Randall Lee Fields, a prisoner in a Michigan jail was taken from his cell to a separate part of the building sometime between 7:00 pm and 9:00 pm. He was then interrogated by two armed officers for five to seven hours. He was not given his Miranda rights although he was told he could go back to his cell if he wanted to. During the interrogation he admitted to having sexual acts with a 12 year old prior to his current interrogation. His admission was admitted at trial. The question the Supreme Court faced in Howes v. Fields was whether Fields’ Miranda rights were violated. Under the seminal case of Miranda v. Arizona a defendant’s must be warned of the admissibility of a statement and the availability of counsel prior to making a statement if the defendant is in custody and if the statement is the result of interrogation.

Since Fields’ conviction was upheld in the state courts and comes to the Supreme Court as an appeal by the state of a grant of habeas corpus by the Federal Court the primary question is whether the State Court decision clearly violated Supreme Court decisions. The Supreme Court, this week, ruled that it did not. The Supreme Court reviewed its prior decisions regarding the use of Miranda in interrogations of defendants who are in custody for unrelated matters and found no decision setting a categorical rule regarding the applicability of Miranda to in custody interrogations regarding unrelated matters. In previous case it either refused to consider the issues or assumed that Miranda applied without decided whether it applied. Therefore, the Court reversed lower court decisions granting the writ of habeas corpus.

But the court went further, in what must be considered dicta, and stated that Miranda was not applicable to the situation in Fields.

For Miranda purposes the Court ruled the phrase “in custody” has a special meaning. “In determining whether a person is in custody in this sense, the initial step is to ascertain whether, in light of ‘the objective circumstances of the interrogation, . . . a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave.’” The Court gave three reasons for finding that Fields was not in custody for purposes of Miranda. First, it stated that questioning a person who is in custody does not effect the same type of shock that questioning a person who has recently been arrested. Second, a prisoner is unlikely to give an incriminating statement as one who has recently been arrested since his/her release date will not be effected by the statement. Finally, the interrogating officer has less authority to affect the release date on an in-custody inmate as compared to a recently arrested defendant.

While it is true that Fields was told that he could go back to his cell if he did not want to answer the officers questions, ¹the feeling of coercion when being interrogated in a jail setting is strong. Jailers have near complete control over inmates while they are in custody. Inmates are constantly called before custodial officers for disciplinary hearings. There is no Miranda right in these hearings and they can be disciplined if they fail to answer the officer’s questions. They can be thrown for extensive periods of time into solitary confinement. Commissary and phone rights can be taken away. They can be denied the right to have visitors. And perhaps most importantly they can lose “good time” and have their release date delayed. Thus, the coerced nature of in-custody statements is great and to deny those interrogated while in custody the right to remain silent or the right to have an attorney present violates the basic requirements of Miranda.

Last week the Supreme Court ruled on another case clarifying the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA). In Gonzalez v. Thaler The AEDPA requires that prior to appealing a denial of a petition for habeas corpus to the Circuit Court the petitioner get a certificate of appealability from either the District Court judge or a judge of the Circuit Court. The first question determined that the requirement that the COA indicate the requisite constitutional to be considered is a mandatory requirement but not a jurisdictional requirement.

Habeas appellate jurisdiction is found in 18 U. S. C. 2253, part of the AEDPA. Subdivision “c” which covers the area involved in this question states:

“(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals . . .
. . . . .
“(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
“(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).”

Rafael Arriaza Gonzalez was convicted of murder in Texas. After appealing his conviction unsuccessfully in Texas and having his state habeas denied, Gonzalez file a habeas in the Federal District Court. The District Court judge denied the habeas but granted Gonzales a COA. However the judge did not indicate which if any constitutional issue for which Gonzalez had made a substantial constitutional argument. The government did not challenge this failure in either the District Court or the Court of Appeals. However they did raise the issue of the lack of jurisdiction, citing section 2253 in the Supreme Court. This is important to Gonzalez because if the requirement is jurisdictional the Supreme Court will dismiss the case. But if it is mandatory but not jurisdictional, the failure of the government to raise the issue in the District Court or the Circuit Court waives the issue and the Supreme Court can hear the case.

The court found that the requirement was not jurisdictional. The Supreme Court will not find a requirement jurisdictional, unless Congress has made a clear statement that it intends the requirement to be jurisdictional. In this case the Supreme Court found no proof that Congress meant the the requirement of a constitutional statement in the COA to be jurisdictional.

Subsection 2253(c)(1) is clearly jurisdictional. It says that under certain conditions “an appeal may not be taken.” But the question before the court comes under subdivision three. When comparing the language of subdivision one to subdivision three it is clear to the court that the latter is not jurisdictional.

But Gonzales is not out of the water. The second issue is whether his appeal was timely. The statute says that a timely appeal must be filed within one year of when the lower court decision becomes final. Gonzalez appealed to the Texas Court of Appeals but he did not appeal to the higher court, the Texas Court of Criminal Appeals. The question before the Supreme Court was whether the year began to run when the appellate court decision became final or when the date to appeal to the Texas Court of Appeals expired. Gonzalez argued that the decision became final when the decision became final. The government argued that the decisison became fine when the time to appeal to the higher court expired. As you can guess if the government was right, Gonzalez loses and if Gonzalez is right his appeal is timely. The court sided with the government. It found that when the deadline for filing an appeal with the Texas Court of Appeals passed without an appeal having been filed, the year began in which the Federal habeas had to be filed. Gonzalez missed the deadline and the court through out the habeas. Its decision was based upon prior decisions finding that a decision became final either when the highest court issues a decision completing direct review or when the date to appeal to the highest court passes without an appeal being filed. Therefore, since Gonzalez did not appeal to the Texas Court of Criminal Appeal and the deadline for that court occurred over a year before the habeas the court was filed Gonzalez’ appeal was time barred.

The Supreme Court reinstated an Illinois conviction for two counts of sexual assault. Irving L. Cross was tried on charges of kidnapping and sexual assault. The victim, though afraid, testified. Hardy was found not guilty of kidnapping and the jury hung on the sexual assault charge. The district attorney wanted to retry the case. Despite the victim’s alleged readiness to testify at the second trial she disappeared prior to the trial.

The victim’s mother, brother, and father told investigators that they did not know where she was. A week after talking to the mother, investigators had a second conversation with her. Apparently the victim had returned home between the two conversation but she ran away the day before the second interview. Investigators made numerous trips to both of her parents’ houses. They also checked at the Office of the Medical Examiner, her school, the Department of Public Aid, the jail, and local hospitals. They interviewed the parents of a former boy friend. All to know avail. Cross argued that investigators should have interviewed her current boy friend and her friends. They should have contacted the cosmetology school that had once attended and that she should have been subpoenaed before she disappeared. But the Supreme Court found that the district attorney made a good faith effort. Investigators can always do more work but all that is needed is a good faith effort.

At the retrial, the district attorney put into evidence the victim’s testimony at the prior trial. Under Crawford v. Washington an out of court testimonial statement can ony be placed into evidence if the the defendant has had a chance to cross examine the witness at an earlier stage in the proceedings and the witness is unavailable at the trial. Here there is no question the defendant had a chance to cross examine the victim at the first trial. The only question is whether the victim was unavailable at the second trial. The victim is considered unavailable if the prosecutor made a good faith effort to find the victim and procure testimony her for trial.

After Cross was convicted in the second trial he filed a writ of habeas corpus challenging the conviction and alleging that his right of confrontation had been violated under Crawford. The District Court denied the writ but the Seventh Circuit upheld it. The Supreme Court reversed, finding that the Cook County District Attorney’s office had made a good faith effort to procure the witness.

“The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) . . . imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt.” Prior to defendant’s petition for habeas corpus the state courts of Illinois had turned down his claims of a violation of the Sixth Amendment right of confrontation. Since the state court decisions were reasonable the AEDPA requires the Federal courts to uphold the state’s decision.

Jason Cornell was charged with two rapes in New York. One occurred in Monroe County. The other in Ontario County. He was tried and convicted on both of them in Ontario County.

Both incidents occurred, with different women on narcotics buying trips from Watkins Glen in Schuyler County, New York, to Rochester in Monroe County, New York.

His trial counsel failed to object to venue in Ontario County for the incident that occurred in Monroe County. The question before the Second Circuit Court of Appeals was whether his counsel was incompetent and whether counsel’s incompetence prejudiced Cornell. Furthermore the court had to determine whether the state court decision was an unreasonable interpretation of established Supreme Court decisions under the Anti-Terrorism and Effective Death Penalty Act (AEDPA).

The Second Circuit found that counsel was incompetent. Counsel did not research New York’s venue rules. While there is a statute that allows an individual to be charged in any county through which he/she travels committing an offence it has been modified by a court ruling such that it only applies where the actual county where the crime occurs is unknown. Here it is undisputed that one incident occurred in Monroe County and the other in Ontario County. Furthermore there was no strategic reason for not raising the issue. Counsel requested a severance on other grounds which was denied. But he could have gotten a severance if he had raised the venue question.

But a finding of incompetence is insufficient. Under the Supreme Court decision in Strickland not only must there be incompetence but it must also prejudice the defendant. Here if his counsel had raised the issue it would have gone before the jury where there was overwhelming evidence that one offense happened in Monroe County.

Since the issue was raised on habeas corpus the AEDPA requires that the state court’s decision not only be wrong but it must also be unreasonable. The Second Circuit found that the state court’s denial of Cornell’s claim unreasonable misinterpreted Strickland in that it found that despite trial counsel’s prejudicial error he/she was not incompetent. Therefore the court reversed the conviction for the Monroe County case and ordered the case dismissed unless the Monroe County prosecutor decides to retry the matter.

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.