James Nelson Blair was convicted and sentenced to death for the 1986 California death, by poisoning, of his neighbor, Dorothy Green in 1989. He appealed the conviction. In 2001 he filed a writ of habeas corpus in the Ninth Circuit complaining that the opening brief had not yet been filed in his appeal. ¹ Also in 2005 Blair’s attorneys moved the Ninth Circuit for a competency hearing to determine if he was competent to assist his counsel on the writ. The Ninth Circuit remanded the case to the District Court to determine Blair’s competency. The District Court held a hearing and found him competent. The Ninth Circuit stayed consideration of the writ pending the expected decision of the Supreme Court on Blair’s appeal. Yesterday the Ninth Circuit ruled on Blair’s writ of habeas corpus. ²

There were only two issues. One issue was the due process issue regarding the length of time it took between his trial and the 2002 filing of opening briefs on his appeal. The second issue was the burden of proof used by the District Court at the competency hearing.

At the competency hearing the District Court placed the burden of proof on Blair to show by the preponderance of the evidence that he was incompetent. This was based upon a Supreme Court decision putting the burden of proof on the defendant in the trial court to determine his incompetency. However, Ninth Circuit precedent requires the court to determine competency by the preponderance of the evidence. This may seem minor. Instead of having to show that 51 per cent of the evidence supports a finding of incompetence it is necessary to show that 51 per cent of the evidence supports competency. Furthermore unlike the rule followed by the District Court the burden is not on the defendant to prove the case. This may seem like minor matters. But when you consider that the District Court judge ruled that this is “a close case” in which “[c]onsideration of the standard and burden . . . is of great consequence” it is no longer a small matter.

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) governs writs of habeas corpus in Federal Court. In order for a writ to be granted the AEDPA requires that there be a finding that the defendant’s constitutional rights were violated and that the violation was clear at the time of the violation. But in regard to whether Blair’s right to due process was denied by the three year period between the conviction and the filing of the opening brief, the Ninth Circuit followed it’s precedent in Hayes v. Ayers ³Hayes that “no clearly established Federal law, as determined by the Supreme Court of the United States recognizes a due process right to a speedy appeal.”

Furthermore the court held that since the precedent had been set and Blair had no chance of winning the District Court’s error in putting the burden of proof on Blair was harmless and did not require correction.

The Supreme Court reversed another Ninth Circuit grant of habeas corpus. In Cullen v. Pinholster the Supreme Court not only denied Pinholster’s writ of habeas corpus but it also severely limited the type of evidence a Federal Court can consider in habeas corpus proceedings reviewing the denial of habeas corpus by state courts.

The Court ruled that in reviewing state court actions Federal courts can only consider the evidence heard by the state court.

Pinholster was convicted of first degree murder in California and sentenced to death. In the penalty phase of his trial his attorneys called only his mother as a witness who testified about his troubled childhood. His lawyers consulted with a psychiatrist but decided not to call him when he said that Pinholster was not psychotic.

On habeas he argued incompetency of counsel due to his lawyer’s failure to follow-up on the psychiatric report. It was denied by the state courts including the California Supreme Court.

According to the Supreme Court the job of a Federal Court reviewing a state court action is not to seek the truth. Rather it is to guarantee the petitioner received due process in the state courts. Specifically if the state court decided the issue on the merits, Federal courts are limited to reversing the state court action if it:

“(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

“(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

Furthermore, since the goal is to insure that the court below used used the proper process to rule on the merits the Supreme Court ruled that the Federal Courts are limited to considering the evidence that was presented to the State Courts. Pinholster presented additional experts and evidence of trial counsel’s incompetence to the Federal Courts but the Supreme Court ruled that this evidence was inadmissible since it was not presented to the state courts.

One difference between appeals and writs of habeas corpus is that appeals cover matters that happened in the courtroom. Thus since there is a court reporter’s transcript of the matter there is no reason to allow evidence on appeal. The questions on appeal are legal questions. They are settled by consideration of brief written generally by attorneys giving legal reasons that errors were made in a trial court.

On the other hand writs of habeas corpus generally consider matters, such as incompetence of counsel that may not be evident from the transcripts and are settled by judges after hearing evidence. Thus to ask a trial court (eg. the Federal District Courts) to rule on a habeas without taking evidence is an anomaly and is contrary to the way the common law system operates.

In District Attorney’s Office for Third Judicial Dist. v. Osborne the Supreme Court, last year, found a limited right to DNA samples. The question of how to get it was left open. Is a writ of habeas corpus with its limitations necessary or can a defendant file a civil rights suit pursuant to 42 U.S.C.1983. This week the Supreme Court in Skinner v. Switzer ruled that it can be obtained by a civil rights suit.

A writ of habeas corpus (literally: “you are to have the body” is a request to release a person from custody or confinement. But a request to test the DNA samples does not automatically result in a release from custody. It may be counterproductive in that it may help to prove guilt or it may be ambivalent. Thus since the request for DNA testing does not in and of itself result in the release of the body a Section 1983 action is appropriate.

As in the case we looked at yesterday, the decision is not one on the merits it only allows Henry Skinner to file an action. He still has to prove his case.

Khalil Kholi was sentenced to ten consecutive terms of life in prison for first-degree sexual assault in 1993. Three years later the Rhode Island Supreme Court affirmed his conviction on appeal.

On May 16, 1996 he filed a motion to reduce his sentence and on May 23, 1997 he filed a Motion for a Post Conviction Remedy. Both were denied. On January 16, 1998 the state Supreme Court upheld the denial of the motion to reduce the sentence and on December 14, 2006 it upheld the denial of the request for post conviction relief.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) a writ of habeas corpus in Federal Court is only timely if it is filed within one year of the case becoming final on direct appeal. However time is tolled while the case is under collateral review in the state court.

Kholi filed a habeas in Federal Court but for it to be timely under the AEDPA both the motion to reduce the sentence and the request for Post Conviction Remedy must be considered collateral review. No one questioned the request for Post Conviction Remedy which is similar to a writ of habeas corpus. But the state challenged the motion to reduce the sentence. The state said that since the request was addressed to the court’s discretion, and not as a matter of law, it was not on collateral review. But in a rare victory for defendants the Supreme Court upheld Kholi’s right to file his Petition for a Writ of Habeas Corpus.

The term “collateral” means not direct. Thus anything that is not a direct review is a collateral review and the motion to reduce the sentence is not part of the direct review. Furthermore, since it is a reconsideration of the sentence it is a review. In any case, when it comes to whether or not a judge used the proper discretion in determining a sentence the line between what is a matter of law and what is not is a close one often left to appellate judges.

Thus the Supreme Court upheld Kholi’s right to file his writ of habeas corpus. Of course that doesn’t mean that he wins, it only means he has the right to have it heard.

A Federal Court will not review a state denial of a writ of habeas corpus if the state ruling is based upon an independent state ground that is independent of the federal question and adequate to support the judgment.To be considered an adequate state ground the rule must be “firmly established and regularly followed.”

Walker, Warden et al v. Martin decided yesterday by the Supreme Court builds upon Beard v. Kindler, decided last year. The Supreme Court held in Beard that a rule can be “firmly established and regularly followed” even if it gives judges a certain amount of discretion in applying the rule.

The question facing the court in Walker was whether the California rule defining timeliness for filing a writ of habeas corpus qualifies as “firmly established and regularly followed.” Unlike most other jurisdictions, California does not set a specific time period in which writs of habeas corpus must be filed in non-capital cases. Rather California requires that they be filed “as promptly as the circumstances allow.” Furthermore, the California Supreme Court sometimes denies a writ on its merits even if it is untimely. However, as the Supreme Court pointed out in Kindler the mere fact that a court has discretion does not mean that the rule is not regularly followed. The rule can regularly give the court discretion. And that is what the Supreme Court found in Walker. It found that the California courts regularly followed the rule giving the court discretion and there was no claim that the discretion was used unwisely in Walker.

In Walker the defendant raised the issue of incompetence of counsel only in its second state writ which occurred five years after the defendant had been found guilty. The state court found that under these conditions and in face of the fact that the defendant did not provide any reason for its late filing that the writ was untimely. The District Court agreed but the Ninth Circuit reversed the District Court. For the fourth time this year the Supreme Court reversed a Ninth Circuit grant of habeas corpus holding that the California ruled provided an unreviewable independent ground. It reinstated the state court decision finding the petition for a writ of habeas corpus untimely.

The Supreme Court, Friday, for the third time in the last ten days reversed a grant of habeas corpus by the Ninth Circuit Court of Appeals. It ruled that the Ninth Circuit cannot use habeas corpus to enforce a state given right, not recognized under Federal law. The Federal habeas statute prohibits Federal Courts from granting writs of habeas corpus for violations of state law that do not guarantee Federal liberty interests supported by Supreme Court decisions. It states that the Supreme Court can grant writs of habeas corpus:

only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States

The Supreme Court has not recognized a Constitutional substantive right to parole. It has ruled that if a states grants inmates a right to parole the state must procedurally provide for the inmate to be heard and the state must provide a statement of the reasons why parole is denied.

California court have ruled that in order to deny parole the state must have “some evidence” that the inmate is unsuitable for parole. Furthermore the state courts have rule that the some evidence standard must be met by current unsuitability. It is insufficient for the parole board or the governor to make a finding of unsuitability based purely on the gravity of the crime.

Damon Cooke was convicted of attempted first degree murder in 1991 and Elijah Clay was convicted of first degree murder in 1978 in California state courts. Both were given indeterminate sentences of seven years to life.

Damon Cooke and Elijay Clay filed writs in Federal Court challenging the Parole Board’s finding that there was some evidence that they were unsuitable. The Ninth Circuit granted both writs and the State appealed to the Supreme Court. The Supreme Court in its decision Friday ruled that the Ninth Circuit decisions must be reversed because there is no federal substantive right to parole and therefore Federal courts cannot review state denials of parole on the merits.

Yesterday we looked at a Supreme Court case reversing a grant of habeas corpus by the Ninth Circuit. Today we look at a sister case, Harrington v. Richter,, reversing another Ninth Circuit grant of habeas corpus for a violation of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

Joshua Richter and Christian Branscombe were convicted of murdering Patrick Klein and shooting Joshua Johnson in Johnson’s house during a robbery. Johnson was shot in his bed and Klein was found on the living room couch.

A major issue at trial was Richter’s claim that Branscombe fired on Johnson in self defense and that Klein was killed in the doorway to Johnson’s room in the crossfire.

The prosecution argued, in line with Johnson’s testimony that Johnson woke up to find Branscombe and Richter in his room. Branscombe shot him. Later he heard noise in the living room. When he went out to investigate he found Klein, seriously bleeding and he called 911.

A limited number of blood samples were taken by the crime scene investigators and neither party planned on calling expert witnesses to testify about the blood. But after Richter’s attorney outlined his case in his opening statement, the prosecution had the samples tested and a police officer testified as a blood pattern expert. Blood spatter or blood pattern evidence evidence involves examination of the location of blood drops at the crime scene by an expert. It can be used to tell the location of the victim and the murderer at the time of the shooting. It is frequently used by the police and due to its technical nature it is not unusual for both sides to call an expert to explain crime scene blood distributions.

On habeas Richter argued that his counsel was incompetent for not consulting with various experts including a blood spatter expert.

The test for incompetence of counsel is found in the Supreme Court case, Strickland v. Washington ¹ Under Strickland in order to reverse a conviction for incompetence of counsel one must show that counsel acted at a level below what competent counsel would be expected to do and that counsel’s incompetence resulted in prejudice to the defendant. However under the AEDPA when a state court has considered a matter on its merits a Federal Court can only grant a writ of habeas corpus when the state court’s decision either

“(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
“(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.”

The Supreme Court ruled that under the facts of the case it could neither find that the failure to consult with a blood spatter expert was an unreasonable application of, clearly established Federal law or that it resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence . Defense counsel may not have wanted to draw attention to the blood spatter by consulting an expert. Instead he/she may have argued that the prosecution did not do a thorough investigation and therefore failed to prove its case beyond a reasonable doubt. As a result under the AEDPA the Supreme Court decided that the decision of the California Supreme Court was not unreasonable and therefore it reversed the Ninth Circuit’s decision granting the habeas.

Bernard Gooden was convicted of narcotics related charges in 1993. Three years later the Eleventh Circuit denied his appeal finalizing his conviction. In 2006 the Court granted the government’s motion to reduce his prison term based upon his provision of substantial assistance to the government for helping in the prosecution of other individuals pursuant to Fed. R. Crim. P. 35(b).

In February 2008 he filed a pro se “motion to modify” his sentence. Without notifying him the Court considered the motion to be a writ of habeas corpus pursuant to 28 U.S.C. § 2255. The motion was denied and he did not appeal. The problem with this is that under the Antiterrorism and Effective Death Penalty Act which rewrote the habeas corpus rules a defendant is only entitled to one writ of habeas corpus. All issues must be raised in a single pleading. By failing to notify Gooden that his motion was being classified as a writ of habeas corpus, the court was precluding him from raising other issues in a future writ.

In June 2008 he filed another pro se motion. This time he asked the court to compel the government to file another 35(b) motion. The trial court again recharacterized the motion as a writ of habeas corpus and denied the motion without considering the merits on the grounds that the previous request for a writ precluded a second petition. Gooden appealed. The court ruled that prior to characterizing a pro se motion as a writ of habeas corpus a defendant must be given notice and a chance to withdraw his/her motion.

The government had no objection to this. But it argued that both of Gooden’s petitions violated another provision of the Antiterrorism and Effective Death Penalty Act in that the petitions were filed over one year after the conviction became final. But the Court ruled that an exception in the Act may result in more than one petition and that in some case a timely petition may follow an untimely petition. Under 28 U.S.C. § 2255(f) the year begins to run after after the most recent of:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence

Therefore it is possible that a petition may be filed within a year of one of the above events and another of the 2255(f) events occurs allowing a subsequent petition to be filed. As a result the court refused to authorized an exception to the rule requiring notice of the recharacterization of a motion as a habeas when the first petition was untimely. It returned the petition to the trial court with instructions to allow Gooden to withdraw or amend his motion prior to considering it on the merits.
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At times I have discussed writs of habeas corpus and civil rights suits pursuant to 42 USC 1983. A recent Third Circuit Court of Appeals cases does an excellent job of differentiating the two and explaining when each is to be used.

In McGee v. Martinez Steven McGee was convicted in a drug case. He was sentenced to 120 months and a fine of $10,000. Due to his indigence he was ordered to pay $20.00 a month while he was in custody and more when he got out. While in prison he was working on a writ of habeas corpus challenging his conviction. He was placed on the Inmate Financial Responsibility Plan (IFRP). The IFRP gives inmates incentives for paying their fines. In exchange for his promise to pay a minimum of $25.00 per quarter towards his fine he was to receive permission to use more than $25.00 per month in the commissary, eligibility for placement in a halfway house prior to his release, a promise not to receive an increased security designation, and an agreement not to receive an undesirable housing designation.

He needed the augmented commissary privileges in order to be able to buy typewriter ribbons, pads, and copying for the pro se habeas that he was working on. He borrowed money to work on the habeas. When the prison learned that he had the borrowed money in a bank account, they attempted to raise his IFRD contribution to $75.00 per quarter. When he refused to pay the increased payment he was put on “IFRP refusal status.” As such he lost his augmented commissary privileges. He was threatened with disciplinary segregation and the loss of good time. He filed a pro se habeas challenging the increased payment. The District court immediately denied the writ claiming that he should have filed a Section 1983 action instead of a habeas. The Third Circuit reversed the District Court and reinstated his habeas.

Under the common law a habeas could only challenge the ability of the state to detain an individual. But as the writ has been codified in 28 USC 2241 it can be used also to challenge the execution of the sentence. In contrast to a writ of habeas corpus a 1983 action is appropriate when the challenge is to a condition of the inmate’s confinement such that it would not necessarily alter and of the terms of the sentence.

Since requiring him to pay 75.00 per quarter ($25.00 per month) would alter the terms of his sentence, the court found that a writ of habeas corpus was the proper request and reversed the District Court’s denial of the writ.

Bobby Joe Maxwell was arrested in 1979 and charged with killing ten men in Los Angeles. He was known in the press as the Skid Row Stabber. He was tried and found guilty of killing two of the men and was sentenced to life without parole. On the other counts he was either found not guilty or the jury hung.

Monday, the Ninth Circuit Court of Appeals granted his writ of habeas corpus ordering that he either be released or given a new trial. The primary witness against him at his trial was Sidney Storch one of the most infamous jailhouse informants of the Los Angeles informant scandal of the 1980′s. Storch, a convicted forger, had a signature modus operandi. He arranged to be placed in the same cell with a defendant accuse of an infamous crime. Then he would read articles about his cellmate in the media. He would then call the DA’s office and offer to testify about his cellmate based upon what he read in the newspaper, claiming that the cellmate admitted the truth of what was in the newspaper. Shortly after Maxwell’s trial Storch was charged with perjury for giving false testimony in another case in which he acted as an informant but he died before he was tried on the perjury charges.

Due Process rights are violated when one is convicted based upon false testimony. Of course there is no way to prove what Maxwell told or did not tell Storch. But there is plenty of evidence that Storch lied at trial. He lied about the number of times he had informed on other people. He lied about his criminal history. He lied about the decreased sentence he received in exchange for testifying against Maxwell. Three police officers testified that they refused to use him as an informant in other cases because he was untrustworthy. The Ninth Circuit found that Storch lied about material evidence at Maxwell’s trial based upon his lies under oath and his pattern of lying in other trials.

But it is not enough in a Federal writ of habeas corpus to prove that an informant lied. A writ of habeas corpus can only be granted under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) if (1) the conviction “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) if the court made “an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.” The standard is tough. Not impossible, but rarely met. As the Ninth Circuit stated:

Where a petitioner challenges the state court’s findings based entirely on the state record, ‘we must be particularly deferential to our state-court colleagues,” and defer to their factual findings unless we are “convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.’

Here the Ninth Circuit found that the trial court, which held an evidentiary hearing on the matter, in a state writ of habeas corpus, some years ago made an unreasonable determination of the facts when it found that Storch’s testimony was credible. As a result the writ of habeas corpus was granted. The Superior Court was told to either grant Maxwell a new trial within a reasonable period of time or release him after 31 years in custody.