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.

Marcus A. Wellons was tried and convicted for rape and murder in Georgia.He was sentenced to death. They must have a strange sense of humor in Georgia. At the end of the trial the jurors gave the judge a chocolate penis and the bailiff a chocolate imitation of a women’s breasts. I do not know what the judge or the bailiff thought but the United States Supreme Court was not amused.

But before the matter got to the Supreme Court Wellons moved for formal discovery and an evidentiary hearing regarding the incident. First he raised the issue on appeal. But he was told that was inappropriate because there was not a written record. Then he raised the issue on a writ of habeas corpus in the state court but he was told that since the issue was decided on appeal a writ of habeas corpus was inappropriate. Finally he went into Federal Court. By the time he got to the Eleventh Circuit Court of Appeals he was told that since the issue was decided in the state court he could not raise it in Federal Court and in any case he loses on the merits.

The United States Supreme Court saw it differently. First, between the time the Eleventh Circuit decided the case and the Supreme Court heard the case, it decided Cone v. Bell, ruling that the fact that the question was raised on direct appeal does not provides an independent and adequate state ground for denying review on habeas. All agree that the Eleventh Circuit violated what was decided in the Supreme Court Cone’s decision. Second the Supreme Court in reviewing the work of the lower courts came to the conclusions that the lower courts did not answer the question as to whether Wellons gets formal discovery and an evidentiary hearing. Rather they attempted to answer whether the conviction should be reversed for the jury’s bad judgment. But as the majority points out that question cannot be answered until after the discovery and the evidentiary hearing is completed. They therefore remanded the case to the Eleventh Circuit to consider the Cone issue.The minority (Roberts, Thomas, Scalia, and Alito) feel that since the Eleventh Circuit ruled not only on the Cone issue but also on the merits that the decision on the merits remain and a remand is inappropriate.

The Supreme Court yesterday reversed the Georgia drug conviction of Eric Presley due to the judge’s refusal to allow Presley’s uncle to be in the courtroom, or even on the same floor of the DeKalb County Courthouse during jury voir dire.

The Sixth Amendment, among other things guarantees “the right to a speedy and public trial.” The trial judge stated that he did not want jurors to be put into a position where they might hear out of court statements related to the case. The Georgia Supreme Court in upholding the trial court said that the trial judge had the power to prevent jurors from hearing potentially prejudicial statements.

But the United States Supreme Court found that the Georgia Supreme Court’s holding could prevent the public from viewing voir dire in all cases and it would invalidate the Sixth Amendment. The Court admitted that there might be some cases in which the public could be prohibited from attending voir dire. But in such cases the court would have to make a specific finding that an overriding interest requires exclusion of the public from voir dire. Also the trial cases must make a finding that there are no alternative methods to prevent the specific damage that would be caused by voir dire being open to the public.

In this case the Georgia court made no attempt to find an alternative method to allow the public to view the voir dire and therefore the court reversed the conviction.

The California Supreme Court in People v. Taylor held that any person who is competent to stand trial and who is competent to waive his/her right to an attorney is able to represent him/herself. A waiver of counsel must be “knowingly, intelligently, and voluntarily.”

When a defendant makes a Faretta motion to represent him/herself the court must voir dire the defendant to determine if he/she understands the consequences of self representation. If the defendant understands the consequences the court must allow the defendant to waive the right to counsel and grant the motion.

Keith Desmond Taylor was convicted and sentenced to death for a murder that occured during a residential burglary. Prior to trial he had problems getting along with his court appointed attorney. He made several motions to represent himself and on his final motion it was granted. His appointed attorney was then appointed to act in an advisory capacity. (Later it was changed to standby counsel meaning that he would take over representation during the trial if Taylor’s right to represent himself was terminated.)

On appeal his appointed counsel argued, inter alia that he was not competent to represent himself, despite the court’s finding that he was competent to stand trial.

As in California law, Federal courts allow any defendant who makes a knowing intelligent and voluntary waiver of the right to counsel to represent themself as long as they are competent to stand trial. The United States Supreme Court in Godinez v. Moran held that while the Federal standard for competencey to stand trial and competency to represent oneself is the sames states are free to insist upon a higher standard of competency in order to represent oneself that the competency level necessary to stand trial. But in Taylor the California Supreme Court reviewed the history of self representation in California and found that the state, like the Federal government uses the same competency standard for both standing trial and representing oneself.

The United States Supreme Court granted the writ of habeas corpus of George Porter, Jr. in so far as it reversed a finding of the Florida Supreme Court that he be sentenced to death.

Porter was convicted of the murder of his ex-girlfriend and her boyfriend. In the penalty phase of the trial the only evidence admitted on his behalf was the testimony of his ex-wife and the reading of sections of a disposition regarding his relationship with his son and evidence about his behavior when intoxicated. After the trial he filed a writ of habeas corpus charging incompetence of counsel during the penalty phase of the trial.

At the hearing on the writ considerable evidence came out that could have been used at the penalty phase. He was a decorated Korean War hero. He had fought valiantly during some of the most horrendous battles. As a result he probably suffered from post traumatic stress syndrome. His childhood was extremely abusive. His father attacked him frequently. His father often attacked his mother in his presence. He was considered a slow learner and he had to go to special classes.He quit school at age 12 or 13. A psychiatrist testified that he suffered from brain damage.

Yet the trial attorney did no investigation and none of this evidence was admitted at the penalty phase. The trial court and the Florida Supreme Court did not make findings on whether the trial attorney was incompetent. But they ruled that even if the evidence had been admitted it would not have made a difference. They pointed out that he had gone AWOL while in the military and in their opinion this would have discounted the military evidence. They pointed to the government psychiatrist who without seeing Porter testified that he did not have post traumatic stress syndrome.

Based on this evidence the Supreme Court found that there is “a probability sufficient to undermine confidence in [that] outcome” and granted the writ in so far that it reversed the death penalty.

The FBI tapped Mohammed Said’s cell phone thinking he was a major drug dealer. They heard six conversations between Said and Salman Khade Abuelhawa in which they arranged two cocaine sales to Abuelhawa, each for one gram. A sale of cocaine is a felony and a purchase for personal use is a misdemeanor. But the use of a telephone to facilitate a felonious drug transaction is a felony under 21 USC 843(b). Poor Abuelhawa was charged with six felonies, one for each telephone call. He faced 24 years for the felonies as contrasted to two years for two misdemeanors. His attorney objected that he was only committing a misdemeanor. But both the District Court and the Fourth Circuit Court of Appeals disagreed. (It should be noted that the Seventh Circuit in a similar case agreed with the Fourth Circuit and the Tenth Circuit disagreed finding it not to be facilitation.) They said the plain meaning of “facilitate” is to assist and Abuelhawa was using the phone to assist Said commit a felony. Luckily the Supreme Court in an unanimous decision in United States v. Abuelhawa ruled that a buyer is a buyer and a seller is a seller and the buyer is not facilitating the seller.

So Abuelhawa’s six felony convictions are reversed.

The Supreme Court, last week, in Kansas v. Ventris ruled that statements given to jailhouse informants in violation of the Sixth Amendment can be used to impeach a defendant at trial.

In 1964 the Supreme Court ruled in Massiah v. United States that it was a violation of the Sixth Amendment right to counsel to allow a police informant to elicit incriminating evidence from a defendant after the defendant has been indicted and in the absence of the defendant’s attorney.

But now the Supreme Court has ruled that while a prosecutor cannot use the illegally gained evidence in its case in chief it can use it to impeach the defendant. Donnie Ray Ventris and Rhonda Theel were charged with various crime including the murder of Ernest Hicks. Theel plead guilty to robbery and her murder charge was dismissed. The prosecutor placed an informant in Ventris’ cell who elicited comments from Ventris incriminating himself on the murder charge. After Ventris testified at trial that Theel committed the murder, the informant testified as to what he had been told by Ventris in the cell.

Justice Scalia, speaking for a seven member majority of the Supreme Court compared the Sixth Amendment violation to a Fourth Amendment violation. He said that since exclusion of the illegally seized evidence in both cases was not directly mandated by the Constitution, a defendant should not be allowed to take advantage of the fact that the government illegally obtained evidence to lie at trial and therefore the illegally obtained evidence should be usable for impeachment.

But the problem with Scalia’s analogy to the Fourth Amendment, is that evidence illegally seized under the Fourth Amendment it is excluded solely because of the government’s wrong doing. There is no question about its validity. In the Case of Massiah error not only is the evidence seized illegally but there is considerable question about its credibility. An informant who is being rewarded in one way or another by the government for providing incriminating evidence against someone such as Ventis has considerable reason to lie. The government is not going to dismiss his case or give him favors if he does not provide them with incriminating evidence.

Also, a defendant, such as Ventris has reason to lie when talking to a cellmate who he does not know to be working for the police. A person in jail has considerable reason to want to appear to be tough in jail. Jails are not nice places and your cell mates may not be nice people. By telling them that you killed someone, they are less likely to attack you. After all would you want to attack someone who killed a man in cold blood. Thus Ventris may have lied to the agent/cellmate just to protect himself.