Thursday, September 13, 2012

Innocent Man Granted Habeas in Virginia

Maligie Conteh, a man wrongly convicted of robbery in 2009, has been vindicated with the ruling of the Honorable Randy I. Bellows of the Virginia Circuit Court.  On September 13, 2012, the Court ruled that the prosecution withheld material impeachment evidence in Mr. Conteh's trial.  This evidence, consisting in part of a the victim's recent conviction for possessing a fictitious social security card, constituted Brady material that Commonwealth of Virginia was obligated to disclose, but failed to do so.  The Court also considered newly discovered evidence persuading the judge that a reasonable doubt existed concerning Mr. Conteh's guilt.  Specifically, evidence was presented showing that Mr. Conteh was on Facebook immediately after the robbery took place, which was entirely consistent with his alibi.

Mr. Conteh, currently held for deportation to Sierra Leone, the country from which he fled as a young child to avoid being drafted as a child solider, has been cleared of the robbery charge for which he was wrongly convicted.  A team of attorneys from the law firm of McGuireWoods, led by Anand Ramana, argued on Mr. Conteh's behalf.

A news article related to Mr. Conteh's plight appeared in the Washington Post.  Stay tuned for the most up-to-date information.

UPDATE:  The Washington Post reported on the vacated conviction.

Saturday, January 28, 2012

Special Update: W.D. Ky. Discusses the Poindexter Circuit Split

Hamilton v. United States, Nos. 3:11–CV–150, 3:09–CR–2, 2012 WL 246472 (W.D. Ky. Jan 26, 2012).

What happens when a petitioner claims ineffective assistance of council for his attorney not noting an appeal after an unequivocal instruction to do so and after submitting a guilty plea in which the petitioner waives his right to appeal? Is the attorney per se ineffective?

These questions have formed the basis for opinions which split the circuits.  The Fourth Circuit holds that an attorney still must file a notice of appeal.  United States v. Poindexter, 492 F.3d 263, 273 (4th Cir. 2007) ("[A]n attorney is required to file a notice of appeal when unequivocally instructed to do so by his client, even if doing so would be contrary to the plea agreement and harmful to the client’s interests.")  Now, the Western District of Kentucky weighs in with a thorough review of existing case law and grants a petitioner a Certificate of Appealability for the Sixth Circuit to rule on the issue.  Previous discussions of the issue by the Sixth Circuit have not been determinative.  Wright v. United States, 320 F. App'x 421 (6th Cir. 2009); Sarlog v. United States, No. 09-3033, 2011 WL 63599 (6th Cir. Jan 7, 2011).

Saturday, October 29, 2011

End of Fourth Circuit Habeas Blog

After a great year of learning and posting about the procedural and substantive developments of habeas corpus law in the Fourth Circuit, this project has come to an end. I have taken a new job, outside of the complexities of the world of The Great Writ. Although I continue to research, read, and follow habeas developments, my current position and obligations do not permit me to post about it.

Here's to the next niche I find!

Wednesday, August 17, 2011

Fourth Circuit reverses denial of 2255

United States v. Malone, No. 10-6807 (4th Cir. Aug. 16, 2011):

Petitioner pleaded guilty.  Immediately after sentencing, Petitioner informed his attorney of his interest in appealing.  Petitioner's son and daughter-in-law also told Petitioner's attorney about Petitioner's desire to appeal.  This triggered counsel's duty to properly consult with Petitioner regarding an appeal.

Counsel's deficient consultation.  In response, counsel sent Petitioner a letter which Petitioner received after the appeal deadline expired.  Counsel also spoke with Petitioner's son and daughter-in-law.  In these communications, counsel did not adequately inform Petitioner of the advantages and disadvantages of an appeal.  Counsel also misguided Petitioner by explaining that filing an appeal could result in the Government seeking an enhanced sentence by removing his acceptance of responsibility adjustment.  No such procedure existed, however.  As the consequences for filing a notice of appeal in this case were legally complex, counsel's assertion that Petitioner likely faced a longer sentence if he filed a notice of appeal, even if received by Petitioner, did not adequately advise Petitioner of all the circumstances surrounding a potential appeal.

Counsel also explained that he would not represent Petitioner on appeal and that Petitioner would have to retain new counsel.  This rendered counsel's performance deficient.  An attorney is not at liberty to disregard the appellate wishes of his client.  An attorney is obligated to file a requested appeal even if the attorney believes the appeal is meritless or even harmful to the client's interests.

Prejudice of counsel's performance.  Below, the district court concluded that had Petitioner wanted to appeal, he could have done so pro se.  The Fourth Circuit found persuasive, however, that counsel never informed Petitioner of this option.  Moreover, although the Court informed Petitioner of his right to file a notice of appeal, the court did not ensure that Petitioner heard or understood this right.  Additionally, counsel's comments to Petitioner that Petitioner would have to get a new attorney may have confused Petitioner.

Conclusion.  The Fourth Circuit held that counsel's deficient performance prejudiced Petitioner.  The Fourth Circuit reversed the district court's denial of Petitioner's § 2255 motion, vacated his sentence, and remanded the case for reentry of that sentence, so that Petitioner could have a second chance to seek direct review.

Tuesday, August 9, 2011

District Court grants habeas petition after state Brady violation

Wolfe v. Clarke, No. 2:05cv423, 2011 WL 3251494 (E.D. Va. July 26, 2011):

[For a few news articles on this case:  Washington Post, Virginia Lawyers Weekly.]

[FourthCircuitHabeas previously covered this case here.]

The District Court overturned a death sentence after determining that prosecutors withheld or ignored exculpatory evidence and potential testimony. The District Court lambasted the Commonwealth's "tenuous" case which was "replete with hearsay and speculation."

This blog tends to focus on the procedural complexities and developments of habeas law in the Fourth Circuit. For that reason, the substantive law and facts of the case are not presented here.

Tuesday, July 26, 2011

E.D. Va. notes possibility of Fourth Circuit abrogation

James v. Stansberry, No. 3:10cv380, 2011 WL 2471034 (E.D. Va. June 20, 2011).

[For other blog posts dealing with South Carolina's blue-light law, click here.]

Procedural history.  In 2002, Petitioner was convicted for possession of a firearm by a felon.  Petitioner was sentenced under the Armed Career Criminal Act ("ACCA").  One of the predicate offenses the sentencing court used to sentence Petitioner under the ACCA was a 1995 South Carolina state conviction for failure to stop for a blue light.  South Carolina's blue-light law makes it unlawful for a driver to continue driving when signaled to stop by a law enforcement vehicle.

Petitioner appealed the Court's characterization of him as an armed career criminal because, he argued, a conviction for violating the blue-light law does not constitute a "violent felony."  The Fourth Circuit affirmed his conviction and determined that a violation of the blue-light law did constitute a "'violent felony'" because the law "generally proscribes conduct that poses the potential for serious injury to another."

Petitioner then filed a § 2255 motion on this ground.  The District of South Carolina denied the motion and the Fourth Circuit dismissed his appeal.

Petitioner then filed a petition pursuant to § 2241 for a writ of habeas corpus in the Eastern District of Virginia.  Petitioner raised the blue-light law issue once more.  This Court dismissed the petition for lack of jurisdiction because the petition was actually an unauthorized, successive motion pursuant to 28 U.S.C. § 2255.  The Fourth Circuit affirmed dismissal.

On February 25, 2010, the Fourth Circuit handed down its opinion in Rivers.  In Rivers, the Fourth Circuit applied the Supreme Court's reasoning in Chambers v. United States to determine that a violation of South Carolina's blue-light law could never constitute a violent felony under the ACCA.

Accordingly, Petitioner filed another § 2241 petition.

Current § 2241 petition.  Petitioner currently contends that he is entitled to relief under 28 U.S.C. § 2241 because he is "actually innocent" of his ACCA status. As Petitioner correctly asserts, he did not have the benefit of Rivers when he filed his previous petition in Virginia.  Nevertheless, at that time, the Court assumed arguendo that Petitioner was correct regarding whether a violation of the blue-light law constituted a violent felony.  Accordingly, the substantive change presented in Rivers does not alter the Court's previous analysis.

Even though the law changed, Petitioner cannot avail himself of it.   He must proceed under § 2255, but only if he can show that the conduct for which he was convicted is no longer illegal.  That is, actual innocence applies only where the challenge to eligibility stems from factual innocence of the predicate claims, and not from the legal classifcation of the predicate claims.  Petitioner cannot do so.

Possible Abrogation. In footnote four, the Court mentions Sykes v. United States.   This blog previously covered the possibility of Sykes abrogating Fourth Circuit precedent.  The Court declined to address this issue.

[UPDATE:  The Eighth Circuit in Sun Bear v. United States, --- F.3d ----, No. 09-2992, 2011 WL 2683183 (8th Cir. July 12, 2011) (six-to-five en banc opinion), determined that collateral attacks on an application of the career offender guidelines provisions are not cognizable under § 2255.]

Sunday, July 17, 2011

E.D. Va. exposes uncertainty in statute of limitations analysis

Bolding v. Dep't of Corr., No. 3:10cv660, 2011 WL 2471557 (E.D. Va. June 21, 2011).

In Virginia, a state prisoner may file a state habeas petition in either the state circuit (trial-level) court or in the Supreme Court of Virginia.

A question arises regarding the statute of limitations when an inmate petitions for habeas relief in the circuit court and then appeals the denial of the petition to the Supreme Court of Virginia.  It is settled law that the statute of limitation tolls while the petition is pending with the circuit court.  What happens, however, when the Supreme Court of Virginia dismisses the subsequent appeal because it was not timely filed?  The Eastern District of Virginia recently uncovered that question, and decided not to rule on it.

In Allen v. Mitchell, 276 F.3d 183, 185 (4th Cir. 2001), the Fourth Circuit, adjudicating a North Carolina case, subscribed to the position that "the statute of limitations is not tolled between the expiration of a state appeal deadline and the subsequent filing of an untimely appellate petition."  The Allen Court broke the relevant time periods down:
When a prisoner files an untimely appellate petition during state collateral review proceedings, three periods are relevant to the availability of tolling for the time span between the denial of relief by the lower court and the conclusion of appellate proceedings:  the interval between the lower court decision and the deadline for seeking review (“Appeal Period”); the interval between this deadline and the filing of an appellate petition (“Post Deadline Period”); and the interval during which the appellate petition is under review by the state court (“Review Period”).
The Review Period clearly tolls the statute of limitations if a state appellate petition is properly filed.  The Allen Court decided the issue of whether the Post Deadline Period tolled the statute of limitations.  (It doesn't.)  The question is regarding the Appeal Period.  In Allen, the Fourth Circuit throws it away by saying, "We have already held that the statute of limitations is tolled pursuant to § 2244(d)(2) during the [interval between the lower court habeas decision and the deadline for seeking review of that decision.]"  This suggests that a petitioner's limitations period is tolled for thirty days after the circuit court's judgment, even if the petition for appeal is not filed within that thirty-day period.  This conclusion is supported by the Allen Court's language at the end of its opinion:  "[If] Allen's certiorari petition was [not] timely . . . then the district court must determine when the Appeal Period ended and how much time subsequently accrued against the statute of limitations."  This is the holding of at least three other circuits, and also the practice of the Western District of Virginia at least once.  See Breeden v. Commonwealth, No. 7:05CV00413, 2005 WL 2777281, at *1 (W.D. Va. Oct. 24, 2005) ("Although the Circuit Court dismissed Breeden's state petition on December 18, 2004, the one-year period remained tolled until January 18, 2005, the date on which the time to appeal the dismissal of the petition expired.").

This, however, is not the rule that the Eastern District of Virginia normally follows.  See, e.g., Hines v. Johnson, No. 2:08cv102, 2009 WL 210716, at *2 (E.D. Va. Jan. 28, 2009) (precluding tolling the time between the state's denial of a habeas petition and the ultimately untimely petition for appeal of that decision); Christian v. Baskerville, 232 F. Supp. 2d 605, 607 (E.D. Va. 2001) (same).  The Eastern District of Virginia declined further analysis because an additional thirty days would not be beneficial to the petitioner.

[1/20/2012 Update:  For another North Carolina case addressing Allen, see Arrington v. Stancil, No. 5:11–HC–2018–BO, 2012 WL 125755, at *2 (E.D.N.C. Jan. 17 2012).]

Tuesday, July 12, 2011

New evidence of government misconduct gives rise to federal claim

Williams v. Fahey, No. 3:09CV769, 2011 WL 2443722 (E.D. Va. June 14, 2011).

[This opinion concerns one of the "Norfolk Four." For a brief news story about this case, click here.  For other blog posts about this case, click here.]

On April 9, 2010, Police Detective Ford was indicted for lying to federal agents, judges, and state and federal prosecutors.

This indictment (and subsequent conviction) gave rise to Williams submitting his § 2254 petition.  Williams alleges that Detective Ford coerced Williams's confession to rape and murder.  Williams seeks a stay-and-abeyance of his federal petition so that hey may exhaust his state remedies with regard to this new claim.

Respondent contends that Ford's indictment cannot constitute "new evidence" to support a claim distinct from any claim previously available to Williams.  The Court disagrees.  When evidence not presented to the state court which places a case in a significantly different and stronger evidentiary posture than it was when the state court considered it, that new evidence may support stay-and-abeyance.  Ford's recent convictions lend factual heft to Williams's claim that Ford manipulated the investigation and prosecution against Williams.  Such allegations, if proven, could potentially entitle Williams to habeas relief.

Respondent also contends that the Virginia state courts will reject Williams's new petition because it violates the relevant statute of limitations.  However, interpretation of that statute does not appear to be as straightforward as Respondent suggests.  Not only is the case law unclear, but in the six months that Williams's state habeas petition has been pending in state court, the state court has not dismissed it.  Accordingly, the Court grants the stay-and-abeyance for Williams to pursue his new claim in the state court.

[For the same holding for Williams's codefendant, see Dick v. Fahey, No. 3:10CV505, 2011 WL 2443898 (E.D.Va. June 14, 2011).]

Monday, July 11, 2011

Subsequent 2255 not "successive" when first one was successful

United States v. Pearson, No. 10-6516 (4th Cir. June 29, 2011):

Petitioner filed a § 2255 motion arguing, inter alia, that his attorney failed to file an appeal on his behalf.  The District Court granted Petitioner's right to file an appeal but denied all other claims for relief.  After the Fourth Circuit affirmed Petitioner's sentence, Petitioner filed another § 2255 motion.  The District Court denied the second § 2255 motion as an unauthorized successive motion.  Subsequently, the District Court granted a certificate of appealability, acknowledging that Petitioner's motion was not in fact successive, but noting that jurisdiction rested with the Fourth Circuit.

It is settled law that not every numerically second § 2255 motion is a "second or successive" motion within the meaning of the Antiterrorism and Effective Death Penalty Act of 1996.  When a prisoner’s first § 2255 motion is granted to permit a direct appeal, the counter of collateral attacks pursued is reset to zero.  Because the District Court granted Petitioner's original § 2255 motion and to permit a direct appeal, the instant § 2255 motion is not a second or successive motion within the meaning of § 2255(h).  Therefore, the District Court erred by holding that Petitioner was required to obtain an order from the Fourth Circuit authorizing the District Court to consider the motion.

However, if a habeas petitioner files an application for collateral relief that raises a successful appeal claim and additional claims, any subsequent petition will be considered "second or successive" if (a) the District Court ruled on the merits of the additional claims in the initial petition, and (b) the petitioner seeks to raise those claims again in the subsequent petition.  Therefore, to the extent Petitioner seeks to raise claims already rejected by the District Court in his previous § 2255 motion, the District Court is bound to provide Plaintiff with the option of omitting the repetitive claims or having the entire petition treated as successive.

Saturday, July 9, 2011

Sex offender registration doesn't constitute "custody" sufficient to satisfy habeas requirement

Wilson v. Flaherty, No. 3:10CV536, 2011 WL 2471207 (E.D. Va. June 20, 2011):

[This opinion concerns one of the "Norfolk Four." For a brief news story about this case, click here.]

The Background.  In July 1997, Michelle Bosko was raped and murdered in her apartment.  Eventually, five men were convicted with respect to crimes against Michelle Bosko:  Derek Tice, Danial Williams, Joseph Dick, Eric Wilson, and Omar Ballard.  Wilson was sentenced to eight and one-half years in prison.  In 2005, Wilson's sentence expired, he was released from prison, and he returned to his parents' home in Texas.

Other Defendants Receive Pardons.  In 2004, Wilson, Tice, Williams, and Dick petitioned the Governor of Virginia for absolute pardons.  In 2009, Governor Kaine concluded that Tice, Williams, Dick, and Wilson "had raised 'substantial doubt' about the validity of their convictions, but had not 'conclusively established [their] innocence.'"  The Governor issued conditional pardons to Tice, Williams, and Dick, released them from prison, but kept their convictions in place.  The Governor denied any relief to Wilson because Wilson was no longer in prison.

Wilson Subject to Sex-Offender Registration Laws.  Wilson currently resides in Texas, and is subject to sex-offender registration requirements and the collateral consequences of being on the sex-offender registry.  Wilson filed a petition for a writ of habeas corpus and requests the Court to expunge his record and release him from the requirement of registering as a sex offender.  This means that Wilson must register in person with the local sheriff's department each year.  Wilson must carry a sex offender card at all times or suffer a legal penalty.  He is characterized as a violent sex offender on the public national sex offender registry.  As an electrician, Wilson is prohibited from working on certain job sites because of his status.  On one occasion, for example, Wilson was removed from a Department of Homeland Security building because of his status.  Wilson may not leave the country.  If he is away from home for more than twenty-four hours, he must notify the authorities in person.  He endures humiliation each time he visits his step-son's school because the school performs a background check for each visitor.  Furthermore, Wilson may not adopt his step-son because of Wilson's sex-offender status.

The "In Custody" Requirement.  To qualify for relief under 28 U.S.C. § 2254, a petitioner must be "in custody."  Although the term "in custody" encompasses petitioners subject to immediate physical imprisonment, the term also includes those subject to some other restraints on freedom.  For example, an individual on parole or probation, sentenced to a rehabilitation program, sentenced to community service, or civilly committed, may satisfy the in-custody requirement.  These individuals satisfy the in-custody requirement because they suffer "substantial restraints not shared by the public generally."

Sex-Offender Registration Does Not Create "Custody."  Despite the consequences of being a convicted sex offender, federal courts have unanimously held that sex-offender registration and its collateral consequences do not qualify as "custody" for habeas relief.  Courts base these findings on the fact that the registration statutes analyzed do not significantly restrain sex offenders' liberty.  In other words, the regulations "are more analogous to collateral consequences such as the loss of the right to vote than to severe restraints on freedom of movement such as parole."

COA Granted.  Although many other Circuit Courts and District Courts have unanimously agreed that sex-offender registration laws do not create "custody," neither the United States Court of Appeals for the Fourth Circuit nor any District Court within the Fourth Circuit has ruled on the issue.  Accordingly, the Eastern District of Virginia grants a certificate of appealability on the issue.

Tuesday, July 5, 2011

Maryland issues COA regarding new double jeopardy case

Yearwood v. United States, No. RDB-05-0105, 2011 WL 826297 (D. Md. Mar. 7, 2011):

Yearwood's trial involved an acquittal of the charge of distributing cocaine, but the jury deadlocked on a second charge of conspiracy to distribute and possess with intent to distribute cocaine base.  The Government retried Yearwood and, in a second trial, a jury found him guilty of conspiracy.

On appeal, Yearwood argued that the Double Jeopardy Clause of the Fifth Amendment barred the Government from retrying him for conspiracy because the retrial required relitigation of a fact the jury decided in his favor in the first trial when it acquitted him on the distribution charge.  Yearwood argued that when the jury acquitted him on the distribution charge, it necessarily decided that he was not involved in a drug transaction that was the crux of the Government's conspiracy charge.  The Fourth Circuit held that because distribution and conspiracy are distinct crimes with separate elements, Yearwood's retrial on the conspiracy charge did not require relitigation of facts the jury decided in his favor when it acquitted him of the distribution charge.

After the Supreme Court of the United States denied Yearwood's petition for a writ of certioari, the Supreme Court decided Yeager v. United States.  Yearwood now relies on Yeager in moving for 2255 relief.  His motion, however is untimely.

Yearwood argues that the limitations period should run from the date on which the Supreme Court decided Yeager, rather than the date on which the Supreme Court denied his petition for cert. 

In Yearwood's view, Yeager stands for the proposition that if a critical issue of ultimate fact involving retrial of the hung charge was decided in Yearwood's favor in connection with the charge upon which he was acquitted, double jeopardy would bar retrial of the hung charge.  Yeager, however, does not stand for this proposition.  Yeager only stands for the proposition that a court cannot determine the preclusive scope of an acquittal for double jeopardy purposes by identifying either logical inconsistencies or synergies between the acquittal and the hung count.  To identify what a jury necessarily determined at trial, courts should scrutinize a jury's decisions, not its failures to decide.

Although Maryland determined that Yeager doesn't apply, and certainly doesn't apply retroactively, the Court nevertheless granted a certificate of appealability because Yearwood's double jeopardy claim is debatable.  The Court seems to base this decision on the ground that the Fourth Circuit has yet to interpret Yeager

Saturday, June 25, 2011

Attorney acts unreasonably; COA issues to determine prejudice

Estep v. Ballard, No. 3:10-0396, 2011 WL 1087495 (S.D. W. Va. Mar. 21, 2011):

Habeas petitioner asserted that he received constitutionally ineffective assistance of counsel at trial because his attorney failed to contest the State's direct examination of the murder victim's nephew and the State's cross-examination of Petitioner because, during both, the State elicited evidence regarding the good character of the victim in contravention of Rule 404 of the West Virginia Rules of Evidence.  Rule 404 provides that, while evidence of a person's character is not admissible for the purposes of proving that he or she acted in conformity therewith, evidence of the character of a victim of a crime may be offered when introduced first by the accused for a pertinent character trait.

Exhaustion.  The Court believes that Respondent has waived the exhaustion defense in this case.  The State may waive exhaustion, but it must do so expressly and through counsel.  Respondent's answer to the habeas petitioner stated that "Petitioner has had a full and fair opportunity to properly present his claims to the appropriate courts and appears to be colorably exhausted."  Accordingly, the Court holes that Respondent has waived the exhaustion defense.

The Merits.  The allegedly impermissible evidence consists primarily of the victim's nephew talking about the victim's general good character.  The Magistrate Judge declined to speculate regarding whether counsel failed to object.  Instead, she proceeding to the second prong of Strickland and determined that Petitioner is unable to establish actual prejudice to his trial based upon the introduction of this evidence.  The District Court, however, believed it necessary to address both prongs.

Evidentiary decisions are fundamentally a matter of state law, and each state has the power to regulate how evidence is presented and excluded within its own courts. It is only in circumstances impugning fundamental fairness or infringing specific constitutional protections that a federal question is presented. Relief is in order only where the challenged evidence is a crucial, critical, or highly significant factor in the context of the entire trial. In this case, then, the appropriate action is not to reassess the correctness of the State court's evidentiary rulings under its own law, but to determine whether counsel's failure to object to otherwise inadmissible evidence constituted deficient performance under Strickland. Further, the Court must determine if the introduction of the inadmissible evidence impugned fundamental fairness or infringed specific constitutional protections.

The District Court holds that the attorney acted unreasonably. Rule 404(a)(2) allows the prosecution to introduce evidence of the victim's character only upon introduction by the defendant of evidence for a relevant character trait. During trial, Petitioner did not introduce any evidence of the victim's character prior to the questioning. Nor did he contend that the victim was an aggressor in the case. The Court cannot infer counsel's tactical choice where no choice appears to have been made at all.

Respondent suggests that counsel could have reasonably not wanted to draw attention to the victim's good character traits by objecting and also may not have wanted to sound antagonistic. This explanation is not compelling. If counsel was so concerned about appearing callous or keying the jury in on the prejudicial nature of this evidence, he could have approached the bench and objected. The entire strategy at trial was to essentially concede many of the facts in the indictment, and to primarily seek a mercy recommendation from the jury in a unitary proceeding. An overload of evidence on the victim's good character would have only served to undermine this effort.

Regarding prejudice, the Court characterized the issue as a "close call." Ultimately, the Court could not say with reasonable probability that the jury's decision would have been different if counsel had properly objected to the introduction of the character evidence. Accordingly, the Court issued a COA on this issue.

Thursday, June 23, 2011

E.D.N.C. grants COA regarding retroactivity of Carachuri-Rosendo

Walker v. United States, No. 7:07-CR-00076-1-BR, 2011 WL 1337409 (E.D.N.C. Apr. 7, 2011):

Petitioner filed a 2255 motion seeking to have his sentence vacated, set aside, or corrected.  Petitioner claims that his prior state convictions for possession with intent to manufacture, sell, and deliver a controlled substance and for obtaining property by false pretenses are not predicate offenses for the career offender sentencing guideline enhancement.  Petitioner's argument is based on the Supreme Court's decisions in Rodriques (U.S. 2008) and Carachuri-Rosendo (U.S. 2010), which Petitioner suggests have effectively overruled Jones (4th Cir. 1999) and Harp (4th Cir. 2005).  Recently, in Simmons (4th Cir. Feb. 16, 2011), the Fourth Circuit confirmed the validity of Harp in the wake of Carachuri-Rosendo.  However, on March 18, 2011, the Fourth Circuit vacated that decision and granted rehearing en banc.

Even if Petitioner is corrected about Carachuri-Rosendo, he still must overcome the hurdle of showing that the rule announced in that case applies retroactively to cases on collateral review.  The E.D.N.C. located only one case which has addressed the retroactivity of Carachuri-Rosendo, and there, acknowledging the dearth of case law, the W.D.N.C. declined to apply the rule retroactively.  See United States v. Powell, Nos. 5:10cv137–V–5, 5:03cr37–13, 2011 WL 32519, *4 (W.D.N.C. Jan. 4, 2011). Because of the lack of direction from the Supreme Court and all Courts of Appeal, the E.D.N.C. granted a COA regarding whether Carachuri-Rosendo announced a new rule of law that applies retroactively to cases on collateral review.

[The Powell Court also granted a COA on this issue.]

[3/24/2012 Update:  The Fourth Circuit issued its en banc opinion in the Simmons case on August 17, 2011.]

Death penalty habeas results in COA grants

Richardson v. Branker, No. 5:08-HC-2163-BO, 2011 WL 1792571 (E.D.N.C. May 10, 2011):

The matter was before the Court on Petitioner's application for a certificate of appealability ("COA").

Petitioner's claims.  Petitioner sought a COA on four issues:  (1) the state presented false and misleading evidence in violation of Napue, (2) the state withheld evidence in violation of Brady, (3) Petitioner received ineffective assistance of counsel because his attorneys did not move to suppress his statements to the police, and (4) Petition is mentally retarded and therefore cannot be executed in violation of Atkins.

The Court grants a COA regarding issues 2 and 4 (the Brady claim and the Atkins claim).  In order to better understand these claims, one must look to the case's history.

Procedural history.  Petitioner was found guilty of a heinous murder of a store clerk.  The jury found that Petitioner committed the murder while he was under the influence of a mental or emotional disturbance.  The state denied habeas relief.  In his federal petition for habeas relief, Petitioner raised the above four claims.

District Court's analysis.  In January, the United States District Court for the Eastern District of Virginia ruled on Petitioner's federal habeas petition.  Richardson v. Branker, No. 5:08-HC-2163-BO, 2011 WL 52357 (E.D.N.C. Jan. 6, 2011).  Of the five grounds discussed, the federal habeas Court granted habeas relief on one claim.  That claim was denominated Claim III in the opinion and is denominated Claim (5) below.

(1) Napue claim:  Procedurally Defaulted.  The Napue claim was the concomitant argument of the Brady claim.  That is, because the state withheld exculpatory evidence, then the fact that they went forward with the other evidence meant that they intentionally presented false evidence.  The Court ruled that the fact that Petitioner exhausted his Brady claim did not exhaust his Napue argument because the two are legally and factually distinct.  Petitioner first attempted to raise the Napue argument in his petition for writ of certiorari to the Supreme Court of North Carolina.  When a claim is first presented in a request for discretionary review, the claim has not been adequately presented to the state courts to satisfy the exhaustion requirement.

(2) Brady claim:  No prejudice.  Regarding the Brady claim, Petitioner argued that the state unconstitutionally withheld evidence placing Hedgepeth---the person Petitioner alleged committed the murder---at the scene of the crime.  The evidence included sketches of a shoe print in a piece of sheetrock found at the scene.  The sheetrock was destroyed by the police department prior to trial by mistake when the evidence storage room was being cleaned out.  Petitioner asserts the shoe print was consistent with shoes worn by Hedgepeth.  Second, petitioner argues the state improperly withheld statements made by Atkinson indicating she had seen Hedgepeth with Petitioner on the night of the crimes.

The state habeas court held that the Brady argument was procedurally barred because Petitioner was in a position to raise the argument on appeal, but failed to do so.  The state habeas court also held the argument failed on the merits.

The federal habeas Court, however, still heard the claim because the respondent didn't argue that the claim was procedurally defaulted - it only acknowledged that the state habeas court found the claim procedurally defaulted.  Because exhaustion is an affirmative defense, the federal habeas Court decided to address the issue on the merits.  (In the alternative, the federal habeas Court finds that Petitioner did not have access to the evidence until after post-conviction proceedings, and therefore the state's bar was not an independent and adequate basis to support procedural default.  Furthermore, the federal habeas Court held that it was not clear if the state habeas court addressed both Brady claims, because the denial was in summary fashion.)

The federal habeas Court reviewed the evidence and determined that even if the sheetrock had been preserved, it would not have prejudiced the outcome.  The evidenced showed that a second shoeprint was found which was not Petitioner's.  It was not conclusive whose shoe the print belonged to.  The federal habeas Court also determined that the statements made by Atkinson did not provide a reasonable probability of a different result.

(3) Miranda claim:  Procedurally defaulted.  Petitioner argues that, because of his low intelligence, the waiver of his Miranda rights was not "knowing."  The state habeas court found the Miranda claim procedurally barred because it could have been raised on direct appeal but was not.  The basis for the procedural bar was an independent and adequate state ground for relief

(4)  Atkins claim:  Meritless.  Petitioner argues that he is mentally retarded and therefore his death sentence violates the Eighth Amendment.  The state habeas court denied the claim on the merits.  The federal habeas court reviewed the record and determined that Petitioner could not succeed in showing significantly subaverage general intellectual functioning.

(5) Statutory mitigating circumstance:  Habeas granted.  Although not at issue regarding the COA, the Court did grant habeas relief regarding Petitioner's appellate counsel's failure to argue on direct appeal that Petitioner was prejudiced when the trial court failed to submit a statutuory mitigating circumstance relating to petitioner's mental age.

Conclusion.  The Petitioner requested a COA on the remaining grounds.  In its summary order, the Court granted a COA on the Brady and Atkins claims.

Tuesday, June 21, 2011

COA granted regarding retroactivity of Padilla

Mathur v. United States, No. 7:07-CR-92-BO, 2011 WL 2036701 (E.D.N.C. May 24, 2011):

In Padilla v. Kentucky, 130 S.Ct. 1473 (2010), the Supreme Court announced that the Sixth Amendment's guarantee of effective assistance of counsel includes a right to be informed by defense counsel as to the consequences of a guilty plea regarding the defendant's immigration status and the risk of deportation.

The Fourth Circuit has not explicitly addressed whether this rule is retroactive. That is, it is not settled whether an individual who pleaded guilty before the Court handed down its decision may now benefit from it. One panel noted, however, that "nothing in the Padilla decision indicates that it is retroactively applicable to cases on collateral review." United States v. Hernandez–Monreal, 2010 WL 5027195, *2 n.* (4th Cir. 2010).

Nevertheless, the Eastern District of North Carolina notes that language in Padilla does cryptically refer to the possibility that the "floodgates" could open after Padilla. At least one other District Court has found this language persuasive. United States v. Hubenig, 2010 WL 2650625, at *7 (E.D. Cal. July 1, 2010) ("If the Court intended Padilla to be a new rule which would apply only prospectively, the entire 'floodgates' discussion would have been unnecessary.").

Accordingly, the District Court granted a certificate of appealability ("COA") regarding whether Padilla applies retroactively on collateral review.

[UPDATE:  The Third Circuit announced that Padilla applies retroactively on collateral review.  See United States v. Orocio, No. 10-1231 (3d Cir. June 29, 2011).]

[8/30/2011 UPDATE:  The Seventh Circuit announced that Padilla does not apply retroactively.  See Chaidez v. United States, No. 10-3623 (7th Cir. Aug. 23, 2011).]

Sunday, June 19, 2011

Statute of limitations runs until 2255 movant states his grounds for relief

United States v. Spellman, No. 3:08cr107, 2011 WL 2417122 (E.D. Va. June 13, 2011):

On July 30, 2009, the Court received from Spellman a one-page letter wherein he stated that he wished to withdraw his plea. Spellman listed the following causes as the basis for his decision to withdraw his plea: (1) Ineffective Assistance of Counsel, (2) Unclean Hands, (3) Fraud, (4) Misrepresentation, and (5) Misappropriation of Policy. The letter did not contain any facts to support these charges.

The Court sent Spellman the forms for filing a 28 U.S.C. § 2255 motion and told Spellman that the Court would process a request for § 2255 relief upon receipt of the properly completed forms for seeking § 2255 relief. Spellman filed his § 2255 motion on October 25, 2009. During the time that elapsed between the two submissions, the one-year statute of limitations ran on Spellman's ability to pursue § 2255 relief.

Spellman's original letter does not provide a basis under Federal Rule of Civil Procedure 15(c) for rendering his § 2255 Motion timely. Relation back under Federal Rule of Civil Procedure 15(c) "depends on the existence of a common core of operative facts uniting the original and newly asserted claims." Mayle v. Felix, 545 U.S. 644, 659 (2005) (internal quotation marks omitted). "[I]t is axiomatic that where, as here, there are no facts presented in support of the original claims [in the original letter], there can be no 'common core of operative facts uniting the original and newly asserted claims.'" Payne v. United States, Nos. 8:99–CR–78–T–27MSS, 8:05–CV–273–T–27MSS, 2007 WL 496608, at *6 (M.D. Fla. Feb. 12, 2007) (citing Mayle, 545 U.S. at 653–64); see Freeman v. United States, Nos. 3:08CR456, 3:10CV466, 2010 WL 3155982, at* 1 (E.D. Va. Aug. 6, 2010); Hardy v. Jones, 3:08CV843, 2010 WL 883749, at *2–3 (E.D. Va. Mar. 8, 2010) (concluding § 2254 petitioner's initial habeas petition, which did not set forth the facts that made her detention unlawful, did not have any impact on the statute of limitations analysis).

Wednesday, June 15, 2011

Happy Magna Carta Day

"Magna Carta decreed that no man would be imprisoned contrary to the law of the land."  Boubediene v. Bush, 553 U.S. 723, 740 (2008).  "Important as the principle was, the Barons at Runnymede prescribed no specific legal process to enforce it. . . .  [G]radually the writ of habeas corpus became the means by which the promise of Magna Carta was fulfilled."  Id.

From Legal Writing Prof Blog:
Although calendars have changed over time, the date on which King John signed Magna Carta was June 15, 1215. So today we can celebrate its 796th anniversary!

In the history of legal writing, Magna Carta is, as its name suggests, a document of great significance. It memorializes an absolute monarch's agreement to share power with his barons, arguably the first step in a democratizing process that's brought us all the way to this year's Arab Spring.

Magna Carta was written in medieval Latin, but you can read one of the three generally-accepted English translations here, on the British Library's website. That site also provides more context and explanations here.

Supreme Court's ruling abrogates Rivers . . . maybe.

Sykes v. United States, --- S. Ct. ----, 2011 WL 2224437 (June 9, 2011):

(This case concerns an analysis of South Carolina's Blue Light Law, which the Fourth Circuit found not to constitute a crime of violence.  For other blog entries concerning the fallout from this finding, click here.)

Whether South Carolina's "Failure to Stop for a Blue Light" law constitutes a crime of violence for purposes of sentencing under the Armed Career Criminal Act has a discursive history in the district and appellate courts.  In December, the District of South Carolina granted a § 2255 motion after determining that the defendant has been sentenced as an armed career criminal with one of his predicate offenses arising under this law.  The holding was based on Rivers, an opinion in which the Fourth Circuit applied the Supreme Court's reasoning in Chambers v. United States, 555 U.S. 122 (2009), to determine that a violation of South Carolina's blue-light law could never constitute a violent felony under the ACCA.  Rivers, 595 F.3d at 565.

Now, however, the Supreme Court of the United States has weighed in . . . almost.  The Supreme Court, in Sykes v. United States, --- S. Ct. ----, 2011 WL 2224437 (June 9, 2011) holds that Indiana's similar crime does constitute a crime of violence.  Where does this leave Rivers?  The Supreme Court doesn't cite Rivers, even though the Court does cite the positions of seven other Circuit Courts of Appeals on both sides of the issue, including one opinion issued after Rivers, see United States v. McConnell, 605 F. 3d 822, 827–30 (10th Cir. May 19, 2010).

With such a fact-intensive inquiry for each statute analyzed, it is likely that the Fourth Circuit will need to look at Rivers after Sykes and issue another chapter in the Blue Light Law saga.

Sunday, June 5, 2011

Pinholster limits availability of discovery to federal habeas applicants

Hurst v. Branker, No. 1:10CV725, 2011 WL 2149470 (M.D.N.C. June 1, 2011):

"Unlike other civil litigants, a § 2254 habeas petitioner 'is not entitled to discovery as a matter of ordinary course.'"   Stephens v. Branker, 570 F.3d 198, 213 (4th Cir. 2009) (quoting Bracy v. Gramley, 520 U.S. 899, 904 (1997)), cert. denied, 130 S. Ct. 1073 (2010). Instead, to conduct discovery, a habeas petitioner "must provide reasons for the request," Rule 6(b), Rules Governing Sect. 2254 Proceedings, that establish "good cause," Rule 6(a), Rules Governing Sect. 2254 Proceedings. "A showing of good cause must include specific allegations suggesting that the petitioner will be able to demonstrate that he is entitled to habeas corpus relief." Stephens, 570 F.3d at 204.

Moreover, the United States Supreme Court recently made clear that, "[a]lthough state prisoners may sometimes submit new evidence in federal court, [the Antiterrorism and Effective Death Penalty Act of 1996's (the "AEDPA's")] statutory scheme [as codified in § 2254] is designed to strongly discourage them from doing so." Pinholster v. Cullen, 131 S.Ct. at 1401 (emphasis added).

Under Pinholster v. Cullen, any new evidence unearthed during discovery in federal court and "later introduced in federal court is irrelevant to § 2254(d)(1) [and (2)] review." In other words, if the state trial court adjudicated Claim I of Petitioner's Motion for Appropriate Relief on the merits, such that Petitioner must satisfy the terms of § 2254(d), "good cause" does not exist for the discovery Petitioner seeks (at least prior to the analysis required under § 2254(d)), because this Court may look only to the state court record in applying § 2254(d).

Even if this Court ultimately determined that the state court's determination of Claim I fell short under § 2254(d), it could grant Petitioner relief only after applying the harmless error analysis set forth in Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). See Bauberger v. Haynes, 632 F.3d 100, 103–05 (4th Cir. 2011) (citing, inter alia, Fullwood v. Lee, 290 F.3d 663, 678–83 (4th Cir. 2002)). Conceivably, after Cullen, the Court could look outside the state court record to perform that function, provided Petitioner satisfied the requirements of § 2254(e)(2). See generally Hearn v. Ryan, No. CV–08–448–PHXMHM, 2011 WL 1526912 (D. Ariz. Apr. 21, 2011).