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).