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.’”

Monday, June 4, 2007

Uttecht v. Brown

Today, in Uttecht v. Brown, No. 06-413 (decision here), the Supreme Court reversed a decision of the Ninth Circuit that vacated the capital sentence of a prisoner based on the exclusion of a juror with reservations about capital punishment. This is not your ordinary left-coast reversal - Judge Kozinsky, not Judge Reinhardt, wrote the opinion below. It is a 5-4 opinion, with Justice Kennedy writing for the majority, and Justices Stevens and Breyer writing dissenting opinions.

Uttecht is technically an AEDPA decision - the majority reversed the granting of the writ because the trial court's exclusion of Juror Z was not contrary to, or an unreasonable application of the Court's Witherspoon - Witt jurisprudence. However, this was really a case (for the majority anyway) about deference to the trial court:

Capital defendants have the right to be sentenced by an impartial jury. The State may not infringe this right by eliminating from the venire those whose scruples against the death penalty would not substantially impair the performance of their duties. Courts reviewing claims of Witherspoon-Witt error, however, especially federal courts considering habeas petitions, owe deference to the trial court, which is in a superior position to determine the demeanor and qualifications of a potential juror. The Court of Appeals neglected to accord this deference. And on this record it was error to find that Juror Z was not substantially impaired.
The main dissent, written by Justice Stevens, had a different take. This quote is long, but worth reading (as is the entire dissenting opinion):

Today, the Court has fundamentally redefined—or maybe just misunderstood—the meaning of "substantially impaired," and, in doing so, has gotten it horribly backwards. It appears to be under the impression that trial courts should be encouraging the inclusion of jurors who will impose the death penalty rather than only ensuring the exclusion of those who say that, in all circumstances, they cannot. The Court emphasizes that "the State has a strong interest in having jurors who are able to apply capital punishment within the framework state law prescribes." Ante, at 6. But that does not and cannot mean that jurors must be willing to impose a death sentence in every situation in which a defendant is eligible for that sanction. That is exactly the outcome we aimed to protect against in developing the standard that, contrary to the Court’s apparent temporary lapse, still governs today. See Gray, 481 U. S., at 658 (explaining that to permit the exclusion of jurors other than those who will not follow their oaths "unnecessarily narrows the cross section of venire members" and "‘stack[s] the deck against the petitioner’" (quoting Witherspoon, 391 U. S., at 523)).

Judge Kozinski’s opinion for the Court of Appeals in this case is solidly grounded on the entire line of our cases recognizing the basic distinction dramatically illustrated by Justice Powell’s opinion in Darden and by Justice Rehnquist’s statement in Lockhart. He surely was entitled to assume that the law had not changed so dramatically in the years following his service as a law clerk to Chief Justice Burger that a majority of the present Court would not even mention that basic distinction, and would uphold the disqualification of a juror whose only failing was to harbor some slight reservation in imposing the most severe of sanctions.

So, what does this opinion mean going forward? It seems to indicate that habeas relief will rarely be granted on the merits when the allegation is a mixed question of fact and law best determined by the trial court. In the view of the majority, the exclusion for cause of the juror was best determined by the trial court because the trial court could view the juror's demeanor. Even when the juror's exclusion appeared to be contrary to clearly established Federal law based on the written record, the deference owed to a trial court on questions of fact, combined with AEDPA's deferential standard of review meant that habeas relief was inappropriate.

Of course, the distinguishing characteristic of Uttecht from a future case might be that the question at issue here was not guilt, but punishment. That may be why Justice Kennedy described the result in such detail at the beginning of the opinion (which was criticized by the dissent). Guilt was not at issue. As with many habeas decisions, both statutory and common law, actual innocence changes everything.

Friday, June 1, 2007

6th Circuit denies rehearing in Cooey v. Strickland

Today, the 6th Circuit denied rehearing en banc in Cooey v. Strickland, No. 05-4057. Some background on the case can be found here (Crime & Consequences). The issue presented to the original panel was a determination of when the statute of limitations begin to run on a §1983 challenge to a lethal-injection protocol? The original panel looked to AEDPA's statute of limitations for an answer, determining that the period begins to run at the conclusion of direct review.

Five judges dissented from the denial of rehearing en banc, with Judge Gillman explaining their reasons. Their opinion can be found here. I'll leave any further comment to the 1983 experts, but I wanted to pinpoint the AEDPA connection (also prove that I'm still awake - not many published or noteworthy cases this week).

Wednesday, May 30, 2007

Pulido v. Chrones

Today, in Pulido v. Chrones (here for now), the Ninth Circuit affirmed the district court's grant of habeas relief based on an unconstitutional jury instruction. The petitioner was convicted of murder, robbery, receiving stolen property, and auto theft from events arising out of a gas station robbery. The jury also returned a special circumstance of robbery felony murder. However, the jury deadlocked on the question of whether the petitioner used a firearm or personally inflicted great bodily harm, as there was a question of an accomplice at trial. The petitioner was sentenced to life without parole.

Two of the jury instructions given in the case were defective, a fact conceded by the state. The felony-murder instruction was defective because the California Supreme Court held that aiding and abetting a robbery after the murder does not constitute felony murder, an instruction that the jury here was allowed to base it verdict on. Also, one of the murder-robbery special instructions was invalid because of a typographical error - "or" was substituted for the word "and," enlarging the scope of activity that could support the special circumstance.

The California Supreme Court, while recognizing the errors, affirmed the verdict based on harmless error analysis, reasoning that the special circumstance verdict required the jury to find contemporaneity between the murder and the robbery. However, ". . . the jury was directed to determine whether or not 'the murder was committed while the defendant was engaged or was an accomplice in” robbery, attempted robbery or the immediate flight from a robbery.'" Therefore, the verdict could have been based on the improper jury instruction. The district court granted habeas relief, and the court of appeals affirmed the grant.

The Court's analysis measuring the harm of the error is worth quoting in full (citations omitted):

Pulido urges, and the district court agreed, that the California Supreme Court decision was contrary to federal law because it improperly applied harmless error analysis. In particular,Pulido contends that under our court’s recent decision in Lara v. Ryan, the instructional error was structural and therefore not subject to harmless error review. In Lara, the defendant was convicted of attempted murder after the jury had been instructed that it could convict him under a theory of express malice or an implied malice theory, the second of which was legally improper. Relying primarily on the Supreme Court’s decision in Sandstrom v. Montana and this court’s decision in Keating v. Hood, we held that such error was structural and that “where a reviewingcourt cannot determine with absolute certainty whether a defendant was convicted under an erroneous theory” reversal is required. We concluded that because the jury had made a specific finding that Lara had attempted to murder willfully, deliberately, and with premeditation it was absolutely certain that the jury had not convicted on the improper implied-malice theory.

The court concluded that because the possibility remained that the jury convicted based on an impermissible legal theory, the verdict must be overturned.

Judge O'Scannlain and Judge Thomas concurred specially and separately with the per curiam opinion. Their fight was over the wisdom Lara. Judge Thomas also wrote to emphasize that the same result would be reached in this case under the harmless error test. Judge O'Scannlain explained his concurrence as follows:

I agree with the majority that our recent decision in Lara v. Ryan compels us to affirm the district court’s grant of habeas relief. I write separately, however, because I believe this circuit’s instructional error jurisprudence cries out for review, preferably by our court sitting en banc, or if not, by the Supreme Court.

I think this decision has a good chance of being overturned en banc or having cert granted by the Supreme Court. While I agree with Judge Thomas that the same result would (and should) be reached under harmless error analysis, the fact of the matter is that the harm here is measurable, and should be subject to harmless error analysis. Structural error is reserved for that special class of mistakes where the harm is immeasurable. The seriousness of the error isn't the issue. Rather, because the error strikes at the very foundation upon which the trial rests, it is impossible to measure and harmless error analysis would be an exercise in futility. See U.S. v. Gonzalez-Lopez, 126 S.Ct. 2557 (2006).

The error here was measurable, and because Ninth Circuit precedent dictated the result reached I don't think the panel decision will be the last word.

Tuesday, May 29, 2007

Pending decisions in the Supreme Court

Here is the promised summary of pending decisions in the Supreme Court's OT06 term. There are three cases remaining by my count - please send me an email if I missed one. For each case, I will quote the granted question presented.

Uttecht v. Brown, 06-413

Question Presented:

In Wainwright v. Witt, 469 U.S. 412 (1985), and Darden v. Wainwright, 477 U.S. 168
(1986), this Court held that a state trial judge may, without setting forth any explicit
findings or conclusions, remove a juror for cause when the judge determines the
juror’s views on the death penalty would substantially impair his or her ability to
follow the law and perform the duties of a juror. The Court further held that a federal
habeas court reviewing the decision to remove the juror must defer to the trial
judge’s ability to observe the juror’s demeanor and credibility, and apply the
statutory presumption of correctness to the judge’s implicit factual determination of
the juror’s substantial impairment.
Did the Ninth Circuit err by not deferring to the trial judge’s observations and by not
applying the statutory presumption of correctness in ruling that the state court
decision to remove a juror was contrary to clearly established federal law?

Fry v. Pliler, 06-5247

Question Presented:

If constitutional error in a state trial is not recognized by the judiciary until the
case ends up in federal court under 28 U.S.C. § 2254, is the prejudicial impact of
the error assessed under the standard set forth in Chapman v. California, 386 U.S.
18 (1967), or that enunciated in Brecht v. Abrahamson, 507 U.S. 619 (1993)? Does
it matter which harmless error standard is employed? And, if the Brecht standard
applies, does the petitioner or the State bear the burden of persuasion on the
question of prejudice?

Panetti v. Quarterman 06-6407

Question Presented:

Does the Eighth Amendment permit the execution of a death row inmate who has a
factual awareness of the reason for his execution but who, because of severe
mental illness, has a delusional belief as to why the state is executing him, and thus
does not appreciate that his execution is intended to seek retribution for his capital

28 U. S. C. §2244?

Exclusion of potentially exculpatory evidence under 2254(d)

In Sinkfield v. Brigano, a Sixth Circuit panel affirmed the denial of habeas relief based on a claim under Chambers v. Mississippi, 410 U.S. 284 (1973). In Sinkfield, two witnesses at trial would have testified that they received phone calls soon after the murder in question. The caller, known to both witnesses, stated during the call that he and a third party (not the defendant) committed the murder. The trial judge excluded the hearsay evidence that implicated the third party (allowing both witnesses to testify only that the caller said he committed the murder).

Here is the analysis of the Ohio appellate court, quoted from the 6th Circuit decision:

Chambers shared some similarity to Sinkfield's case because the defendants in both cases presented the defense that another person committed the crime for which they were charged. The court noted that [the caller's] statement inculpating himself and [the third party] met the first element of Chambers because it was made soon after the murder. However, the court never unequivocally stated the results of its analysis of the second Chambers factor. While there was evidence corroborating [the third party]'s involvement in the crime, the court found it difficult to overturn the trial court's decision to discredit the testimony because it was in the best position to determine the credibility of that testimony. Finally with respect to the third Chambers factor, the court noted that unlike Chambers, where the statement was wholly self-inculpatory, [the caller]'s statement inculpated himself and another party, [the third party].

In holding that the petitioner failed to prove that the state court's decision was an unreasonable application of clearly established Federal law, the court emphasized that Chambers has been limited to its facts, and where a third party was involved, as in Sinkfield, the exclusion of the evidence is not an unreasonable decision.

Its important to note that the petitioner in Sinkfield is alleging actual innocence. He maintains that he didn't do it, that it was the caller and the third party. I'm not entirely sure whether or not the evidence that was excluded would satisfy any of the gateways laid out by the Supreme Court. After all, the trial court apparently let in testimony that the caller admitted to killing the victim, and the jury still convicted.

However, if the evidence at trial showed that two people committed the crime, and the jury simply believed that Sinkfield was the second person, then perhaps Sinkfield gets closer to being heard en banc or a cert grant. The case was heard before three judges that were all appointed by Republican presidents (2 GWB 1 GHWB) and that seems to mean an automatic denial of habeas relief in the 6th Circuit. And yes, the reverse is true as well for democratic nominees, which is just as unfortunate.

Back from the Long Weekend

I hope everyone had a great long weekend. Seeing as that the Federal Courts are back in action, so am I. There are a number of AEDPA cases pending in the Supreme Court, so in around 20 minutes I expect to have some reading material. I would actually give up an AEDPA case to write about if Rita and Claiborne come down. I doubt that will happen though.

Anyways, in addition to tracking any decision that comes down today, perhaps towards the ends of the day I will list AEDPA cases outstanding on the Court's docket, with the QP and some brief analysis.

Ok, back to SCOTUSblog. Keep clicking refresh :)

Saturday, May 26, 2007

Cause in the 10th Circuit

Yesterday's opinion in Stuart v. Ward, 2007 WL 1519871 (10th Cir. 2007), is not a notable AEDPA decision. The court denied relief on four habeas claims, none of which really merit further discussion. It is unpublished and only three pages, which is generally pretty quick work unless the court is affirming the denial of a COA However, I did notice this paragraph in the middle of the opinion, dealing with the petitioner's arguments in attempting to avoid a state procedural default:

Stuart contends that his failure to timely appeal to the OCCA was caused by
“unforeseeable facility lockdowns, shakedowns, library closings, and equipment
failure.” Aplt. Opening Br. at 21. The magistrate judge rejected Stuart's
assertion of cause, simply stating that he had adequate time to prepare the
one-page petition in error and the six-page accompanying brief. We do not
believe that the “cause” issue can ordinarily be decided solely on the basis of
a page count in relation to appeal time. But even if we were to find “cause” for
Stuart's procedural default, he has not demonstrated actual prejudice.

Otherwise, not much from the Court's on Friday, lucky for me I guess. Have a safe and restful Memorial Day Weekend!

Friday, May 25, 2007

Double Jeopardy

I'm traveling for the next few days, so posting will be light.

That being said, I wanted to spotlight Williams v. Secretary for Dept. of Corrections, 2007 WL 1501023 (11th Cir. 2007), handed down yesterday. The panel held that the trial court's resentencing of petitioner for a prior offense to which she had previously plead guilty to and been sentenced for did not violate the double jeopardy clause of the Constitution viewed through 2254(d)(1) and (d)(2). Not much time to analyze the decision, but here's a quote:

Williams claims a legitimate expectation of finality in her August 3, 2001
sentences. The state courts could discern the proposition from DiFrancesco that
“the Double Jeopardy Clause respects the defendant's ‘legitimate expectations'
as to the length of [her] sentence.” United States v. Jones, 722 F.2d 632, 637 (11th Cir.1983).
Applying this principle to the facts of this case in order to reach the
conclusion that Williams did not have such an expectation was not unreasonable.
The entry of the August 3, 2001 sentences was tantamount to a clerical error.
The sentences were not pronounced in open court. Instead, at the August 3, 2001
hearing, Williams's statement reflected an understanding that her failure to
comply with her obligations would result in 20 years' imprisonment. The March
15, 2002 hearing further supports a finding that Williams's expectation was of a
20-year sentence in cases 99-41128 and 00-20802.In light of the foregoing, we discern no clear err in the
district court's finding that the August 3, 2001 entry of sentences for time
served in cases 99-41128 and 00-20802 was tantamount to a clerical error.

Thursday, May 24, 2007

Hook v. Anderson

The Sixth Circuit, sitting en banc, reversed an earlier panel decision and held today that the police can make a limited inquiry of a suspect held in custody who has asked for a lawyer when the police are informed by a third party that the suspect has changed his mind and wishes to make a statement. In this case, the third party was the suspect's mother.

While Hook v. Anderson is a habeas case, the petitioner sought relief more than a year before AEDPA became law. Therefore, the Court dealt with the question of law "old-school" style; arguing about the true meaning of Edwards v. Arizona as a question of law. While it was fun to read, it is a relic of a bygone era - there can't be many more petitioners in the pipeline who got their case into Federal court under the AEDPA bar and whose appeals are still pending. Nevertheless, here is the penultimate paragraph from this decision:

The Constitution protects a suspect from official coercion -- it does not protect a suspect from
himself or his mother. Van Hook asked for a lawyer but later changed his
mind and wanted to talk with the police, as he had the right to do.
Whether he then directly told the police himself or instead indirectly
communicated it through his mother and subsequently confirmed it himself is
of no constitutional moment.

And for those keeping score - the opinion has three dissents. I'll leave it to the experts to say more. :)

Habeas Corpus and the War on Terror

Taking a break from AEDPA, there is a post on SCOTUSBlog detailing new developments on the interpretation of the Military Commissions Act of 2006 and how it affects the detainees at Guantanamo Bay. From Lyle Denniston:

The Bush Administration has told the Supreme Court that it has lost its
authority under a law dating back to 1789 to issue an "original" order providing
any relief to detainees now held prisoner by the U.S.anywhere in the world.
Asked by the Supreme Court for its views, the government has now taken its
position, urging the Supreme Court to dismiss outright the pending appeal in In
re Ali (06-1194). The government is relying on the court-stripping provisions of
the Military Commissions Act of 2006 -- a sweeping revision of habeas corpus law as it
applies to foreign nationals in U.S. custody outside the U.S. Up to now, that
law has never been directly invoked against the Supreme Court's "original" habeas power.

What's strange about the government's petition is that it does not deal with suspension clause issues raised by the detainee's petition. As far as I could see from my quick read, the government does not cite, let alone discuss, McCardle, Yerger, or Klein. The detainees at Guantanamo are entitled to at least some habeas protection because of their status, perhaps unlike figures held elsewhere in the war on terror. Compare Rasul v. Bush with Johnson v. Eisentrager. By challenging the "original" jurisdiction of the Court to hear petitions for habeas, which would thereby eliminate all habeas review for these individuals, it seems the government comes closer to the line of suspension. There has been no predicate findings by Congress of rebellion or invasion, so if the writ has been suspended, that suspension is unconstitutional. The Court will decide whether or not the line has been crossed, but I can't see the same type of deus ex machina that saved the Court from confronting the question in Hamdan.

Wednesday, May 23, 2007

Tell me how you really feel!

From a short, unpublished opinion from the 10th Circuit in Broades v. Gibson, 2007 WL 1492342 (10th Cir. 2007), denying a COA:

This is the fourth petition Mr. Broades has brought before us attacking the
district court's denial of habeas corpus some seven years ago. We cannot say
emphatically enough: Mr. Broades's claims are without merit. They do not meet
the standard for relief spelled out in Rule 60(b), they do not deserve COA, and as we have said twice
previously, R. vol. 1, Doc. 49, App. 2; Broades v. Poppell, No. 02-7156, slip
op. at 1-2 (10th Cir. Dec. 30, 2002), they do not qualify him to file a
successive habeas petition. Further litigation on these issues would constitute
an egregious waste of taxpayer resources.
Accordingly, we DENY Mr. Broades's request for a COA and DISMISS this appeal

9th Circuit Case

Yesterday, a panel of the 9th Circuit affirmed the district court's denial of habeas relief in Foote v. Sue Del Papa, 2007 WL 1469776 (9th Cir. 2007). The petitioner's request was based on an ineffective assistance of counsel claim stemming from the attorney during his first direct appeal. The petitioner alleged that his appointed counsel was not "conflict free" because of a separate civil lawsuit between the petitioner/defendant and the Public Defender's Office based on allegations from the original trial.

In denying habeas relief, the court of appeals held that the decision to allow conflicted counsel to represent the petitioner during his appeal was not contrary to, or an unreasonable application of, clearly established law as determined by the Supreme Court. Here's the highlight:

AEDPA requires that Foote's “conflict of interest” claim not
implicate an “open question” in the Court's jurisprudence. See Carey v.
Musladin, 127 S.Ct. 649 (2006). While we have recognized that an “irreconcilable
conflict” between a criminal defendant and his trial counsel may entitle a
defendant to new counsel, see United States v. Moore, 159 F.3d 1154 (9th Cir.
1998), no Supreme Court case has held that an “irreconcilable conflict” between
the defendant and his appointed appellate counsel violates the Sixth Amendment.
Nor has the Supreme Court held that a defendant states a Sixth Amendment claim
by alleging that appointed appellate counsel had a conflict of interest due to
the defendant's dismissed lawsuit against the public defenders office and
appointed pre-trial counsel. Foote's “conflict of interest” claim thus fails.

I'm not an expert on this particular area of the 6th Amendment. That being said, isn't there an argument that the 6th Amendment rights of a defendant at trial are the same as his 6th Amendment rights during his first appeal as of right vis-a-vis the right to conflict-free representation? If that is correct, then wouldn't the failure to provide conflict-free counsel based on the difference between the trial and the first appeal implicate the "unreasonable application of" prong?

I'm going to open up comments (or try to). I'm specifically interested in what the actual law is on the substance of the 6th Amendment claim. Unless you are going to cite a case other than Williams v. Taylor, please don't make the "wrong" v. "unreasonable" argument.

Habeas Hearing

This is not really connected with AEDPA, but yesterday the Senate Judiciary Committee held a hearing on "Restoring Habeas Corpus: Protecting American Values and the Great Writ." I've been looking for a transcript or report on the actual hearing (as opposed to the witness statements) and Firedoglake came through with this report. Probably not an exact quote, but:

Rear Admiral Donald Guter, USN (ret.): For me, it is not about what
is least required by the law or who can be more patriotic. This is about
what is best for the long-term policy of the US and what is best for our troops
and for those who travel overseas from this nation, what is best in gaining the
best intelligence, in winning the hearts and minds of people around the world,
what policy serves us best in international and humanitarian law. What
standard do we want to be held to in the world — it is not about them, it is
about us. Habeas is the basis for a civilized legal system — it protects
us from an unchecked power to hold us indefinitely. Guantanimo shows us
what can happen with an unchecked power.

Tuesday, May 22, 2007


Other than a few COA denials, I haven't found any new AEDPA decisions today. So I wanted to take the time to give a general thank you to my fellow bloggers for pointing some traffic my way. Also wanted to thank Kent Scheidegger of Crime & Consequences (always an excellent read) for the welcome (and the traffic).

The first few days starting this blog, I wasn't sure anyone would care. After all, AEDPA has been around for more than a decade (eek!) and a lot of ink has been spent on this subject in law reviews and bar journals. Not necessarily a bad thing - it takes a lot of ink to explain even a sub-topic of AEDPA jurisprudence! That being said, I'm hoping people stay interested in this blog as the law further evolves and can use what I have to say as a resource. I want to keep this blog relevant not just for habeas attorneys, but also state prosecutors and AUSAs, law professors, judicial clerks, and even law students struggling to understand the subject for the first time.

Please email me at with any questions, comments or suggestions. This is a brand new blog and I'm a brand new blogger - I'll take all the help I can get! Obviously all comments will be kept in confidence - after all, those in glass houses...... :)

Fruits of the 6th

One of the fruits of the 6th Circuit, which will either grant or deny a habeas petition based on the panel a petitioner draws, is that the lower courts in that Circuit are in constant danger of being reversed. On the one hand, maybe that is a good thing - it will make those jurists more careful and reasoned in their habeas rulings.

On the other hand, it may just make for a lot more work. See yesterday's memorandum opinion from Judge Katz denying habeas relief in Jones v. Bradshaw, 2007 WL 1464457 (N.D. Ohio 2007). Weighing in at a trim 59 pages, the opinion is an AEDPA tour de force, with the petitioner claiming 34 grounds for relief and Judge Katz dealing with each of them. There are also issues regarding the statute of limitations, exhaustion of state remedies, state procedural default, and both freestanding innocence and the actual innocence gateway.

The opinion can best be described as "workmanlike" - nothing quotable, nothing notable, just the efforts of one judge to write an opinion that won't get reversed.

Monday, May 21, 2007

Roper v. Weaver

I've read the Court's per curiam decision in Roper v. Weaver, but I'm not sure of its significance to anyone beyond the parties involved. The case involved a petitioner appealing his capital conviction on the grounds that the prosecutor's closing argument was "unfairly inflammatory." The 8th Circuit considered and granted his claims under AEDPA's standards. However, the claim would have been brought pre-AEDPA except for the district court dismissing the original habeas writ because it found petitioner had not exhausted his state remedies through a writ of certiorari to the U.S. Supreme Court.

In Lawrence v. Florida, 549 U.S. _____ (2007), the Court held that the disposition of a writ of certiorari is not required to exhaust state remedies, and therefore a petitioner's decision to seek cert. during his direct appeal does not require dismissal of a federal habeas claim. Therefore, the District Court did not have cause to dismiss the original claim.

However, the Court did not rule on whether AEDPA's applicability or the 8th Circuit's decision, but rather dismissed the writ as being improvidently granted. In addition to the facts stated above, it did so in part because the prosecutor made similar arguments in two other cases, including one involving petitioner's co-defendant. Both of the defendant's were granted habeas relief because of the remarks, and the Court "[found] it appropriate to exercise our discretion to prevent these three virtually identically situated litigants from being treated in a needlessly disparate manner, simply because the District Court erroneously dismissed respondent's pre-AEDPA petition."

Justice Roberts filed a short concurring opinion, stating that he agreed with the decision of the court, but not all of its reasoning. He was not more specific.

Justice Scalia, jointed by Justices Alito and Thomas, dissented. Here is the highlight:

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.

So, what does the opinion mean? Obviously, it has no precedential value -- it is merely a dismissal of the writ. However, I can see it standing for the persuasive principle that when looking at the merits under 2254(d)(1), AEDPA's rigorous standard of review will not function as a bar preventing similarly situated petitioners from being treated the same and receiving relief. Co-defendants would be the most clearly implicated by this principle - but beyond that - who knows?

Friday, May 18, 2007

Another divided Sixth Circuit Opinion

This blog is not designed to focus on the 6th Circuit's AEDPA decisions. That being said, another notable decision came down yesterday. In Foley v. Parker, 2007 Fed. App. 0178A (6th Cir. 2007), the court affirmed the district court's denial of habeas relief from the petitioner's murder conviction based on claims of juror bias and pretrial publicity. The majority opinion reasoned:

The state court decision concerning venue was neither contrary to nor an
unreasonable application of federal law as determined by the United States
Supreme Court. First, it is clear that the pretrial publicity in this case does
not merit a presumption of prejudice. Although there was significant media
attention when Foley was arrested, when the bodies were discovered in the septic
tank, and when there were significant developments in the case, this was not one
of the rare cases tried in a circus-like atmosphere. There is nothing in the
record to suggest any contact between the media and the jury during the trial.

The dissent saw things a little differently. While the majority opinion gave a general overview of the juror responses and the trial court's curative instructions, the dissent quoted to the record and to the lower court's opinion with the exact words and statements of the jurors, which seemed to indicate their bias. Here's the dissent's conclusion:

Accordingly, I believe the district court gave short shrift to the actual,
un-rehabilitated prejudice that many of Foley's jurors possessed. Foley's case
is unique in that most of the seated jurors--not simply a majority of those on
the venire--were aware not only of the circumstances surrounding the two murders
on which they were to pass judgment, but also of the four other murders with
which Foley was accused. In a small, rural county such as Laurel, it strains
credulity to think that facts and rumors swirling about Foley's gruesome
quadruple murder would not have significantly tainted his double-murder jury. [
] This was borne out by the number of potential jurors dismissed immediately
from the venire, as well as by the voir dire statements of jurors whom Foley
challenged for cause but who were ultimately seated by the trial judge. I cannot
deem "reasonable" the Kentucky Supreme Court's contention that these jurors had
been "rehabilitated" on voir dire.

UPDATE: Apparently there are a few unanimous decisions in the Sixth Circuit. (Volokh)

Thursday, May 17, 2007

Equitable Tolling in the 10th Circuit

Earlier this month, the 10th Circuit weighed in on equitable tolling. In Fleming v. Evans, 481 F.3d 1249 (10th Cir. 2007), the attorney made repeated assurances to the petitioner that his habeas appeal would be filed "within a week or two" over the course of the year. Petitioner even went so far as to prepare his own petition close to the deadline and provided it to his attorney to file. No petition was ever filed, despite counsel being hired only two weeks after the original conviction became final. The court reversed the district court's dismissal of the petition, holding that "sufficiently egregious misconduct on the part of a habeas petitioner's counsel may justify equitable tolling of the AEDPA limitations period."

The 10th Circuit joins what now seems to be a bare majority of the Circuits holding that equitable tolling is sometimes appropriate. See Baldayaque v. United States, 338 F.3d 145 (2d Cir. 2003); Brown v. Shannon, 322 F.3d 768 (3d Cir. 2003); United States v. Wynn, 292 F.3d 226 (5th Cir. 2002), United States v. Martin, 408 F.3d 1089 (8th Cir. 2005); Spitsyn v. Moore, 345 F.3d 796 (9th Cir. 2003).

However, petitioners should not yet rejoice -- while these cases promise to be another argument to throw at the wall, it may be only the most extraordinary case where the limitation period is in fact tolled (as the 10th Circuit showed yesterday). See Everson v. Kansas Dept. of Corrections, 2007 WL 1430305 (10th Cir. 2007)

Wednesday, May 16, 2007

Background Information

Even for the experienced habeas practitioner or scholar, it is sometimes quite easy to see the individual trees and forget the entire forest (jungle?) that is AEDPA.

With no interesting decisions coming down today, check out this article for a refresher on how deep the forest really is. While a few years old, its either a great introduction or a fine refresher to habeas relief from state court convictions.

Tuesday, May 15, 2007

Divided Sixth Circuit

The Sixth Circuit, in Henley v. Bell, divided yesterday in affirming a district court decision denying habeas relief. The disagreement between the majority and the dissent centered on just two of petitioner's six issues before the court - a due process challenge based on the systemic exclusion of women from the position of grand-jury foreperson and ineffective assistance of counsel at sentencing. While the ineffective assistance of counsel decision is perhaps dictated by AEDPA's rigorous standard of review, the other point of contention merits a closer look.

The grand jury challenge centered on whether the rule in Campbell v. Louisiana, giving defendants standing to challenge racial discrimination in the grand jury, was a new rule under Teague v. Lane. The disagreement between the majority and the dissent centered on familiar discussions of how to describe a rule for Teague purposes. The majority appears to have relied on a flawed reading of its own precedent to determine that Cambell is a new rule, and not an extension of Hobby v. United States. The Fifth Circuit, the only other Circuit that has addressed the question, held the opposite in Peterson v. Cain, 302 F.3d 508 (5th Cir. 2002), as the dissent pointed out.

The decision is here.

First Circuit punts on the interplay of a state prisoner's Brady claim and AEDPA time limits

Today, the First Circuit held that a state prisoner was time-barred from filing a Federal Habeas petition because an exercise of "garden-variety" diligence at the time of trial would have uncovered the factual predicate relied on for a Brady claim. The case is Wood v. Spencer, 2007 WL1413217 (1st Cir. 2007). By focusing on the petitioner's lack of diligence, the court avoided the question of whether a Brady claim can constitute a state-created impediment that tolls the time period under §2244(d)(1)(b). It did so through an interesting analogy:
The question, then, is whether Wood was “prevented” from filing a federal
habeas petition by reason of some unconstitutional state action (here, the
alleged Brady violation).In answering that question, Wood's available
alternatives are of considerable relevance. After all, were someone to erect a
barrier across a highway, it would be impossible to decide whether the barrier
“prevented” a motorist from proceeding to his destination without credible
information as to the width of the highway, the size of the barrier, and the
dimensions of the vehicle. If the barrier left ample room for the vehicle to
pass, it could not fairly be said to “prevent” the motorist's access to his
destination.So it is here. There is no reliable way to measure the obstructive
effect of the alleged Brady violation without knowing what other means of access
to the same information were within Wood's ken and available to him. Just as a
person who has the ability to drive around a barrier hardly can blame his
delayed arrival at his destination on the presence of the impediment, so too the
person who has notice that information exists and ready access to it hardly can
blame his inaction on the state's failure to deliver the information to

Schiro v. Landrigan

Yesterday, the Supreme Court held in Schiro v. Landrigan that the district court did not abuse its discretion in refusing to grant a state prisoner an evidentiary hearing to allow him to develop his ineffective assistance of counsel claim. The opinion is here.

Justice Thomas spoke for a 5-4 majority, reversing a decision of the 9th circuit sitting en banc. Here is the highlight:
Even assuming the truth of all the facts Landrigan sought to prove at the
evidentiary hearing, he still could not be granted federal habeas relief because
the state courts' factual determination that Landrigan would not have allowed
counsel to present any mitigating evidence at sentencing is not an unreasonable
determination of the facts under 2254(d)(2) and the mitigating evidence he seeks
to introduce would not have changed the result. In such circumstances, a
District Court has discretion to deny an evidentiary hearing.


This is my first post on blogger. I am establishing this blog to track and comment on news and decisions of the Federal Courts regarding the Anti-Terrorism and Effective Death Penalty Act (AEDPA). While this blog will be highly specialized, I hope it will be of use to practitioners.

Comments and suggestions are welcome!