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).

Monday, May 30, 2011

South Carolina inconsistencly applied Rule 59(e)

Marlar v. Warden, No. 08-8572 (4th Cir. May 25, 2011):

Petitioner applied for a writ of habeas corpus on the basis that his trial attorney provided ineffective assistance.  The federal district court concluded that petitioner's claim was not reviewable on federal habeas because the South Carolina Supreme Court had held that petitioner failed to preserve this argument for appellate review.  The Fourth Circuit issued a certificate of appealability to address petitioner's claim of ineffective assistance of counsel,

The Fourth Circuit holds that, in light of Bostick v. Stevenson, 589 F.3d 160 (4th Cir. 2009), petitioner's claim is not procedurally barred.

In this case, the state habeas court summarily concluded that petitioner's counsel did not render ineffective assistance.  The state habeas court failed to state specific findings of fact or express conclusions of law relating to each issue presented, as required by S.C. Code § 17-27-80.  A state habeas court's failure to make specific findings of fact precludes appellate review of that habeas proceeding if the petitioner does not raise a Rule 59(e) motion.  Nevertheless, petitioner appealed, and the state court of appeals vacated the denial of petitioner's application because the state habeas court's denial was inadequate because it did not include specific findings of fact and conclusions of law.

The state supreme court granted cert and reversed the state court of appeals.  The state supreme court held that the issue was procedurally barred because petitioner did not file a Rule 59(e) motion and therefore did not preserve the issue for appeal.  The federal district habeas court agreed.

Subsequently, the Fourth Circuit decided Bostick.  In Bostick, the Fourth Circuit held that the failure to file a Rule 59(e) motion was not a procedural bar because Rule 59(e) was not consistently applied by the South Carolina courts.  Accordingly, the Fourth Circuit decided the Strickland claim de novo.  In this case, evidence of petitioner's guilt was overwhelming, and the probative value of the allegedly withheld evidence was limited.  The Fourth Circuit held that petitioner was not prejudiced by the lack of evidence.

Monday, May 23, 2011

Evidentiary hearing required when counsel claims petitioner did not request to note an appeal

United States v. Velascu, No. 10-7067 (4th Cir. May 18, 2011):

This is a classic case of a petitioner claiming that he told his attorney to note an appeal, and the attorney claiming that the petitioner did not request that he note an appeal.  In the face of two sworn, conflicting such statements, the law is clear that an evidentiary hearing is required.  Accordingly, the Fourth Circuit vacated and remanded for an evidentiary hearing.

Wednesday, May 18, 2011

W.D. Va. Grants Habeas Petition

Winston v. Kelly, No. 7:07CV00364, 2011 WL 1838844 (W.D. Va. May 16, 2011):

A jury convicted Winston of three counts of murder and imposed three death sentences.  Winston filed a habeas petition pursuant to § 2254.  The court rejected all of his claims except two interrelated claims:  (1) Winston could not be executed because he is mentally retarded, and (2) Winston's attorney was ineffective for raising that issue below.  Although the Supreme Court of Virginia rejected claim two on the merits, the federal court concluded that it was not wholly implausible that Winston could establish the claim even in light of AEDPA's deferential standards.  The federal court held an evidentiary hearing to resolve this claim at the direction of the Fourth Circuit.  (Respondents aver that Cullen v. Pinholster and Harrington v. Richter "overrule" the Fourth Circuit's mandate.  The district court stated that "[c]learly this is not an appropriate forum for the argument.")

The W.D. Va. concludes that Winston's attorney performed deficiently regarding whether Winston was mentally retarded:
Reading essential, reasonably available documents is one of capital counsel's fundamental responsibilities, and the court finds that counsel's failure to read the document was not reasonable under all the circumstances. Accordingly, the evidence establishes counsel's deficient performance in handling the issue of whether Winston is retarded and, under Atkins, not subject to execution.
The court also concluded that Winston's attorney actions prejudiced Winston.  Accordingly, the court granted Winston's petition for a writ of habeas corpus.  As a consequence, Virginia must conduct a trial on the question of whether Winston is mentally retarded, and sentence him accordingly, or otherwise re-sentence him without the possibility of death.

Monday, May 9, 2011

District abuses discretion in denying IAC hearing

United States v. Evans, No. 10-6367 (4th Cir. May 6, 2011):

Previously, the Fourth Circuit granted a certificate of appealability on the issue of whether the district court abused its discretion in denying, without an evidentiary hearing, Petitioner's claim that counsel was ineffective for failing to explain adequately the government's offer of a plea agreement and the risks of going to trial.

In § 2255 proceedings, “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues, and make findings of fact and conclusions of law with respect thereto.” 28 U.S.C.A. § 2255(b). An evidentiary hearing in open court is required when a movant presents a colorable Sixth Amendment claim showing disputed facts beyond the record and a credibility determination is necessary in order to resolve the issue.

In this case, the district court compared affidavits of counsel and petitioner, and granted summary judgment in favor of the government.  However, counsel's affidavit did not counter the allegation that he discussed the contents of the proposed plea agreement with Petitioner.  This opinion further explains that a district court may not credit an attorney's affidavit over Petitioner's affidavit.

Tuesday, April 26, 2011

Discussion of Cullen results in habeas grant reversal

Jackson v. Kelly, Nos. 10-1, 10-3 (4th Cir. Apr. 25, 2011):

The Fourth Circuit has cited the recent Supreme Court decision of Cullen v. Pinholster twice now:  Once in the Tice case, in a footnote, and now in Jackson v. Kelly, which was handed down yesterday (see No. 10-1).  Cullen requires a federal court reviewing a 2254 petition, in making a 2254(d)(1) determination, to limit its review to the record that was before the state court that adjudicated the claim on the merits.  In other words, when a habeas petitioner’s claim has been adjudicated on the merits in state court, a federal court is precluded from supplementing the record with facts adduced for the first time at a federal evidentiary hearing to determine whether the state court's adjudication was unreasonable or contrary to federal law.

In Jackson, the Supreme Court of Virginia denied habeas relief in a death-penalty case.  The E.D. Va. (Brinkema, J.) conducted an evidentiary hearing, deemed the Supreme Court of Virginia's factual finding "an unreasonable determination of the facts in light of the evidence," and granted habeas relief.  The Fourth Circuit, invoking Cullen, limited its own review only to the facts presented in the state court, and thus did not consider any of the federal evidentiary hearing.

The district court did not have the benefit of Cullen's guidance when it determined that an evidentiary hearing was warranted.  It is now clear, however, that the district court's reliance on material developed at the federal evidentiary hearing was at odds with AEDPA's placement of "primary responsibility [for habeas review] with the state courts."

Importantly, the district court improperly assessed the potency or genuineness of the mitigation evidence before the state court.  Instead, the district court should have assessed the existence of such evidence and attempted to determined whether such evidence was a refutation by clear and convincing evidence of the Supreme Court of Virginia's factual conclusion.

The Fourth Circuit concluded that the state court’s finding that petitioner had not shown prejudice was not "clearly unreasonable" and that the district court erred by holding otherwise.  The Fourth Circuit determined that the writ of habeas corpus was "improvidently granted."

Commencement of Statute of Limitations:  Petitioner filed his oversized habeas petition with the Supreme Court of Virginia, along with a motion to file an oversized petition.  SCV denied, and ordered him to submit an appropriately sized petition.  A month later, Petitioner filed a smaller petition.  The Fourth Circuit holds that the SOL begins running from the original filing.  The oversized petition was a "properly filed application" because it was neither rejected nor dismissed by the SCV.  Instead, petitioner was directed to file a "corrected petition" in a timely manner.  The SCV's emphasis on "correction" indicates that the requested alteration constituted an amendment to petitioner's initial filing.

Equitable Tolling in Reliance on EDVA's Extension Grant.  The EDVA granted a stay of execution and granted petitioner an extension of time to file his 2254.  The EDVA granted him the extension to file his 2254 until the day that the one-year SOL would have run from the original (oversized) filing.  Petitioner relied on the EDVA's grant of the extension when timing the submission of his 2254.  The Fourth Circuit holds that even if the government is correct that petitioner's oversized petition was not "properly filed," petitioner would be entitled to equitable tolling (due to reliance on the EDVA's extension).

2254 Petitioner must exhaust prejudice requirement when raising Flores-Ortega

Singleton v. Eagleton, No. 09-7701 (4th Cir. Apr. 25, 2011):

Background on Flores-Ortega.  In Roe v. Flores-Ortega, the Supreme Court recognized two distinct scenarios in which a defendant may raise a claim of ineffective assistance of counsel for failure to file a notice of appeal.  The first scenario occurs when "a lawyer . . . disregards specific instructions from the defendant to file a notice of appeal."  The second scenario occurs when trial counsel fails to consult with a defendant about an appeal and there was a "constitutionally imposed duty" to do so.  The duty to consult arises "when there is reason to think either (1) that a rational defendant would want to appeal (for example, because there are nonfrivolous grounds for appeal), or (2) that this particular defendant reasonably demonstrated to counsel that he was interested in appealing."

Petitioner must exhaust prejudice requirement.  Regarding the second, failure-to-consult scenario, the Fourth Circuit holds that in addition to presenting such a scenario to the state court, a petitioner must also assert before the state court that he was prejudiced from a forgone meritorious appeal.  Otherwise, such a claim remains unexhausted.

Friday, April 22, 2011

Coram nobis petition denied; Padilla & Second Amendment arguments fail

Thomas v. United States, No. PMD-06-4572, 2011 WL 1457917 (D. Md. Apr. 15, 2011):

Contract security guard with permission to carry an unconcealed firearm while on the job is arrested for carrying a concealed firearm while off duty (and while on the B-W parkway, which is regulated like a national park).  After completing his sentence and finding that he is now prohibited from returning to his chosen line of work, Petitioner files a petition for a writ of error coram nobis.

The coram nobis test.  To secure a writ of error coram nobis, a petition must demonstrate that "(1) a more usual remedy is not available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most fundamental character."

Petitioner's analysis.  Petitioner meets the first requirement for coram nobis relief because he is not in custody and therefore cannot pursue habeas corpus relief.  Petitioner alleges that he meets the third requirement because he is unable to pursue his chosen career in law enforcement.  The Fourth Circuit has not addressed whether the inability to pursue a career in a given field is a sufficient "adverse consequence" to justify the issuance of a writ of error coram nobis.  However, the Supreme Court has stated in the related context of federal habeas corpus review that the "deprivation of the right . . . .to engage in certain businesses" may be a sufficient collateral consequence to justify habeas corpus relief.  The Seventh Circuit has similarly suggested that the loss of the right to hold occupational licenses might be a sufficient collateral consequence to justify issuance of a writ of error coram nobis. Therefore, it is likely that Petitioner's permanent inability to work in his chosen law enforcement profession is a sufficient adverse consequence to satisfy the third prong of the coram nobis test.

Petitioner, however, fails to explain the 43-month delay between the expiration of his sentence and his filing the current petition.  He also fails to identify a fundamental error that occurred in the taking of his guilty plea (for example, that petitioner suffered from a mental disability during the plea colloquy).

Padilla argument.  Petitioner makes an ineffective assistance of counsel argument, as well.  Petitioner argues that, under the Supreme Court's recent decision in Padilla v. Kentucky, his counsel was obligated to advise him of the potential employment-related consequences of his guilty plea. Padilla, however, is expressly limited to the deportation context.

Second Amendment argument.  Petitioner argues that his Second Amendment right to bear arms was impermissibly infringed.  Petitioner argues that the conduct of which he was convicted would not today constitute a crime due to an intervening amendment of Department of the Interior regulations, and asserts that he is entitled to the benefit of that amendment.  Two years after Petitioner pleaded guilty, the Secretary of the Interior promulgated amended regulations which allowed those who could legally possess a firearm under federal and state law to possess a firearm in a National Park.  Though a writ of error coram nobis may be issued where there is "a retroactive dispositive change in the law" the Fourth Circuit recently held that the Department of Interior amendment is not retroactively applicable. Absent explicit language to the contrary, the regulations in effect at the time the offense conduct occurred applied to the defendant.

Thursday, April 21, 2011

Fourth Circuit upholds habeas grant

Tice v. Johnson, No. 09-8245 (4th Cir. Apr. 20, 2011)

The Eastern District of Virginia granted Derek Tice habeas relief on September 14, 2009 because his trial attorneys failed to suppress his coerced confession.  In the present opinion, the Fourth Circuit affirms the district court's grant.  The Fourth Circuit's analysis does not provide many opportunities for comment on procedural habeas law.  Nevertheless, Fourth Circuit Habeas would be remiss without mentioning this published habeas affirmation.  For more information on this case, see here.

As an aside, this is the first opportunity that the Fourth Circuit has taken to cite to the recent Supreme Court case Cullen v. Pinholster.

D.S.C. determines Padilla not retroactive

Dennis v. United States, No. 3:08-cr-889-JFA, 2011 WL 1480398 (D.S.C. Apr. 19, 2011)

In an opinion reminiscent of the E.D. Va.'s January 2011 Doan decision, the District Court for District of South Carolina held that the rule announced in Padilla v. Kentucky is not retroactive.  Accordingly, because defendant's plea in this case occurred prior to the Supreme court's decision in Padilla, he may not rely on its holding.

[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).]

Prison lockdown does not require equitable tolling

Green v. United States, No. AW-09-0230, 2011 WL 553881 (D. Md. Feb. 8, 2011)

(For a different district's take on this situation, handed down the same day, see the blog entry here.)

Petitioner filed a late § 2255 motion.  He argues that he is entitled to equitable tolling because his prison enforced two major "lockdowns" during the year, which required that he be confined to his cell 24 hours a day and allowed to take a 10 minute shower every three days. Petitioner claims that during these lockdowns he had: no commissary access to purchase stamps or mailing envelopes; no law library access to obtain § 2255 forms; and no access to a typewriter, which is a necessity because his handwriting is illegible.

Even assuming that Petitioner had no access to commissary items (stamps and envelopes), the law library, and a typewriter during this one-month lockdown period, he still had approximately two months (July 22, 2010, to September 22, 2010) to prepare and file his Motion in a timely manner. Moreover, as correctly noted by Respondent, Petitioner does not explain why or he could not have prepared and mailed a sufficient § 2255 motion in the almost nine months prior to June 21, 2010, the first date of the prison lockdown. He has not shown that the lockdown caused him "actual harm" as it "unconstitutionally prevented him from exercising that fundamental right of access to the courts in order to attack his sentence."

The Court notes, however, that in this case, the lockdown did not occur close in time to the limitation deadline.  In such a circumstance, equitable tolling may be warranted.  For equitable tolling to apply, it has to be the lockdown which prevented submission of the 2255 motion.  That is not the case here.

Tuesday, April 19, 2011

Petitioner may amend successive 2255 motion; Court must consider all evidence

United States v. MacDonald, No. 08-8525 (4th Cir. Apr. 19, 2011):

The facts.

After petitioner was convicted of murder, a U.S. Marshall ("Britt") came forward with exculpatory evidence (the "Britt claim").  The Fourth Circuit granted petitioner permission to file a successive § 2255 motion on the Britt claim.  While the § 2255 motion was pending before the district court, DNA results became available.  Petitioner moved the district court---without seeking or obtaining further prefiling authorization from the Fourth Circuit---to add a second claim to the § 2255 motion.

Petitioner sought to add the DNA evidence for two purposes.  First, petitioner sought to add the DNA evidence for the purpose of raising a freestanding actual innocence claim.  Second, petitioner sought to add the DNA evidence as part of the "evidence as a whole" in assessing the Britt claim under § 2255.  See 28 U.S.C. § 2255(h)(1) (providing that successive § 2255 motion must contain "newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense").

The district court denied the DNA motion on the ground that the court lacked jurisdiction because petitioner failed to secure additional prefiling authorization from the Fourth Circuit.  The Fourth Circuit holds that the district court erred in assessing the Britt claim by taking an overly restrictive view of what constitutes the "evidence as a whole," and further erred in renouncing jurisdiction over the DNA claim.

Which standard applies?

The district court erred in assessing the Britt claim by applying the standard of 28 U.S.C. § 2244(b)(2)(B)(ii), rather than § 2255(h)(1). As the Fourth Circuit explained in United States v. Winestock, § 2244(b)(2) sets forth the controlling standard for state prisoners, and § 2255(h) spells out the standard applicable to those in federal custody. Nonetheless, the standards of § 2244(b)(2)(B)(ii) and § 2255(h)(1) are quite similar. Because of the similarities between § 2244(b)(2)(B)(ii) and § 2255(h)(1), the district court's error in identifying the controlling standard was probably harmless. Nevertheless, the district court committed prejudicial error by taking an overly restrictive view of what constitutes the "evidence as a whole" for purposes of either § 2244(b)(2)(B)(ii) or § 2255(h)(1). Thus, the Fourth Circuit remanded for a proper § 2255(h)(1) assessment of the Britt claim.

What constitutes the "evidence as a whole"?

The district court erred by prohibiting expansion of the record to include evidence received after trial and after the filing of petitioner's § 2255 motion. Simply put, the "evidence as a whole" is exactly that: all the evidence put before the court at the time of its § 2244(b)(2)(B)(ii) or § 2255(h)(1) evaluation. A court must such evidence without regard for its admissibility under the rules of admissibility that would govern at trial. That being said, a court must give due regard to any unreliability of the evidence, and the court may have to make some credibility assessments.

Accordingly, even in the absence of the Fourth Circuit's further prefiling authorization for additional evidence, a court must consider (1) evidence obtained following the Fourth Circuit's grant of prefiling authorization for the successive § 2255, (2) evidence that had been submitted with prior unsuccessful postconviction motions, and (3) evidence obtained since the filing of prior postconviction motions. Consideration of such evidence does not improperly relitigate earlier claims and does not constitute redundant evidence.

The court should not confuse a petitioner's proffered evidence with a petitioner's claim for relief. In this case, petitioner's submitted the evidence both as freestanding claims as well as supporting evidence for the Britt claim. To the extent that it supported the Britt claim, the district court should have considered it.

Furthermore, a district court can consider the freestanding claims to the extent that the approved successive § 2255 is appropriately amended to include the new claims.

Thursday, April 7, 2011

District Court must actually vacate and reenter judgment to renew appellate jurisdiction

United States v. Sakyi, No. 10-6887 (4th Cir. Apr. 7, 2011):

District Court must actually vacate and reenter judgment:

When a prisoner successfully moves, pursuant to § 2255, to reinstate his right to a direct appeal, the proper remedy is to vacate the underlying judgment of conviction and reenter the judgment to permit the Fed. R. App. 4(b) appeal period to run anew.

Despite the district court’s grant of the relief described above, Sakyi’s judgment of conviction was not vacated and reentered. To place Sakyi in the proper posture to proceed with his criminal appeal, we vacate that portion of the district court’s order and judgment granting leave to file an out-of-time appeal. We remand with instructions to vacate and reenter Sakyi’s judgment of conviction.

District Court should not deny other grounds for relief on the merits:

Furthermore, although the District Court denied relief on the merits as to the remandiner of Sakyi's § 2255 claims, we note that those claims could otherwise be raised in Sakyi’s reinstated direct appeal. When a prisoner such as Sakyi has wrongly been denied the right to a direct appeal, he should not be forced to raise all possible claims against his judgment of conviction in his first § 2255 motion and thereby, "make the substantive objections to his conviction and sentence that his lawyer would have made for him on direct appeal." In re Goddard, 170 F.3d 435, 437 (4th Cir. 1999). Accordingly, we modify the district court’s denial of relief on Sakyi’s remaining § 2255 claims to be without prejudice and affirm the denial of relief as modified.

Thursday, March 31, 2011

District Court requests Fourth Circuit withdraw and reenter its mandate

Lewis v. United States, No, 5:07CR5-01, 2011 WL 1106766 (N.D. W. Va. Mar. 23, 2011):

Petitioner claims that his appellate counsel was ineffective for failing to file a petition for writ of certiorari despite having been directed to do so. The Fourth Circuit addressed the issue of appellate counsel's failure to carry out a defendant's request to file a petition for writ of certiorari in United States v. Smith, 321 F. App'x 229, 233 (4th Cir. 2008), in which it held that Smith's § 2255 motion would be treated as a motion to withdraw the mandate, permitting the earlier judgment to be vacated and re-entered, allowing for the timely petition for writ of certiorari.

This Court agrees that the interests of justice require that the petitioner be given an opportunity to file his petition for writ of certiorari. However, only the Fourth Circuit can recall the mandate. For this reason, this Court advises the Fourth Circuit by this memorandum opinion and order of the petitioner's desire to file a petition for writ of certiorari so that it can take any action it deems appropriate.

No 'actual innocence' argument in statutory tolling, South Carolina presumes

Blakney v. United States, No. 4:06-cr-584-RBH-1, 2011 WL 1113468 (D.S.C. Mar. 24, 2011):

[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))].

While the Fourth Circuit has not expressly ruled that an "actual innocence" exception exists for motions time-barred under either § 2255(f) or § 2244(d), see DiCaprio–Cuozzo v. Johnson, –––F.Supp.2d ––––, 2010 WL 4007622, at *9 (E.D. Va. Oct. 12, 2010), multiple other circuits have concluded that there is no such exception. See Lee v. Lampert, 610 F.3d 1125, 1128–31 (9th Cir. 2010) (concluding there was no actual innocence exception to the AEDPA's statute of limitations); Escamilla v. Jungwirth, 426 F.3d 868, 871 (7th Cir. 2005) (holding that actual innocence "is unrelated to the statutory timeliness rules . . . [and] does not extend the time to seek collateral relief”); David v. Hall, 318 F.3d 343, 347 (1st Cir. 2003) (holding that "defendants who may be innocent are constrained by the same explicit statutory or rule-based deadlines as those against whom the evidence is overwhelming"); Cousin v. Lensing, 310 F.3d 843, 849 (5th Cir. 2002) (stating that claims of actual innocence do not "justify equitable tolling of the limitations period"); Flanders v. Graves, 299 F.3d 974, 978 (8th Cir. 2002) (noting that there is no actual innocence exception separate from the usual equitable tolling factors). But see Souter v. Jones, 395 F.3d 577, 599–600 (6th Cir. 2005) (allowing equitable tolling of the AEDPA's statute of limitations based on actual innocence). With there appearing to be no Fourth Circuit authority to support Petitioner's position, the court finds compelling those cases declining to find an actual innocence exception.

[Ed. Note:  The 10th Circuit has also ruled that actual innocence may provide a basis for equitably tolling AEDPA's statute of limitations.  See Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (citing Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998)).]

Wednesday, March 30, 2011

Original Habeas Redux

Lee Kovarsky, Original Habeas Redux, 97 Va. L. Rev. 61 (2011):

The Supreme Court's authority to issue an (inaptly named) original writ of habeas corpus is, paradoxically, perhaps its most exotic form of appellate power. The Court frequently decides habeas cases, but only pursuant to its authority to entertain certiorari petitions from lower courts. Few are even aware that the Court or its Justices may issue an original habeas writ, directing the release of a prisoner, from their own chambers. Such relief has not issued since 1925, and the leading Supreme Court treatise describes the jurisdiction as an anachronism. Until last year, a half-century had elapsed before the Court exercised even its related original habeas power to transfer a petition within the federal judiciary.

In August 2009, by transferring a capital prisoner's original habeas petition to a federal district court rather than dismissing it outright, In re Davis abruptly thrust this obscure power back into mainstream legal debate over both the death penalty and the Supreme Court's appellate jurisdiction. Faced with particularly strong evidence that Davis did not commit the murder for which he was convicted, the Court exercised its original habeas power to bypass a statutory authorization proceeding and transferred the case to a U.S. district court for merits adjudication. The petition was the first that the Court had transferred under its original habeas power in almost fifty years.

In this Article, Kovarsky argues that Davis is not a blip in an otherwise constant state of original habeas inactivity. The original writ may be in the midst of a renaissance, emerging as a last-resort means of averting wrongful executions.

[UPDATE:  Kovarsky's Article elicited a response from Stephen Vladeck, Professor of Law at American University Washington College of Law.  See Stephen I. Vladeck, The Supreme Court, Original Habeas, and the Paradoxical Virtue of Obscurity, 97 Va. L. Rev. In Br. 31 (2011).]

Court rejects Magistrate's R&R; determines prison lockdown requires equitable tolling

Davis v. Cartiledge, No. 09-cv-3218-RMG, 2011 WL 441889 (D.S.C. Feb. 8, 2011):

Petitioner filed his § 2254 petition approximately fifteen days after the AEDPA statute of limitations ran.  Petitioner claimed he was entitled to equitable tolling of the statute of limitations because his prison was on lockdown.  Generally, prison conditions such as lockdowns are not grounds for equitable tolling.  Burns v. Beck, 349 F. Supp. 2d 971, 974 (M.D.N.C. 2004) (citing Akins v. United States, 204 F.3d 1086 (11th Cir. 2000)).  Nevertheless, the Court determined that Petitioner was entitled to equitable tolling because there was a genuine issue regarding whether prison mailroom was closed and whether Petitioner did not receive essential materials he requested.

Thursday, March 24, 2011

Firearm enhancement element not retroactively applied when precedent decided before conclusion of direct appeal

 Wiggins v. Standsberry, No. 3:10cv298-HEH, 2011 WL 476442 (E.D. Va. Feb. 4, 2011):

The Crime.  Wiggins and three others robbed a bank in Raleigh, North Carolina using a pistol and a sawed-off shotgun.  Wiggins's sentence for the firearms offense was enhanced because the defendants used a short-barreled shotgun, triggering the enhancement provision of 18 U .S.C. § 924(c).

On Appeal & the Circuit Split.  On appeal, Wiggins argued that the sentencing court erred when it enhanced the sentence imposed for the firearms because the Court did not submit to the jury the question of whether a short-barreled shotgun was used.  Wiggins did not raise the issue at trial; thus, the United States Court of Appeals for the Fourth Circuit reviewed the Sentencing Court's enhancement for plain error.  The Court recognized that a circuit split existed regarding whether the enhancement provision was an element of the crime (requiring submission to the jury) or merely a sentencing factor (permitting judicial determination). Nevertheless, the Fourth Circuit concluded that "Wiggins cannot show that the error 'seriously affects the fairness, integrity, or public reputation of judicial proceedings' because the evidence that [Wiggins] used or possessed a short-barreled shotgun in furtherance of the bank robbery was 'overwhelming' and 'essentially uncontroverted.'"

Supreme Court Decides Castillo. Twenty-four days before the Supreme Court denied Wiggins's petition for a writ of certiorari, the Supreme Court issued its opinion in Castillo v. United States, 530 U.S. 120 (2000).  In Castillo, the Supreme Court resolved a Circuit split regarding whether the enhancement provisions of 18 U .S.C. § 924(c) were elements of the crime or merely sentencing factors. The Supreme Court held that the enhancement provisions were elements of the crime which must be proven to a jury.

The Habeas Petition.  Wiggins filed a petition under 28 U.S.C. § 2241 for a writ of habeas corpus, arguing that Castillo required the government to submit to the jury the question regarding whether a short-barreled shotgun was used.  To qualify for § 2241 relief, however, Wiggins had to show that, inter alia, subsequent to his direct appeal and first § 2255 motion, the substantive law changed such that the conduct of which he was convicted is deemed not to be criminal.  Wiggins could not meet this standard because (1) Castillo was decided before his direct appeal ended, and (2) Castillo did not de-criminalize the offense, it merely determined that the offense conduct was a separate aggravated offense.  Accordingly, Wiggins must proceed under § 2255.

Tuesday, March 22, 2011

Fourth Circuit remands for clarification on whether district court granted or denied 2255

United States v. Gardner, No. 10-6037 (4th Cir. Mar. 21, 2011):

The Fourth Circuit recently voted to rehear en banc the case of United States v. Vann, 620 F.3d 431 (4th Cir. 2010), in which a majority of the original panel held that the North Carolina offense of taking indecent liberties with a child was a "crime of violence" for purposes of the Armed Career Criminal Act.

Gardner's prior Virginia conviction for taking indecent liberties with a minor was used to enhance his sentence as a career offender under U.S.S.G. § 4B1.1.  Gardner challenged the enhancement, relying on Begay v. United States, 553 U.S. 137 (2008).  The district court declined to determine whether Begay rendered Gardner's sentence unlawful because the court determined even if Gardner was not a career offender, his sentence was still appropriate.

Although the district court's order states that it is denying Gardner's § 2255 motion, its reasoning could also be interpreted, for practical purposes, as essentially granting § 2255 relief, vacating Gardner’s sentence and imposing a new sentence, albeit the same sentence.  Whether this is the case or not determines whether a COA is necessary to appeal.

Accordingly, the Fourth Circuit vacated the district court's order and remanded to give the distirct cour the opportunity to clarify whether it was in fact imposing a new sentence.

Thursday, March 17, 2011

Transfer, not dismissal, appropriate response to habeas petition filed in wrong venue

Shaw v. United States, No. 09-8186 (4th Cir. Mar. 17, 2011):

Stanleigh Shaw was convicted in the Northern District of Alabama and sentenced to thirty-seven months in prison.  Shaw, incarcerated in a federal penitentiary in North Carolina, filed a 28 U.S.C. § 2241 petition in North Carolina.

The Eastern District of North Carolina determined that the petition should be raised pursuant to 28 U.S.C. § 2241.  The Court, however, declined to construe the petition as such because jurisdiction to entertain such a motion lies in the Northern District of Alabama.  Instead, the Court dismissed the matter without prejudice as an improperly brought § 2241 petition.

Instead of dismissing the petition, the Court should have transferred it pursuant to 28 U.S.C. § 1631 to the Northern District of Alabama.  Such a transfer would serve the interest of justice because, if Shaw were now to file a § 2255 motion in that district, consideration of his claims likely would be barred by the applicable one-year limitations period. See 28 U.S.C. § 2255(f).

In a footnote, the Fourth Circuit mentioned that the District Court performed merely an initial screening of Shaw’s petition.  The District Court made no substantive ruling on the merits of the petition and did not recharacterize it "as the litigant's first § 2255 motion."  See Castro v. United States, 540 U.S. at 377 (emphasis added).  Because there was no such recharacterization, the District Court was not required to give Shaw the notice that Castro otherwise would require.

Wednesday, March 16, 2011

Fourth Circuit denies relief after granting COA

Cousins v. Green, No. 08-8374 (4th Cir. Mar. 16, 2011):

In 2009, the Fourth Circuit granted Petitioner a Certificate of Appealability "COA" regarding his claim of ineffective assistance of counsel.  On review, the Court determined that an attorney cannot be ineffective for failing to investigate the murder with which Petitioner was charged if such investigation would not have revealed the purported exculpatory eyewitness testimony now available.

Tuesday, March 8, 2011

Fourth Circuit holds that Santos rule applies retroatively on collateral review

United States  v. Halstead, No. 09-7442 (4th Cir. Mar. 7, 2011):

In United States v. Santos, 553 U.S. 507 (2008), the Supreme Court of the United States narrowed the scope of the money laundering statute by interpreting the term "proceedings" in 18 U.S.C. § 1956(a)(1) to mean the "net profits" of an illegal gambling business rather than its "gross receipts."  Because this is a substantive rule instead of a procedural rule, the Santos rule applies retroactively on collateral review.

[The Fourth Circuit also remanded to the District Court a case held in abeyance pending this decision.  See United States v. Ranjha, No. 09-8234 (4th Cir. June 10, 2011).) 

Supreme Court resolves circuit split re: whether Rule 35 is collateral proceeding; abrogates Fourth Circuit holding

Wall v. Kholi, No. 09-868, 2011 WL 767700 (U.S. Mar. 7, 2011):

A motion pursuant to the state equivalent of a Rule 35 motion to reduce a sentence is considered part of the collateral review process and therefore tolls AEDPA's one-year statute of limitations.  This holding resolves a circuit split contrary to the previous holding of the Fourth Circuit.  Walkowiak v. Haines, 272 F. 3d 234, 239 (4th Cir. 2001).

Section 2241's "jurisdiction" language refers not to subject-matter jurisdiction; therefore waivable

Kanai v. McHugh, No. 10-6086 (4th Cir. Mar. 4, 2011) (synopsis from Fourth Circuit Blog):

Kanai, a West Point cadet in his final year, sought a discharge from the Army as a conscientious objector.  The Department of the Army Conscientious Objector Board denied Kanai's application on the basis that he failed to demonstrate sincerely-held beliefs entitling him to conscientious objector status.  The Army subsequently relieved Kanai of his duties at West Point; Kanai went home to Maryland and filed a petition for writ of habeas corpus under 28 U.S.C. § 2241.  The district court granted Kanai's petition, and the Army appealed.

In determining whether the district court had jurisdiction to hear Kanai's habeas petition, the Fourth Circuit was presented with a question the federal courts have not yet resolved: where should habeas suits be filed when the petitioner is not in jail? The Fourth Circuit sidestepped the challenge to formally resolve the precise meaning of the phrase, "within their respective jurisdictions," in section 2241(a), finding instead that this statutory language "identifies the proper location of the federal district court in which a habeas petition should be filed," rejecting a subject-matter jurisdiction analysis (in accordance with the Supreme Court's holding in Rumsfeld v. Padilla). Additionally, the Fourth Circuit states that any challenge based on this language is waived if not asserted at the district court. Since the Army did not assert a jurisdictional challenge until its appeal, the Fourth Circuit deemed it waived.

On the merits of whether the Army Board had a basis to deny Kanai's application for discharge as a conscientious objector, the Fourth Circuit decided against Kanai, though it remarked favorably on him as "contemplative, self-reflective, and honest."  The standard of review for the Army Board's decision required the Fourth Circuit to uphold the denial if it were supported by a "basis in fact."  Such a basis exists when "conflicting inferences can be drawn from the same evidence."  The Fourth Circuit held that three members of the Army Board's five-member panel appropriately found that Kanai had not presented sufficient evidence to demonstrate his "moral opposition to all wars."   On this narrow standard of review, it upheld the Army Board's denial of Kanai's application for discharge. 

Thursday, March 3, 2011

State prisoner may not challenge the execution of his sentence under § 2241

Tippett v. McCall, No. 1:09-593-HMH-SVH, 2011 WL 441942 (D.S.C. Feb. 7, 2011):

As a preliminary matter, the court must determine whether § 2241 is the appropriate jurisdictional statute for Tippett to challenge the SCDC's computation of his armed robbery sentence.  The United States Court of Appeals for the Fourth Circuit has not considered the issue of whether a prisoner who is incarcerated pursuant to the judgment of a state court may challenge the execution of his sentence under § 2241.  However, a majority of the circuit courts of appeals that have addressed the issue have held that a state prisoner seeking federal post-conviction habeas relief must proceed under 28 U.S.C. § 2254.  See White v. Lambert, 370 F.3d 1002, 1005 (9th Cir. 2004), overruled on other grounds by, Hayward v. Marshall, 603 F.3d 546, 553 (9th Cir. 2010) (en banc); Medberry v. Crosby, 351 F.3d 1049, 1062 (11th Cir. 2003); James v. Walsh, 308 F.3d 162, 167 (2d Cir. 2002); Crouch v. Norris, 251 F.3d 720, 723 (8th Cir. 2001); Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001); Walker v. O'Brien, 216 F.3d 626, 633 (7th Cir. 2000)But see Montez v. McKinna, 208 F.3d 862, 865 (10th Cir.2000).  The court concludes that § 2254 is the exclusive avenue for Tippett to seek habeas relief and therefore recharacterizes his filing as a § 2254 petition.