Recently in Habeas Corpus Category

Twenty-five years ago, the U.S. Supreme Court announced one of the most important decisions* in the modern history of criminal procedure, Teague v. Lane, 489 U.S. 288, 306 (1989).  Adopting a rule proposed by Justice Harlan 20 years earlier, the court decided that new rules of constitutional law would not be applied retroactively to cases that were already final on direct review at the time the rule was announced.  A corollary rule was that new rules could not be announced in habeas review of final convictions.

In his decision declaring California's death penalty unconstitutional, Judge Carney has this cursory discussion of the Teague issue:

The rule Mr. Jones seeks to have applied here--that a state may not arbitrarily inflict the death penalty--is not new. Rather, it is inherent in the most basic notions of due process and fair punishment embedded in the core of the Eighth Amendment. See Furman, 408 U.S. at 274-77 (Brennan, J., concurring) (describing the principle that "the State must not arbitrarily inflict a severe punishment" as "inherent in the [Cruel and Unusual Punishment] Clause" and tracing its application in Anglo-American jurisprudence); see also id. at 242 (Douglas, J., concurring) ("There is evidence that the provision of the English Bill of Rights of 1689, from which the language of the Eighth Amendment was taken, was concerned primarily with selective or irregular application of harsh penalties and that its aim was to forbid arbitrary and discriminatory penalties of a severe nature."). This rule is certainly one "so deeply embedded in the fabric of due process that everyone takes it for granted." Dyer v. Calderon, 151 F.3d 970, 984 (9th Cir. 1998) (en banc). It is therefore not a new rule for Teague purposes. See id. ("[A] rule needs to be announced for purposes of Teague only if it's new.").
Judge Carney is breathtakingly ignorant of the most elementary principles for applying the Teague rule.

The Lackey Claim, Again

It's been almost twenty years since Justice Stevens, alone, took seriously a claim that a death sentence could be rendered unconstitutional by the length of time taken by the many procedures to review it, all or most of them initiated by the defendant.  That was in Lackey v. Texas, 514 U.S. 1045 (1995).  The full court has turned the claim down every time.  Although denial of certiorari (meaning simply that the high court declines to hear the case) does not form a precedent binding on lower courts, the consistency of rejection of this claim has generally been understood as a signal that the issue was dead.

Prior posts on the high court's rejection of Lackey claims are here, here, here, here, and here.

Justice Thomas noted in Knight v. Florida, 528 U.S. 990 (1999):

I write only to point out that I am unaware of any support in the American constitutional tradition or in this Court's precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed. Indeed, were there any such support in our own jurisprudence, it would be unnecessary for proponents of the claim to rely on the European Court of Human Rights, the Supreme Court of Zimbabwe, the Supreme Court of India, or the Privy Council.
Now comes a federal district judge in California who accepts the claim based on the particularly extended delays in California.  The order is here.

Judge Carney's thesis, in a nutshell, is that the death penalty lacks a penological basis after such a long delay.  But the retribution interest, at least, is still there.  The defendant still deserves this punishment for the very worst murders, and society has a valid interest in carrying it out, no matter how long it takes.

The problems Judge Carney notes are violations of rights, though -- the rights of the victims' families.  See 18 U.S.C. § 3771(a)(7); Cal. Const., Art. I, § 28(b)(9).  The California Legislature has been derelict in its duty to pass the needed reforms, killing them in committee time after time.  The Department of Corrections and Rehabilitation, and ultimately the Governor, have been derelict in their duty to carry out their responsibilities to execute judgments and implement a protocol that will allow them to do so.  The California Supreme Court has been derelict in its duty to resolve state habeas petitions in a reasonable time by referring them to the superior court where they belong.  The federal courts have been derelict in their duty to fully implement the Antiterrorism and Effective Death Penalty Act of 1996, evading it at every turn despite numerous reversals by the Supreme Court.

All of these people need to do their duty and fix the delays -- for the victims, not the perpetrators.

The facts of the particular case follow the break.

Oh, Never Mind

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I spoke a bit too soon yesterday in saying the U.S. Supreme Court had wrapped up its term.  Today we have an odd little one-paragraph per curiam disposition in Willams v. Johnson, 13-9085, a sequel to last year's Johnson v. Williams, 11-465.

The underlying issue has to do with a trial judge's dismissal of a juror.  As with a great many issues in criminal procedure, there are state law requirements overlaid with federal constitutional case law.  The state appellate court, in its decision rejecting the claim, did not separately discuss the federal question.  In the Ninth Circuit, the notorious Judge Stephen Reinhardt engaged in his favorite pastime of evading the habeas corpus reforms enacted by Congress in the Antiterrorism and Effective Death Penalty Act of 1996.  Declaring that the state court had ignored the federal claim and therefore not ruled on the merits, he found himself freed from the deference shackles imposed by Congress and proceeded to decide the claim de novo, a bit of legal Latin which, in this context, means "we don't give a damn what the state court decided."  The mercurial Chief Judge Alex Kozinski went along with this, as did a district judge sitting by designation.

SCOTUS was not amused and slapped down the Ninth in yet another unanimous AEDPA reversal last year.  However, the Supreme Court committed its own error in the process.  Along with saying that the Ninth should have applied the deference standard, for reasons well explained and quite correct, the opinion contains an otherwise unexplained line that "under that standard respondent is not entitled to habeas relief."  The Court also denied a petition for rehearing.

On remand, the Ninth thought it was bound by this statement.  Today, the Supreme Court said no, go ahead and decide the case under the deference standard.  No explanation; no apology.

The Court also issued a short orders list vacating and remanding some cases in light of recent decisions and granting certiorari in some civil cases.
AP reports:

LAS VEGAS (AP) -- O.J. Simpson's lawyers submitted a supersized appeal to the Nevada Supreme Court, seeking the former football star's release from prison and a new trial in his 2007 Las Vegas armed-robbery case.

The lawyers met a midnight Wednesday deadline to submit a request for the court to review Simpson's claim that 2008 trial in Las Vegas was tainted by his fame and notoriety following his 1995 acquittal in Los Angeles in the deaths of his ex-wife and her friend.
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The appeal stems from arguments rejected last year by Clark County District Judge Linda Marie Bell that Simpson's trial attorney botched Simpson's trial and first appeal to the state Supreme Court, the only appeals court in Nevada.
The case is Simpson v. State, No. 64529.  It is an appeal from the District Court's denial of postconviction relief.  It goes to the Nevada Supreme Court because Nevada has no intermediate appellate court.  The direct appeal was No. 53080, affirmed in 2010.
After the failed execution two weeks ago in Oklahoma, the usual voices called for a halt in executions in other states that have had no such problems.  The U.S. Court of Appeals for the Fifth Circuit rejected that claim yesterday in the case of Texas murderer Robert James Campbell.  The opinion is here.

Today the same court granted a stay of execution to allow Campbell to litigate his retardation claim.  Mark Berman has this story for the WaPo.

Campbell is able to litigate his Atkins claim this late because of nondisclosure by the state prison authorities of tests indicating retardation.  The court notes that its action is "[b]ecause of the unique circumstances of this case," so it is not an indication for other cases.

In its 1996 reform of habeas corpus law, Congress placed severe restrictions on the ability of inmates to file a second federal habeas petition after one has been rejected.  This is one of the very few cases found to meet the stringent criteria.

AP has some more info on the planned, but now cancelled, execution here.

Reasonable Applications

If a criminal defendant argues a debatable question in his appeal in the state courts, those courts rule against him, and the U.S. Supreme Court declines to take up the case (as it does 99% of the time), should the defendant get another bite and the apple in the lower federal courts?  Should a single federal district judge or a three-judge panel of the federal court of appeals be able to effectively overturn the considered judgment of the state supreme court?

For a long time, that was the way it worked.  Perhaps there was a policy justification for it at the time, but beginning in the mid-1970s, the Supreme Court and Congress have been pushing the law in the other direction.  Most debatable constitutional questions in criminal cases today are far removed from the real Constitution and rarely have much to do with our confidence we have the right guy.  On top of that, the asymmetric nature of habeas corpus make it a "heads I win, tails we take it over" form of review tilting in the defendant's favor, a tilt that is unnecessary and unjust when we are not talking about questions of actual innocence.

A big leap forward was made in 1996, when Congress enacted that a claim decided on the merits by the state court could not be the basis for a federal writ of habeas corpus unless the state decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or was "based on an unreasonable determination of the facts."

Defendant-leaning federal judges hate this law and have been evading it ever since.  The Supreme Court smacks them down, sometimes harshly, but as one of the worst is rumored to have said, "they can't reverse them all."

Another smackdown came today.  In addition to strong words, though, the Supreme Court closed a loophole, making an important advance for justice.

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.

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