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.