Recently in Habeas Corpus Category

As we have noted on this blog multiple times, the Supreme Court has often (and correctly) rebuked the Court of Appeals for the Ninth Circuit for failure to follow the standard for reviewing state criminal judgments prescribed by Congress and elaborated by the Supreme Court. A growing minority of judges of the Ninth Circuit itself are rebuking their colleagues on the same point, and the dispute is getting increasingly strident. Here is the opening of the dissent from denial of rehearing en banc in the Arizona capital case of Kayer v. Ryan, No. 09-99027:

The podcast of my post-argument teleforum on the D.C. Sniper case, Mathena v. Malvo, is now available on the FedSoc website. Audio of the argument is available at the Oyez Project.

This Administration will not tolerate violence against police, and we will do all we can to protect the safety of law enforcement officers.  I will share with you one proposal that we will be advancing after Labor Day.  We will be proposing legislation providing that in cases of mass murder, or in cases of murder of a law enforcement officer, there will be a timetable for judicial proceedings that will allow imposition of any death sentence without undue delay.  Punishment must be swift and certain.

I am elated that speeding up the needlessly and grotesquely protracted proceedings in capital cases is getting the personal attention of the Attorney General. However, the chances of getting death penalty fast track legislation through Nancy Pelosi's House of Representatives are essentially nil, so why don't we see what we can do with existing law?

A recurring issuing in the law of federal habeas corpus is whether and when a federal court can hold an evidentiary hearing because it is dissatisfied with the fact-finding in the case by the state court. The U.S. Supreme Court declined to resolve a circuit split on this issue, denying certiorari in the Illinois case of Brookhart v. Lee, No. 18-1197 and the Arizona case of Apelt v. Ryan, No. 18-8386.

Kern County DA Lisa Green announced that her office will not retry Vicente Benavides Figueroa, whose conviction and death sentence were overturned by the California Supreme Court on March 12 in state habeas corpus proceedings.

The DA's decision illustrates that a decision not to retry a case is not the same as a finding that the defendant is actually innocent.  She concludes that "upon an objective review of the facts, there is insufficient evidence to establish guilt beyond a reasonable doubt."

So this is one of those cases where the other side will crow "exonerated," much of the public will misunderstand that to mean actually, demonstrably innocent, and the truth will never be known for sure.

An additional factor in the DA's decision is that even if they did get a second-degree murder conviction, between Benavides's age and the time he has already spent in prison there is a strong chance he would be paroled promptly.

How would a case like this be handled if it arose today under Proposition 66?  In this case, the habeas corpus petition was filed directly in the California Supreme Court, an overloaded court that is institutionally unsuited to deciding fact-heavy questions.  It took 16 years from filing to decision.

Under Proposition 66, the case would have been filed in the Kern County Superior Court, and that court's decision would have been reviewed by the Court of Appeal for the Fifth District.  It is likely that the same result would have been obtained, and considerably faster.  Even though it would have had to go through two courts, and probably a review petition to the Supreme Court, those courts are quite capable of completing even complex cases in less than 16 years combined.

Several aspect of the law of federal habeas corpus require the federal court to examine the basis of an earlier state court decision.  Was it based on a procedural default rule, the merits, or both?  If on the merits, was it a reasonable application of Supreme Court precedent on the issues decided, and, if not, what to do about the issues left undecided?

And what does a federal court do when a state court renders an opinion explaining its reasons but later decisions of the same or a higher court simply summarily deny relief?

In Ylst v. Nunnemaker, 501 U.S. 797 (1991), a procedural default case, the high court announced the "look through" rule.  Although normally the last state court decision is where a federal court should look, if that decision is unexplained the federal court will look through it to the last explained decision.

Does the Ylst "look through" rule apply to the "deference" rule of the Antiterrorism and Effective Death Penalty Act of 1996 as well?  Yes, the high court ruled today in Wilson v. Sellers.  That was the position both parties had taken earlier in the litigation, but the Eleventh Circuit had ruled to the contrary, and the Georgia Attorney General's Office changed its stance at the Supreme Court level.

Will this change the outcome of many cases? Justice Gorsuch, dissenting, does not seem to think so.

A major reform of the Antiterrorism and Effective Death Penalty Act of 1996 has lain dormant for 22 years, blocked by judicial hostility, bureaucratic foot-dragging, and obstructive litigation.  With the regulations on the books, the litigation to block them resolved, and a new administration in office, this major yet nearly forgotten reform may finally see the light of day.

States are required to provide counsel for indigent defendants at trial and on direct appeal but not in state collateral review (habeas corpus or a substitute).  Based on the report of a committee headed by retired Justice Lewis Powell, Congress offered states a deal.  Set up a system for appointment of state collateral counsel with standards of qualification and adequate funding, and you get an expedited trip through federal habeas corpus.

The federal process can be expedited in these circumstances because qualified counsel have already litigated the major claims in state court.  Between the procedural default rule and the deference standard, if those rules are correctly applied, there should be little for the federal court to decide in most cases.

In the face of judicial hostility wrongly rejecting states' claims to qualify, Congress in 2006 amended the law to vest the initial qualification decision in the U.S. Department of Justice.  AP reports that the application of Texas to be certified is finally moving forward.

The usual suspects are, of course, raising the objection that the present extreme delays are needed to prevent the execution of innocent people.  Most capital cases, however, involve no doubt at all about the identity of the perpetrator.  For those cases where there is such doubt, federal law makes an exception to the successive petition rule for cases of actual innocence.  There are also state exceptions to their successive petition rules, see, e.g., Cal. Penal Code § 1509(d), and executive clemency.

There were few judges in the federal courts more consistently pro-criminal than the late Harry Pregerson.  Nominated for the Ninth Circuit by President Carter, Judge Pregerson was particularly noteworthy for being asked point-blank in his confirmation hearing whether he would vote for his own opinion about the outcome of a case or a contrary result required by the law, answering that he would vote his own opinion, and being confirmed anyway.  Give him points for candor, at least, both in that answer and remaining true to it until this year.

Today, on the very last day of the year, a divided three-judge panel of the Ninth Circuit overturned the conviction in a California capital case, with Judge Pregerson casting the deciding vote.  Judges Reinhardt and Pregerson voted to grant the writ of habeas corpus, reversing District Judge Ronald Lew and effectively reversing the California Supreme Court.  Judge Jacqueline Nguyen dissented.  The four federal judges to review this case, therefore, divided evenly, yet the decision is to overturn the judgment of the state courts.

But wait.  Judge Pregerson died November 25.  Doesn't that matter?  Apparently not.  "Prior to his death, Judge Pregerson fully participated in this case and formally concurred in this opinion after deliberations were complete," the opinion says.

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.

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.