Patrick Wood was convicted of murder. The Colorado Court of Appeals denied his appeal and the state Supreme Court refused to hear the matter. He filed a writ of Habeas Corpus in the Federal District Court. The District Court invited the state to argue the issue of timeliness of the writ. The State responded that it “[would] not challenge, but [is] not conceding, the timeliness of Wood’s habeas petition.” The District Court denied the appeal on its merits. He appealed to the Tenth Circuit Court of Appeals. The Tenth Circuit requested briefing on the merits and on the timeliness of the writ. After the issues were briefed the Tenth Circuit denied the appeal based solely on the timeliness of the writ.

The question on appeal to the Supreme Court was the ability of a Federal Court to raise on its own motion the question of the statute of limitations. The Supreme Court held that the Federal Courts may raise the issue of the timeliness of a writ of Habeas Corpus. But if a state purposely waives the right to raise the issue, as Montana did in this case, it is an abuse of discretion for the Federal courts to raise the issue.

Under the Anti-Terrorism and Effective Death Penalty Act (AEDPA) a writ of habeas corpus is timely if it is filed within one year of the judgment becoming final by the conclusion of direct review or or the expiration of the time to file for such review. If direct review was completed prior to the passage of AEDPA the statute began to run with the effective date of the AEDPA on April 24, 1996 Furthermore the time is tolled for any period during which post conviction relief is pending in the state court.

Wood’s direct appeals were concluded in 1990 when the Colorado Supreme Court refused to hear the case. Thus the year began to run on April 24, 1996 unless there was pending at that time in state court a motion for post conviction relief. In 1995 he had file a motion to vacate his conviction and there is no record that it was ever acted upon. Therefore Wood claimed that it was still pending in 2004 when he filed a second motion in the Colorado courts. It was denied four days after it was filed. Exactly one year after it was denied Wood filed his writ of habeas corpus in the District Court. Thus he claimed it was timely, In any case the Supreme Court ruled that since the state waived opposition to the timeliness of the writ the Tenth Circuit abused its discretion in requiring briefing on the issue and finding it untimely. As a result the Supreme Court remanded the case to the Tenth Circuit for further action.

Luis Mariano’s attorney filed a brief with the Arizona courts saying that there was no cause to file a writ in post conviction collateral proceedings. Under Arizona law allegations of incompetence of counsel can only be brought up in collateral proceedings. Later, with a new lawyer, Mariano attempted to file a second collateral appeal. The court rejected the collateral appeal since under Arizona law an issue can not be brought up in a collateral appeal if it could have been brought up in an earlier appeal and the incompetence of counsel issue could have been brought up in the first collateral appeal.

Mariano attempted to bring up the incompetence of counsel issue in a habeas in Federal Court. The Federal Court rejected the habeas under the doctrine of procedural default since the state court had not ruled on the merits of the issue due to Mariano’s attorney’s default. Furthermore generally there is no right to competent counsel on collateral appeal.

His attorney appealed the decision to the Supreme Court. The Supreme Court ruled, in a rare victory extending the right of habeas corpus,this week that there is a right to counsel in “initial-review collateral proceedings.” That is in those proceedings that state law requires that they be raised for the first time on collateral review. If there is a right to counsel there is a right to competent counsel and Mariano can raise the issue that he did not have competent counsel on his initial collateral appeal in that she failed to raise the issue of competence of trial counsel.

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.

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.

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.

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.

Obie Anderson was released Tuesday, with the help of the Project for the Innocent at Loyola Law School and the Northern California Innocence Project at Santa Clara University School of Law, after spending seventeen years in prison for the murder and robbery of Felipe Gonzales. He was falsely convicted of killing Gonzales outside a South Los Angeles brothel in a 1995 trial. He was sentenced to life in prison without the possibility of parole.

Like 75 per cent of all exonerations in this country the conviction was based on eye witness testimony. The primary witness against him was a pimp, John Jones. However Los Angeles Superior Court Judge Kelvin D. Filer ordered Anderson’s release after finding that the pimp lied at the trial. Not only did Jones lie, but the prosecutor knew he was lying and failed to inform the court. Jones has since admitted that he could not identify the killer. Jones was not only directed by the police on who to pick out of the picture line-up but he was rewarded for his false information. Neither the defense nor the jury were were told about the reward. Anderson has always claimed that he was not present at the time of the murder.

Furthermore evidence at the hearing on the writ of habeas corpus pointed at Jones as the actual killer. The bullets came from the roof. Jones was probably on the roof. Furthermore the gun was similar to Jones’ gun.

Now he’s looking forward to seeing the Lakers.

Jerome Bass was convicted of cocaine related charges in the Federal District Court for the State of Nebraska. He appealed and lost. He then filed a writ of habeas corpus alleging incompetence of counsel. He claimed that his trial counsel failed to make an in limine motion objecting the testimony of one witness, failed to object to the testimony of a second witness, and failed to object to the U. S. attorney’s vouching for a witness during closing.

A defendant in a criminal trial not only has the Sixth Amendment right to counsel but the right to competent counsel. To win a grant of habeas corpus, alleging incompetence of counsel, a defendant carries the burden to prove that “(1) that counsel’s representation was deficient and (2) that he suffered prejudice as a result.”

The writ was granted and the government appealed to the Eighth Circuit Court of Appeals. The Eighth Circuit ruled that the in limine motion even if counsel was deficient in failing to make the motion ¹would not have had any effect on the trial since there was “overwhelming” evidence of the defendant’s guilt. Likewise the court found that Bass was not prejudiced by the failure of counsel to object to the testimony of a second witness due to the evidence against him.

“Vouching” for a witness occurs when an attorney claims to have knowledge, outside the evidence, that a witness is truthful. For example, an attorney cannot say in closing that I’ve known witness X for twenty years and he has never lied to me.” The alleged vouching occurred when the prosecutor said:

Most of them [the government's witnesses] have testified before this trial, but not all. And they know what the truth is, and they understand it’s important, and they came before you and told you the truth about Jerome Bass. Sergeant Langam explained it best when he testified about his personal barometer, how he gauges the truthfulness in proffer interviews. He corroborates the interviews against each other . . . .

But the appellate court found that the prosecutor was merely explaining why the jury could find the witnesses credible and she was not giving her personal opinion.