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.

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.
.

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.

The Seventh Circuit Court of Appeals held last week that a waiver of Miranda rights by a man with an IQ level in the sixties and who had a brain aneurysm decreasing his IQ by approximately 10 points was valid.

James Collins was convicted of murdering his girl friend in the early morning hours of May 1, 2001 after they spent several hours smoking crack cocaine. He had a long history of mental illness and the trial court heard the testimony of five experts before allowing the Mirandized testimony into evidence. After his arrest on the morning of the death, Collins gave several statements, some of which admitted to killing Flora Lanier. The testimony of witnesses was mixed and it is doubtful that they could have gotten a conviction without his statements.

A waiver of the right to remain silent must be knowingly and intelligently made. Furthermore the waiver must be “the product of a free and deliberate choice rather than intimidation, coercion, or deception.” In other words Collins must have understood what he was doing when he waived his right to remain silent and he must have had some degree of understanding of the possible consequences of the waiver.

After the conviction Collins appealed and the appeal was denied. Then he filed a writ of habeas corpus in the state appellate court. It was denied and the Illinois Supreme Court refused to hear the matter. Then he filed a writ in the Federal District Court. It was denied but he was given permission to appeal to the Seventh Circuit Court of Appeals.

The Seventh Circuit while agreeing that there was no question that Collins was mentally deficient found that he did not meet the standard for habeas corpus. Under the Antiterrorism and Effective Death Penalty Act (AEDPA) “a federal court may not issue a writ of habeas corpus unless the state court’s adjudication of the petitioner’s claim either ‘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 ‘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 Seventh Circuit found no Supreme Court precedent requiring the police “to take ‘special care’ that a suspect with a mental disability understands his rights.” Therefore the state court did not violate “clearly established Federal law.” Furthermore while the experts were divided the Seventh Circuit held that it cannot be said that the state courts was based on an unreasonable determination of the facts. When talking to the police Collins was rational. He understood the question and gave logical answers. As a result Collins met the relatively low bar and he had sufficient knowledge of what he was doing when he waived his right to remain silent.

Albert Holland was convicted of murder in Florida and sentenced to death. He appealed his conviction to the U. S. Supreme Court which denied cert on October 1, 2001, ending direct review and starting a one year period, mandated by the Antiterrorism and Effective Death Penalty Act (AEDPA) within which he may file a Federal habeas. Post conviction counsel, Bradley Collins, was appointed on November 7, 2001.

Twelve days before the year was up Collins filed post conviction motions in State Court tolling the AEDPA deadline. The Florida Supreme Court denied the state motions which became final on December 1, 2005.

During this period Holland wrote numerous unanswered letters to Collins to check on the status of his motions and to remind him to file to file the motions timely. When he did not get answers the wrote to the court and to the state bar asking for information and the replacement of Collins.

Collins did write him one letters and incorrectly told Holland that the deadline passed prior to Collins’ appointment. Three months after the AEDPA deadline passed Collins sent Holland a draft of a writ. After the deadline but prior to the mailing of the draft, Holland filed his own writ which was opposed by the Attorney General on the basis that while he had counsel only Collins could file a writ.

Collins was allowed to resign from the case, new counsel was appointed and the issue of equitable tolling of the statute was briefed to determine whether the late brief would be considered. Both the District Court and the Eleventh Circuit Court of Appeal held that while equitable tolling was allowed Holland did not meet the criteria for equitable tolling.

The Eleventh Circuit held:

that equitable tolling could not be applied in a case, like Holland’s, that involves no more than ‘pure professional negligence’ on the part of a petitioner’s attorney because such behavior can never constitute an ‘extraordinary circumstance.’ . ., .

We will assume that Collins’s alleged conduct is negligent, even grossly negligent. But in our view, no allegation of lawyer negligence or of failure to meet a lawyer’s standard of care—in the absence of an allegation and proof of bad faith, dishonesty, divided loyalty, mental impairment or so forth on the lawyer’s part—can rise to the level of egregious attorney misconduct that would entitle Petitioner to equitable tolling.

The Supreme Court remanded the case to the Eleventh Circuit finding that its test was too strict for a determination whether an equitable tolling of the statute was appropriate. In this case it ruled that “an attorney’s failure to satisfy professional standards of care” was sufficient and it remanded the case to the Eleventh Circuit for reconsideration.

While this is a step in the right direction, the real problem is with the AEDPA. Particularly in capital habeas where just about always counsel is appointed and not retained. The defendant does not get to pick his/her attorney. Yet we allow the failure of counsel to timely file papers (and the deadlines are often obscure and change over time) to result in a defendant losing the right to file the Great Writ and challenge his/her death penalty.

The Sixth Circuit Court of Appeals granted a writ of habeas corpus to Lewis Gagne after the trial court excluded prior sexual activity of the victim in a rape case pursuant to Michigan’s rape shield law.

While the rape shield law is not per se unconstitutional the court’s exclusion of prior evidence of group sex in which Gagne, the complainant, and others participated, in this case, violated Gagne’s constitutional right to present a defense.

Gagne and Donald Swathwood were convicted of raping Gagne’s ex-girlfriend, Pamela Lewis. Prior to trial Gagne’s attorney moved to allow three instances of group sex involving Gagne and Clark into evidence. The first instance involved Swarthwood also and the court allowed it to be used. Clark said she could not remember the incident and the prosecutor argued that it did not exist. The other two incidents, one involving a man by the name of Bermudez, and the other involving an invitation by Clark to Gagne’s father to join Clark and Gagne in sex were excluded. The excluded incidents, unlike the incident involving Swathwood, could have been proved by outside witnesses. There were no witnesses to the charged rape and no physical evidence. The only issue was consent.

In Crane v. Kentucky the Supreme Court ruled that trial courts cannot exclude evidence, the denial of which, denies the defendant “a meaningful opportunity to present a complete defense.” The Anti-Terrorism and Effective Death Penalty Act of 1996 limited the use of the writ of habeas corpus in Federal Courts to challenge state convictions. But the writ may still be granted if a state court violated a United States Supreme Court decision or if it unreasonably applies a Supreme Court decision. In this case the Sixth Circuit found that the Michigan courts unreasonably applied Crane by denying Gagne the right to introduce crucial evidence supporting his defense. The court found, not only, was the evidence of prior instances involving Clark and Lewis relevant but the admission of the evidence would not overly violate the state claims in enacting the rape shield statute. In fact the statute had an exception for prior sex acts involving the defendant. While the evidence that Gagne wanted to introduce involved either the sex acts between Lewis and third parties or her invitation to a third party to join in their sex acts the evidence was close enough to the exception as to limit its negative effect on the state’s interest.

The Supreme Court in Berghuis v. Smith looked at an appeal from a grant of habeas corpus in which the question, again, is not whether the trial court was right or wrong but rather whether the state court decision “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,”

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

“prohibits federal habeas relief unless the state court’s adjudication ‘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 ‘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,’”

In Smith the issue is whether Diapolis Smith, an African American, was denied his Sixth Amendment right to a jury consisting of a cross section of the population. He was convicted of murder by an all white jury in Kent County, Michigan. The lower courts in finding a constitutional violation cited Duren v. Missouri in which the Supreme Court developed a three part test “a criminal defendant must make to establish a prima facie violation of the Sixth Amendment’s fair-cross-section requirement:

(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.

In Duren the underrepresented group was woman. The court found that women made up 54 per cent of the jury-eligible population but only 14.5 per cent of the weekly venires. In contrast the court in Smith found that African Americans in Kent County made up 7.28 per cent of the jury eligible population but only six per cent of the jury pool. In Duren the law did not require women to sit on juries. They were allowed to exclude themselves and if they did not answer jury summons they were assumed to have excluded themselves. Contrasting this to the system in Kent County where Smith claimed that the jury selection system which gave priority to the District Courts and allowed them to get first choice at minorities instead of the Circuit Court which tried felonies such as that with which he was charged.

But the Supreme Court did not find that the alleged discrimination in Kent County violated any “clearly established” decision of the Supreme Court. The figures in Duren cannot be compared to the figures in Smith. The Supreme Court has given the states wide discretion in determining how to meet constitutional jury requirements and no Supreme Court precedent clearly supports the Sixth Circuit decision supporting the granting of the writ of habeas corpus.

Generally an inmate or a person on parole or probation must use a writ of habeas corpus to challenge their confinement or conditions limiting their freedom. The rules regarding the ability to file a writ of habeas corpus in Federal Court are complicated. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) set up a number of rules limiting the ability to file writs of habeas corpus in Federal Court.

One of the rules prohibits people from filing “second or successive” petitions. In Restucci v. Bender the First Circuit Court of Appeals found that the rule does not apply to petitions alleging deprivations of liberty which could not have been challenged in earlier petitions. William Restucci was convicted of voluntary manslaughter in 1995. This is his third petition for a writ of habeas corpus. In his first writ he challenged the constitutionality of the statute under which he was convicted. The Court considered the writ on its merits and denied it. In his second writ he challenged the competence of his counsel The Court rejected the writ because it was a “Second or Successive” writ in that the issue could have been considered in the earlier writ. Now he has petitioned to be allowed to file a “Second or Successive” writ in order to challenge the denial of parole.

The First Circuit denied the petition, last week, as being unnecessary. Since the denial of parole came after the denial of his previous writs it could not have been considered in either of the previous petitions. As a result, under the AEDPA, it is not necessary for Restucci to file a petition prior to filing his writ of habeas corpus challenging the denial of parole.