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.

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
crime?

THE PARTIES ARE DIRECTED TO FILE SUPPLEMENTAL BRIEFS
ADDRESSING THE FOLLOWING QUESTION: MUST PETITIONER’S HABEAS
APPLICATION BE DISMISSED AS “SECOND OR SUCCESSIVE” PURSUANT TO
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 :)

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!

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.

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.

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.

Thanks

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 aedpa.blog@gmail.com 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.

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?

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)

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)

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.

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
him.

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.

Welcome

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!