How can a federal habeas petitioner avoid getting kicked out of court based on procedural default if the claim he or she is asserting was not properly exhausted before the state court? The United States Supreme Court addressed this issue in 2012 in Martinez v. Ryan, and the en banc Ninth Circuit Court of Appeals applies Martinez v. Ryan in a capital case published today.
In Dickens v. Ryan, the basic problem is that the petitioner is making a different argument to the federal court than he did to the state court. In each case, he’s arguing that his lawyer provided ineffective assistance of counsel at sentencing. But the argument presented to the state court was, as the majority puts it, a “naked” and essentially boilerplate claim, whereas Dickens presented a considerable amount of new evidence to the federal court, putting a lot of substantive flesh on the bones of the ideas that the state court already rejected.
This kind of argument runs into the problem of procedural default because petitioners are supposed to present their claims first to the state court, not to sandbag the state court with skimpy briefing and then to add on a bunch of critical information after the fact, in a different court. But the United States Supreme Court held in Martinez v. Ryan that procedural default will not block a petitioner from raising such an argument “if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” In other words, if the reason the ineffective assistance of counsel claim was presented to the state court in a “naked” fashion in the first place is because the habeas lawyer also screwed up, there may be a way eventually to get to the substance of the argument.
Here, the Ninth Circuit says it’s at least arguable that the Martinez v. Ryan standard is met. The dissent, however, is having none of it and points out a strategic wrinkle to the analysis:
Why wouldn’t a defendant hold back or forego developing one claim in his first postconviction petition in the hope that he may earn another round of postconviction proceedings by raising it for the first time in his federal habeas petition? The majority’s approach encourages state defendants to concoct “new” IAC claims that are nothing more than fleshed-out versions of their old claims supplemented with “new” evidence. This cannot have been the Supreme Court’s intention . . . .
Why would a plaintiff appeal in a case if there was no money at stake and if if the plaintiff had already voluntarily dismissed the cause of action in the trial court? One simple answer: because the plaintiff ends up on the losing end of a fee-shifting statute, like the anti-SLAPP law, and is consequently stuck with a hefty bill for attorney fees. That’s what happened in Tourgeman v. Nelson & Kennard (D063473), published Friday by Division One of the Fourth District Court of Appeal.
The plaintiff, Tourgeman, was never after money damages in the first place: he simply sought an injunction to prevent what he considered to be shady bill-collection practices. The defendants filed an anti-SLAPP motion, and Tourgeman voluntarily dismissed the case.
End of story? No. Because the defendants then invoked the fee-shifting provision of the anti-SLAPP law and won attorney fees. So Tourgeman ends up getting charged $11,581 for the lawyers who were defending the debt collectors.
Pursuing an appeal, despite the challenging odds, can start to look a little more attractive if fee-shifting at the trial level adds real financial pain to the frustration of losing.
Notably, the lawyers at the California Attorney’s Fees blog argue that Tourgeman “may be accepted for review” because it wades into a split of authority.
Strong appeals start with strong trial records, but it’s easy for trial lawyers to develop a “tunnel vision” mentality that produces a record in which critical issues are underdeveloped. The problem of “tunnel vision” is sometimes said to afflict prosecutors who focus on the wrong criminal suspect and then ignore evidence that suggests a different conclusion. But tunnel vision isn’t just a problem of law enforcement, or of criminal law. It can affect any lawyer who is trying to construct a narrative about the evidence under the intense pressure of trial.
Some examples of this trial-level tunnel vision include failing to make a detailed offer of proof about evidence that the court has excluded, failing to make a record of what occurred in chambers or sidebar conversations, or failing to request jury instructions that could provide alternative pathways for the jury to reach a favorable verdict. In each instance, a trial lawyer may feel that there is no point in wasting energy on anything other than what will be presented at trial, what will be the core theory of the case, and what will be the preferred legal basis for the jury to agree. After all, what’s done is done, and there are only so many hours in the day.
The problem with this strategy becomes obvious, however, if things do not go as planned when the verdict comes back. Then the appeal lawyer has to make arguments about what might have been, and what difference the trial court’s legal rulings made. That task that can be impossible if the record contains little or no information about the significant turning points in the trial-level litigation.
In many ways, a narrowing focus on a “theme” or motif for a case is a sign of good lawyering at the trial level. Juries want to hear compelling stories, and that means lawyers have to focus carefully on using the available evidence to tell a story in an efficient, coherent way. Spending lots of time on hypothetical alternative scenarios and seemingly irrelevant facts, on the other hand, is likely to leave jurors confused, bored, and unpersuaded.
But crafting a powerful narrative for the jury doesn’t mean that the record has to be neglected. Instead, the written arguments that are presented to the court can capture the complexity of issues that are beyond the scope of what the jury needs to hear. Briefing styled as a motion for reconsideration or a request to recall a witness, for example, can capture the full detail and prejudicial implications of a ruling, so that the impact of the ruling is obvious rather than obscure.
Ideally, the trial lawyer must recognize that there are actually two audiences to which an argument is being presented: the jury, which is hearing the simple version of the facts, and the Court of Appeal, which may eventually review the more complete, legally complex story. By using effective, detailed briefing to make that record as strong and comprehensive as it can be, the trial lawyer can put the client in a much stronger position on the other side of the trial “tunnel.” That’s the case not only because any potential appeal will be set up more effectively but also because creating a more detailed record may push the court toward rulings that will make the appeal unnecessary.
Appellate lawyer Jeffrey Lewis has another post on appeal strategy, this one looking at trial court mistakes that can play out down the line in a way that prevents a successful appeal. You might think that some of these points — like the idea that you can’t argue about whether there was substantial evidence to support a verdict if you don’t preserve a record that permits that argument to be evaluated — would be common sense. But the very cases that Lewis cites illustrate the reality that some lawyers handling appeals have essentially no idea what they are doing. They are making arguments in a vacuum, trying to persuade appellate justices who have not been given the relevant facts and consequently can’t know whether the arguments are correct.
Lewis’ discussion also illustrates that the decision to skip using a court reporter in a civil case can have serious downstream ramifications — ones that may not occur to litigants until it is too late. All the more reason why lawyers who are developing trial strategy need to consider how a successful appeal might occur.
Related Posts: “Show Don’t Tell” – Legal Writing on Appeal
What strategy should an appeal lawyer follow when the court doesn’t clearly address one of the issues raised in the briefing on appeal? That question was suggested by the analysis in People v. Mashburn (A138252), which was published last week by Division Five of the First District Court of Appeal. The case has to do with whether the appellant waived the right to appeal as part of a plea bargain, and the opinion states that the appellant “contends he did not knowingly and intelligently waive his right to appeal.” In other words, a basic point made by the appellant is that even if the waiver would ordinarily bar his appeal, it should not be enforced because he didn’t enter the waiver in a knowing, intelligent fashion.
The court’s substantive analysis only obliquely addresses whether the waiver was knowing and intelligent. The issue is treated purely through a quote from another case, but it’s not clear that the other case is on point. In the case cited by the court, the appellant was raising an issue that required a certificate of probable cause, whereas the issue raised by the appellant in Mashburn would ordinarily not require such a certificate. Whether that distinction makes a difference is a question about which reasonable minds may differ.
What should the appeal lawyer do in such a situation? A petition for rehearing is a possibility, but that never happened here according to the docket. There’s also the question of whether the substantive issue that was involved here, which is a search and seizure problem, has received a “full and fair hearing” for purposes of preventing future federal habeas review under the rule of Stone v. Powell. Should a good appellate lawyer just let this one lie, or is there some other approach that makes sense?
Last month a paper became available on SSRN discussing what the author calls “Substantive Habeas,” which looks at the recent currents in SCOTUS jurisprudence around federal habeas review of state court decisions. The author, University of Michigan Law School Professor Kimberly A. Thomas, argues that the Court is “misguided” in its move toward a very unforgiving approach to the substantive question of whether the state court has unreasonably applied federal law.
Professor Thomas is referring to the recent string of cases, Harrington v. Richter and Cullen v. Pinholster being the most notable, that have taken the wind out of the sails of many, many habeas arguments by emphasizing that federal courts not only must defer to virtually any analysis that a state court actually did provide, but also (in at least some cases) must defer to any analysis that a state court conceivably might have provided. This sort of “deference” to state analyses that in some cases never actually occurred in the first place, she notes, appears “preposterous” and “incomprehensible” to the average inmate, to say nothing of the average habeas lawyer. “Literally, it looks like the court is just doing hocus-pocus to deny petitions” while operating under the label of “deference.”
The Court can, and has, defined AEDPA in a way that the federal courts are told to deny habeas even when the state court is wrong, summarily denies claims without any reason, implicitly denies federal claims by denying other claims in the appeal, or fails to apply significant changes in constitutional law.
Professor Thomas also suggests that the unforgiving emphasis on substantive review may create a perverse incentive for some habeas petitioners to use procedural default (i.e., failure to present an argument to the state court) as a mechanism for getting around AEDPA deference, at least if there is a way for the petitioner to make the case that the federal court should overlook the procedural default and reach the merits of the issue. That sounds like a strategy one wouldn’t want to be the first to test, and I’m not sure I agree that AEDPA deference wouldn’t apply to the scenario she describes, but in any event her discussion raises some interesting strategic possibilities.
“Substantive Habeas” advocates an approach to the AEDPA standard that is “constraining, but not suffocating” — which would be a welcome shift away from the somewhat absurd lengths to which the idea of “deference” has lately been stretched.
In December I noted that the idea of pushing for an unpublished appellate opinion to be published can be a double-edged sword from the point of view of legal strategy. An interesting example of that dilemma is playing out right now in the case of Hunter v. CBS Broadcasting (B244832), an anti-SLAPP opinion from Division Seven of the Second District Court of Appeal.
Hunter was originally unpublished, but a number of show biz entities, including A&E Television Networks and the Motion Picture Association of America, asked for it to be published (see the docket entries). The Court of Appeal obliged on December 11, 2013 . The reason for the entertainment industry interest in this case is obvious: because Hunter concludes that it is a protected First Amendment activity (and not, as one might argue, employment discrimination) for a television news program to focus on hiring a “young, attractive female” to the exclusion of less visually interesting (but perhaps equally competent) alternative candidates. Hunter has taken some flack in the legal press since its publication, with one Daily Journal piece flatly calling it “bad law and, more importantly, bad public policy” and Professor Martin arguing that Hunter is “clearly wrong. Both doctrinally and as a matter of policy.” The predictable petition for review has already been filed in the California Supreme Court, which may mean that the push to publish Hunter ends up producing less legal clarity rather than more.
Substantively, Hunter seems to me like a difficult nut to crack. I don’t think it’s necessarily obvious what the right outcome is, and the roster of entertainment industry folks who are lined up behind Hunter illustrate why that’s the case: because the act of “casting” talent often involves selecting people on the basis of gender, ethnicity, age, and so on. It would seem to open up quite a can of worms to suggest that the mere exercise of that creative discretion in casting amounts to employment discrimination. While folks who appear on-camera in the television news industry might quarrel with the claim that they are being “cast” to do “entertainment,” it’s undeniable that there is a certain look to TV news, and that, for better or worse, one rarely sees folks on the screen who do not have that look.
Steven Stein at Law Law Land also has some good discussion of this case.
Here’s a tactic lawyers should avoid on appeal: asserting, at oral argument, that the support for their position “is common sense.” That was the approach taken by counsel for the appellant in Save the Plastic Bag Coalition v. City and County of San Francisco (A137056), published Friday.
Its clear from the tone of this opinion that Division Two of the First District Court of Appeal wasn’t crazy about appellant’s legal writing. The court describes the Coalition’s argument as “extremely convoluted” and “perplexing,” notes that the Coalition fails to acknowledge splits of authority and mis-characterizes the holding of cases, notes that the Coalition forfeited arguments by failing to mention them until the Reply, and otherwise conveys the essential message that appellant is a bit at sea. The coup de grace, however, comes in footnote 6, where the court notes that there is no support in the record for the Coalition’s argument that tourists will undermine the environmental benefit of San Francisco’s ban on plastic bags. The court continues:
When we raised this issue at oral argument, counsel for the Coalition urged us to rely on “common sense.” However, as discussed more fully above, the party challenging a categorical exemption has the burden of producing substantial evidence that a project falls within an exception to that categorical exemption.
I have to chuckle at the headline on a Paul S. Berger column in Friday’s Daily Journal: “Appellate Attorneys, Flailing in the Dark.” Berger, who is a former research attorney at two California appellate courts, discusses the new(ish) receptivity to tentative appellate opinions in California. He suggests that such tentatives do not (contrary to the belief of some courts) cause justices to “lock in” to a particular perspective prior to oral argument. He notes, however, that an “enormous inertia” pervades the appellate judiciary and impedes movement toward what might otherwise seem to be a very logical change to the accepted approach to issuing opinions.
Just a quick note that the December 2013 issue of Plaintiff Magazine is devoted to appellate issues and includes several articles that touch specifically on tactical considerations for lawyers setting up appellate arguments. Good stuff, and free.