The procedural rules regarding writs of habeas corpus found in the Anti-Terrorism and Effective Death Penalty Act (AEDPA) are complicated and complying with them are often difficult. Many appellate decisions have been written regarding the rules. Yesterday, the Seventh Circuit Court of Appeals issued a decision interpreting several issues.

Reginald D. Purvis was convicted in the United States District Court for the Northern District of Illinois of conspiracy to sell crack cocaine. Since he had two prior state court convictions for drug offenses he was sentenced as a career offender.

After his appeals were denied he filed a Federal writ of habeas corpus challenging the conviction on incompetence of counsel grounds. He also filed a motion in state court to vacate one of the convictions used to make the Federal court action a career offender action. In his petition for a writ of habeas corpus he noted that he had the motion to vacate the prior conviction pending in the Illinois state courts.

While the petition was pending he moved to stay the action to allow him to amend it after the motion to vacate the prior was decided. The District court denied his motion to stay the petition and denied the petition itself. Shortly thereafter the motion to vacate the prior conviction was granted in state court. Purvis then filed a motion requesting permission to file a “second or successive” petition for habeas corpus on the grounds that he was no longer a career offender. The motion was also denied.

Purvis appealed the denial of the stay. The Seventh Circuit remanded the matter to the District Court with instructions to determine whether vacating the prior conviction was a “new fact” allowing the one year statute of limitations under the AEDPA to restart and to determine what effect Purvis’ informing the court that he had filed a motion to vacate the sentence had on the motion for a stay. The District Court again denied his petition.

Purvis again appealed to the Seventh Circuit. This time the Court granted his appeal. It held that his career offender claim was timely. He was under no obligation to move to vacate the prior until he was sentenced in the Federal case and he could allocate his time in such a way that he first dealt with the appeals and then filed his motion in state court to vacate the prior sentence.

The Court remarked that Purvis was faced with a Catch 22 situation. If he waited to file his habeas until his career offender issue was ripe (after the prior was vacated) his incompetence of counsel issue would no longer be timely. On the other hand if he filed his habeas prior to the granting of the motion to vacate the prior was granted he’d be in the position where he would be filing two petitions for habeas corpus and that would violate AEDPA. As a result the court held that the proper tactic was the “stay and abeyance” procedure As a result the court found that the District Court erred when it denied Purvis’ motion for a stay and it remanded the matter for resentencing.

Purvis won . . . right? Well maybe. He’s going to be retried on the state matter. It will not be a “prior” for career offender status since the conviction will be after the Federal crime occurred. However, Chief Judge Easterbrook pointed out in a concurring opinion that the trial judge can wait until after the state trial is over and then resentence Purvis above the guidelines to a sentence similar to what he received as a career offender to effectively show his criminal history.

George Bush’s Justice Department indicted former Alaska Senator Ted Stevens. He was tried and convicted on charges of failure to report financial contributions to the Senate. After the trial it was accidentally disclosed that government attorneys failed to turn over important Brady discovery. ¹

The government then moved to void the conviction with prejudice. The presiding judge, Emmet G. Sullivan ordered an independent investigation and appointed Washington attorneys Henry F. Schuelke, III and William B. Shields to perform the investigation. Schuelke and Shields have completed the investigation and they turned over the 500 page report to the judge, who is at least temporarily is keeping the report under seal. But he released an order allowing the Justice Department, the attorneys involved and Steven’s attorneys to object to the unsealing of the report. The order indicated that the scope of the government’s failure to provide Brady discovery is greater than previously reported. Schuelke and Shields found that the government attorneys intentionally withheld Brady evidence that would have supported Steven’s defense and which would have questioned the credibility of the government’s major witness.

But at the same time the report recommended that the government attorneys not be criminally charged since there was no violation of a direct order from the court. Without such an order it would be difficult to find the attorneys in contempt of court. Sullivan’s order does not indicate whether Schuelke and Shields recommended that the attorneys be reported to the Bar for possible disciplinary action or whether they should be banned from further appearances before the District Court for the District of Columbia where the trial was held. It is expected that Sullivan will decide whether to make the report public by January and then we may know more.

Oregon governor John Kitzhaber suspended the scheduled execution of Gary Haugen and he vowed to do the same for any other planned execution during his term of office. He called the death penalty morally wrong and promised to fight to change Oregon law to abolish the death penalty. Furthermore he said the system is expensive and unworkable.

Two men have been executed in Oregon since it reinstated the death penalty in 1984. Both of the executions occurred during Kizhhaber’s first term in office. As in the case of Haugen both of the prior executions happened after the men requested that no further appeals occur and requested execution. The system is so backlogged that no one has lived to complete the appeals and to be executed.

The trend in this country is certainly away from using the death penalty. In the last four years New Jersey, Illinois and New Mexico have abolished the death penalty. Nationwide the number of executions are decreasing. Last year 112 people were sentenced to death.while in the 1990′s there were approximately 300 each year. Last year there were only 46 people executed. The abolition of the death penalty may be on the California ballot. Maryland and Connecticut are also considering measures to end executions.

Oscar Ramiro Ortega-Hernandez is being charged with attempting to assassinate the president for shooting at the White House last week. His conviction is hardly a forgone conclusion. For one thing to show that he “attempted” to assassinate the president the prosecution will have to show that he “intended” to kill Obama. This may be somewhat difficult since he shot several shots at the White House from 700 to 800 yards away, without knowing whether or not the president was home (He wasn’t) or what room he was in. But then again there are statements that he has made to various people which come pretty close to threats to kill the president. A jury can use these quotes as evidence that Ortega-Hernandez intended to kill Obama. Ortega-Hernandez is quoted as saying that he wanted to “hurt” Obama and that he “needed to kill” Obama. Witnesses said that Ortega-Hernandez accused Obama of being the “Anti-Christ” and the “Devil.” Ortega-Hernandez said he would not stop “until it is done” and that “Obama needed to be taken care of.” These statements can be used at trial as evidence of his intent to kill the president.

To be guilty of attempted murder you have to know that you are attempting to kill a human being. According to some reports, Ortega-Hernandez thought Obama was the Anti-Christ and that Ortega-Hernandez was Jesus. Well if you don’t think Obama is a human being you cannot be guilty of attempted murder.

Of course this raises the question of Ortega-Hernandez’s sanity. If you don’t know what you are doing (shooting at a human being) your not sane and you cannot be convicted of murder.

The Fourth Circuit Court of Appeals reversed the conviction of Obie Lee Powell for possession of crack cocaine due to an illegal pat search of Powell. Powell was a back seat passenger in a car driven by Jermaine Mitchell. The car was pulled over by the police due to a burned out headlight.

The officers did a license check on Powell, it came up suspended and the officer learned that Powell had a prior conviction for armed robbery. Based on this information the officers ordered Powell to get out of the car and pat searched him. ¹ A gun was found in a backpack near Powell’s seat in the car. He was arrested after the gun was found but he was not convicted of possessing the gun. During a search incident to the arrest crack cocaine was found on Powell and this was the basis for the conviction.

The issue on appeal was whether the officers’ pat search was justified by officer safety. During the pat search the gun was found. This justified his arrest which lead to the cocaine being found.

The government argued that the pat search was legitimate based upon Powell’s past record and the fact that he lied about the status of his license. But the court applying Terry found that ” that a reasonably prudent officer in these circumstances would not be warranted in the suspicion that Powell was armed and dangerous on the
night of the traffic stop.” Without evidence that Powell was armed and dangerous the officers had no right to pat search Powell and the the arrest as well as the search incident to the arrest were fruits of the illegal pat search. The cocaine had to be suppressed and the conviction vacated.

Rodney Acala was convicted of killing four women and a young girl in California and was sentenced to death. He is now fighting extradition to New York where he faces two more murder cases. He says he needs to stay in California to prepare his appeal. The claim may be unique but he may have reasonable grounds for his request. He served as his own attorney in the murder trials and therefore he is the only one who can review the transcript and prepare for certification of the transcript. In a death penalty case this is a major task. It may require any number of court appearance which may be difficult to accomplish if he is extradited to New York.

Also of interest is why does New York want him back to try him for two murders that happened over thirty years ago. Manhattan District Attorney Cyrus R. Vance Jr. says he wants Acala back in order to obtain justice. This is a rather vague and meaningless claim. But there are reasons. What happens if Acala wins his appeal. ¹It may take ten years and by then any witnesses to the 1970′s New York murders may be dead.

But in the end the Vance needs to balance his desire to prosecute Acala against the cost and the resources necessary to prosecute a 68 year old man who is likely to spend the rest of his life in a California prison fighting the death penalty.

Archie Dixon and Tim Hoffner kidnapped Chris Hammer, murdered him, stole his car and sold it.

Hammer’s mother reported his disappearance the day after he was buried alive by Dixon and Hoffner. ¹ On November 4, 1993 the police had their first conversation with him when he dropped by the police station to retrieve his car which had been towed. They gave him his Miranda rights. He refused to answer questions and left. On November 9 he was arrested for forging Hammer’s name on the check he received for selling Hammer’s car and interrogated without Miranda warnings. He admitted to forging the name but denied being involved in anything else. During the interrogation detectives told him that Hoffner was cooperating and only one of them would get a “deal” therefore he better start talking. Later that day Hoffner led the detectives to the body and Hammer was charged with murder. He was Mirandized and admitted to the killing.

At trial the unMirandized admission to the forgery was excluded but the Mirandized admission to the murder was admitted. He filed a habeas alleging that the admission to the murder should have been excluded as a fruit of the unMirandized admission to the forgery.

The Sixth Circuit granted the habeas but the Supreme Court reversed. In a per curiam decision

Since Dixon did not admit to the murder in the unMirandized statement he could not have felt coerced into admitting the murder in the later Mirandized statement. Moreover, according to the court the two statements were clearly independent. After the first statement he was transferred from the police station and back again. In that period he learned that Hoffner had directed the police to the body and they found it. This change in circumstances was presumably more important in Dixon’s change in attitude than the fact that he had given an earlier unMirandized statement. As a result the Mirandized admission was not coerced and it was admissible. The Supreme Court found that the
Sixth Circuit erred in granting the habeas which did not meet AEDPA test that requires Federal courts “show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” when granting a writ of habeas corpus in a state case.

A California court had the opportunity last week to explore some of the questions left open by the Supreme Court in Arizona v. Gant..

Vernon Evan was driving his car in Los Angeles. An officer pulled him over for weaving and ordered him to get out of his car. He refused. After several attempts to get Evans to leave the vehicle an officer broke his window and maced the inside of the vehicle. After getting Evan out of the car police searched the vehicle finding $65.00 and several clean baggies. ¹ After arresting him for interfering with an officer and impounding the vehicle, the officers discovered that during a prior arrest of Evans a gun was found in the air vent. The officers went to the impound yard and found cocaine in the air vent.

In Gant the Supreme Court ruled that a search of an automobile incident to an arrest can only occur if the arrestee is “within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest.” The court held that under Gant neither the roadside search which occurred while the defendant was out of the car and under arrest nor the impound yard search was permissible and it reversed the cocaine related convictions. Obviously during neither of the searches was Evans within reaching distance of the passenger compartment of the vehicle. The second Gant prong is a little more difficult since the Supreme Court did not did not define what it meant by the phrase “reasonable to believe” that the vehicle contained evidence of the offense. But the court found that there was nothing innate in the charge of interfering with an officer or in the facts of the case that would read an officer to have a “reasonable suspicion” that physical evidence of the crime would be found. Therefore it reversed the trial court’s denial of Evans’ search motion and remanded the case to the trial court.

The Supreme Court, Tuesday, heard the case of Antoine Jones, the Washington D. C. nightclub owner who was sentenced to life in prison for cocaine related charges after police placed a GPS device on his vehicle, without a search warrant and tracked him for a month.

There is something basically wrong with the government being able to track citizens wherever they go and whatever they do. As Justice Breyer said, it “sounds like ‘1984.’ ” Breyer and Sotomeyer pointed out that if the government is right, they can put a tracking device on every car in country and track everyone.

While the majority of the court seemed to agree that the United State government violated the Fourth Amendment, the problem is U.S. v. Knotts. In Knotts, a 1983 case, the Supreme Court ruled that the Fourth Amendment was not violated when the police used a beeper to track a vehicle carrying chemicals from the retailer to the residence where a methamphetamine lab was located.

As a general rule the Supreme Court is reluctant to reverse prior decisions. It prefers to differentiate the prior decision by a difference in the facts between the two cases. But that will be difficult here. The difference between a beeper and the more modern GPS is probably immaterial. It has been suggested that the court will find that it was okay to track the vehicle in Knotts since that was for only one day while it is not okay in Jones because it was for a month. But where do you draw the line. Is two days okay? Is 29 days not okay? Is 15 days permissible but not 16 days? It may just be time to admit they made a mistake and reverse the finding in Knotts.

The Supreme Court upheld a murder conviction despite a Bruton error. In 1968 the Supreme Court ruled in Bruton v. United States that the prosecution could not use a confession of a non-testifying co-defendant to convict someone. Furthermore it held that merely telling the jury to ignore the incriminating evidence found in the confession was insufficient. It was necessary to either sever the defendants or redact those part of the confession which identify co-defendants.

At Eric Greene’s murder trial statement of non-testifying co-defendants was used by the prosecution. Instead of severing the trials or redacting the incriminating sections the prosecution replaced names with phrases such “this guy”. He was convicted and appealed. While the appeal was pending before the Pennsylvania Supreme Court the United States Supreme Court ruled in Gray v. Maryland that substitution of words for names such as occurred at Greene’s trial does not meet constitutional muster.The Pennsylvania Supreme Court refused to hear his appeal and Greene filed a Federal habeas.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) a Federal Court cannot grant a writ of habeas corpus in any case that has been adjudicated on its merits in state court unless the adjudication is contrary to clearly defined law as determined by the United States Supreme Court. The Supreme Court held this morning in Greene, aka Trice v. Fisher, that since the last ruling on the merits by a Pennsylvania court occurred prior to Gray, the law was not clearly defined at the time of the determination and the United States District Court was correct in denying Greene’s writ of habeas corpus.

What we have is the Supreme Court upholding a conviction that is clearly based on unconstitutional evidence in which the trial court violated Greene’s right of confrontation. Since the last state court decision on the merits (by the Pennsylvania Superior Court) occurred three months before Gray, Greene is now sitting in prison convicted of murder. If his lawyers had files a writ of certiorari challenging the denial of the Pennsylvania Supreme Court’s decision not to hear his case or if Greene’s lawyers had raised the confrontation issue in a state writ of habeas corpus the conviction would have probably be reversed.

But this instance of considering style over substance is why the AEDPA must be rejected. It does not encourage a search for truth. Rather it requires Federal courts to uphold clearly erroneous state decisions only because the Supreme Court decision came after the state decision or because there is no Supreme Court decision on point.