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, 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.

Last year the Supreme Court, in a highly unusual move ordered the lower courts to hold a hearing to determine whether Troy Davis, a convicted murderer was actually innocent.

While the Supreme Court often hears direct appeals and appeals involving writs of habeas corpus. these appeals generally involve procedural and legal matters. In the absence of a flawed procedural or legal matter it is generally assumed that the finding of a jury is sacrosanct.

Pursuant to the Supreme Court’s order Judge William T. Moore Jr. of the Southern District of Georgia held an evidentiary hearing allowing Troy Davis to present witnesses in an attempt to show that evidence that was not available at the time of his trial exculpates him.

The court found that Davis presented insufficient evidence that a jury could find by a clear and convincing standard that he was innocent. He provided several types of evidence. Much of the evidence was recantations of evidence presented at trial. But the court found much of the recantations not credible and found the rest of the recantations to be too weak to convince a jury. Davis also presented evidence that another person, Sylvester Coles committed the murder including, hearsay statements by Coles. But again in light of the hearsay nature of the statements the court found it too weak to exculpate Davis. Other evidence was directly exculpatory. But the court found it to be smoke and mirrors and did not find it to be credible.

But prior to making his finding that Davis did not prove his case, Moore found that the Eighth Amendment permitted post trial findings of innocence when new evidence is presented. In a number of cases the Supreme Court has considered the appropriateness under the Eighth Amendment of the death penalty based upon the characteristics of the offender. In such cases the Court has used a two step process.

First, a court “considers ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice’ to determine whether there is a national consensus against the sentencing practice at issue. . . . Second, a court must independently determine whether the punishment in question violates the constitution based upon precedent and the court’s ‘understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose.’”

As to legislative enactments the court took notes of numerous enactments including those allowing DNA test post conviction to test jury convictions. It pointed out that much of the purpose of our criminal laws is to prevent the imprisonment and execution of innocent people. Therefore Moore found that the Eighth Amendment requires the exculpation of innocent people post conviction. But it found that Troy Davis had not proved his innocence. This is not the last word. The decision will be appealed.

As I have pointed out the Federal Courts may deny a writ of habeas corpus in a state court case even if the state court is wrong as long as the state court reasonably interpreted a United States Supreme Court decision.

Yesterday, the Supreme Court in Renico v. Lett reversed a grant of habeas corpus by lower Federal Courts. The defendant was charged with murder. He killed a cab driver in a liquor store after Lett’s friend, Charles Jones, claimed the cab driver wrongfully ejected him from the cab.

After a nine hour trial and approximately four hours of deliberation the court declared a mistrial. During deliberation the jury sent several notes to the court. One of the notes asked if its deliberations were so loud that other trials were being disrupted. Another asked what would happen if it was unable to come to a verdict. The court called the jury back into the courtroom and after a brief discussion with the forewoman declared a mistrial.

In a second trial Lett was convicted of second degree murder. He appealed claiming a violation of double jeopardy since there was not a “manifest necessity to declare a mistrial.

Chief Justice Roberts., speaking for the majority said:

It is important at the outset to define the question before us. That question is not whether the trial judge should have declared a mistrial. It is not even whether it was an abuse of discretion for her to have done so—the applicable standard on direct review. The question under AEDPA is instead whether the determination of the Michigan Supreme Court that there was no abuse of discretion was “an unreasonable application of clearly established Federal law.” . . .

We have explained that “an unreasonable application of federal law is different from an incorrect application of federal law.” . . . Indeed, “a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.” . . . Rather, that application must be “objectively unreasonable.”

Therefore, according to the Court, under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) as long as the state court is not unreasonable its decision will be upheld by the Federal Courts.

In what might be one of his last dissents, Justice Stevens pointed out that Supreme Court decisions going back to Chief Justice Story’s 1824 decision in United States v. Perez have insisted that the decision to declare a mistrial should not be taken easily. Stevens quoted various Supreme Court decisions as stating;

Thus, we have repeatedly reaffirmed that the power to discharge the jury prior to verdict should be reserved for “extraordinary and striking circumstances,” . . . that the trial judge may not take this “weighty” step, . . . unless and until he has “scrupulously” assessed the situation and “taken care to assure himself that it warrants action on his part foreclosing the defendant from a potentially favorable judgment by the tribunal,” . . . that, to exercise sound discretion, the judge may not act “irrationally,” “irresponsibly,” or “precipitately” but must instead act “deliberately” and “carefully,” . . . and that, in view of “the elusive nature of the problem,” mechanical rules are no substitute in the double jeopardy mistrial context for the sensitive application of general standards, . . . The governing legal principles in this area are just that—principles—and their application to any particular set of facts entails an element of judgment.

He pointed out that the trial judge acted abruptly and did not give counsel a chance to object. Furthermore the jury only had four hours to deliberate and some of that time was taken choosing a foreperson. The case, being a murder case was a serious case and rarely is four hours enough time to consider the various issues. As a result he did not feel that a manifest necessity existed to call a mistrial or that the judge gave the decision sufficient consideration. Steven was joined in the dissent by Sotomeyer and Breyer.

U. S. District Judge John Bates of the United States District Court for the District of Columbia ruled that three prisoners who were arrested outside of Afghanistan and who are not Afghani citizens can have their writs of habeas corpus heard in Federal Court. The decision further challenges the Bush/Obama policy of indefinitely holding enemy combatants without court scrutiny. It involve interpretation of the suspension clause of the Constitution which prohibits suspension of the writ of habeas corpus except in cases of rebellion or invasion and it has generally been assumed to be limited to acts of Congress. The case involved writs of habeas corpus filed by Fadi al Maqaleh, Haji Wazir, Amil al Bakri and Redha Al-Najar. The Judge found little difference between the petitioners, with the exception of Wazir who is an Afghani citizen, and the Guantanamo petitioners in Boumediene who were granted the right of habeas corpus by the Supreme Court. Both the Bagram petitioners and the Guantanamo petitioners were seized in different countries and renditioned to either Guantanamo or Bagram. Both were labeled enemy combatants, though the government has now changed the label for the Guantanamo prisoners. Both groups are in prisons over which the United States has complete control. Finally both groups are in locations chosen by the United States.

As in Bourmediene the Court considered six factors:

(1) the citizenship of the detainee; (2) the status of the detainee; (3) the adequacy of the process through which the status determination was made; (4) the nature of the site of apprehension; (5) the nature of the site of detention; and (6) the practical obstacles inherent in resolving the petitioner’s entitlement to the writ.

With the exception of Wazir who is an Afghani citizen the court found that the petitioners were no different than the Guantanamo petitioners and must be granted the right of habeas corpus. The court ruled that

Under Boumediene, Bagram detainees who are not Afghan citizens, who were not captured in Afghanistan, and who have been held for an unreasonable amount of time — here, over six years — without adequate process may invoke the protections of the Suspension Clause, and hence the privilege of habeas corpus.

Of course, Judge Bates’ decision is subject to appeal to the D.C. Circuit Court of Appeal and the Supreme Court.

The California Supreme Court yesterday decided two cases in which petitioners attempted to void convictions for which they were no longer in custody or on probation in order to prevent deportation. In People v. Villa Avelino Ceja Villa, a Mexican citizen, filed a petition for a writ of error coram nobis while in immigration custody in Alabama based on a 1989 California drug conviction. The Court of Appeal considered the writ to be a writ of habeas corpus since he was in custody based upon the 1989 conviction even though his probation had long since been terminated. But it denied the writ on the grounds that he was not in custody solely on the California conviction. The California Supreme Court denied the writ but on different grounds. It found that he was neither in constructive or actual state custody and therefore it could not issue a writ.

The Supreme Court also denied a writ of coram noblis in People v. Kim Kim was born in South Korea in 1977 and came to this country as a young child with his parents.His criminal record started as a juvenile. He was convicted of first degree burglary for breaking into a tool shed in 1996. Later that year he was convicted of petty theft and second degree burglary. The following year he and two friends stole under $100 of merchandise from a Costco. But with his record he ended up pleading to felony petty theft with a prior and he admitted a strike violation. While the judge struck the strike at sentencing he was sent to prison for three years on the theft and the probation violation.

In 1998 the INS began deportation proceedings. Since his theft sentence was for at least a year it was considered an aggravated felony with mandatory deportation. He completed his sentence and his parole. But the INS amended its petition to include a discretionary deportation based upon two convictions for crimes of moral turpitude.

Kim filed a nonstatutory motion to reduce the sentence on the petty theft with a prior to 364 days. It was granted and now any deportation would be discretionary. A Federal immigration judge granted his motion to remain in the country. But the INS appealed and the BIA ordered Kim deported. He then filed the writ of coram nobis. But the California Supreme Court denied the writ. First it pointed to three procedural errors. In pleading the writ he failed to show due diligence. He did not explain why it took so long after 1996 for him to file the writ. The second procedural error is that Kim did not avail himself of other remedies. If he had filed earlier he would still have been in actual or constructive custody and he could have filed a writ of habeas corpus. Coram nobis is only to be used when there is no other remedy. The final procedural error, according to the Supreme Court was the piecemeal method of fighting the deportation in state court. The Court all motions should have been filed simultaneously.

While the Court found the procedural errors it denied the writ on its merits. To obtain a writ of coram nobis a defendant must show

(1) Petitioner must ‘show that some fact existed which, without any fault or negligence on his part, was not presented to the court at the trial on the merits, and which if presented would have prevented the rendition of the judgment.’
(2) Petitioner must also show that the ‘newly discovered evidence does not go to the merits of issues tried; issues of fact, once adjudicated, even though incorrectly, cannot be reopened except on motion for new trial.’ This second requirement applies even though the evidence in question is not discovered until after the time for moving for a new trial has elapsed or the motion has been denied. (3) Petitioner ‘must show that the facts upon which he relies were not known to him and could not in the exercise of due diligence have been discovered by him at any time substantially earlier than the time of his motion for the writ.

Kim failed to show that there were facts that were not known to him that if he had presented to the trial judge would have result in his exoneration. The facts he argues, that he would be deported, that if deported he would be imprisoned for his refusal to serve in the Korean military on religious grounds, that his trial attorney was ineffective in not investigating the immigration consequences of the plea, and that his trial attorney was ineffective in not negotiating an alternate plea are not issues of fact. They are issues of law which cannot be the basis of a writ of coram nobis.

The end result is that neither habeas corpus or coram nobis is likely to correct errors in pleadings after the period of probation or parole has ended.

In the groundbreaking case of Apprendi v. New Jersey>the United States Supreme Court held that the Sixth Amendment required that any fact used to raise a sentence above the statutory maximum must be found to be true by a jury by a beyond a reasonable doubt standard. Four years later in Blakely v. Washington the Supreme Court reaffirmed Apprendi and clarified it by holding that a sentence cannot be in excess of that which could have been imposed based solely on the facts admitted by the defendant or found to be true by the jury.

In 2007 the United States Supreme Court applied Blakely to the California sentencing law. Under the California law for each crime, the court had three alternatives. It could either sentence a defendant to the normal sentence generally called the mid-term or if mitigating or aggravating factors were present the court could sentence the defendant to a lower or higher sentence. The problem the Supreme Court found in Cunningham v. California is that in order to sentence someone to the aggravated term a judge had to find that factors were present beyond those found by the jury. Such a system violated the Sixth Amendment’s right to a jury trial.

The California Supreme Court ruled in In re Gomez that Cunningham is retroactive to Blakely.

The Courts use the Teague test to determine whether a case is retroactive or not. Under the Teague test a decision applying a new rule is applicable to a state case only if the earlier decision was not final at the time the defendant’s conviction became final. Here the State Supreme Court ruled that Cunningham v. California was not a new rule in that it was merely an application of Blakely The State Supreme Court found that it was not a new rule despite the fact that Blakely was susceptible to different interpretations by reasonable jurists in that California court had found the California law valid after the Cunningham decision but before the Blakely decision and the lack of unanimity in the Cunningham decision.

So finally the California Supreme Court appears to be giving up its battle with the United States Supreme Court over the validity of the sentencing law. While the In re Gomez
decision appears to be correct since only the state Supreme Court’s failure to apply Blakely to California law required the United States Supreme Court to issue Cunningham. The Cunningham decision was forced by the California Supreme Court’s decision in People v. Black in which the California Supreme Court refused to apply Blakely to California sentencing law.

But while the California Supreme Court initially refused to accept Blakely the state legislature understood Blakely and Cunningham and replaced the sentencing law. As a result the In re Gomez decision will apply to relatively few people who will be able to file a writ of habeas corpus in an attempt to get their sentences reduced from the aggravated sentence to the mid term. As to Gomez he has already completed his term for rape and he is on parole.