Tomorrow evening (Wednesday), the Gold Coast Chapter of the Federalist Society (Ventura County, CA) will have a program on "Murderers, Terrorists & Treaties: Current Supreme Court Cases on the Treatment of Aliens," discussing the Guantanamo cases and Medellin. The speaker is CJLF Legal Director Kent Scheidegger. Details here.
Ohioans, sit down before you read this. The Sixth Circuit today upheld the conviction and death sentence of Marvallous Keene for "eight counts of aggravated murder, six counts of aggravated robbery, one count of aggravated burglary, one count of burglary, two counts of kidnapping, and two counts of attempted aggravated murder." Judge Gilbert Merritt was on the panel and did not dissent. Among the claims was a supposed equal protection violation for not seeking the death penalty against other murderers who had killed far fewer people. Yes, there are arguments in capital cases so bogus that they don't even pass Judge Merritt's smell test.
Despite all the wailing and gnashing of teeth over the Supreme Court's decision in Medellin v. Texas, the holding is not all that remarkable. It has long been established that not all treaties are self-executing, and the Court held that the ones at issue here are not, based on their own language. Where adherence to a treaty is contrary to a statute, the President cannot override the statute unilaterally, but legislation is required. Far from making America a rogue nation, placement of the responsibility for treaty compliance in the political branches and not the judiciary is quite common in the world.
So the ball is squarely in Congress's court. The United States, of course, should live up to its treaty commitments. What would a congressional implementation of International Court of Justice's decision in Avena look like? It should go as far as our treaty obligations require and not a nanometer further.
Continue reading "Medellin: What Would Congressional Implementation of Avena Look Like?" »
The Supreme Court decided the case of Medellin v. Texas, 5-1-3. The case involves a decision of the International Court of Justice that the United States must reconsider the claims of about 50 Mexican nationals that their rights under the Vienna Convention were violated by the failure of police to inform them upon arrest that they could have the Mexican Consulate notified. In many of the cases, including Medellin, state courts had held that the claim was defaulted by failure to raise it in time. The ICJ held, in essence, that the default rule could not be applied at least to defaults occurring before the consulate had notice of the case. Two years ago, in Sanchez-Llamas v. Oregon, the U.S. Supreme Court disagreed and held that the treaty does not trump state procedural default rules. However, that case did not involve any of the persons whose cases were actually before the ICJ.
Two arguments were made to distinguish the Medellin case from the earlier case. The first one was that the treaty obligations of the United States to submit Vienna Convention disputes to the ICJ and to comply with the ICJ decisions have direct legal force in domestic courts. The second was that a memorandum issued by the President to the effect that state courts would implement the ICJ decision was a proper exercise of the President's authority in foreign affairs.
Today's decision by Chief Justice Roberts rejected both arguments. The treaties are not self-executing, based on an analysis of their language. Although the United States has an obligation under international law, that obligation only becomes a domestic law binding on domestic courts if Congress enacts legislation to implement it. Second, although the President has broad powers in foreign affairs, he cannot transform a non-self-executing treaty into a self-executing one.
On page 25 of the slip opinion, the Court notes, "Congress is up to the task of implementing non-self-executing treaties, even those involving complex commercial disputes." We can expect the next stage of this drama to be the introduction of bills to implement the ICJ decision.
Today, the Ninth Circuit designated for publication its order of February 14 on remand from the United States Supreme Court in Arave v. Hoffman.
Accordingly the U.S. Supreme Court vacated this court's judgment to the extent that it addressed the claim of ineffective assistance of counsel during plea bargaining, and remanded for future proceedings. We now instruct the district court to dismiss with prejudice Hoffman's claim of ineffective assistance of counsel during plea bargaining. The district court's grant of Hoffman's habeas petition on his claims of ineffective assistance of counsel with respect to sentencing still stands. The State of Idaho should proceed with the resentencing of Hoffman as ordered by the district court.
How nice. They "instruct" the district court to do substantially what it did correctly the first time before they mucked it up.
With its grant of certiorari in the case of Chrones v. Pulido, No. 07-544, the U.S. Supreme Court ventures once more into the questions of habeas corpus, harmless error, and deference to the state court's decision on direct appeal. The Court addressed related issues last June in Fry v. Pliler, No. 06-5247. The new case deals with the situation where a jury is given more than one path to a conviction, of which one is right and the other wrong. The Supreme Court addressed that situation in Stromberg v. California, 283 U.S. 359 (1931).
Nineteen years ago this Friday, the U.S. Supreme Court virtually eliminated the retroactive application of newly created rules of criminal procedure on federal habeas corpus in its landmark decision in Teague v. Lane, 489 U.S. 288 (1989). Today, in Danforth v. Minnesota, No. 06-8273, the Court confirmed that Teague is a limitation on the remedy of federal habeas corpus, not a definition of the substantive scope of federal constitutional rights. Defendant Danforth has won a round in this case; he can now go back and argue to the Supreme Court of Minnesota that they should adopt a broader retroactivity rule. On the much larger battle, though, this is a win for the prosecution nationwide. The rationale of the decision pounds several more nails into the coffin of the argument that the "deference" standard of the Antiterrorism and Effective Death Penalty Act of 1996 is unconstitutional.
Joel Jacobsen at Judging Crimes has a series of long posts, 3 so far, titled "Intellectual dishonesty epic." The series provides some interesting historical background regarding one of the most dishonest decisions in the history of the Supreme Court, Fay v. Noia, 372 U.S. 391 (1963), overruled in Coleman v. Thompson, 501 U.S. 722 (1991). In that decision, Justice Brennan rewrote the history of habeas corpus in such a brazen manner that the only apt comparison is to the Ministry of Truth in George Orwell's 1984.
In 1990, the voters of California passed Proposition 115, which among other things added a discovery chapter to the Penal Code, §§ 1054.1 et seq. (Most important criminal law is enacted by initiative in California, due to the permanent dysfunctionality of our Legislature.) Among the provisions of this law is: "This chapter shall be the only means by which the defendant may compel the disclosure or production of information from prosecuting attorneys, law enforcement agencies which investigated or prepared the case against the defendant...." (Emphasis added.) The Legislature can amend the chapter, but only by a 2/3 vote.
What part of "only" did the solons not understand? They enacted a statute, Penal Code § 1054.9, giving new postconviction discovery rights to defendants sentenced to death or life without parole, and they passed it by less than a 2/3 vote. Although on its face the statute does not seem terribly burdensome, in practice it has been used in a much more aggressive manner.
In the case of Barnett v. Superior Court, the California Supreme Court was considering some issues related to the application of this statute, but CJLF asserted in an amicus brief that the whole statute was unconstitutional as an unauthorized legislative amendment of an initiative. (This theory was first advanced by the Contra Costa County District Attorney's Office.) Today the court issued this order:
The above-entitled matter is transferred to the Court of Appeal, Third Appellate District, with directions to establish a briefing schedule and then consider and decide the issues raised in the brief of amicus curiae, Criminal Justice Legal Foundation, filed November 5, 2007, and petitioner's answer to that brief, filed December 17, 2007. (Cal. Rules of Court, rule 8.528(d).) Kennard, J., was recused and did not participate.
Late last month, we noted a welcome trend at the Ninth Circuit to go en banc more often to correct more of the rogue panel decisions that have given that court its reputation. Today that trend continues in Plumlee v. Masto. The case involves a difficult client who demands appointment of a different attorney because of a deterioration in the relationship, even though the attorney appointed for him has no actual conflict and has done nothing wrong. A panel bought the argument, but today the en banc court got it right.
We hold today that the Nevada Supreme Court did not misapply clearly established federal law as determined by the Supreme Court when it ruled that Plumlee’s right to the effective assistance of counsel was not violated by the trial judge’s refusal to appoint a different lawyer.
Only one judge in today's 11-member quasi-en-banc panel dissented from this holding.
In Calloway v. Montgomery, No. 07-1148 (USCA7, Jan 14, 2008), Judge Evans has some fun with a murderer who ducked the rap by adopting the unlikely alias of Robert Ducks. It actually worked for 22 years. The opinion deals with two issues: (1) What is the "clearly established" Supreme Court precedent on lesser included offense instructions in noncapital cases? Answer: there isn't any. (2) Does it present an Apprendi problem for a judge to decide which local offense a prior offense from another jurisdiction corresponds to? Answer: no. "Almendarez-Torres still lives."
Although the big Supreme Court news today is on the Baze argument, two per curiam decisions today in habeas cases are worth noting. First, there is Arave v. Hoffman, which the Court vacated and remanded, as expected. The Ninth Circuit had held that a defendant can make out a case for habeas relief for ineffective assistance of counsel at plea bargaining, even if the trial that follows is fair. Hoffman has now abandoned the claim for relief he won at the Ninth, so there is no live controversy. The citation to United States v. Munsingwear, 340 U.S. 193, 200-201 (1950) at the very end of the opinion serves the dual functions of (1) reminding everyone that the vacated Ninth Circuit decision is not precedent, and (2) enabling bad jokes about "Munsingwear briefs."
Second, on a somewhat related issue, the case of Wright v. Van Patten makes its second trip to the high court. The Seventh Circuit had held that a lawyer's appearance by speakerphone at a plea hearing was per se grounds for relief. The hearing was simply the formal acceptance of a plea deal previously worked out and thoroughly discussed between attorney and client. The state court rejected Van Patten's claim because there was no indication of any prejudice to him. The Seventh granted relief, saying no such showing was required. After the Supreme Court vacated and remanded to reconsider in light of Carey v. Musladin, 127 S.Ct. 1038 (2006), Judges Evans and Williams said, in essence, there is nothing to reconsider. Judge Coffey dissented. The high court today unanimously reversed. Application of the Strickland prejudice standard in this situation is an open question, and the Wisconsin court was reasonable to decide it the way it did.
How many times will the federal courts of appeals have to be slapped down before they understand the difference between "I disagree with that" and "That is unreasonable"?
As 2007 winds down, we have another welcome piece of evidence that persons of sense are reaching critical mass at the notorious U. S. Court of Appeals for the Ninth Circuit. Judge Stephen Reinhardt, the epitome of judicial activism, has long been infamous for the rate at which he is reversed -- sometimes unanimously -- by the Supreme Court. Today, in Smith v. Baldwin, though, he was reversed 13-2 by the Ninth Circuit itself.
The case arises from the 1989 burglary of the Oregon home of Emmett and Elma Konzelman, then aged 87 and 74. Roger Smith and Jacob Edmonds entered the house. The Konzelmans were beaten with a crowbar, and Mr. Konzelman died of his injuries.
The Government has filed its supplemental brief after argument in the Guantanamo detainee case, Boumediene v. Bush. On Dec. 11, Lyle Denniston at SCOTUSblog had this post on the detainees' supplemental brief. The briefs discuss aspects of habeas history that are tangential at best, such as English practice in World War II.
Senator Jon Kyl of Arizona has delivered a small Christmas present to AUSA's, federal-case defense lawyers, and federal judges who deal with collateral review petitions by federal defendants. He added Section 511 to H.R. 660, the Court Security Improvement Act, to finally put subdivision designations on the paragraphs of the ungainly 28 USC § 2255. He notes at page S15790 of the Congressional Record that this is for convenience of reference and not a substantive change in the law. The House agreed to the Senate amendments yesterday, and the bill is headed to the White House.
The bill also moves one circuit judge seat from DC to the Ninth, to be filled by the next President. Maybe President Kucinich will nominate Stephen Yagman. Oops, sorry, this is Christmas, not Halloween.
We previously noted here that in Crater v. Galaza, the Ninth Circuit had rejected again the argument that the deference standard of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)(1), is unconstitutional. Today, the Ninth denied rehearing en banc. Judge Reinhardt dissents, saying pretty much the same stuff he has been saying. He is joined by Judges Pregerson, Gould, Paez, and Berzon. It is disappointing to see Judge Gould join this over-the-top opinion. Judge Reinhardt cites the Liebman and Ryan article in Columbia Law Review but not my refutation which immediately follows it. See 98 Colum. L. Rev. 888. I'm crushed.
The seemingly mundane parole case of Irons v. Carey gained national attention with a bang on May 18, 2005, when the Ninth Circuit panel sua sponte asked for briefing on the question of whether the deference standard for federal habeas review of questions already considered by the state courts, 28 U.S.C. § 2254(d)(1), is constitutional. That question had been thought to be long settled, as every circuit to consider the question, including the Ninth, had decided it was.
CJLF's brief is here. Prior posts are here, here, here, here, and here.
Today, the case ended with a whimper as the Ninth denied rehearing en banc. The dissent, surprisingly, is from Judges Kleinfeld and Bea, protesting the opinion's dicta and Ninth Circuit precedent obscuring the line between holding and dictum. Not a peep about AEDPA from the authors of the previous grousing concurrences.
It would appear that there is very little enthusiasm on the court to produce an en banc opinion that would surely be smacked down in short order by the Supreme Court. That is a hopeful sign. The Ninth will not be a conservative or even middle-of-the-road court in the foreseeable future, but at least the fringe is no longer running things.
Today the U.S. Supreme Court granted certiorari in the Idaho murder case of Arave v. Hoffman, No. 07-110. The panel opinion is here. The denial of rehearing en banc, with dissent by Judge Bea and six others, is here. SCOTUS blog has the petition and the brief in opposition. The case involves a claim of ineffective assistance of counsel in the plea bargaining stage of the proceedings.
Continue reading "Ineffective Assistance at Plea Bargaining?" »
The Supreme Court, 7-2, summarily reversed a decision of the Eleventh Circuit in Allen v. Siebert this morning. The 11th's opinions in the case can be found at 334 F.3d 1018 and 480 F.3d 1089.
A state prisoner has one year from the completion of his direct appeal to file a federal habeas petition, but the period is tolled during the pendency of a "properly filed" state collateral review petition. Untimely petitions are not properly filed for this purpose. The Supreme Court said in Pace v. DiGuglielmo, 544 U.S. 408, 414 (2005), "When a postconviction petition is untimely under state law, 'that [is] the end of the matter' for purposes of [28 U.S.C.] § 2244(d)(2)," quoting Carey v. Saffold, 536 U.S. 214, 226 (2002). The Eleventh Circuit tried to weasel its way around this unequivocal holding by distinguishing jurisdictional time limits, like the one in Pace, from nonjurisdictional ones, ignoring the facts that (1) Saffold also involved a nonjurisdictional limit, and (2) the jurisdictional nature of the limit in Pace was barely mentioned in the opinion and no part of the analysis.
Today's decision is an appropriate rebuke of this evasion of controlling precedent. It is also a vindication for the district judge, who correctly read Pace as inconsistent with the Eleventh's first opinion in this case, only to be tersely reversed by a now-discredited opinion by Judge Barkett.
CJLF filed an amicus brief in support of the State of Alabama in this case.
Ohio Death Penalty Information blog has officially hung it up, as related in this post. As we noted previously AEDPA Law & Policy Blog hasn't posted anything since the Panetti decision in June. These were both solo blogs, and maintaining one can be quite a strain.
In February, the Supreme Court unanimously reversed the Ninth Circuit in the case of Whorton v. Bockting, holding that Crawford v. Washington was indeed a new rule and not retroactive to cases final on appeal before it was decided.
Today, the Ninth Circuit decided 2-1 that the Nevada Supreme Court's application of the then-governing precedent of Idaho v. Wright was indeed reasonable and affirmed denial of habeas relief. Judge Noonan, author of the previous preposterous concurring opinion that Crawford was not new, now opines in dissent that the Nevada Supreme Court was unreasonable.
In theory, the reasonableness standard should guarantee that correct state court decisions are not wrongly overturned on federal habeas, a huge problem in the Ninth Circuit before AEDPA. The gap between correct and unreasonable should be large enough that no federal judge would declare unreasonable a decision that the Supreme Court later finds is correct. Regrettably, we cannot assume this will always be the case.
Twenty-seven years ago, the ultimate nightmare of every parent of a teenage girl came true for the parents of 15-year-old Susan Jordan. She walked to school one morning and never arrived. Albert Greenwood Brown had raped and murdered her. He had raped before, but this time he made sure not to leave a living witness.
The federal habeas case was decided by the Ninth Circuit today. The three judge panel, without dissent, affirmed denial of habeas. The case had previously been reviewed by the California Supreme Court three times and by the federal district court.
State court proceedings took far too long, but even after the state courts were finished, this case took another eight years in federal court. What was the claimed injustice that justified dragging out this already extended case another eight years? Not much. No guilt-phase claims even justified a certificate of appealability. The penalty phase claims are weak allegations that defense counsel might have handled the mental expert better and might have done a better job digging up "abuse excuse" evidence. Nothing defense counsel might have presented comes remotely close to outweighing the facts that Brown raped a teenage girl and had done it before.
Cases such as this illustrate that federal habeas review of the penalty phase is doing more harm than good. If federal courts cannot dispose of weak claims such as this in a reasonable time, then they should stop doing it at all. If the guilt and death-eligibility determinations are sound, then execution is not a miscarriage of justice. If the state courts have given the penalty phase procedural claims a fair review, a second review of those claims in federal court is not worth the time and resources now being spent.
It is high time to extend the rule of Stone v. Powell, 428 U.S. 465 (1976) to all claims having no bearing on the reliability of the determination of guilt or the eligibility for the punishment.
Today, in Fields v. Brown, No. 00-99005, the Ninth Circuit en banc upheld the murder conviction and death sentence of Stevie Lamar Fields for a murder committed twenty-nine years ago. The excessive time and resources expended on this case and the unconscionable delay of justice illustrate vividly how we spend far too much on issues having little to do with the justice of the case.
The "bottom side" briefs are in for Medellin v. Texas. All except the not-yet-filed reply brief are collected here. The summary of argument from the CJLF brief is after the jump.
The controversy over the DoJ regulations implementing last year's amendments to the Antiterrorism and Effective Death Penalty Act of 1996 will be discussed this evening on the PBS program News Hour with Jim Lehrer. Kent Scheidegger of the Criminal Justice Legal Foundation and Virginia Sloan of the Constitution Project are scheduled guests. The segment is expected to be about 10 minutes, beginning about :35 after the hour. Many Eastern Time Zone stations carry the show live at 6:00 p.m. EDT.
Update: The transcript is here, with links to Real Audio and mp3 versions.
Update2: Streaming video is now up at the same place.
A full-scale disinformation campaign is underway in response the U.S. Department of Justice's belated regulations to implement the amendments to the death penalty "fast track" of the Antiterrorism and Effective Death Penalty Act of 1996. Much of what we have seen is political spin, trying to tie the regulations personally to AG Gonzales, who has actually shown little interest in the subject. An op-ed by Erwin Chemerinsky printed last Thursday in the Los Angeles Times takes the grand prize, though. Along with the predictable opinion, this article is riddled with blatantly false assertions of fact.
Continue reading "Chemerinsky Howler on Death Penalty Fast Track Regs" »
In the Patriot Act renewal bill, Congress took the decision as to whether states have adopted mechanisms for state habeas counsel appointment, so as to qualify for the federal habeas fast track, away from the habeas courts (with their painfully obvious conflict of interest) and gave it to the US AG and the DC Circuit. DoJ then dragged its feet for 15 months before promulgating the proposed regulations on how to apply. Given that everyone knew this was coming for over a year, the 60 days allowed for comment was more than generous. But the capital habeas crowd did what they do best -- call for more delay -- and DoJ caved. The comment period is extended another 45 days.
The announcement is here, 72 Fed. Reg. 44816 (Aug. 9, 2007). I've also copied the pertinent text into this post after the jump. The excuse of malfunction in the system for viewing other people's comments is really weak. Commenters on regs have no right to see others' comments first. After all, nobody sees in advance comments submitted on the last day, as many are.
Unbelievable. That is the only word to describe the dissent in Getsy v. Mitchell, noted in yesterday's News Scan. After all that has happened in the law of habeas corpus over the last two decades, some federal judges still don’t get it.
Habeas corpus is not an appeal from the state courts to the federal courts. Both Congress and the Supreme Court have told the lower federal courts this many times. A federal district court is not authorized to set aside the considered judgment of a state court on a collateral attack merely because the federal court would have decided the issue differently if that issue had come before them in a federal criminal case. The Supreme Court held in 1989 in Teague v. Lane that federal courts cannot create new rules on habeas corpus and that a new rule is any rule not “dictated by precedent.” Further, Congress enacted in 1996 that a state court decision on the merits of a question of federal law cannot be overturned on habeas unless the contrary rule was clearly established by Supreme Court precedent, not circuit precedent.
Update: The Georgia Board of Pardons and Paroles has granted a 90 day stay. Announcement here; order here.
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In the case of Troy Davis, scheduled to be executed in Georgia tomorrow (see today's News Scan) the claim is being made that the Antiterrorism and Effective Death Penalty Act of 1996 prevented the federal courts from hearing his evidence of innocence. The story in the Atlanta Journal-Constitution, for example, says, "Courts have declined to hear Davis['s] new evidence, in part because of a federal law aimed at expediting seemingly endless death penalty appeals." This article in the Washington Post goes even farther, claiming AEDPA is "[a]t the heart of Davis's difficulties...." There is just one small problem with this claim. It is false.
The Ninth Circuit partially fixed one of its own errors today. The case involves extradition, sentencing, and the doctrine of specialty. In another case decided Friday, we saw a stunning display of how far some lawyers will go making "disproportionality" arguments.
The Ninth Circuit panel that decided Irons v. Carey, issued an amendment to the opinion today and denied panel rehearing. Rehearing en banc is still pending. This is the strange case where the panel called sua sponte for briefing on whether the deference standard for federal habeas for state prisoners is unconstitutional, and after much gnashing of teeth decided what everyone knew the whole time: Ninth Circuit precedent settles that question.
Along with some minor editing, there is a new paragraph of Judge Noonan's opinion, along the same lines of his original opinion, expounding on the supposed duty of Congress to enact legislation in certain situations and then concluding that a decision on this question is unnecessary to the question before the court. Right, so why even bring it up? The paragraph includes this gem:
It may be that the right to federal review of a claim of unconstitutional incarceration by a state is now to be considered an essential of due process just as the existence of federal courts to hear cases in numbers that it would be impossible for the Supreme Court to handle alone may be viewed as essential to due process.
Note the uncertain "may" and the passive voice "be considered." Considered by whom? When some consensus of the great and the wise and the wonderful takes hold, then decisions that the Constitution clearly vested in Congress become divested? This is pseudoprofound babbling.
Orin Kerr at the Volokh Conspiracy quotes the whole paragraph and asks, "Does anyone know what that is supposed to mean?" It means Judge Noonan's real, complete retirement is overdue.
Senate Report 110-90 on the Habeas Corpus Restoration Act of 2007, S. 185, is available here. As seems to be de rigueur in habeas debates, the opposing parties lock horns over history. At page 7, the majority cites the flawed history that found its way into the Supreme Court's opinion in Rasul v. Bush, 542 U.S. 466 (2004). On pages 23-24, the minority responds with a long quote from the CJLF brief in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006). See also Hamdan v. Rumsfeld, 464 F. Supp. 2d 9, 16-18 (D.C.D.C. 2006) (on remand).
In Schroeder v. Tilton, No. 06-15391, the Ninth Circuit rejected an Ex Post Facto challenge to a retroactive change in California evidence law. The change broadened the admissibility of prior sex offenses in sex crime cases. The state court found the change distinguishable from the one in Carmell v. Texas, 529 U.S. 513 (2000). "The decision of the California courts was neither contrary to nor an unreasonable application of clearly established Supreme Court law under Carmell."
Can Scott Panetti be executed for the murder of his wife's parents, Joe and Amanda Alvarado? We don't know. What is the standard for determining mental competence for execution? We don't know. Can a condemned murderer omit any claim of incompetence in his first federal habeas petition and then claim incompetence in a new petition without meeting the stringent requirements set by Congress for "second or successive petitions"? Yes, but he probably has to ask the state court first, and Congress's limits on relitigation will apply if the state court doesn't blow it.
That's pretty much what today's decision in Panetti v. Quarterman says. Procedural issues are resolved largely as expected, but the substantive Eighth Amendment question is not resolved. Justice Thomas in dissent calls this decision "half-baked."
The bright side of today's opinion is that Justice Kennedy makes clear we are talking about psychotic disorders, not the broad sweep of "mental illness" as including every collection of behaviors that has a code in the APA's Diagnostic and Statistical Manual (DSM). Here is the best part:
Someone who is condemned to death for an atrocious murder may be so callous as to be unrepentant; so self-centered and devoid of compassion as to lack all sense of guilt; so adept in transferring blame to others as to be considered, at least in the colloquial sense, to be out of touch with reality. Those states of mind, even if extreme compared to the criminal population at large, are not what petitioner contends lie at the threshold of a competence inquiry. The beginning of doubt about competence in a case like petitioner’s is not a misanthropic personality or an amoral character. It is a psychotic disorder.
Here are articles on the case by Pete Yost of AP and Charles Lane of the WashPost.
Five years ago, CJLF submitted a brief in Bell v. Cone, 535 U.S. 685 (2002), stating:
On August 10, 1980, Gary Cone murdered Shipley O. Todd, age 93, and his wife Cleopatra Todd, age 79. State v. Cone, 665 S. W. 2d 87, 89-90 (Tenn. 1984). Over twenty-one years later, justice remains on hold, even though Cone’s identity as the perpetrator has never been in doubt. See id., at 90.
Justice is still on hold, but the Sixth Circuit decided Cone's case for the third time yesterday, finally getting it right. The first time they were reversed 8-1, cited above. The second time, they were reversed summarily, without dissent.
On the third round, Judge Merritt dissents, wanting to reopen a claim the court has already rejected, i.e., that the state withheld evidence of Cone's own drug use. Withheld evidence claims are particularly strange when the underlying fact to be proved involves the defendant himself, not the crime, and the defendant is well aware of the fact. As the majority notes, in this case the jury had ample evidence that Cone was a drug user. They just didn't find it all that mitigating.
This case is a perfect example of taking way too long and spending way too much in resources litigating issues that have nothing to do with guilt. Perhaps the end is finally near.
The Supreme Court today decided Bowles v. Russell, regarding the time limit to appeal a civil judgment under 28 U. S. C. § 2107. Federal habeas corpus petitions by state prisoners are considered civil cases for this purpose, among others. The Court split 5-4, with the majority sticking to the traditional view that the limits in this section are jurisdictional and therefore can't be waived regardless of circumstances. There has been a trend recently to cut back on what is considered "jurisdictional," which is the main point of the dissent. The AP has this story on the case. Tony Mauro weighs in at Legal Times, saying "the low-profile case offers as good a glimpse as any into the sharp conservative-liberal divide emerging this term."
This decision won't affect the habeas statute of limitations, which the Court has already said is not jurisdictional. See Day v. McDonough, 547 U. S. 198, 205 (2006).
Obiter dicta are comments made in the course of delivering a judicial opinion that are not necessary to the outcome. Such comments are not binding precedent, either in the court that made them or in lower courts. “It is to the holdings of our cases, rather than their dicta, that we must attend. . . .” Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 379 (1994). Even so, dicta from the Supreme Court are likely to be followed, and Justice Scalia dropped a whopper of a dictum in yesterday's decision in Fry v. Pliler.
The Supreme Court decided Fry v. Pliler, No. 06-5247, today. The Court was unanimous on the main legal question they had taken the case to resolve. When a state court finds no federal constitutional error, and therefore does not do any harmless error analysis, a federal habeas court which does find error still applies the habeas harmless error rule of Brecht v. Abrahamson, 507 U.S. 619 (1993), not the direct appeal standard of Chapman v. California, 386 U.S. 18 (1967). The Chapman rule is more favorable to the defendant. In announcing the Brecht rule, the Supreme Court gave several reasons, only one of which was that in the case before it the state court had already done a harmless error analysis. The Eighth Circuit had erred in finding that Brecht was limited to that situation, and the other circuits had decided to the contrary.
On March 2, we noted here the decision of the Sixth Circuit in Cooey v. Strickland, regarding the statute of limitations to bring a § 1983 (Civil Rights Act) challenge to lethal injection. Today the full court declined to take the case en banc. The plaintiff has 90 days to ask the U.S. Supreme Court to take the case.
Judges Gilman, Martin, Daughtrey, Moore, Cole, and Clay dissented. Judge Cook was recused.
The AEDPA Law and Policy Blog started up on May 15, "to track and comment on news and decisions of the Federal Courts regarding the Anti-Terrorism and Effective Death Penalty Act (AEDPA)." The blogger is identified only as "J." The blog has a different viewpoint than ours but should make interesting reading, and we welcome J to the discussion.
The Supreme Court today "dismissed as improvidently granted" the case of Roper v. Weaver, No. 06-313. The slip opinion is here.
The case involved prosecutor arguments in the penalty phase of a capital case that the defendant claimed were improper. The Missouri Supreme Court disagreed, but the Eighth Circuit agreed. The question before the Supreme Court was whether the Eighth had properly applied the deference standard of the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d). CJLF's brief, by Prof. Barry Latzer of the John Jay College of Criminal Justice, is here.
The habeas petitioner, William Weaver, contended that AEDPA never should have applied to his case. He filed a federal petition pre-AEDPA, but the district court dismissed it as unexhausted because a certiorari petition was pending to the U.S. Supreme Court from the state collateral review. That exhaustion ruling was clearly wrong under law going back decades. Certiorari to SCOTUS is not part of exhaustion of state remedies. The Eighth Circuit declined to interfere, and Weaver did not seek Supreme Court review. He refiled the petition after denial of certiorari in the state collateral case and after enactment of AEDPA.
Meanwhile, back at the ranch, two other defendants prosecuted by the same prosecutor making the same argument got relief in pre-AEDPA petitions. The difference in treatment of these cases is enough to convince five Justices to drop the case without resolving any questions of law. The Court did not decide whether AEDPA should have applied to the refiled petition. The Court did not decide whether the Eighth Circuit correctly applied AEDPA. The Court did not decide whether the arguments were actually improper. The only decision is that, in the quirky and unlikely to be repeated circumstances of this case, the Supreme Court will not interfere and Weaver gets a new sentencing hearing.
Chief Justice Roberts concurs in the drop-kick but not in the stated reasons. Justice Scalia dissents, joined by Justices Thomas and Alito:
A postscript is warranted in light of the unusual circumstances in which we dispose of this case. The greatest harm done by today's cancellation is not to the State of Missouri, which will have to retry this murder case almost two decades after the original trial—though that is harm enough. The greatest harm is that done to AEDPA, since dismissing the writ of certiorari leaves the Eighth Circuit's grossly erroneous precedent on the books. (That precedent, by the way, cannot be explained away—as perhaps the Court's own opinion can—as the product of law-distorting compassion for a defendant wronged by a District Court's erroneous action. As noted earlier, the Eighth Circuit was not informed of that erroneous action. It presumably really believes that this is the way AEDPA should be applied.) Other courts should be warned that this Court's failure to reverse the Eighth Circuit's decision is a rare manifestation of judicial clemency unrestrained by law. They would be well advised to do unto the Eighth Circuit's decision just what it did unto AEDPA: ignore it.
Today's decision in Schriro v. Landrigan notes, correctly in my view, that the habeas reforms of the Antiterrorism and Effective Death Penalty Act of 1996 must be interpreted bearing in mind the purpose of Congress to shorten the very lengthy reviews of capital cases. One of the most important issues to decide in the early stages of federal habeas review is whether a redetermination of facts is required. If the state court has already found the facts and the federal court need only decide if the application of law to those facts is "reasonable," the proceeding can be considerably streamlined. Today's decision says, "Because the deferential standards prescribed by §2254 control whether to grant habeas relief, a federal court must take into account those standards in deciding whether an evidentiary hearing is appropriate."
If the case was decided on the merits by the state court and neither the factual findings nor the application of the law to those facts was unreasonable or contrary to Supreme Court precedent, the federal case is over. See 28 U.S.C. §2254(d). So, what should a district court do when the state court has made a factual finding that absolutely negates the petitioner's claim? "It follows that if the record refutes the applicant’s factual allegations or otherwise precludes habeas relief, a district court is not required to hold an evidentiary hearing." Proceeding with a hearing in such a case would defeat the purpose of the reform.
The slip opinion in Schriro v. Landrigan is here. The AP story is here. It's a tad disappointing that such a patently erroneous Ninth Circuit decision was only reversed 5-4, but a win's a win. CJLF's brief, written pro bono by Gregory Broderick of Downey Brand, is here. Doug Berman bemoans the undue degree of judicial attention going to capital cases at SL&P.
Update: CJLF's press release is here.
It is no surprise that the murderers won in Abdul-Kabir v. Quarterman and Brewer v. Quarterman. Given the Supreme Court's decisions in the past few years in Texas death penalty cases tried before the 1991 amendment to the Texas statute, it was to be expected that they would find a way to reverse. What is surprising and disappointing is the utter disingenuousness of Justice Stevens's opinion and, especially, the fact that Justice Kennedy would join it.
The supplemental briefs ordered by the Supreme Court in Panetti v. Quarterman, No. 06-6407, have been filed. Our collection of briefs has been updated. The order, previously discussed here, called for briefing on the question of whether the habeas petition was "successive" within the meaning of 28 U.S.C. § 2244. The underlying question in the case is the standard for determining whether an inmate is mentally competent to be executed. The case will be argued April 18, a week from tomorrow.
The "bottom side" briefs were filed today in Panetti v. Quarterman, the "too crazy to execute" case. Briefs on both sides are collected here. In a couple of ways, this is a case study in the hazards of constitutionalizing a generally agreed rule.
No one in this case disputes that an insane person may not be executed, just as no one disputed that in Ford v. Wainwright, 477 U.S. 399 (1986). That was the rule at common law, and it was the law in all states with the death penalty well before Ford. The main issue in Ford was who decides whether a condemned inmate is insane and what process is due. However, Ford's transformation of that rule from a universally agreed principle of common and statutory law into a federal constitutional rule means that litigants are now expecting the United States Supreme Court to mark out the boundaries of who is actually "insane" for this purpose. The common law rule was vague, limited by the era's limited understanding of mental illness. (How limited? See The Madness of King George and be very glad you didn't live back then, even as king.)
The transcript of argument in Roper v. Weaver is available here. CJLF's brief by Prof. Barry Latzer of the John Jay College of Criminal Justice, is here.
The case involves arguments by the prosecutor in the penalty phase of a capital case that the defendant argued were improper. The Missouri Supreme Court found no reversible error. The question on federal habeas is whether the arguments went so far as to violate the federal constitution and whether the state court's ruling to the contrary was unreasonable under then-existing Supreme Court precedent. There is considerable discussion during the state's argument about old federal cases on prosecutor arguments and whether they amount to constitutional prohibitions or just the U.S. Supreme Court's exercise of supervisory power over federal courts, not binding on state courts. In Sawyer v. Smith, 497 U.S. 227 (1990), another argument case on federal habeas, the Court held that a new constitutional rule is not retroactive on habeas corpus even if it is congruent with long-standing nonconstitutional rules.
During the defense argument, Justice Breyer indicates that he thinks the argument was over the line, but that the lack of precedent establishing that may defeat the claim under AEDPA. See pp. 38-39.
On pages 41-44, Justice Scalia, joined by Chief Justice Roberts and Justice Kennedy, contrast what the defense claims is improper for a prosecutor to say in the penalty phase with what defense counsel are allowed to say all the time. This emphasis on symmetry is heartening.
Overall, it looks like a probable win for the state. Stay tuned.
The en banc Ninth Circuit today once again corrected an out-of-the-mainstream panel decision in a habeas case. Robert Comer is an Arizona inmate sentenced to death whose attorneys are trying to challenge his sentence over his objections. In DP parlance, he is a "volunteer." The Ninth previously ordered the district court to determine if he was competent to withdraw his petition, and that court determined that he was. On September 13, a three-judge panel ordered the case to go forward anyway, with this holding:
We agree with the District Court that Comer competently and voluntarily waived his habeas appeal right. By upholding Comer’s waiver, however, we would be permitting the State to execute Comer without any meaningful appellate review of his previously filed federal habeas claims, which would amount to a violation of the Eighth Amendment to the U.S. Constitution. We therefore deny the State’s and Comer’s motions to dismiss the appeal and proceed to review the District Court’s denial of Comer’s federal habeas petition.
Today the 15-judge "en banc" court corrected this jaw-dropping violation of the Article III "case" or "controversy" limitation on the judicial power. The opinion is per curiam. Judge Pregerson dissents alone, reprinting the panel opinion.
The Ninth's increasing willingness to correct fringe panel opinions favoring the defense position* is a welcome, if overdue, development, as previously noted here. If this keeps up, maybe the Supreme Court can spend less of its time correcting obviously erroneous decisions from the Ninth.
*In this unusual case, the defense position is the position of the defense lawyer over the objection of the client.
David Kravets reports on the case for AP. In Monday's New York Times, Adam Liptak had a piece on Comer, which How Appealing has made temporarily available to nonsubscribers via this link.
USCA 6 heard oral argument en banc
*The full court, as opposed to the three-judge panels that normally hear cases in the federal courts of appeals.
The Ninth Circuit today denied rehearing en banc in the Idaho case of Hoffman v. Arave, No 02-99004. The panel decision held that counsel was ineffective in rejecting a no-death-penalty plea bargain because he believed that Idaho's death penalty law would be struck down under the then-recent Ninth Circuit decision of Adamson v. Ricketts, 865 F.2d 1011, 1023-28 (9th Cir. 1988) (en banc), abrogated by Walton v. Arizona, 497 U.S. 639 (1990), overruled by Ring v. Arizona, 536 U.S. 584 (2002).
Judge Bea's dissent from denial of rehearing en banc notes, "in what may be a new high in self-effacing candor, the panel holds that it is ineffective assistance of counsel to rely on Ninth Circuit precedent with respect of federal constitutional law applicable in states located in this Circuit."
Another intriguing question is whether a person fairly tried and sentenced can receive relief under Strickland v. Washington, 466 U.S. 668 (1986) on the ground that counsel could have gotten him off with less than he deserved through a plea bargain. Strickland described the "prejudice" element in a couple of different ways, one of which was, "This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland held, "A reasonable probability [of a different result] is a probability sufficient to undermine confidence in the outcome." While that may be true for trial, the context in which that statement was made, it is not true for plea bargaining.
USCA9 has finally issued its opinion in Irons v. Carey, No. 05-15275. The opinion of the court is a fairly mundane rejection of a parole claim, and it drops into a footnote the issue of whether the deference standard of AEDPA, 28 U.S.C. § 2254(d), is constitutional.
[W]e are now persuaded that Duhaime v. Ducharme, 200 F.3d 597 (9th Cir. 2000), answers that question, correctly or not, for the court. A three-judge panel of this court is without authority to overrule a holding of an earlier panel.
Now persuaded? It wasn't perfectly obvious from day one?
But wait ... there's more. It's in the concurring opinions.
The Sixth Circuit has rendered an important decision on the statute of limitations for suits challenging lethal injection in Cooey v. Strickland, No. 05-4057. Cooey is on Ohio's death row for the kidnapping, rape, and murder of Wendy Offredo and Dawn McCreery in 1996. See Cooey v. Coyle, 289 F.3d 882 (6th Cir. 2002) and excerpt below.