A death penalty case published by the Sixth Circuit last week involves a real-world example of an idea that I initially thought was too out-there when it was mentioned in a journal article by University of Michigan Law School Professor Kimberly A. Thomas: the idea that procedural default in state court could be a way to avoid AEDPA deference when a habeas petitioner goes to federal court.
The claim in Frazier v. Jenkins (11-4262, Oct. 27, 2014) is straightforward: the petitioner argues that he is mentally retarded, and thus can not be executed under Atkins v. Virginia, 536 U.S. 304 (2002). But this claim was withdrawn in the state court and so was procedurally defaulted. Normally a petitioner would need to jump through a number of additional hoops to get such a claim evaluated on the merits by the federal court in the context of a habeas argument.
The majority in Frazier, however, says that the Atkins claim gets around the procedural default problem because it is essentially a claim that the petitioner is “innocent” of the death penalty (or, to put it another way, he can not legally be executed). That approach to the question of procedural default in a capital case is solidly supported by Sawyer v. Whitley, 505 U.S. 333, 336 (1992).
But what about the merits of the issue? Should the federal court defer to the state analysis, which was procedural rather than substantive? The majority says that deference does not apply, and proceeds to perform a substantive analysis of the Atkins question (which the petitioner loses). In other words, this is a scenario that professor Thomas suggested: one in which, counterintuitively, it is better for the petitioner to have defaulted. The dissent says: hey, what about AEDPA? What about Harrington v. Richter? That language is interesting:
As I understand the majority’s contrary position, it is premised on the intuition that a federal habeas claim cannot be two things at the same time: procedurally defaulted under state law and adjudicated on the merits under federal law. But intuition and federal habeas law do not always go together, and this is one of those occasions. In the course of enforcing a state-law procedural-default rule, a state court may well address the merits of the federal claim, as this case illustrates.
When a state court acknowledges a defendant’s argument that an error “undercut his rights to a fair and impartial jury” and then agrees that error occurred, is that opinion an acknowledgment of federal Constitutional error, for purposes of subsequent federal habeas review? You might think so, but the split opinion from a Ninth Circuit panel in Williams v. Swarthout (Oct. 23, 2014, 11-57255) illustrates that there can be room for disagreement. The majority views this as a case where the state issue and the federal issue (which had to do with a court mistakenly stating that the defendant pled guilty) were essentially the same, and notes that the Attorney General conceded, at oral argument, that the state court “considered and ruled on the federal constitutional question.” Therefore, according to the majority, the state court’s finding of error was a finding of federal constitutional error.
The dissent, however, emphasizes that the state court’s prejudice analysis was framed entirely in terms of state law, and argues that “it is clear from the court of appeal’s decision that it did not find constitutional error.”
Not surprisingly, I tend to agree with the majority. It would be odd if a state court acknowledged a federal claim and then, without ever saying as much, denied that claim and resolved the issue by finding error solely on state law grounds. It also strikes me as a rather strained interpretation of the idea of federal “deference” under the AEDPA to suggest that the federal court must “defer” to the “denial” of a federal claim that never explicitly occurred, because such purported deference might actually amount to re-writing what the state court concluded.
In Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013), the Supreme Court said that “When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits.” That way of framing the scenario arises from the more common situation where a state court finds no error in the first place, but it does seem to leave a zone of ambiguity around the type of situation that occurred in Williams v. Swarthout.
Miguel Paredes was executed on Tuesday in Texas for his role in three murders. Prior to the execution, on October 25, the Fifth Circuit Court of Appeals ruled on a number of habeas issues. One of the issues that is relevant here is the claim, based on Martinez v. Ryan and Trevino v. Thaler, that his federal habeas attorney had a conflict of interest because the same attorney also handled the state habeas action. The Fifth Circuit assumed without deciding that such a dual role did raise a conflict of interest. Nevertheless, Paredes did not make the showing required for relief under FRCP 60(b)(6).
California criminal appellate lawyers are taught always to “federalize” claims on the theory that issues shot down in state court could eventually win on federal habeas review. Much of the law that one is counseled to cite in performing federalization, however, is taken from the circuit courts rather than the United States Supreme Court (see, for example, this federalization chart from 2006, which liberally cites to circuit cases as a guide to federalization).
That approach has always seemed to be a bit (or even more than a bit) in tension with the way the language of the AEDPA requires federal courts to evaluate the procedural barriers to claims asserted via habeas. That standard, at least on its face, does not look to the circuit courts. Instead, it asks whether the state court’s analysis misapplied clearly established federal law “as determined by the Supreme Court of the United States.”
On the other hand, it had seemed arguable that there might be some wiggle room around the contours of this standard. See, for example, the Ninth Circuit’s discussion in Babb v. Lozowsky, which in turn cites Williams v. Taylor, 529 U.S. 362, 407 for the idea that “a state-court decision also involves an unreasonable application of [the Supreme Court’s] precedent if the state court . . . unreasonably refuses to extend that principle to a new context where it should apply.”
But the recent SCOTUS opinion in Lopez v. Smith (13-946), published on Oct. 6, seems calculated to trim back aggressive approaches to federalization, and to enforce the language of the AEDPA in a fairly literal fashion. The Court writes:
We have before cautioned the lower courts —and the Ninth Circuit in particular— against “framing our precedents at such a high level of generality.” [Citation.] None of our decisions that the Ninth Circuit cited addresses, even remotely, the specific question presented by this case. . . . [C]ircuit precedent cannot “refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that this Court has not announced.” Marshall [v. Rodgers], 569 U. S., at __ (slip op., at 6) .
As with everything else in federal habeas litigation, the emphasis on this procedural obstacle may not actually curtail claims, and may instead simply increase the workload for everyone to litigate and resolve procedural questions instead of the substantive questions actually being asserted by defendants. At any rate, Lopez v. Smith does seem to suggest that the days of freewheeling “federalization” carried out by the mere citation to a circuit court decision are over.
When does the “plain meaning” of a statute need to yield to the idea that a statute should not be read as producing absurd results? The answer may depend on what is, and what isn’t, absurd, at least if the split opinion in People v. Harbison (B251492) from Division Six of the Second District Court of Appeal is any guide. The majority in Harbison concludes that a person convicted of simple possession of drugs must be sentenced to 30 days in jail under Prop. 36 despite numerous prior treatment failures. The dissent, however, thinks that’s absurd. The second paragraph goes like this:
[I]n my view the result reached by the majority opinion, while obedient to the “plain meaning rule” (see e.g. People v. King (1993) 5 Cal.4th 59, 69), is in effect absurd. For those readers expecting a scholarly law review explanation of just why I have come to this conclusion, you will be disappointed. There are few, if any, sources guiding an appellate court on how to apply the absurdity exception to the “plain meaning rule.” It does not matter what Lord Bramwell would have done. (Unzueta v. Ocean View School Dist., supra, 6 Cal.App.4th at p. 1698.) It does not matter what Judge Learned Hand would have done. (Id., at pp. 1692-1693.) It does not matter what Justice Macklin Fleming would have done. (Id., at p. 1699.) The question comes down to how an individual justice uses his or her common sense, judicial acumen, and sense of fairness in viewing the symmetry of the statutory scheme. I view the matter differently from the majority. As Justice Gilbert has indicated, absurdity “is in the mind of the beholder.” (Id., at p. 1702.)
The concluding remarks are also rather choice:
I can just see appellant chuckling when his attorney tells him that his wrist has been slapped with the full wrath of the law.
I’m just reading the new report from the National Research Council and the National Academy of Sciences on eyewitness identification procedures (“Identifying the Culprit,” available in pdf form for free here), and one thing in particular jumps out at me: the suggestion that ID procedures need to be carried out in a double-blind fashion.
In California, my sense is that law enforcement officials typically make some effort is made to produce reliable eyewitness identification evidence, and yet ID procedures are often carried out in a way that is not blinded and is often obviously intended to result in the selection of a particular suspect. In particular, I frequently come across six-pack arrays that have been constructed after a witnesses has already identified a suspect. The array is constructed, I suppose, to give the impression that there is some sort of reliability to the selection of the suspect, and yet the whole conceit of the six-pack — implying an ability to pick out an otherwise unknown individual based solely on his appearance — is bogus from the start. Far more common that that scenario is simply the run-of-the-mill administration of a six-pack by an officer who already has a particular suspect in mind and is consequently likely to give off subtle, or not-so-subtle, cues about which suspect should be selected.
The report also includes powerful language on the flawed standard of Manson v. Brathwaite, which directs courts reviewing identifications produced by suggestive procedures to evaluate the overall reliability of the identification by considering various factors that, unfortunately, are not scientifically sound. The report writes:
The test evaluates the “reliability” of eyewitness identifications using factors derived from prior rulings and not from empirically validated sources. It includes factors that are not diagnostic of reliability and treats factors such as the confidence of a witness as independent markers of reliability when, in fact, it is now well established that confidence judgments may vary over time and can be powerfully swayed by many factors. The best guidance for legal regulation of eyewitness identification evidence comes not, however, from constitutional rulings, but from the careful use and understanding of scientific evidence to guide fact-finders and decision-makers.
Ya think? Yes, it seems possible that we might get slightly more accurate identification results if our forensic analysis were based on contemporary science rather than decades-old theories propounded by judges. Given that Justice Sotomayor also emphasized, in her dissent in Perry v. New Hampshire, that “confidence is a poor gauge of accuracy,” and given that the science backs up that point, perhaps the time is right for a cert challenge to the Manson v. Brathwaite standard.
An interesting footnote from a case published today (Fleet v. Bank of America, G050049) by Division Three of the Fourth District Court of Appeal, commenting on the style of a pro per appellant’s argument:
The Fleets’ appellate brief demonstrates mastery of English but a natural – and commendable – unfamiliarity with legalese. This might be a good time to associate in someone who speaks that tongue.
Apparently the Fleets’ resort to regular English wasn’t all bad, though, because they won a reversal. Perhaps another element in the mix, though, is the equities of the situation and the unfortunate way that Bank of America appears to have treated folks who were trying to save their home. The court notes:
This case falls into line with a number of cases in which a homeowner has been promised a mortgage modification under a program designed to forestall foreclosure only to find the notice thereof posted on the door. The kindest interpretation to place on this scenario is lender incompetence – the left-hand loan modification department and the right-hand foreclosure department appear to be operating in total ignorance of each other. This is the most likely explanation, given the size of the institutions involved , but it is not the only one, and as the numbers of such cases grow, other less benign explanations are coming to more and more minds.
How can a court of appeal find an “abuse of discretion” by the trial court, and reverse on appeal, if the court of appeal doesn’t think the trial court did anything wrong? One way is explained in Connerly v. State of California (C073753), which was published Wednesday by the Third District Court of Appeal.
The wrinkle in Connerly is that when a court sustains a demurrer without leave to amend, the plaintiff may then “propose new facts or theories to show the complaint can be amended to state a cause of action, thereby showing the trial court ‘abused its discretion’ [citation] in not granting leave to amend.” This rule comes from Code of Civil Procedure section 472c, which lets the new theory be asserted on appeal even if there was no request made in the trial court to amend. Thus it becomes possible for the Court of Appeal to retroactively find an “abuse of discretion” even when the trial court was never asked to exercise its discretion in the first place. As the Court of Appeal notes, it’s awkward that the result has to be framed in terms of trial court error when, in reality, the reversal is simply a function of the way the statute operates.
The South Pasadena School Arrests: Is Internet Research and Communication an “Overt Act” in Support of Conspiracy?
I’m intrigued by today’s announcement of arrests in an alleged conspiracy to commit a school shooting in South Pasadena, which appears to have occurred based in part on monitoring the Internet research activity of the students. The boys involved in the plan will apparently be charged with conspiracy, which makes me wonder whether a “criminal conspiracy” can be said to exist based solely on matters that people talk about and research on the Internet. The Huffington Post reports that “Police found evidence that the boys were researching rifles, submachine guns, bombs and other explosives, especially propane.”
Conspiracy, in California law, requires both a plan and an “overt act.” And it doesn’t take much, as one might imagine, to constitute an “overt act.” But it does require an “act,” not merely a thought. I do see at least one unpublished California case, People v. Spencer, 2012 WL 3308374, where one of the “overt acts” alleged was performing “computer research” to obtain the address of an individual. So maybe that’s enough for a conspiracy.
But this case reminds me of two things. One: the recent case of the New York man who planned to kill and cook his wife, but argued that the entire scheme was an elaborate mental game played out over the Internet. In that case, and in this, much of the prosecution is based on expression on the Internet and research conducted on the Internet. Which is a little uncomfortable simply because of the risk that people might be interested in freaky stuff in a purely abstract way and not actually have any intent to do anything illegal.
And, frankly, the other thing this case reminds me of is myself as a teenage kid interested in weird stuff. Except that I wasn’t doing research on the Internet, I was just flipping through the pages of The Anarchist Cookbook in the UCSD library, reading all kinds of recipes for bombs and booby traps and other nonsense. I was an honor student, not an anarchist. I had no intention to hurt anybody or even to try any of the extremely ill-advised schemes in the book, and my actions were not subject to governmental scrutiny because I was reading a book rather than doing Google searches.
I want to think that strange, geeky kids of today should still have the freedom to be interested in strange, geeky things. But I suppose times are just different now in the wake of Columbine and all the other horrendous incidents that we’ve seen.
Update 9/2/14: These students were ultimately charged only with threats, not with conspiracy. Which is interesting in light of the considerations described above, but may or may not have anything to do with evidence of overt acts.
Here’s an interesting set of graphs from the just-released 2014 California court statistics report. The graphs show reversal rates in criminal versus civil appeals in fiscal years 2010-2011 through 2012-2013, where the criminal appellant was the defendant below. The light gray bar is the percentage affirmed, the medium gray bar is the percentage reversed, and the black gray bars show dismissals. Three years are shown, but the data is the same in each year: civil appellants obtain reversal more than four times as often as criminal appellants.