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.