Appeal and Habeas

Catching up quickly on an important item from last week: backers of an initiative to reform California’s Three Strikes sentencing law have now reportedly submitted enough signatures to qualify the measure for the November ballot.  If the The Strikes Reform Act were to pass, it would require that third strike life sentences are doled out only for individuals who have “serious” or “violent” third strikes, and that individuals who have non-violent and non-serious third strikes merely receive doubled sentences.

The need for such a reform is apparent when you see enough cases where an individual has committed strike offenses as a youth or a young adult (perhaps something as minor as an assault, which can be a “strike”) and then, decades later, has committed some sort of comparatively minor offense that normally might be worth 16 months in prison.  Should such a person really be locked away in prison for the rest of their life?  And can California really afford to pay for incarcerating that person?

The November ballot is shaping up to be an important one for criminal justice issues.  In addition to voting on the Three Strikes measure, California voters will also have a chance to decide whether to end the state’s incredibly dysfunctional and outrageously expensive system of capital punishment.

Dana Milbank had a column in the Washington Post Wednesday noting the tone of Justice Scalia’s comments at oral argument in the case regarding Arizona’s immigration law: it’s a column that resonates with something one can’t help noticing about Scalia’s tone in his opinions and dissents.  Milbank writes that Scalia’s questions “verged on outright heckling,” were “caustic” and “derisiv[e]” in tone, and involved interrupting other justices more or less at will.  This style on the bench, Milbank notes, “is very much defining the public image of the Roberts Court.”

Meanwhile in the recent plea bargaining case of Lafler v. Cooper, one couldn’t help noticing that Justice Scalia referred to the majority’s analysis as “unheard-of and quite absurd,” suggested the majority had a “rosy” and “incoheren[t]” view of the realities of criminal law, and topped it off by asserting that his preferred resolution of the issue was “infinitely superior” to that advanced by the majority.

None of this means that Justice Scalia is incorrect as a legal matter.  But it’s notable because young lawyers are told, ad nauseum, that their arguments should be substantive rather than personal, legal rather than rhetorical, and, above all, should be respectful of the dignity of the court and the weighty matters that the court is adjudicating.  You do not win arguments, we are told, by picking the best adjectives to slander opposing counsel or deride their arguments.  You win (or you lose) on the substance, the legal merits, the bones of the matter.

And, to return to a point I noted the other day, God help the pro per litigant who would ever employ even the slightest hint of the pugnacious style that is Justice Scalia’s bread and butter.  Such an individual would be shouted down in an instant if he or she were not immediately held in contempt.  It’s only the people on the bench, the people with power, who are  at liberty to employ this highly personalized and hyperbolic mode of speech.

Justice Scalia is undoubtedly a talented legal mind.  But he also embraces a jurisprudence of adjectives, a jurisprudence of gratuitous attack.  It’s a style that, as Milbank notes, so dominates the tone of the United States Supreme Court that the more restrained members of the court, who are no less talented and are simply more polite in their manner of expression, are frequently drowned beneath the rhetoric.

How fast does a California habeas petitioner need to re-file a habeas petition in the California Supreme Court once it’s been denied in the Court of Appeal in order to continue to toll the statute of limitations deadline for federal habeas review?  That’s the tricky question involved in Noble v. Adams (08-17655), a case published Thursday by a panel of the Ninth Circuit.   As the court notes, the fact that this issue comes up (not only here, but in many other cases, such as in last term’s SCOTUS case Walker v. Martin) is a quirk of the vague California standard on habeas timeliness:

Because of California’s unique system for appellate review of habeas corpus petitions, which does not provide a determinate time-frame for appealing the decision of a lower court, a petition that has been denied by a lower court remains pending if the petitioner files a new petition in a higher court within a reasonable time of the petition’s denial.

Emphasis added.  Noble v. Adams does not resolve the question of what a “reasonable time” means: it simply remands to the district court and asks the district court to figure out whether the petitions involved in this case were re-filed in a way that met that standard.  A bit of dicta toward the end of the opinion, however, provides one more point of reference for attorneys and petitioners who are attempting to read the tea leaves:

We have stated that an unexplained delay that is “substantially longer than the ‘30 to 60 days’ that ‘most States’ allow for filing petitions” is not reasonable under California law. Chaffer v. Prosper, 592 F.3d 1046, 1048 (9th Cir. 2010). However, the California Court of Appeal has excused delays of several months where the petitioner offered an adequate explanation for the delay. See In re Burdan, 86 Cal. Rptr. 3d 549, 557-58 (Cal. Ct. App. 2008) (excusing delay of ten months for pro se petitioner where attorney said he would handle appeal but failed to do so); In re Crockett, 71 Cal. Rptr. 3d 632, 636-37 (Cal. Ct. App. 2008) (excusing delay of approximately five months where attorney “had no prior experience with appellate writs and could not obtain the assistance of experienced appellate counsel”). Thus, Noble’s delay of four and a half months may be within the range of  reasonableness if his explanation for the delay is adequate under California law.

“May” be, indeed.

Related Posts:

In re Lucero: CA 3d on California State Habeas Timeliness

SCOTUS Grants Cert in Walker v. Martin

The SAFE California Act, which would end the death penalty in California, has been approved for the November ballot, according to its backers.  This could actually be the year capital punishment ends in California, because we’ve seen a growing number of institutional voices speaking up about what a massive waste of money the death penalty is for this cash-strapped state.

Critics of California’s death penalty, lately, include not only California’s new chief justice, who famously referred to the  status quo as the “worst possible option,” but also Ron Briggs, one of the original architects of our death penalty law, who has admitted that the law “simply doesn’t work” and has become “fiscally ruinous” for the state.

Under the proposed change to the law, the death penalty would be replaced with life imprisonment without the possibility of parole.  Projected savings from this change: $100 million per year.

It’s been a little more than six months now since American citizen Anwar Al-Awlaki was killed by a drone without receiving due process.  I’ve written about the case many times on this blog even though it’s considerably removed from the type of work I do on a daily basis, and at times I have wondered why the killing of Awlaki was, and continues to be, so disturbing to me.

Essentially, I think the answer is this: that everything I do on a daily basis, and everything that my colleagues on the defense bar do, not to mention everything that talented prosecutors do, is predicated on the idea that due process actually does matter.  We argue about jury instructions because due process matters.  We argue about evidentiary rulings because due process matters.  We argue about jury misconduct because due process matters.

Or at least that’s what we have to believe.

Because being a lawyer day in and day out is not always particularly sexy or thrilling work. It’s a lot of paper, a lot of minutia, and — especially if you are on the defense side of things — a lot of being told that you are wrong and that your arguments are ridiculous.

You do the job, though, because you believe that the principles are important.  You do it because you think due process — meaning real due process, not the post-hoc hodge podge of justifications that were trotted out in Awlaki’s case after he was dead — is the foundational principle of our legal system.

But the killing of Awlaki suggests otherwise.  It suggests that due process is not particularly important, that the legal guarantees of the constitution are mere technicalities that the executive may ignore at will, and that the work criminal attorneys do every day is not actually a meaningful protection against government overreaching.  Because the government will only respect the process if it wants to, and will ignore the process if it deems it expedient to do so.

So what’s the point of doing this work?  It’s not very satisfying to feel like appellate advocacy is just a method of tying a pretty bow around a system that is fundamentally brutal, indifferent and lawless.

This is, of course, not the most critical problem raised by the killing of Awlaki; the mental health of lawyers is ultimately not that important.  But it’s nevertheless a real problem for those of us who are expected to carry on with the day to day operation of the criminal justice system.

It’s hard to consider what happened in the Awlaki case and then go back to invoking the guarantee of “due process”  in other cases, knowing full well how hollow that guarantee has proved to be.

An interesting re-thinking of the “six-pack” as a tool for determining eyewitness identification.

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(Hat tip: the Federal Criminal Defense Investigation blog.)

Lurking in the background of one of the recent SCOTUS cases about plea bargaining — Lafler v. Cooper — is a bit of language touching on the question of when a state court analysis is “contrary to, or an unreasonable application of” established federal law for purposes of federal habeas review.  Lafler arose from a federal habeas petition alleging that the petitioner had received ineffective assistance in plea bargaining, a claim that was rejected in the state court.  However, the majority in Lafler says that the way the state court disposed of the claim was sufficiently problematic that the AEDPA did not bar relief:

[T]he Michigan Court of Appeals identified respondent’s ineffective-assistance-of-counsel claim but failed to apply Strickland to assess it. Rather than applying Strickland, the state court simply found that respondent’s rejection of the plea was knowing and voluntary. Cooper, 2005 WL 599740, *1, App. to Pet. for Cert. 45a. An inquiry into whether the rejection of a plea is knowing and voluntary, however, is not the correct means by which to address a claim of ineffective assistance of counsel. See Hill, 474 U.S., at 57–59, 106 S.Ct. at 370 (applying Strickland to assess a claim of ineffective assistance of counsel arising out of the plea negotiation process). After stating the incorrect standard, moreover, the state court then made an irrelevant observation about counsel’s performance at trial and mischaracterized respondent’s claim as a complaint that his attorney did not obtain a more favorable plea bargain. By failing to apply Strickland to assess the ineffective-assistance-of-counsel claim respondent raised, the state court’s adjudication was contrary to clearly established federal law. And in that circumstance the federal courts in this habeas action can determine the principles necessary to grant relief. See Panetti v. Quarterman, 551 U.S. 930, 948, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007).

In dissent, Justice Scalia has a field day with this analysis.  First, he argues that Lafler establishes “a new rule of law,” such that the principle of the case could not be the basis for relief for the petitioner (since, according to Justice Scalia, the rule was not “clearly established”).  Second, he notes:

Since it is ambiguous whether the state court’s holding was based on a lack of prejudice or rather the court’s factual determination that there had been no deficient performance, to provide relief under AEDPA this Court must conclude that both holdings would have been unreasonable applications of clearly established law. See Premo v. Moore, 562 U.S. ––––, ––––, 131 S.Ct. 733, 740–741, 178 L.Ed.2d 649 (2011). The first is impossible of doing, since this Court has never held that a defendant in Cooper’s position can establish Strickland prejudice. The Sixth Circuit thus violated AEDPA in granting habeas relief, and the Court now does the same.

One of the oddities of federal habeas litigation after last term’s decision in Harrington v. Richter is the notion that district courts should not simply defer to what state courts actually said but should try to determine, as the court put it in Harrington,

what arguments or theories supported or, as here, could have supported, the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court.

This analysis is nominally conducted under the theory that federal courts should “defer” to the reasoning of state courts, but of course it’s difficult to defer to an analysis that never occurred.  And the result of framing the inquiry this way, when you think about it, is that the federal court, far from being deferential to the state court, is given a green light to generate a de novo legal analysis rather than confine itself to what the state court actually did.  Apparently the idea is that the federal court should think up a new rationale for upholding the conviction and then deny relief, under the AEDPA, because if the state court had actually come up with this rationale, it would not have been “contrary to, or an unreasonable application of” established federal law.

Such an approach might make sense in some types of cases, but not in every case.

Harrington, of course, was about a “postcard denial” — i.e., a state court denial of a habeas petition unaccompanied by any explanation of the basis for the denial.  But that is not stopping state attorneys from citing the passage quoted above for the proposition that even an obviously flawed state court analysis should be upheld if there is any conceivable argument that the state court could have made that might have justified an affirmance.  More worrisome, this language about what “could have supported the state court’s decision” can now be found in 27 post-Harrington cases in the circuit courts, often with no suggestion that the inquiry into what analysis a state court “could have” performed is limited to the situation of postcard denial.

A few decisions push back against this broad use of the Harrington language.  In Montgomery v. Bobby, 654 F.3d 668, 700 (6th Cir. 2011), the Sixth Circuit noted:

If the state court articulated its reasons [for denying a claim], the habeas court must identify and evaluate those reasons under § 2254(d); only if the state court did not articulate its reasons must the habeas court hypothesize as to the state court’s reasoning, and evaluate those hypothetical reasons. [Citation.] In evaluating the state court decision in this case pursuant to AEDPA, we need not hypothesize as to the state court’s reasoning. Instead, we base our decision on the reasoning articulated by the state supreme court.

The fact that a petitioner suffers from mental problems is not a “cause,” for purposes of the “cause and prejudice” test, to overcome a state procedural default that prevents a federal habeas petition from going forward, a Ninth Circuit panel held Friday in Schneider v. McDaniel (09-16945).  The court writes:

a pro se petitioner’s mental condition cannot serve as cause for a procedural default, at least when the petitioner on his own or with assistance remains “able to apply for post-conviction relief to a state court.” Hughes, 800 F.2d at 909; see also Tacho, 862 F.2d at 1381. Hughes and Tacho do not necessarily foreclose the possibility that a pro se petitioner might demonstrate cause in a situation where a mental condition rendered the petitioner completely unable to comply with a state’s procedures and he had no assistance. But they do prevent us from excusing a procedural default where a mental defect had less of an adverse effect on the petitioner’s ability to comply with state procedures than illiteracy would have had.

However, as the dissent notes, this approach appears to differ somewhat from the approach of the Eighth Circuit, so this question could potentially be cert-worthy.

A remarkable turn of events in Cavazos v. Smith, the “shaken baby” case in which the United States Supreme Court reversed the 9th Circuit’s grant of habeas: California Governor Brown has commuted the sentence of Shirley Smith, the 52-year-old petitioner. The governor’s action comes on the heels of a new report casting serious doubt on the forensic evidence used to convict Smith.

Shirley Smith. Photo by Courtney Perry, from the website of NPR

Related Posts:

The Other Shoe Drops in Cavazos v. Smith

SCOTUS Reverses 9th Circuit Habeas Grant in Shaken Baby Case

NYT on Shaken Baby Syndrome