Recently in Habeas Corpus Category

Habeas Appeals and Alternate Grounds

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Today the U.S. Supreme Court decided Jennings v. Stephens, No. 13-7211, regarding the issues a habeas petitioner can raise on appeal when the district court accepts some of his claims but rejects others and the state appeals.

Congress long ago placed a limitation on appeals by habeas petitioners, recognizing that the vast majority of petitions are meritless.  In 1996, Congress bolstered the filter for appeals by adding a requirement that a certificate of appealability specify the issues will potential merit and limiting the appellate court's jurisdiction to the identified issues.

How does this requirement apply to a case where the petitioner actually wins on one of his issues, and the state is the party appealing the decision?  For the most part, it doesn't, the Court held 6-3.  The court applied the standard rule for appeals in other kinds of cases, that the party prevailing in the trial court can raise the issues rejected by that court as long as he does not seek different or greater relief than he obtained in that court.

I do not think this result is consistent with the purpose of the issue-specification requirement, although it is not contrary to any language in the statute.  I very much doubt that anyone in Congress even thought about this particular wrinkle as the legislation was moving through.  It will present a practical problem for the courts of appeals in cases where petitioners file hundreds of claims, most of them frivolous, as is increasingly common in capital cases.

This is a loss, but not a big one in overall scheme of things.

The real goal of CJLF's brief in this case was to get the Supreme Court to finally define what is a "claim" for the purpose of habeas corpus.  That question was squarely presented six terms ago in Bell v. Kelly (CJLF brief here), but the Court dumped the case.  The manner in which the Court resolved the appeal issue in Jennings made it unnecessary to decide that question today.  We will keep on keeping on.

Still Guilty, After All These Years

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Here's a red-hot news flash.  Sirhan Sirhan is guilty of the murder of Senator and presidential candidate Robert F. Kennedy.

In 1996, Congress clamped a one-year statute of limitations on petitions for writs of habeas corpus when used as collateral attacks on criminal judgments.  In 2013, the Supreme Court held in McQuiggin v. Perkins, 133 S. Ct. 1924, 1928 that actual innocence is, in effect, an exception.  (I have no quarrel with that holding as a matter of policy and did not file a brief in that case to oppose making the exception, but as a matter of statutory interpretation I don't think the opinion holds water.)  But look who crawls out of the woodwork claiming innocence.  Later in 2013, the federal magistrate judge issued a report and recommendation rejecting Sirhan's claim.  It begins,

This case may be the final chapter in an American tragedy. On June 5, 1968, moments after declaring victory in the California Democratic primary, Senator Robert F. Kennedy walked through the kitchen pantry of the Ambassador Hotel, where petitioner was waiting.  As Senator Kennedy stopped to shake hands with hotel employees, petitioner walked toward him, extending his arm. Instead of shaking Senator Kennedy's hand, petitioner shot him. Petitioner continued to fire his gun even as bystanders wrestled him onto a table. Senator Kennedy died of his wounds.
Kate Mather and Richard Winton report in the LA Times:

Federal prosecutors will seek the death penalty against the man charged in the deadly 2013 shooting at Los Angeles International Airport, according to court documents filed Friday.

Paul Anthony Ciancia, 24, was charged with 11 federal counts in connection with the Nov. 1, 2013, attack that killed one Transportation Security Administration officer and wounded three other people. Authorities allege Ciancia walked into the airport's busy Terminal 3 and opened fire with a semiautomatic rifle.
The decision is obviously correct, and this is one of the few homicides that really should be prosecuted as a federal offense.  The homicide victim was a federal officer targeted specifically because of his federal duties, as are two of the wounded victims.

The current Administration has been reasonable in seeking the death penalty in federal cases where it is warranted, but it is derelict in carrying it out. 

USCA9 Drops Henry Like A Hot Potato

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The strange case of Arizona murderer Graham Henry continues.

Three weeks ago, I noted that the U.S. Supreme Court had taken the unusual step of directing the Court of Appeals for the Ninth Circuit to answer Arizona's petition for an extraordinary writ.  The state was challenging the Ninth's decision to stay the mandate in Henry's case while it considers another case, McKinney v. Ryan, even though the panel in Henry had decided that it really makes no difference to that case how McKinney comes out.

Two days after the Supreme Court's order, the Ninth reheard McKinney en banc.  Today, the Chief Judge issued an order in Henry saying,

Having heard the argument in McKinney, and having considered the record and the briefs filed by the parties in this case, the Court concludes that: (1) the facts and legal arguments are adequately presented in the briefs and record, and that the decisional process would not be significantly aided by oral argument; and (2) a stay of proceedings and further en banc consideration in Henry is not necessary to secure or maintain the uniformity of the Court's decisions.

Therefore, this case is submitted for decision without oral argument. Fed. R. App. P. 34(a)(2). Henry's motion for a stay of proceedings pending the issuance of a decision in McKinney is DENIED. En banc proceedings in this case are concluded. The Clerk is directed to issue the mandate.
I don't know what the Ninth will say to the Supreme Court in its response next Wednesday, but in substance it will probably amount to something equivalent to the famous words of Gilda Radner, "Oh, never mind."

I don't seriously believe that it was the oral argument in McKinney that changed their minds.  Oral argument is rarely that illuminating.  Everything they needed to know was in the papers.

USCA9 Flips Yet Another Death Sentence

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Twenty-five years ago, in Tucson, Arizona, Eric Mann conceived a cold-blooded plan to cheat another man in a drug deal and then kill him to cover it up.  When the customer brought someone else to the transaction, Mann killed them both according to his plan.

After Mann's claims against his death sentence were heard and rejected by the Arizona Supreme Court, the trial court on collateral review, the Arizona Supreme Court again, and the federal district court, Mann appealed to the Ninth Circuit.  The panel assigned was Judges Sidney Thomas, now Chief Judge, Stephen Reinhardt, and Alex Kozinski.  Knowing nothing about the legal issues but only from the composition of the panel, can you guess the outcome?

CJLF Brief in Jones v. Davis

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CJLF has filed an amicus brief in the case where a federal district judge ruled that the long delays in executing murderers in California are a violation of the defendant's rights.  The delays are a violation, of course, but not of the defendant's rights.  The delays are a violation of the rights of the victims, which includes the family of deceased victims, under both a federal statute, 18 U.S.C. § 3771, and the California Constitution, Article I § 28. The remedy is for judges both state and federal to get off their duffs, stop tolerating stalling by the defense, and move these cases along.

If Virginia can execute the D.C. Sniper in less than six years from sentence to execution, other states can do the same no matter how complex the case.  In the rare case of actual doubt that we have the right guy, fine, delay as long as it takes to eliminate the doubt, and commute the sentence if it can't be eliminated.  In all other cases, i.e., the vast majority of cases, there is no need to delay more than six years.  That is plenty of time to resolve all genuine claims. 

After all, if we know to a certainty that the defendant is a murderer, there is no possibility of a miscarriage of justice in the sentence.  The question in the penalty phase is whether to give him what he deserves as a matter of justice or let him off with less as an exercise of mercy.  That is an important question, and its decision must be made carefully and reviewed carefully, but the outcome cannot be an injustice to the defendant.

The idea that we need to spend more time and resources reviewing the sentences of certainly guilty murderers sentenced to death than we spend reviewing the convictions of possibly innocent people sentenced to life in prison is absurd.
Usually, the way to have a lower court's decision reviewed by a higher court is to appeal.  In the U.S. Supreme Court, an actual "appeal" in the technical sense is usually not available, and a petition for writ of certiorari is used instead.

Sometimes, though, neither of these procedures is available, and the aggrieved party must resort to an "extraordinary writ," a petition for a writ of prohibition or mandate.  In form, this is a new suit by the petitioner against the lower court itself, designated the "respondent."  In practice, the opposing party in the lower court is designated the "real party in interest," and that party defends the lower court's action.  That avoids the need for a court to appear as a party, generally regarded as unseemly.

And now, for something completely different....

In re Ryan, U.S. Supreme Court No. 14-375, is a petition by Arizona's prison chief against the Ninth Circuit for sitting on a case after it should be over.  As usual, the opposing party in the court below, the Arizona Federal Defender on behalf of murderer Graham Henry, filed an opposition.  But yesterday, the Supreme Court asked the Ninth Circuit itself to file a response.

Truth and Journalism

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Bill noted yesterday how a hoax was printed as fact to bolster a position on the campus rape debate.  Before commenting on the story, let me make very clear that CJLF has a long history of supporting the rights of victims of rape.  It is a terrible crime, and the victims deserve justice.  We have further supported shield laws to protect victims from being revictimized.  Our commitment to victims' rights remains undiminished.  That said, however, the current movement regarding campus sexual assault is going to extremes that will do little to help actual victims, threatens grave consequences against people who have done nothing wrong, and may well end up hurting real victims as a backlash creates renewed skepticism of those who come forward.

Now, Rolling Stone never has been an exemplar of objective journalism, but reporting inflammatory allegations without the most elementary fact-checking is well below the standard we should expect of any national magazine.  An editorial in the Wall Street Journal today pinpoints the underlying problem here:

The larger problem, however, is that Ms. Erderly was, by her own admission, looking for a story to fit a pre-existing narrative--in this case, the supposed epidemic of sexual assault at elite universities, along with the presumed indifference of those schools to the problem. As the Washington Post noted in an admiring profile of Ms. Erdely, she interviewed students at several elite universities before alighting on UVA, "a public school, Southern and genteel."
In other words, Ms. Erdely did not construct a story based on facts, but went looking for facts to fit her theory. She appears to have been looking for a story to fit the current popular liberal belief that sexual assault is pervasive and pervasively covered-up.
Kevan Brumfield murdered Police Corporal Betty Smothers in Baton Rouge, Louisiana in 1993.  He went on trial in 1995.  Six years earlier the Supreme Court decided in Penry v. Lynaugh that mental retardation (now called intellectual disability) is a mitigating factor that the jury must be allowed to consider but not a categorical exclusion.  Brumfield's lawyers put on no evidence of retardation, instead arguing other factors as mitigation, and he was sentenced to death.

Seven years after the trial, the Supreme Court decided in Atkins v. Virginia that retardation would be a categorical exclusion after all.  The high court did not apologize for its flip-flop.  On state collateral review, the trial judge denied the petition on the basis of the trial record.

What to do on federal habeas?  The deference standard of 28 U.S.C. §2254(d) allows a federal court to grant relief despite a state court's denial on the merits if the state court's "adjudication of the claim ... (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 

But what if the argument is that the state court's unreasonableness was in not allowing evidence, rather than assessment of evidence?  Can a rule to deal with that issue be crafted without opening the door to federal micromanagement of state collateral review or the wholesale relitigation that the AEDPA reforms were enacted to prevent?

Jones v. Chappell Brief

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The California Attorney General yesterday filed this brief in Jones v. Chappell, the case of the strange District Court order reaching out to declare California's death penalty unconstitutional because of delays.

Warden Chappell has left the building, and the acting warden is Kelly Mitchell.  The case will be Jones v. Mitchell for the time being.
"My client did not help those guys commit the robberies, and besides that he only helped because they forced him."

In Joshua Frost's trial for robbery, his lawyer wasn't that blatant, but he did want to argue that Frost was not an accomplice and alternatively qualified for the defense of duress.  The trial judge would not let him argue that, based on a Washington Supreme Court opinion saying that a defendant must admit the elements before asserting a duress defense.  The Washington Court of Appeals affirmed.  The Washington Supreme Court clarified that its precedent was not that strict and the argument should have been allowed.*  However, a majority of that court concluded that this type of error is subject to "harmless error" review, and based on its review of the evidence there was no effect on the outcome of the trial.

On federal habeas corpus, the magistrate judge, the district judge, and a majority of the initial 3-judge court of appeals panel agreed that this type of error is one of the great many subject to harmless error review, not one of the select few "structural" errors reversible without such consideration.

The Ninth Circuit granted rehearing en banc, and a bare majority (6-5) found that the state court's decision that this error is not structural was an unreasonable application of clearly established Federal law.  Finding state court decisions "unreasonable" when the Ninth merely disagrees with them on debatable points is something that court has been reversed for by the Supreme Court time and time and time again.  They never learn.  Today we chalk up yet one more in Glebe v. Frost, No. 14-95 (per curiam).  As in White v. Woodall, decided last term, the federal appeals court stretched existing Supreme Court precedent into new territory, and reasonable judges can disagree as to whether it should be extended there. There is no dissent.

SCOTUS Stays Missouri Execution

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Last night the U.S. Supreme Court acted on two petitions from Missouri rapist and triple murderer Mark Christeson.  See description of the crime here.  There is no doubt about the justice in this case.  Guilt is conclusively proved by DNA, and the crime clearly warrants the penalty.  The Court is apparently satisfied that the lawyers purporting to represent Christeson actually do.  See prior post here.

In Supreme Court case 14-6878, the Supreme Court denied review of Eighth Circuit case 14-2220.  That case has to do with disclosure and compounded pentobarbital.

In Supreme Court case 14-6873, the Supreme Court granted a stay to allow it to decide whether to review Christeson's habeas petition, denied as untimely by the district court.  The Eighth Circuit denied a stay in case 14-3389. 

This case presents issues of representation of prisoners.  The Supreme Court opened a can of worms in its Martinez and Trevino decisions when it said that ineffectiveness of state collateral review counsel can be "good cause" for a federal court to consider a claim defaulted in state court.  If the same lawyer represents the prisoner in both proceedings, can he be expected to argue his own ineffectiveness?  But how many new lawyers are we going to appoint for one defendant?  We already say that trial counsel can't continue into habeas for this reason.  Is every defendant going to get another new lawyer for federal habeas, and will justice be delayed and denied in every capital case while that lawyer gets up to speed?  That could be some time, given how complex capital cases can be.

Note that this problem is not entirely limited to capital cases.  Martinez was not a capital case.  The problem of justice being delayed while the case is litigated is limited to capital cases, but the underlying conflict issues are not.

The Christeson case involves the related issue of appointed counsel missing the deadline to file the federal habeas petition, as distinguished from the state-court procedural defaults in Martinez and Trevino.
Looks like criminal law and law enforcement are going to be a bigger part of this Term of the U.S. Supreme Court.  The Court's Monday orders list took up for full briefing and argument three criminal and related cases:

Chappell v. Ayala, No. 13-1428, the Ninth Circuit decided in favor of California death row inmate Hector Ayala.   The case involves the interaction between harmless error analysis and the deference owed to state court decisions when an inmate takes his rejected claims to the federal courts on habeas corpus.  If I'm not mistaken, the Ninth Circuit's batting average in California capital cases, once certiorari is granted, is .000.

Los Angeles v. Patel, No. 13-1175:  Does a hotel have a privacy interest in its guest register, so that police cannot inspect it at will even though a local ordinance says they can?  There are a lot of heavily regulated industries that have such requirements.  The government can go through an auto wrecking yard checking the VINs for stolen vehicles, for example.  No warrant or particularized basis of suspicion required.  How about hotels?

Henderson v. United States, No. 13-1487:  What to do with a defendant's guns when, as a result of his conviction, he can no longer legally possess them?

Jennings v. Stephens Argument, Continued

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The argument transcript in Jennings v. Stephens is now available.

On page 27 counsel for the petitioner (i.e., the prisoner) seeks to refute an argument that I made initially and the state picked up on.  If the petitioner prevails in district court and there is no filter at all, then a petitioner who filed a potload of arguments, most of them frivolous, can argue them all on appeal as long as he prevails on one.  See pages 9 and 14 of CJLF's brief.  He seeks to assure the Supreme Court this scenario would be rare.  I don't know about Texas, but it is certainly not rare in capital cases in California.  Burying the courts in a mass of arguments, most patently meritless, defaulted, or both, is standard procedure here, as the California Supreme Court described in In re Reno.  It's all part of the strategy to throw as much sand in the gears as possible.

Much of the discussion in this case involves the effect of a decision granting habeas relief in U.S. District Court when the case goes back to the state court.  The state's position is that the district court decision settles every issue decided between the parties for the purpose of retrial, so if that court says the prisoner is right on claim A but wrong on B, C, D, E, and F, he has to appeal a decision he won if he doesn't want what he believes to be errors on B through F repeated at the retrial.  The whole idea of prisoner who won his new trial in the federal district court's decision appealing that decision strikes me as very strange.

The general rule in litigation is that a decision of a court on an issue settles that issue between the parties unless that decision is appealed and reversed on appeal.  This is called issue preclusion or collateral estoppel.  A better answer to the problem the state poses in this case is to simply to say that this rule does not apply in habeas corpus.  In olden times, a decision on habeas corpus did not have res judicata effect, so a prisoner could go from one judge to another asking relief, and none would be bound by the denial of relief by the others.  The Supreme Court could, and in my view should, partially revive this rule for federal habeas for state prisoners and say that the federal district court's authority in issuing a conditional release order is limited to saying "either release him or give him a new trial," period.  Whether the state courts want to respect the federal judge's conclusions in the opinion that went into that order should be up to them.  Whether the federal courts would overturn the judgment on habeas again if they do not would be a new case, with the AEDPA deference standard playing a large role.

Another big issue is whether ineffective assistance of counsel is one claim or a separate claim for each alleged error of counsel.  I think there is one legal right to have an effective attorney, and a claimed violation of that right is one claim, at least as to each phase of the case.  That would simplify things considerably, and Justice Breyer notes our brief  to that effect at pages 48-49.

Update, 10/17:  Rory Little has this analysis of the argument at SCOTUSblog.

Jennings v. Stephens Argument

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The U.S. Supreme Court is hearing argument today in Jennings v. Stephens. We noted this case in the week preview last Friday.  Rory Little has a preview at SCOTUSblog, with some complimentary things to say about CJLF's brief.

The transcript should be available this afternoon.

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