standard did not really change anything and would be unconstitutional if it did. The first of these two propositions has been expressly rejected by the Supreme Court, and the second has been implicitly rejected, but a nominee who actually believed the second would be quite dangerous.

Non sequitur of the day award goes to Senator Patrick Leahy, regarding the schedule:

Committee Chairman Patrick Leahy, D-Vt., pointed out when he set the hearing schedule that the Senate had reviewed Kagan's credentials a year earlier when it confirmed her as solicitor general, the government's top lawyer in arguments before the Supreme Court.

"There is no reason to unduly delay consideration of this nomination," said Leahy.

As the distinguished gentleman from Vermont knows very well, there is a world of difference between the "at will" office of SG and a lifetime appointment to the Supreme Court.

The United States Department of Justice stabbed justice in the back yesterday. It is high time for the attorneys general of the states to take decisive action.

The "fast track" for federal court review of state capital cases was originally enacted by Congress in 1996 as part of the Antiterrorism and Effective Death Penalty Act.  States that provided counsel for death row inmates in the second stage of state-court review of their cases would receive the benefit of a streamlined review in federal court, including time limits on those courts.  However, the original system had a built-in conflict of interest in that the courts subject to the constraints were the ones who decided whether a state qualified.  They invariably found reasons not to give the states the promised benefits.

In 2006, in the bill that renewed the Patriot Act, Congress removed the authority to decide whether a state qualified from the conflicted courts and gave it to the Attorney General with review by the Court of Appeals for the D.C. Circuit, the one circuit that does not hear state habeas cases. The bill also provided that the Attorney General would promulgate regulations to implement the act.

The Bush Administration took almost two years to produce and finalize regulations at the very end of that Administration.  A federal district court in California enjoined implementation of the regulations, despite the fact that the core purpose of the amendment was to remove the certification issues from the courts that decide habeas cases. The Obama Justice Department failed to challenge this injunction.

In a notice dated Tuesday, the Justice Department proposed rescinding the already much-delayed regulations, to be replaced with new regulations later.  This move could further delay, possibly by years, implementing a law that has already been stalled for 14 years.

It is very clear that there will be no justice from this Justice Department. So what should be done?

Although the act directs USDoJ to promulgates regulations, nothing in the act depends on those regulations or permits a state qualifying for the fast track to be denied the benefits for which it qualifies under law until USDoJ gets around to promulgating them. State attorneys general in states that have adopted qualifying appointment of counsel mechanisms (which is most of them), can and should apply now and not wait any longer for regulations.

If USDoJ stalls or denies certification, go to the D.C. Circuit. The act provides that the court's review is de novo, so in the end it really does not matter what Eric Holder thinks.

I call upon every attorney general in a qualifying state to act immediately. I call upon every candidate for attorney general in a qualifying state to pledge that he will vigorously pursue qualification immediately upon election.

Eric Holder has declared war. So be it. Full speed ahead!

Yesterday, the Supreme Court granted certiorari in the postconviction DNA testing case of Skinner v. Switzer. Mrs. Switzer is the DA for the 31st Judicial District in the Texas Panhandle. ConnectAmarillo.com has this article with a letter from counsel for Mrs. Switzer. It is copied in full after the jump.

The Supreme Court today sent back to the lower federal courts the case of Jefferson v. Upton, a capital habeas case so old that it is governed by the pre-1996 rules for how a federal court should treat state-court findings.

Accordingly, we believe it necessary for the lower courts to determine on remand whether the state court's factual findings warrant a presumption of correctness, and to conduct any further proceedings as may be appropriate in light of their resolution of that issue. See Townsend, supra, at 313-319; Keeney v. Tamayo-Reyes, 504 U. S. 1 (1992). In so holding, we express no opinion as to whether Jefferson's Sixth Amendment rights were violated assuming the state court's factual findings to be true.

In dissent, Justice Scalia notes the unusual nature of the disposition:

Generally speaking, we have no power to set aside the duly entered judgment of a lower federal court unless we find it to have been in error. More specifically, except where there has been an intervening legal development (such as a subsequently announced opinion of ours) that might alter the judgment below, we cannot grant a petition for certiorari, vacate the judgment below, and remand the case (GVR) simply to obtain a re-do. Webster v. Cooper, 558 U. S. ___, ___ (2009) (SCALIA, J., dissenting) (slip op., at 3). Yet today the Court vacates the judgment of the Eleventh Circuit on the basis of an error that court did not commit, with respect to a statutory issue that had never previously been raised, and remands for more extensive consideration of a new argument that might affect the judgment. Under the taxonomy of our increasingly unprincipled GVR practice, this creature is of the same genus as the "Summary Remand for a More Extensive Opinion than Petitioner Requested" (SRMEOPR). Id., at ___ (slip op., at 4). But it is a distinctly odious species,deserving of its own name: Summary Remand to Ponder a Point Raised Neither Here nor Below (SRPPRNHB).

Today's decision of the D.C. Circuit in the Afghanistan habeas case, Al Maqaleh v. Gates,  is a good example of the difficulty faced by a lower court when a higher court fails to truly follow its own precedent but also does not overrule it. The earlier case is still a precedent, but it does not mean what it seems to say and what most people understood it to mean, because the later opinion came to a different result on facts that should have come within the earlier precedent.

Justice Robert Jackson's classic opinion in Johnson v. Eisentrager, 339 U.S. 763 (1950) was long understood to stand for the proposition that an alien enemy captured and detained outside the U.S. had no constitutional right to have his detention reviewed by a federal civilian court on habeas corpus. But Boumediene v. Bush, 128 S. Ct. 2229 (2008) did find such a right in cases coming within those parameters, without overruling Eisentrager. So where does the Eisentrager precedent end and the Boumediene precedent begin?

The D.C. Circuit rejected positions of both parties that it characterized as "extreme." The government said Boumediene was limited to Guantanamo Bay, and the petitioners said it extended to every place under U.S. Government control.

If the simple answers are wrong, what do we have? Yes, the dreaded three-factor test: