Monday, November 29, 2010

No constitutional right to a properly licensed prosecutor

Woods v. United States, Nos. 1:09CV917, 1:06CR189-2, 2010 WL 4746138 (M.D.N.C. Nov. 16, 2010):

Woods moved pursuant to 28 U.S.C. § 2255 because, inter alia, the prosecutor was not properly licensed to practice law—his license was suspended.  The Middle District of North Carolina sides with many other districts (but not the State of Illinois) in holding that there is no constitutional right to a properly licensed prosecutor.

Additionally, the Court notes that a significant question exists as to whether an "actual innocence" exception to AEDPA's statute of limitations exists.  Compare Souter v. Jones, 395 F.3d 577, 599 (6th Cir.2005) (recognizing an actual innocence exception), with Escamilla v. Jungwirth, 426 F.3d 868, 872 (7th Cir.2005) (actual innocence is not related to timeliness).  If such exception exists, the threshold for meeting that exception is extremely high.  [August 18, 2011 Update:  For the Ninth Circuit's en banc opinion on the matter, see Lee v. Lampert, No. 09-35276 (9th Cir. Aug. 2, 2011) (en banc))].

Court may raise SOL defense sua sponte

Gill v. United States, Nos. 3:10cv564, 3:06cr360, 2010 WL 4718321 (W.D.N.C. Nov. 15, 2010):

When reviewing a petition for a writ of habeas corpus under 28 U.S.C. § 2254, the District Court has the power to raise a statute of limitations defense sua sponte, but it is not required to do so.  Hill v. Braxton, 277 F.3d 701 (4th Cir. 2002).  When this occurs, the District Court ought to provide notice to the petitioner and provide him with the opportunity to respond, "unless it is indisputably clear from the materials presented to the district court that the petition is untimely and cannot be salvaged by equitable tolling principles."  Id.; United States v. Sosa, 364 F.3d 507 (4th Cir. 2004).  Such practice also applies to actions under 28 U.S.C. § 2255.  Sosa, 364 F.3d at 510 n.4.

When (1) the 2255 form prompts a petitioner to explain why the one-year statute of limitations does not bar such motion, (2) petitioner's explanation is neither "extraordinary nor beyond his control," (3) petitioner's response indicates an understanding of the question asked and clearly attributes his failure to file a timely motion to his own inadvertence, and (4) it is indisputably clear that the motion is untimely and does not qualify for equitable tolling, then it is not unconscionable to enforce sua sponte the limitations period against him.

Pending remand generally voids District Court's authority to consider § 2255 motion

Corbett v. United States, Nos. 3:10cv501, 3:07cr144, 2010 WL 4718360 (W.D.N.C. Nov. 15, 2010):

When a United States Court of Appeals remands a case to the District Court for further proceedings, and such proceedings have not yet been conducted, a District Court is without authority to consider the merits of a § 2255 motion unless the remand only requires the District Court to perform a purely ministerial duty involving no discretion.  See United States v. Dodson, 291 F.3d 268 (4th Cir. 2002).

Wednesday, November 24, 2010

AEDPA applies to newly discovered facts, not change in law

United States v. Anderson, No. 3:05-179-CMC, 2010 WL 4721135 (D.S.C. Nov. 15, 2010):

Defendant sought to vacate his conviction on the basis that new case law invalidates his sentence.  He sought to do so pursuant to § 2255(f)(4), which provides that AEDPA's statute of limitations runs from "the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence." This provision applies only to newly discovered facts or evidence, not a change in law.

Moreover, a second or successive § 2255 motion requires permission from the appropriate United States Court of Appeals prior to filing in the District Court. This requirement is jurisdictional.  Defendant's failure to obtain such certification is fatal to his action in the District Court.

Friday, November 19, 2010

Thank the Courts

Linda Greenhouse, Thank the Courts, N.Y. Times Online, Nov. 18, 2010:

Linda Greenhouse asks "how the world would look—or, more precisely, how the United States would look to the world—if the Supreme Court back in the dark winter of 2003-2004 had refused a hearing to the detainees at Guantánamo Bay."

Friday, November 12, 2010

Alien subject to removal order may be held longer than six months if removal is likely to occur sometime in the future

Nabil v. Holder, No. JFM-10-1786, 2010 WL 4485894 (D. Md. Nov. 9, 2010):

The only issue before the district court on Nabil's petition for a writ of habeas corpus concerns the reasonableness of his continued post-removal detention.  Nabil is a native of Afghanistan and completed his federal sentences for a variety of crimes.  Deportation to Afghanistan proved difficult for procedural reasons, and Nabil has been confined for over a year while the governments go through the process of securing the necessary identification documents.

After a removal order becomes final, the United States must detain an alien for up to ninety days.  Although the statute appears to authorize discretionary indefinite detention of a removable alien beyond such period, the Supreme Court has held that post-removal-order detention is implicitly limited to a period reasonably necessary to bring about the alien's removal from the United States and does not permit indefinite detention.  The Court held that an alien may be held for six months, after which the Government must show evidence rebutting the contention that there is no significant likelihood of removal in the reasonably foreseeable future.

In this case, Nabil's six-month period expired on April 22, 2010.  Nabil has offered no evidence, other than the delay in obtaining travel documents from a foreign government, that his removal is not likely to occur in the foreseeable future.  The United States government adequately rebutted the contention by showing that removal is likely to occur—it will just take a while.  Thus, Nabil's petition for a writ of habeas corpus was denied.

Thursday, November 11, 2010

Triggerman: Death Row Inmate is Innocent

Dusty Smith, Triggerman: Death Row Inmate is Innocent, Woodbridge Patch, Nov. 9, 2010 (compliments of Habeas Corpus Blog):

[UPDATE: District Court grants habeas petition.]

In 2002, Justin Wolfe was sentenced to death for ordering Owen Barber to kill Daniel Petrole.  At trial, Barber's testimony was the only direct evidence linking Wolfe to the murder.  Now, Barber is testifying in the Eastern District of Virginia, Norfolk Division, stating that Wolfe had nothing to do with the murder.

According to his new testimony, Barber originally implicated Wolfe only because prosecutors threatened him with the death penalty otherwise.  He came clean in a 2005 affidavit as part of Wolfe's habeas corpus proceedings.  The Eastern District of Virginia found Wolfe's habeas petition barred by the statute of limitations.  The United States Court of Appeals for the Fourth Circuit remanded and ordered the district court to hold an evidentiary hearing, see Wolfe v. Johnson, No. 08-8 (4th Cir. May 11, 2009).  Evidence was heard on November 2 and 3, 2010, and the hearing was continued until November 16, 2010.

Procedural history:  After Wolfe's trial, he filed a direct appeal to the Supreme Court of Virginia, Wolfe v. Commonwealth, Nos. 021872, 022194, 576 S.E.2d 471 (Va. 2003); filed a petition for a writ of habeas corpus in the Supreme Court of Virginia, Wolfe v. Warden, No. 040125 (Va. Mar. 10, 2005); moved for rehearing the state habeas decision before the Supreme Court of Virginia, Wolfe v. Warden, No. 040125 (Va. June 17, 2005); petitioned for certiorari in the Supreme Court of the United States, Wolfe v. True, 545 U.S. 1153 (2005); petitioned for a writ of habeas corpus in the Eastern District of Virginia, Wolfe v. Johnson, No. 2:05-cv-432-RAJ-DEM (E.D. Va.) (filed Nov. 7, 2005); and appealed to the Fourth Circuit, Wolfe v. Johnson, No. 08-8 (4th Cir. May 11, 2009).

Wednesday, November 10, 2010

Ethics violation may be construed as an IAC claim

United States v. Sharp, No. 09-4932, 2010 WL 4386884 (4th Cir. Nov. 5, 2010):

An allegation that an attorney violated a state's rules of professional conduct may be construed as an attempt to make an ineffective assistance of counsel argument.  Of course, the Fourth Circuit's rule is that a claim of ineffective assistance of counsel should be raised pursuant to 28 U.S.C. § 2255 in the district court rather than on direct appeal, unless the record conclusively shows ineffective assistance.

Tuesday, November 9, 2010

Post Padilla

Gray Proctor & Nancy J. King, Post Padilla: Padilla’s Puzzles for Review in State and Federal Court, 23 Fed. Sentencing Rep. (forthcoming Feb. 2011). Here's the abstract, via SSRN:

This article addresses questions that may face courts as defendants seek relief under the Court’s decision in Padilla v. Kentucky, which held that counsel’s failure to adequately inform the defendant of the deportation consequences of conviction constituted deficient performance under the Sixth Amendment.  Issues addressed include:  express waivers of review in plea agreements; what constitutes deficient advice and prejudice sufficient for a finding of ineffective assistance; the retroactive application of Padilla to cases on post-conviction review; federal habeas review of state court decisions rejecting Padilla-type claims; procedural default, successive petition, and time bars to federal habeas review of Padilla claims; and other collateral relief.  This draft includes citations to emerging case authority available as of October 28, 2010.

Monday, November 8, 2010

Objections to R&R which restate original claims need not be addressed

Epps v. Cartledge, No. 1:09-2007-RMG-SVH, 2010 WL 4320331 (D.S.C. Nov. 2, 2010):

A district court may only consider objections to a Report and Recommendation that direct the court to a specific error.  Objections which merely restate word-for-word or rehash the same arguments presented in a petitioner's opposition to a motion for summary judgment do not provide the court with objections to address.  A district court judge need not address the same issues twice.

Monday, November 1, 2010

Incomprehensible habeas petition may be summarily dismissed

Brown v. Prince Georges County Police Dept., No. L-10-2845, 2010 WL 4182940 (D. Md. Oct. 25, 2010).

A completely incomprehensible complaint under 28 U.S.C. § 2241 that consists of several running, disjointed sentences, phrases, and nonsensical "buzz words" may be summarily dismissed. Such indecipherable claims do not warrant federal intrusion.

Corporation's right to counsel is limited to the counsel it can afford

United States v. Rocky Mountain Corp., No. 5:07CR58, 2010 WL 4236793 (W.D. Va. Oct. 27, 2010).

How often do you run across a corporation challenging the validity of its guilty plea via a writ of coram nobis? 

Rocky Mountain Corp. maintains that its plea was not a knowing and voluntary plea because of the pressure the government placed on its president, that the fine and forfeiture the court imposed exceeded the amount authorized by controlling statutes and were constitutionally excessive, and that it received ineffective assistance of counsel. The statement of facts detailed a considerable methamphetamine conspiracy, as well as a conspiracy to structure financial transactions and launder the proceeds of the methamphetamine conspiracy through Rocky Mountain.

The Court denied the writ because the corporation could not satisfy three prongs:  (1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; . . . and (4) the error is of the most fundamental character.

In the ineffective assistance of counsel claims, the Court stated that a corporation's Sixth Amendment right to counsel distills to two components: (1) its right to choose counsel it can afford, and (2) to the proscription of governmental interference or the application of rules that degrade counsel's effectiveness in ways the Constitution would not tolerate if an individual were charged with an offense. The Court dismissed on the ground that Rocky Mountain's Sixth Amendment allegations do not implicate either of these concerns.

A corporation's Sixth Amendment right in a criminal trial is its right to retain counsel while an individual's Sixth Amendment right includes the right to appointed counsel. Unlike an individual, a corporation cannot have what it cannot afford. A corporation that can be tried in a criminal case without counsel cannot raise the corollary claim that the counsel of its choosing failed to meet Strickland's standard for competence. In sharp contrast to its responsibility to an individual, the government has no responsibility to ensure that a corporation is represented by competent counsel. Consequently, corporate counsel's errors are not imputed to the government.

The Court went on to note that even if it concluded that a corporation's right to counsel parallels an individual's right to counsel, as some courts have held, in this case Rocky Mountain Corp. is still unable to satisfy Strickland's two prongs.