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.

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.

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.

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.