Thursday, June 28, 2007


The Supreme Court decided Panetti v. Quarterman, 06-6407 today. Here is a round-up of early coverage on the decision, and all commentary so far points to this being a blockbuster AEDPA decision. Justice Kennedy's majority opinion clarifies issues regarding both second and successive petitions and the level of deference owed to state court decisions. I hope to get the chance to write out a substantive post later tonight.

Crime and Consequences
LA Times

Wednesday, June 20, 2007

Quick Hits

Some quick hits as I try to get back in the game:

In Belot v. Burge, No. 05-6875, the 2nd Circuit affirmed the denial of habeas relief because the petition was time-barred. The judge below concluded that a prison lock-down was not a sufficiently extraordinary circumstance to justify equitable tolling because, besides being a foreseeable occurrence, petitioner should not have waited so long to begin his petition and perhaps should have submitted a "timely--but unpolished--petition."

In Singh v. Gonzalez, No. 05-55933, the 9th Circuit held in part that "a habeas petition is "pending" in the district court within the meaning of the REAL ID Act's (RIDA) transfer provision when the notice of appeal was not filed at the time RIDA was enacted, but was filed within the sixty day limitations period for filing a timely appeal of a habeas petition under Federal Rules of Appellate Procedure 4(a)(1)(B). " (squib from findlaw)

6th Circuit grants habeas relief under Strickland

Earlier this week in Ramonez v. Berghuis, No. 06-1852, the 6th Circuit reversed the district court's denial of habeas relief, holding that trial counsel's failure to investigate and call three witnesses to the crime constituted ineffective assistance of counsel under Strickland.

Petitioner was convicted Ramonez of third-degree home invasion, assault with intent to do great bodily harm and aggravated stalking. The conviction came out of an altercation between Ramonez and his ex-girlfriend and mother of his two children. The victim testified at trial that Ramonez forced his way into the house and choked the victim inside the house once he gained entrance. Ramonez took the stand in his own defense, alleging that he was invited into the house and while things became violent, he never choked the victim.

Counsel's ineffective assistance arose out of the following facts, developed at trial and during Ramonez's state habeas petition:

After the prosecution rested, Ramonez and Moore brought before the judge their disagreement as to Moore’s decision not to call any witnesses on Ramonez’s behalf and Ramonez’s intention to testify despite Moore’s advice. Ramonez wanted to call Charles, Rene and Hackett to testify to his story of what happened that day. Ramonez complained that he had told Moore about those witnesses months earlier, but Moore had failed to communicate with them. Moore stated that it was his strategic decision not to call any witnesses, and the judge decided he was disinclined to interfere with counsel’s judgment

[At the state hearing] Moore testified that he was aware of Rene, Charles and Hackett prior to trial, but he never made contact with them. Moore defended his decision not to call them based on what he characterized as his trial strategy to focus on the action inside Fox’s home. He believed that the three witnesses could not testify to that action because they were never inside the house. Moore’s plan had been to rely on cross-examination to point out discrepancies in Fox’s story and discredit her testimony. Even so, Moore did attempt to reach Charles (but only Charles) just three or four days before trial, but he did not succeed in speaking with him--the two simply exchanged phone messages.

After exhausting his state appeals, Ramonez petitioned the district court for a writ of habeas corpus, which was denied. In reversing that decision, the 6th Circuit held that Ramonez satisfied both prongs of the Strickland analysis, and that the state court's contrary conclusion was an unreasonable application of clearly established Federal law. The main analysis is worth quoting at length:

In its effort to apply that standard, the district court stated that while it would have found Moore’s performance deficient due to his failure even to speak with the three witnesses before trial, it could not say that the Michigan Court of Appeals’ contrary conclusion was an unreasonable application of Strickland, thus making it unchallengeable under AEDPA. In so finding the district court considered it within reason for the Michigan court to conclude, based on the information available to Moore before trial and in conformity with his chosen trial strategy, that Moore made a reasonable professional call not to interview the witnesses and not to call them at trial.

Even given the required deference to the Michigan Court of Appeals, the district court’s restraint in those terms does not withstand analysis. As the district court’s opinion makes clear, the state court focused largely on the notion that Moore’s decision not to call the three witnesses was rooted in what it perceived to be a reasonable trial strategy--one of focusing on undermining Fox’s credibility as to what happened between her and Ramonez inside the house--and because the three witnesses were never inside the house, Moore thought that they could add little to that effort. But that belief was grounded on a fatally flawed foundation, for if Moore had only engaged in the minimal--and essential--step of interviewing the witnesses, he would have learned that they could testify as to what took place in the house, and that their testimony would have supported Ramonez’s version of events.

That being so, the state court ignored the central teaching of Strickland, as reaffirmed by Wiggins, 539 U.S. at 522-23, that the investigation leading to the choice of a so-called trial strategy must itself have been reasonably conducted lest the “strategic” choice erected upon it rest on a rotten foundation.

That is the heart of the opinion, although it goes on to discuss the prejudice standard as well. It is worth reading the whole thing. The opinion was unanimous, a rarity in the 6th Circuit in habeas cases. Seems like a solid decision, especially because the facts raise a question of quasi-innocence compared to the actual conviction.

Monday, June 18, 2007

Did 9/11 equal manifest necessity for a mistrial

Last week, the 6th Circuit in Walls v. Konteh, 06-3472 reversed the district court's grant of habeas relief because the state court's decision to declare a mistrial due to the events of September 11th was not contrary to, or an unreasonable application of, clearly established Federal law.

Jonathan Adler of the Volokh Conspiracy already posted the basics here - well worth reading - and I will not duplicate his work. The case presents an interesting set of facts, but not just because of 9/11. On the one hand is the Judge's reasonable decision to declare a mistrial when our country was under attack. On the other hand is the failure of the Judge to go through the proper analysis of whether a mistrial would be necessary while considering the alternatives, which may in fact meet the 2254 standard of review, standing alone. The majority opinion focused on the reasonableness of the decision itself, while the dissent focused on the (arbitrary?) way the judge arrived there. I agree with every word Judge Gilman wrote in dissent - the trial court's analysis, or lack thereof, was unreasonable, and contrary to Federal law as established by the Supreme Court. However, the decision to declare a mistrial was anything but unreasonable, and that's why the majority's decision to reverse the grant of habeas is the right one.

Sunday, June 17, 2007

Exhaustion in the 11th Circuit

Last week in Ogle v. Johnson, No. 06-11074, the 11th Circuit reversed and remanded the district court's denial of habeas relief, holding that a pro-se petitioner's claims of ineffective assistance of counsel were exhausted when the claims were generally alleged in a state habeas petition and later expanded through briefs and testimony. There were eight claims of ineffective assistance of counsel raised; seven were remanded while the eighth was defaulted.

As with many exhaustion cases, Ogle is heavily fact and record based. However, I did note this line from the court, relating to the one ineffectiveness claim that was defaulted: "At oral argument in this appeal, Ogle's appointed counsel admitted that Ogle waived this issue, and we appreciate her candor." Usually those are the types of lines given to counsel when they are about to lose, not when they win on seven of eight issues! For an example, see the oral argument in Whorton v. Bockting, here.

And while you are there....

Continuing the slow march to Monday and more decisions, the 11th Circuit's decision in Kuenzel v. Allen, No. 06-11986 is worth mentioning. In Kuenzel, the court vacated and remanded the decision of the district court denying habeas. While the district court had concluded that the petition was time-barred, the 11th Circuit disagreed on a procedural ground, not worth mentioning for the time it would take to explain. What is worth mentioning is the panel's discussion of the petitioner's claim of "actual innocence," which the district court declined to address. From footnote 3:

Since the beginning of his federal action, Kuenzel has argued that he is actually innocent. But despite having expressly addressed, in its series of rulings, Kuenzel’s other arguments for equitable tolling, the district court has never addressed Kuenzel’s actual innocence claim. The phrase, “actual innocence,” does not appear in any of the district court’s relevant orders. While we do not hint that Kuenzel’s claim of actual innocence has real merit – or that he is even entitled to an evidentiary hearing on this claim – our view is that Kuenzel’s persistent reliance on this argument warrants the district court’s express acknowledgment, especially because the district court examined or mentioned Kuenzel’s other equitable tolling arguments. We cannot dispose of this case without dealing, in some way, with Kuenzel’s claim of innocence; and we are uncomfortable with ruling on this argument when the district court has made no findings or conclusions and has not even mentioned the argument.

As many may know from their own work, its important to not only look at what a court says in its opinion/order, but what it does not say. I find it curious that the district court did not even mention the actual innocence claim, since many times it is the only claim courts are remotely interested in! If anyone has more information on this claim, particularly out of evidence that was discovered post-conviction, I would appreciate it. Comments are open.

Friday, June 15, 2007

"I know a person is supposed to be innocent until proven guilty, but in reality it didn't work that way"

I'm playing catch-up for the last few days, with four cases in the queue. The above quote is from Pederson v. Fabian, 06-2582. In Pederson, the 8th Circuit affirmed the district court's denial of habeas relief on a Brady and due process claim. The Brady claim related to a script that the prosecutor prepared for a key witness. The due process claim related to the above statement, made by a juror after the trial, in response to a prosecution questionnaire.

The Brady claim was disposed of quickly because there was not a reasonable possibility that the result would have been different with the evidence. The due process claim is disposed of just as quickly, but is worth quoting to show, in part, how the court deals with the above statement:

The juror’s statement was not an unsolicited statement of the juror’s views, but a response to specific questions such as “What were your impressions of [the defense attorney]?” The juror specifically criticized the defense attorney as the only one capable of preparing Pederson for trial and the only person capable of deflecting the impact of the prosecution’s evidence against Pederson. While the juror’s statement regarding a presumption of innocence is troubling on its face, it was not unreasonable to view the response as explaining that the defense needed to do more to counter the state’s strong showing of guilt.

Pederson is the least important of the four cases from last week that I hope to deal with this weekend. Sorry about the delay, but sometimes the outside world interferes with my blogging productivity. As a further programming note, I will not be speaking to Bowles v. Russell, 06-5306. While technically a habeas case, it has more to do with appellate procedure. Commentary here.

Tuesday, June 12, 2007

Fry v. Pliler - A case study

I meant to comment on Fry v. Pliler, but so many people beat me to it that I'm going to try something different. I'm going to use yesterday's decision denying habeas relief out of the Ninth Circuit, Murdoch v. Castro, 05-55665, as an illustration of why Justice Stevens is correct in implying that there is no practical difference between the Brecht and Chapman standards of measuring Constitutional error, when such error is found.

Murdoch's quest for habeas relief has an interesting procedural posture. Charles Murdoch was convicted by jury of first degree murder, with a robbery special circumstance, and sentenced to life without parole. The main witness against Murdoch was Dinardo, who had already been tried and convicted of the same crime and sentenced to 25 to life. Dinardo testified under the promise of a reduced sentence. While Murdoch had the opportunity to cross-examine Dinardo, the following facts raised a question as to the whether it was an effective opportunity:

During Murdoch’s trial, Murdoch’s attorney, Dinardo’s attorney, the prosecutor,and the presiding judge discussed a letter addressed to Dinardo’s former counsel. The letter was first brought to the court’s attention by the prosecutor, who indicated that in her interviews of Dinardo, he told her of the existence of a letter in which he, Dinardo, stated that he was coerced by the police into implicating Murdoch in the crime. Dinardo’s new counsel asserted the attorney-client privilege and work-product doctrine as grounds for refusing to disclose the letter. The court concluded that Dinardo’s letter to his former counsel was protected by the attorney-client privilege and thus could not be used, on cross-examination, to impeach Dinardo.

After Murdoch's conviction and exhaustion of direct appeals, he petitioned for a writ of habeas corpus in the district court, which was denied. The Ninth circuit, in Murdoch I, 365 F.3d 699 (9th Cir. 2004) vacated and remanded the denial of habeas. The court reasoned that, depending on the contents of the letter, Murdoch's inability to use the letter to impeach Dinardo's testimony may have violated the Confrontation Clause. Therefore, the court remanded to the district court to conduct an in camera inspection of the letter and determine whether a violation occurred. The district court, while finding that the state court's failure to balance the state privilege against Murdoch's Sixth Amendment rights satisfied 2254(d)(1), any error was harmless under the Brecht standard.

A new panel of the Ninth Circuit affirmed. Judge Tashima, writing for the majority:

Here, Murdoch’s counsel was able, by effective cross examination, to raise doubts as to Dinardo’s biases and motivations. Dinardo testified that his sentence was reduced to “about five years” in exchange for his testimony. He testified about his previous theft convictions, both before and after the robbery in question. He testified to prior inconsistent statements: that at the time of his arrest he initially denied any involvement in the crime; that he “would have said whatever it took to get out of custody” including “point[ing] out someone else” involved in the crime; that he pleaded “not guilty” at his own trial and “avoid[ed] responsibility” for the crime; and that his story had changed from earlier claims that the police had coerced his confession. Dinardo equivocated on the stand when confronted with prior inconsistent testimony: “I testified to that? . . . I — I can’t remember testifying like that. If I could see it, I could probably remember.” In sum, Dinardo’s cross-examinations were effective.

The opinion went on to conclude that while the letter may have made the cross-examination marginally more effective, its absence did not rise to a 6th Amendment violation. The dissent had a different view of what would have happened, but for the exclusion of the letter:

What a boon to Murdoch. After showing Dinardo the letter to refresh his recollection, Murdoch’s counsel could have undermined any reliance on his testimony that Murdoch participated in the crime. The majority depicts Dinardo’s letter as “run[ning] contrary to” his and others’ testimony at Murdoch’s trial. I agree, but the truth of Dinardo’s statements in the letter is beside the point. Murdoch’s counsel was able on cross-examination to show only that Dinardo initially denied his involvement in the crime, made some inconsistent statement, and, because he hoped to gain a reduction of his sentence, had an incentive to provide testimony favorable to the state regardless of its truthfulness. The majority concludes this was sufficient to undermine the jury’s confidence in Dinardo but, as this court in Murdoch I suggested, general impeachment is inferior to impeachment based on a prior inconsistent statement. See Murdoch I, 365 F.3d at 705. The letter and its disavowal of Murdoch’s involvement in the crime would have been the pièce de résistance, leading inextricably to the conclusion that Dinardo was not only generally unreliable but also untrustworthy regarding the one element of his testimony that the jury (as its verdict demonstrates) must have believed. The concluding question on cross-examination of Dinardo seems obvious: “Were you lying then or are you lying now?” What juror would give credence to any statement of Dinardo? The prosecution’s case relying on this lying witness would collapse.

Because of the dispute about whether a constitutional violation occurred, neither opinion discussed the harmlessness of the error under Brecht (or Chapman), and that’s my point. If there is a state court decision that is so wrong that it is either contrary to clearly established Federal law or an objectively unreasonable application of clearly established Federal law, the distinction between the Brecht and Chapman standards won’t make a difference. From the cases that I have read, the “harmless beyond a reasonable doubt” standard in Chapman is used when either the reviewing court does not want to talk about the error, or there is a nominal violation of clearly established Federal law that is viewed as irrelevant. If the court views an error as serious enough that it was not harmless beyond a reasonable doubt, it seems obvious to me that the same court would view the error as having a “substantial and injurious effect” under Brecht. Does anyone doubt that the dissent in Murdoch II would have viewed the error as having a substantial and injurious effect?

Fry v. Pliler is just another wall, another way for a court reviewing the grant of habeas relief to say, perhaps there was an error, but because Brecht is SUCH a high standard, we have to reverse the decision below. But I find it hard to believe that the reviewing court making that decision would not reach the exact same result under Chapman.

Monday, June 11, 2007

Geboy v. Brigano

Overshadowed by SCOTUS and the 4th Circuit action is one lone 6th Circuit decision, Geboy v. Brigano, 05-3200, 05-3201 (here). The decision is 14 pages long and unanimous. Here's the squib from findlaw:
In a criminal matter arising from allegations that petitioner sexually abused his biological daughter over an eleven-year period, a grant of habeas relief to petitioner is reversed and remanded where an Ohio court of appeals did not render a decision contrary to clearly established federal law in upholding petitioner's convictions under certain counts of the indictment despite a variance between the bill of particulars and the evidence at trial.

The decision is very Ohio-centric in parts, and functions more as a lesson in gentle error correction than anything else. Unless I missed something in the translation, nothing to see here.

Later tonight I hope to post on Fry. In the meantime, here is a good first read. (Crime & Consequences).

Habeas and the War on Terror

While I'm a little late to the party, the Bush administration was handed a setback today by the 4th Circuit in Al-Marri v. Wright, 06-7247. Effectively assuming disputed questions of fact in favor of the government, a divided panel held that the President can not use the military to indefinitely detain a member of Al-Qaeda apprehended and detained within in the United States. The DOJ has indicated that they intend to seek en banc review.

For more information, I turn it over to the professionals.

How Appealing

Catching up from Last Week

Its already shaping up to be a busy AEDPA and habeas week after today, but I want to quickly point out an opinion from last week out of the 8th Circuit in Guinn v. Kemna, 06-1344 (here). In Guinn, the court affirmed the district court's denial of habeas from a state court robbery, assault, and armed criminal action action conviction. The panel held that the state court's decision to exclude the hearsay testimony of four witnesses that another man confessed to the crime was not an unreasonable application of Chambers v. Mississippi.

While the opinion is fact-specific, everyone can find something to like here. For those who represent the state, there is the ultimate result. When potentially exculpatory testimony is excluded in the trial court, so long as there is minimal corroboration for the excluded testimony (or some evidence that was actually let it on the matter) that ruling will be upheld on collateral review. For those representing habeas petitioners, there is this discussion regarding Chambers being clearly established Federal law (internal cites omitted):

Our first task is to determine the appropriate clearly established federal law. Guinn proposes that the Missouri Court of Appeals and the District Court correctly identified Chambers v. Mississippi as setting out the clearly established law applicable to his case. But Kemna contends that "Chambers is not clearly established federal law." He relies on the Chambers Court's statement that in reaching its conclusion that the habeas petitioner in that case was denied a fair trial, the Court established "no new principles of constitutional law."Kemna misses the point. The comment was related to the fact-intensive nature of the case. While perhaps not a seminal case in the areas of the law applied to the issues raised, Chambers nevertheless articulates the legal principles applicable to Guinn's claims of constitutional error.

In a later-decided plurality opinion, the Supreme Court described the Chambers holding: "erroneous evidentiary rulings can, in combination, rise to the level of a due process violation." Montana v. Egelhoff. Kemna contends that the four dissenting justices in Egelhoff "categorically stated the opposite view" from that of the four-justice plurality when they described Chambers "as a prohibition on enforcement of state evidentiary rules that lead, without sufficient justification, to the establishment of guilt by suppression of evidence supporting the defendant's case. According to Kemna, because neither of these views of the Chambers decision commanded a majority in Egelhoff, no law was clearly established by the Chambers Court. Kemna asserts that "Guinn's claim, stripped of its Chambers rhetoric, boils down to whether the state court erred in excluding Johnson's confessions," relying on an Eighth Circuit case for the clearly established federal law. As we read it, the statement in the Egelhoff dissent to which Kemna refers does not reflect an "opposite view" at all. An "erroneous evidentiary ruling" can, of course, be one made "without sufficient justification." In any event, although the Chambers opinion established no new constitutional principle, it iterated and applied existing law to the facts of the case before the Court. We conclude that the Missouri Court of Appeals and the District Court correctly identified the applicable law in the Chambers line of cases, here stated yet another way: "[T]he Constitution . . . prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote . . . ." Holmes v. South Carolina.

Friday, June 8, 2007

Action around the Circuits

Three notable habeas cases down yesterday. I will discuss two of them now, and the third in a later post because this one got a bit long in the tooth.

In Kendrick v. Dist. Attorney of the County of Philadelphia, 02-3158 (opinion here), the 3rd Circuit vacated and remanded the denial of habeas when a the statute which petitioner was convicted under was subsequently held inapplicable by the Pennsylvania Supreme Court. The 3rd Circuit, before issuing the opinion, also sought a certified question from the Pennsylvania Supreme Court, regarding the nature of the rule announced in the relevant case. That court held that the rule was an "old rule" and therefore applicable to the petitioner. That led to the 3rd Circuit granting the petition:
Because Kendrick was convicted of a violation of the PCOA that the Pennsylvania Supreme Court has held was inapplicable, and therefore his conviction was “constitutionally invalid,” see Bousley v. United States, 523 U.S. 614, 619 (1998), we will direct the District Court to grant the writ of habeas corpus to vacate Kendrick’s conviction on that count.

Elsewhere, in Nenno v. Quarterman, 06-7001 (opinion here), the 5th Circuit denied a COA on two claims. The latter claim, that "the Constitution requires that the states provide condemned prisoners with counsel who provide effective assistance in state habeas proceedings," led the court to write the following:

Counsel ably states the case for requiring the state to provide counsel in state habeas review of death sentences. That the primary battle in collateral attack of capital sentences is now in the state courts, located there both by the jurisprudence of the Court and the Congress cannot be denied. Nor do we question the importance of competent representation for defendants traversing this terrain. We say only that we do not make light of the argument, saying no more because this inferior court could not grant the requested relief if it were persuaded to do so. The argument must be made to the Congress or perhaps the Supreme Court.

This statement is particular interesting given the recent publication of DOJ's opt-in regulations requiring the states to provide counsel for collateral attack on capital sentences.

Thursday, June 7, 2007

Still Alive

I apologize for the lack of posting, it has been a busy last few days. There has been no lack of habeas action in the circuits, thats for sure! For now, I just wanted to bring up two developments in the legislative branch relating to habeas corpus and AEDPA.

First, the Department of Justice has published their opt-in regulations for the states to provide adequate counsel for post-conviction appeals. The proposed regulations are here. Commentary is here. If states do opt-in, with the shorter statute of limitations that entails for capital habeas cases, equitable tolling jurisprudence will become much more interesting and relevant.

Second, the Habeas Corpus Restoration Act (bill here) has made it through the judiciary committee. Commentary here.

Wednesday, June 6, 2007

Gautt v. Lewis

Today, the 9th Circuit reversed a denial of habeas relief in Gautt v. Lewis, No. 03-55534 (opinion here). The opinion is 39 pages long, with no dissent - lots of good stuff. Importantly for you cert watchers, a separate (unpublished) opinion was filed denying relief regarding the underlying conviction. The sentencing phase is the issue here, and it appears that the petitioner will return to jail after resentencing under the correct statutory enhancement is applied (or not - there may be an Apprendi/Blakely/Cunningham issue lurking beneath the statute). Anyway, here is the squib for now; I hope to write more later after I give the decision a closer read.

Gautt v. Lewis

Denial of habeas relief on petitioner's sentence for second-degree murder is reversed where: 1) his constitutional due process right to be informed of the charges against him was violated when he was charged with a sentencing enhancement under one statute, section 12022.53(b) of the California Penal Code, but had his sentence enhanced under a second, different statute; and 2) California appellate court's decision to the contrary constituted an unreasonable application of clearly established Federal law, as determined by the Supreme Court.

Tuesday, June 5, 2007

Short opinion on procedural default

The 8th Circuit issued a short decision yesterday affirming the denial of habeas relief in Carney v. Fabian, No. 06-3150 (here). The petitioner claimed that the state court's failure to instruct the jury on "heat of passion" manslaughter violated his constitutional right to due process. While the petitioner did request the instruction at trial, he based his appeal of the trial court's decision solely on state law grounds, and did not present an argument based on federal law.

The court held that the petitioner's claim was procedurally defaulted because of his failure to raise the constitutional claim to the state court. While not the holding, here's a highlight:

Despite his failure to refer specifically to a federal constitutional provision or relevant case, Carney asserts that he is entitled to federal habeas review because the state law arguments that he presented to the Minnesota Supreme Court are identical to his due process arguments presented here. This argument lacks merit because, as we have previously noted, “[m]ere similarity between the state law claims and the federal habeas claims is insufficient . . . .” McCall, 114 F.3d at 757 (“‘If state courts are to be given the opportunity to correct alleged violations of prisoners’ federal rights, they must surely be alerted to the fact that the prisoners are asserting claims under the United States Constitution.’”