habeas
SCOTUS declines cert. in sex offender classification case
Oct 17th
My absence from blogging has been long and mostly because I’ve been busy and haven’t been feeling too well. However, a couple of weeks ago, I noticed that SCOTUS had denied cert in Dretke v. Coleman [pdf], a Fifth Circuit case. The ruling in the Fifth Ciruit was:
The Texas Department of Criminal Justice is authorized by Texas law to
impose reasonable conditions on parole to serve the interests of protecting the
community and rehabilitating the parolee. When those conditions impact a liberty
interest of the parolee, they may be imposed only with justification. The Department
may condition Coleman’s parole on sex offender registration and therapy only if he is
determined to constitute a threat to society by reason of his lack of sexual control.
Absent a conviction of a sex offense, the Department must afford him an appropriate
hearing and find that he possesses this offensive characteristic before imposing such
conditions. This court was told at oral argument that evidence of Coleman’s lack of
sexual control exists. None appears in the record, however, and no contention is
made that Coleman has been afforded a hearing meeting the requirements of due
process.We therefore hold that the sex offender conditions placed on Coleman’s
parole are invalid, and we remand the cause to the district court for disposition
consistent with this opinion. The state is not precluded from further efforts to add
these same conditions to Coleman’s parole upon proper notice and consistent with
this opinion.
Reversed and remanded.
Essentially, that offenders who have not been convicted of a sex offense have a liberty interest created by the Due Process clause in freedom from sex offender classifications and conditions. The state parole department must afford a habeas petitioner an appropriate hearing before it can constitutionally impose sex offender parole conditions upon him. In light of SCOTUS’ refusal to address whether sex offender registration violation substantive due process in CT v. Doe, their denial of cert here is pretty significant.
Streamlined Procedures Act
Oct 5th
The other day I received an e-mail from someone at The Justice Project with some information regarding the Streamlined Procedures Act, which I’m passing on to you, my readers (Who despite my lack of recent posting, keep coming to the blawg! Thank you!).
The Justice Project has a website on this bill, which includes frequent updates on the status of the legislation in the House and Senate, a compilation of letters, testimony and editorials from key opponents of the bill and other resources. There’s also this link to contact senators to express your displeasure with the bill.
Hands Off Habeas
Aug 19th
WaPo has this editorial today [note: registration might be required], criticizing the Streamlined Procedures Act of 2005 [previous commentary here and here]. The editorial mentions a vote by the national Conference of Chief Justices (Chief Justices of all State courts) that overwhelmingly urged Congress to slow down on this bill. [The lone dissenting Chief Justice? - You guessed it. Texas.]
So it is particularly instructive that chief justices of the nation’s state court systems have voted overwhelmingly to urge Congress to slow down. The chief justices would be, after all, the apparent beneficiaries of the bill, which would gut federal review of the convictions they oversee. Yet in a strongly worded resolution by the Conference of Chief Justices — with only the chief justice of death-happy Texas voting no — the heads of state judicial systems said in essence, "Thanks, but no thanks." Cooler heads in Congress ought to listen.
The most drastic versions of the bill, proposed by Sen. Kyl and Rep. Lungren, would all but eliminate Federal Habeas review.
Even where they didn’t do that, they would create onerous procedural roadblocks and prevent federal courts from considering key issues. They would bar federal courts from reviewing most capital sentencing and create arbitrary timetables for federal appeals courts to handle these cases. All of which, you might think, would be music to the ears of state court justices, for whom it is a big blank check.
Unless, of course, those chief justices are interested in, well, justice. The resolution, adopted jointly with the Conference of State Court Administrators, notes that "the changes contemplated in these measures may preclude state defendants in both capital and non-capital matters from seeking habeas corpus relief" with "unknown consequences for the state courts and for the administration of justice." It recommends "delaying further action" pending additional study to evaluate whether change in current law is even necessary. If it is, the justices urge Congress "to consider appropriate targeted measures that will ameliorate the documented problems and avoid depriving the federal courts of their traditional jurisdiction without more supporting evidence."
Kudos to them. The Senate Judiciary Committee is poised to consider less drastic versions of this bill. Let’s keep our fingers crossed.
the waiver
Aug 14th
Sounds like a good name for a legal television show, doesn’t it? But I’m referring to the concept embedded in criminal jurisprudence (and other areas of the law, I’m sure) of the ability, perhaps the right, of a defendant to waive his Constitutional protections. A defendant can waive a jury trial, can waive the right to present witnesses, can waive a challenge to an unconstitutional s & s. Heck, with a guilty plea, a defendant waives all non-jurisdicitional defects! (See Tollett v. Henderson) But can a defendant waive effective assistance of counsel? A few cases from the Appellate Court would lead you to believe so.
Last year, the App Ct decided a few cases in which petitioners pled guilty and then filed a Habeas petition, raising a claim of IAC. The respondent alleged cause and prejudice arising from failure to raise the constitutional claims in the trial court and on appeal.
This is where it gets interesting: Petitioners alleged that the procedural default was a result of ineffective assistance of counsel. The standard for C & P is as follows:
A petitioner who raises a constitutional claim for the first time in a habeas corpus proceeding must show (1) cause for the procedural default, i.e., the reason for failing to raise the claim at trial or on direct appeal, and (2) prejudice from the alleged constitutional violation. Wainwright v. Sykes, 433 U.S. 72, 90-91 (1977).
Case law in CT holds that a claim of IAC is usually best raised in a Habeas petition. The App Ct points to the practice book section which says that a plea of guilty may be withdrawn on several grounds, one of which is IAC.
In essence, what the court was saying in both cases was that Petitioner should have filed a Motion to Withdraw the guily plea as per the practice book. The practice book provides (and I’m paraphrasing) that a defendant may withdraw a guilty plea until it has been accepted. After acceptance, a defendant may withdraw the plea on any one of the enumerated grounds. However, a defendant may not withdraw the plea after the conclusion of the proceeding at which the sentence was imposed. So, according to some cases, if a defendant does not attempt to withdraw in that intervening period, he has waived his right to raise a claim of ineffective assistance, since they would be precluded on appeal.
Does this not in essence mean that a defendant can waive his right to effective assistance? I could just be reading it all wrong. What do you think? Can it be waived?
Important Habeas denials
Jul 19th
The Supreme Court yesterday released some pretty important habeas decisions and atleast one high profile crim decision. I’ll go into the Habeas decisions at the same time, as they address basically the same issue.
The Court released Lebron v. Comm’r, McCarthy v. Comm’r, Hickey v. Comm’r and Oliphant v. Comm’r. The basic issue was whether, in all the cases, the Appellate Court had properly dismissed the habeas petitions for lack of jurisdiction, because in each case the petitioner was not "in the custody" of the Department of Corrections. Each petitioner had discharged his sentence.
In Oliphant, the petitioner was incarcerated under two sentences; one imposed in April and the other in September. By the time he filed his Habeas petition, he had discharged the shorter April sentence, but was still held under the longer September sentence. The Habeas court dismissed the petition because he was no longer "in custody" under the April sentence, which had been the basis for his petition (even though he was actually being held in jail).
The Court first considered whether the petition should be broadly construed to include an attack on his September conviction as well, even though it wasn’t explicitly mentioned in the pro-se petition.
The Court writes:
The modern trend . . .is to construe pleadings broadly and realistically, rather than narrowly and technically.’’ (Citation omitted; internal quotation marks omitted.) Hill v. Williams, 74 Conn. App. 654, 655–56, 813 A.2d 130, cert. denied, 263 Conn. 918, 822 A.2d 242 (2003). The courts adhere to this rule to ensure that pro se litigants receive a full and fair opportunity to be heard, regardless of their ‘‘lack of legal education and experience . . . .’’ Higgins v. Hartford County Bar Assn., 109 Conn. 690, 692, 145 A. 20 (1929). This rule of construction has limits, however. ‘‘Although we allow pro se litigants some latitude, the right of self-representation provides no attendant license not to comply with relevant rules of procedural and substantive law.’’ (Internal quotation marks omitted.) Strobel v. Strobel, 64 Conn. App. 614, 618, 781 A.2d 356, cert. denied, 258 Conn. 937, 786 A.2d 426 (2001).
Additionally, the Petitioner had already raised a separate Habeas petition in connection with his September conviction, so the Court denied this claim.
Next, Petitioner raised the following two claims: (1) That Connecticut’s "in custody" statute should be read more expansively than the Federal Statute and (2) the Petition is not moot because collateral consequences flow from his illegal conviction.
The Court addressed these claims in Lebron, so let’s turn there.
In Lebron, the facts were reasonably similar. Petitioner’s 1992 sentence was being used to enhance his 1999 sentence, even though he had discharged the 1992 sentence. The Habeas Court dismissed the petition because Petitioner was not being held "in custody" on his 1992 sentence.
Challenges to expired convictions under Federal law are governed by Maleng v. Cook, 490 U.S. 488 (1989). In Maleng, the Court held
‘‘once the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual ‘in custody’ for the purposes of a habeas attack upon it.’’
However,
[t]he majority carved out one exception to this general rule—it concluded that a habeas petitioner could challenge an expired conviction if the petitioner attacked his ‘‘enhanced sentence on the basis that the prior conviction used to enhance the sentence was obtained where there was a failure to appoint counsel in violation of the [s]ixth [a]mendment, as set forth in Gideon v. Wainwright, [372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)].’’ Lackawanna County District Attorney v. Coss, 532 U.S. 394 (2001).
Applying all of this caselaw, the Court found that the Habeas (and Appellate) Court correctly construed his 1999 petition as an attack on his 1992 conviction.
The Petitioner then alleged that the Appellate Court improperly dismissed his petition for lack of subject matter jurisdiction, because the custody requirement in C.G.S. (stating that a Habeas petition is to be filed by someone in the custody of the DOC) related to venue and not jurisdiction. The Court, after an analysis of the jurisprudence of Habeas Corpus, found that there was no doubt that the custody issue was jurisdictional and denied that claim.
Finally, the Petitioner claimed that the Appellate Court improperly found that the collateral consequences of his 1992 conviction were insufficent to find him "in custody" under Maleng and Lackawanna.
On that matter, the Court held,
We conclude that a petitioner whose conviction has expired fully prior to the filing of a habeas petition is not in ‘‘custody’’ on that conviction within the meaning of § 52-466, despite the alleged existence of collateral consequences flowing from that conviction.
So, in accordance with this decision in Lebron, the Court denied all four Habeas appeals. The Crim decisions to follow. For more, see this Courant article.
habeas decisions
Jul 14th
Am experiencing a little down time at work, so I figured I’d post quick updates on the latest criminal cases from the appellate court. This post summarizes the habeas decisions and the next one will be about the criminal decisions. The Court released Frank v. Comm’r, Diaz v. Comm’r and Kelley v. Comm’r [all files .pdf]. Both Frank and Diaz were cursory Simms and Lozada dismissals with the following paragraph:
We conclude that the petitioner has not demonstrated that the issues raised are debatable among jurists of reason, that a court could resolve the issues in a different manner or that the questions raised deserve encouragement to proceed further.
That takes care of that. The third, Kelley, is actually discussed on the merits. But when the Court describes petitioner’s claims as
(1) not conducting an adequate pretrial investigation and (2) failing to act in a variety of ways during the trial.
you know you’re in trouble. These are two of the vaguest claims you could have. Nothing specific at all here – what is "variety of ways", for instance? Let’s read on. As to the first count – the Petitioner claimed that his trial counsel failed to investigate the existence of one alibi witness. The Habeas court found that trial counsel did indeed try to locate this one person and talk to his mother, who stonewalled. Deferring to the Habeas court, the Appellate Court rejected the first count. In the second count, petitioner claimed
(1) failing to object to and to request rulings on certain aspects of the prosecutor’s cross-examination of alibi witnesses, (2) failing to object to the prosecutor’s reliance in opening and closing arguments on, what the petitioner classifies as, an ‘‘improper inference of recent fabrication of the alibi defense,’’ (3) failing to cross-examine the victim about prior accusations of sexual assault by others against her, (4) failing to request that the court allow an examination of the victim outside the presence of the jury and (5) failing to except to the court’s refusal to allow the petitioner to cross-examine the victim about alleged prior sexual attacks.
The Habeas Court addressed only allegation (3) above, finding that trial counsel had attempted to cross-examine the witness, but was shut down by the trial judge. The Appellate Court affirmed that ruling and declined to address any of the other allegations, writing
we note that none, not even those appearing in the petitioner’s amended petition, is accompanied by supporting facts, law and reasoned analysis. The petitioner addresses those alleged failures in a cursory manner at best. They constitute nothing more than bare assertions unsupported by fact, reason or analysis.
Ouch. The appeal was denied. It seems that either the attorney did a bad job, or more likely, was hamstrung by a client forcing him to raise barely colorable issues.
Habeas granted (in part)
Jul 7th
The Appellate Court released Vivo v. Commissioner [pdf] today, affirming in part and reversing in part. In Vivo, the Habeas Court had denied petitioner’s claims of IAC (both trial and appellate) and that his sentence under CGS 53-202k should be vacated. Habeas counsel had abandoned the claim of IA(T)C in his post-trial brief but continued to raise the claim of IA(A)C: that appellate counsel failed to raise a State Constitutional challenge to the inevitable discovery doctrine. The Appellate Court writes,
The seminal case of Bunkley v. Commissioner of Correction, supra, 222 Conn. 444, considered the prejudice prong of the Strickland analysis in claims of ineffective assistance of appellate counsel.
[H]e must establish that, because of the failure of his appellate counsel to raise a [particular] claim, there is a reasonable probability that he remains burdened by an unreliable determination of his guilt.
Petitioner claimed that the State Constitution afforded greated protection than the Federal Constitution and therefore it is reasonably probable that his claim would have succeeded, had appellate counsel raised it. The Court relied on one of it’s own decisions in the past, quoting:
‘‘it is clear that Connecticut courts, along with the vast majority of all courts, both state and federal, recognize the inevitable discovery exception to the exclusionary rule as formulated by the United States Supreme Court.’’
Accordingly, the Court denied that claim.
The second claim raised was that petitioner’s conviction under 53-202k (commission of a Class A or B felony with a firearm) was illegal because 53-202k was not a separate crime, merely a sentence enhancement provision. The Appellate Court agreed, citing State v. Dash, 242 Conn. 143 (1997) and reversed with an order to vacate that conviction. Petitioner’s total effective sentence, however, remained unchanged. A small victory is a victory, nonetheless.
SCOTUS in giving mood; grants another capital habeas
Jun 20th
SCOTUS today granted Rompilla v. Beard [majority opinion] by a 5-4 vote, holding that that even when a capital defendant’s family members and the defendant
himself have suggested that no mitigating evidence is available,
defendant’s counsel is still bound to make reasonable efforts to obtain
and review material that counsel knows the prosecution will probably
rely on as evidence of aggravation at the sentencing phase of trial. The Court granted the petition finding both prongs of Strickland had been met. Writing for the majority, Justice Souter explains:
Counsel knew that the Commonwealth intended to seek the death penalty by proving
Rompilla had a significant history of felony convictions
indicating the use or threat of violence, an aggravator under state law.Counsel further knew that the Commonwealth would attempt to establish this history by proving RompillaÂ’s prior conviction for rape and assault, and would emphasize his violent character by introducing
a transcript of the rape victimÂ’s testimony given in that earlier trial. There is no question that
defense counsel were on notice, since they acknowledge
that a “plea letter,” written by one of them four days prior
to trial, mentioned the prosecutorÂ’s plans.It is also
undisputed that the prior conviction file was a public document, readily available for the asking at the very courthouse where Rompilla was to be tried. It is clear, however, that defense counsel did not look at
any part of that file, including the transcript, until warned by the prosecution a second time.
On the performance prong, the Court concludes:
Without making
reasonable efforts to review the file, defense counsel could
have had no hope of knowing whether the prosecution was
quoting selectively from the transcript, or whether there
were circumstances extenuating the behavior described by
the victim. The obligation to get the file was particularly
pressing here owing to the similarity of the violent prior
offense to the crime charged and Rompillas sentencing
strategy stressing residual doubt. Without making efforts
to learn the details and rebut the relevance of the earlier
crime, a convincing argument for residual doubt was certainly beyond any hope.
The prejudice prong wasn’t seriously contested by the State of PA and the Habeas was granted. SCOTUSblog has detailed analysis and commentary. An AP story here.
Miller-El granted habeas relief!
Jun 13th
SCOTUS today issued Miller-El v. Dretke, a Texas death row inmate’s Habeas challenge to peremptory strikes made by prosecutors, claiming that they were made on the basis of race. Lower courts had routinely rejected Miller-El’s claims and the 5th Circuit had even refused to certify appealability. In 2002, SCOTUS reversed that (Miller-El v. Cockrell) and ordered that the 5th Circuit review the merits. Today, SCOTUS reversed the 5th Circuit (again) and ordered that Habeas relief be granted.
Writing for the majority [pdf], Justice Souter delves into the vast evidence collected by Miller-El regarding racial bias. The opinion itself is a fascinating read, especially because it details the disparate treatment of black and non-black jurors who gave extremely similar responses on their juror questionnaires and in voire-dire questioning. The gist, however, is best summed up by Justice Souter himself, when he writes:
In the course of drawing a jury to try a black defendant, 10 of the 11 qualified black venire panel members were peremptorily struck. At least two of them, Fields and Warren, were ostensibly acceptable to prosecutors seeking a death verdict, and Fields was ideal. The prosecutors chosen race-neutral reasons for the strikes do not hold up and are so far at odds with the evidence that pretext is the fair conclusion, indicating the very discrimination the explanations were meant to deny. The strikes that drew these incredible explanations occurred in a selection process replete with evidence that the prosecutors were selecting and rejecting potential jurors because of race.
At least two of the jury shuffles conductedby the State make no sense except as efforts to delay consideration of black jury panelists to the end of the week, when they might not even be reached. The State has in fact never offered any other explanation.
Nor has the State denied that disparate lines of questioning were pursued: 53% of black panelists but only 3% of non-blacks were questioned with a graphic script meant to induce qualms about applying the death penalty (and thus ——————explain a strike), and 100% of blacks but only 27% of non-blacks were subjected to a trick question about the minimum acceptable penalty for murder, meant to induce a
disqualifying answer.…
The StateÂ’s pretextual positions confirm Miller-ElÂ’’s claim, and the prosecutors own notes proclaim that the Sparling ManualÂ’s emphasis on race was on their minds when they considered every potential juror.
The state courtÂ’s conclusion that the prosecutorsÂ’ strikes of Fields and Warren were not racially determined is shown up as wrong to a clear and convincing degree; the state courtÂ’s conclusion was unreasonable as well as erroneous. The judgment of the Court of Appeals is reversed, and the case is remanded for entry of judgment for petitioner together with orders of appropriate relief.
Justice Souter relies mainly on venirepersons Fields and Warren, both of whom had responses similar to white panel members who were accepted by the prosecution, and yet were struck via peremptories. In fact, as the quote above indicates, Fields was quite in favor of the death penalty and was all too willing to impose it.
Justice Breyer has a very interesting concurrence, where he advocates adopting Justice Marshall’s position from concurrence in Batson: abandon peremptory challenges. Prof. Berman has a nice post on this concurrence.
I’ll get to the dissent soon.
Justice Souter’s majority opinion here [pdf], Justice Breyer’s concurrence suggesting prohibiting peremptory challenges altogether here [pdf] and Justice Thomas’ dissent here.
Habeas relief granted!
May 16th
No, it’s not my case; I’m still waiting for a decision. This is a case that was decided about a month ago, but I was waiting for LEXIS to put it up, so I could provide a cite.
Langston v. Warden, 2005 Conn. Super LEXIS 871 is a Habeas petition claiming ineffective assistance of counsel. As most of you know, the standard for IAC is established by Strickland – and in plea cases, as modified by Hill. However, Langston is extremely interesting because of the standard applied by the judge. As I’ll explain below, the judge applies Cronic and Florida v. Nixon.
Langston was charged with and convicted of Commission of a Felony with a Firearm, Criminal Possession of a Firearm and Robbery First. The facts were as follows:
The victim, victim’s sister and her boyfriend were driving along in a car. They wanted to score some crack, so they approached two inviduals – one of them Mr. Langston – and tried to make a deal. After the victim was asked to show the money, one of the two individuals (allegedly Mr. Langston) returned with a gun, took the money and shot the victim as he was walking away. All three identified Langston as having possessed a gun and shooting the victim. Via cross-ex, defense counsel elicited that the victim was on drugs at the time of the incident and it ocurred in an alley that wasn’t well lit and that no one actually saw Mr. Langston shoot, just saw him with a gun. The police arrested Mr. Langston at his home and found a potato with electric tape and he allegedly said it was used as a silencer for a gun.
Petitioner raised 4 claims (that does seem to be the magic number):
- During closing, defense counsel conceded that Mr. Langston participated in the robbery – but did so without his consent.
- Trial counsel failed to file motions in limine to preclude a photo array and other prejudicial evidence.
The other two weren’t discussed that much and were dismissed, so I won’t go into them here. The court discusses 2 first, so I’ll do that as well.
The Court quite readily dismisses the claim as to the photo array because there was no evidence introduced regarding the photo array, not even the array itself, at the habeas hearing. The Court then addresses the introduction of the potato silencer. The problem wasn’t that a police officer testified about Langston’s statement regarding the potato silencer: that was after being advised of Miranda. The problem was that
[n]o motion in limine had been filed to exclude reference to this evidence and this was coupled with a failure to object to this evidence as it was being presented. It
is also true that there was no evidence presented during this trial
that a potato silencer was used during the robbery, seen by any victim
or witness, or mentioned in any conversation during, immediately before
or after the confrontation.
CT state law is quite clear that evidence as to articles found in the possession of a defendant subsequent to the commission of the crime for which he is being charged is admissible only if it tends to establish a fact in issue or to corroborate other direct evidence. State v. Groos, 110 Conn. 403, 407 (1930). Relying on that principle, the Court decided
It is difficult to see what possible probative value this evidence had
or what tactical strategy could have induced trial counsel not to take
steps to challenge the introduction of this evidence or move to strike
it. Defense counsel must be held to a standard that presupposes a
knowledge of evidentiary rules operative in our state for decades. It
was deficient performance under Strickland not to file a motion in limine regarding the introduction of this evidence or otherwise object to it.
That takes care of prong 1. But what of prong 2 – often the more difficult prong? Citing another case, State v. Acklin, 171 Conn. 105 (1987), the Court decided that it would be very difficult to not find prejudice, even with overwhelming evidence of guilt. "Any improper evidence that may have a tendency to excite the passions,
awaken the sympathy or influence the judgment of the jury, cannot be considered harmless." State v. Ferraro, 160 Conn. 42 (1970). The Court found that both prongs of Strickland were met and was of the opinion that Habeas relief should be granted on this claim alone.
But if he did that, we wouldn’t have the exciting Cronic and Nixon discussion! So, he went on.
In closing argument, defense counsel argued that it came down to the victim and the sister’s boyfriend, both of whom had felony records and were crack users. Counsel argued that the lighting was bad and impaired their ability to see what was in front of them. He also argued that the sister’s boyfriend said he saw Langston shoot the victim, but initially had told the police he only heard the shot. Then he conceded that the victim had been shot. Then he said the following:
"Remember, there were two people here that were involved in this, not
just Mr. Langston, but his unnamed partner who might have been his
partner in a drug deal or who might have taken the gun and decided, I’m
going to start shooting"
Ok. So he admitted Langston was involved in this. He admitted that there was a gun and he admitted that one of the two shot the victim. In the course of this train of thought counsel did say let us assume
there was a robbery and "I’ll concede for a moment a robbery did occur. " He then went on to say given this assumption maybe the second person was the shooter.
The State’s Attorney, bright as she was, picked up on this and in rebuttal argued that defense counsel conceded that Mr. Langston had the gun at some point.
At the Habeas hearing, defense counsel tried to explain that what he meant to do was create doubt in the jury’s mind and didn’t mean to explicitly concede anything. The Court didn’t like that too much:
But it was not what counsel’s intentions were that is controlling, but what he actually said.
But as the review of the closing argument indicated, defense counsel
explicitly said or implied at various points that Langston was involved
in the robbery but not the shooting:"Remember, there were two people here that were involved in this, not just Mr. Langston . . . but his unnamed
partner . . . who might have taken the gun and decided, I’m going to
start shooting."This theme of implying guilt of the robbery but not the shooting is woven throughout the remainder of the closing argument.
It was uncontroverted that defense counsel did not inform Mr. Langston that he was going to concede his guilt to the robbery.
Given that factual background, the Court dove right into the legal argument. It goes without saying that a criminal defendant has the right not to plead guilty and has the right to make the state prove it’s case beyond a reasonable doubt. No lawyer’s decision can deprive a defendant of these rights and these rights cannot be waived by defense counsel, Brookhand v. Janis, 384 U.S. 1, 5-8, (1966). Since there was nothing in this record to indicate that the petitioner
contemplated waiving or in fact waived these rights, a
closing argument by defense counsel that effectively admits the
client’s guilt to a crime to which the client has pleaded innocent
without the client’s waiver or consent is necessarily deficient
performance under the standard set forth in Strickland. Having determined that there was deficient performance, the Court turned to the sticky proposition of determining prejudice under the second prong. What made it sticky was the overwhelming evidence of guilt. The Court admits that under the second prong, it can be reasonably argued that there is no prejudice.
Oddly, the Court then says,
Despite all this the court is constrained to find that the ordinary
prejudice analysis does not warrant the denial of habeas relief,
deficient performance having been found for the reasons stated. The
court relies on U.S. v Cronic and Florida v. Nixon.
Cronic, if you will remember, is the case that dealt with constructive denial of counsel.
The presumption that counsel’s assistance is essential requires us to
conclude that a trial is unfair if the accused is denied counsel at a
critical stage of his trial. Similarly, if counsel entirely fails to
subject the prosecution’s case to meaningful adversarial testing, then
there has been a denial of rights that makes the adversary process itself presumptively unreliable. No specific showing of prejudice was required in Davis v. Alaska, 415 U.S. 308 (1974), because the petitioner had been "denied the right of effective cross-examination" which "would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it." Id., at 318 (citing Smith v. Illinois, 390 U.S. 129 (1968), and Brookhart v. Janis, 384 U.S. 1, 3, (1966)).Circumstances
of that magnitude may be present on some occasions when although
counsel is available to assist the accused during trial, the likelihood
that any lawyer, even a fully competent one, could provide effective
assistance is so small that a presumption of prejudice is appropriate
without inquiry into the actual conduct of the trial. Powell v. Alabama, 287 U.S. 45 (1932), was such a case.
However, Cronic is still inadequate because it talks in terms of presumed prejudice and guilt or innocence. That’s where Florida v. Nixon comes in. Florida conducts an analysis based on the recognition that a fundamental right is involved where defense counsel concedes defendant’s guilt. The Florida Supreme Court held
defense counsel’s statements to the jury were the "functional
equivalent of guilty plea" and therefore what was required was the
defendant client’s "affirmative, explicit acceptance of" the lawyer’s
strategy of conceding guilt.
The U.S. Supreme Court reversed based on the facts of Florida – because it was a capital case, the distinction is important – but in non-capital cases it suggested that merely informing a non-responsive client of a strategy to concede guilt
is not enough to insulate such a course of action by defense counsel
from habeas attack. In a non-capital case the Supreme Court suggested
that the Cronic rubric of presumed prejudice is more likely to
be applicable–that is, merely informing the defendant who remains
unresponsive is not enough, an explicit waiver of the right to continue
the not guilty position may have to be made by the client.
The Habeas Court concluded,
In this case there was not only an absence of any explicit and
affirmative waiver by Langston of his right to maintain his innocence
throughout the trial, including closing argument segment, but there is
nothing to indicate that at trial counsel even informed the defendant
that during closing argument he would concede guilt as to one of the
counts.
The Court reversed Mr. Langston’s convictions and remanded for a new trial.
ACOTSOCT Habeas opinion
May 11th
C’mon – keep up with me here. See post below for explanation of acronym in title.
So anyway, Smith v. Comm’r was released today. Petitioner raised claims of ineffective assistance of trial counsel at sentencing, constructive denial of counsel and IA of Habeas counsel.
However, the habeas court had denied certification to appeal, so the first issue was whether that was an abuse of discretion under the Simms standard.
Instead of analyzing only that issue, the Court analyzes the other claims and then comes back to Simms.
U.S. v. Cronic applies to claims of constructive denial of counsel. The Court explained,
In United States v. Cronic, 466 U.S. 648, (1984), the United States Supreme Court recognized a narrow exception to Strickland’s holding. Cronic instructed that a presumption of prejudice applies in certain limited circumstances ‘‘when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance of counsel is so small that a presumption of prejudice is appropriate. . . .’’ Id., 659–60.
The court explained that no showing of prejudice is required when counsel is either totally absent or prevented from assisting the accused during a critical stage in the proceeding, when counsel ‘‘entirely fails to subject the prosecution’s case to meaningful adversarial testing’’ and when a defendant is ‘‘denied the right of effective cross-examination.’’
[sidebar: except in Texas, where it's OK for an attorney to sleep during a trial.]
In this case, however, it was odd that constructive denial was pled, because in a prior habeas, effective assistance was found.
Cronic, however, requires that for a presumption of prejudice to apply, the surrounding circumstances must have "made it so unlikely that any lawyer could provide effective assistance that ineffectiveness was properly presumed without inquiry into actual performance at trial."
The claim of IA(T)C revolved around the failure to call a forensic scientist that founded a drug addict treatment center. There was evidence adduced at the habeas trial that this scientist was reluctant to get involved and that trial counsel "thought she was crazy" and made the tactical decision not to call her.
Words of death for any Habeas claim: "tactical decision". Almost anything can be a tactical decision and anytime an attorney claims that, proving a Habeas claim gets that much more difficult. True to form, the Court rejects this claim.
The claim of IA(H)C revolved around the failure to raise the previous two claims. The Court decided that since it determined the previous two claims had no merit, Habeas counsel could not have been ineffective.
THEN the Court rules that because there are no viable claims for appeal, the Habeas Court did not abuse it’s discretion in denying certification under Simms.
A decision in due course
May 4th
"I will issue a decision in due course" is what the Judge said to me and opposing counsel today at about 4:00pm, thus ending a long week of hard work and an equally long and exhausting trial. Perhaps when an opinion is issued, I’ll provide a link to it.
I know I promised summaries of those Supreme and Appellate Court cases and I will provide them soon.
Anders motions and Habeas appeals
Mar 24th
Since it is late on a Thursday evening before a long weekend and the rest of the blawgosphere seems to be MIA, I’ll take this opportunity to report a Habeas case decided by the CT Appellate Court this week.
Here comes Vazquez v. Commissioner [pdf], released March 29, 2005. This is a highly technical decision regarding the filing of Anders motions when a Habeas petition is appealed.
In Vazquez,
The petitioner filed several habeas petitions in 1996, in which he alleged ineffective assistance of trial counsel on the basis of his acceptance of plea bargains on several separate files. The court, Bishop, J., consolidated the separate petitions into one action in 1997. On April 1, 2002, the respondent filed a motion to dismiss the consolidated habeas petition for lack of subject matter jurisdiction because the sentences underlying the consolidated petition were completed prior to the filing of the original petitions. The habeas court, Fuger, J., granted the respondent’s motion to dismiss, finding that the petitioner was not in state custody on October 26, 1996, when the petitions were filed.
Petitioner was then appointed a special public defender ("SPD"). The SPD then filed a motion for leave to withdraw appearance based on Anders v. California, arguing that there were no non-frivolous issues that she could raise on appeal. Having received her motion, the appellate clerk forwarded it to the Habeas judge.
On April 7, 2004, the habeas court, Fuger, J., issued an order. The court stated in its order that, in accordance with Franko v. Bronson, supra, 19 Conn. App. 692–93, Steele’s motion for leave to withdraw appearance was referred by the presiding judge to the court for a determination of whether it improvidently had
granted the petition for certification. The court further stated that, having reviewed the matter, it now found that the petition for certification was granted improvidently and vacated the order granting the petition for certification. The court did not act on Steele’s motion for leave to withdraw appearance.
The Habeas court’s action was based on Franko v. Bronson, 19 Conn. App. 686 (1989). However, because of the Supreme Court’s decisions in Simms v. Warden, 229 Conn. 178 (1994), and Simms v. Warden, 230 Conn. 608 (1994), some of the procedures established in Franko are no longer viable. The Habeas court did not rule on the SPD’s motion to withdraw based on the practice book, but rather relying on Franko reversed it’s own granting of certification to appeal.
We held in Franko that the habeas court is in the best position to make an Anders determination, and we set out a procedure whereby the motion for leave to withdraw appearance is sent to the presiding judge in the habeas court for a determination of whether there is a nonfrivolous issue. Pursuant to that procedure, if the presiding judge determines that there is a nonfrivolous issue, the court may allow counsel to withdraw and appoint new counsel or it may order counsel of record to proceed. If the presiding judge finds, however, that there is no nonfrivolous issue presented on appeal, then the matter is to be referred to the judge who granted the petition for certification to appeal for reconsideration of whether certification should have been granted. If that judge, on reconsideration, determines that certification was granted improvidently, then the court should vacate the prior order of certification and notify the clerk of this court. Upon such notification, this court would then dismiss the appeal for lack of subject matter jurisdiction.
So basically under Franko, a reversal of the granting of certification would have been the appropriate procedure to follow, thereby invalidating the appeal. However, in Simms v. Warden, the Supreme Court stated that denial of certification to appeal didn’t dismiss the appeal, it merely required that the first issue to be raised on appeal was whether the denial was an abuse of discretion.
In the present case, the habeas court’s decision vacating its order granting certification to appeal resulted in a situation in which the motion for leave to withdraw appearance filed by counsel for the petitioner was not acted on. Counsel was left with an obligation to represent the petitioner with the added burden of briefing the threshold issue that the trial court had abused its discretion in denying certification to appeal when counsel already had determined that there were no nonfrivolous issues to raise on appeal.
The Court held that Franko was now overruled by Simms and the procedure to be followed was first to decide the Anders motion and if found valid, refuse appointment of new counsel.
Another Habeas granted! The fun just continues
Mar 17th
In severely shocking news yesterday, the Appellate Court issued an opinion reversing the Habeas court’s dismissal of a petition, and thereby granting the Habeas! Gadzooks! Are we in bizzaro-world?
In Clark v. Commissioner [pdf], the Petitioner filed a petition for a writ of habeas corpus in which he claimed that, because he is not a fugitive from justice, the respondent, the
commissioner of correction, is illegally retaining the petitioner in his custody. Petitioner claimed he was not a fugitive from justice because he was involuntarily extradited from Texas.
In pursuit of his request for extradition in the present case, the governor of Texas sent to [CT's] governor a written demand, dated April 17, 2003, for the extradition of the petitioner. See General Statutes § 54-157 et seq. In accordance with General Statutes § 54-159, the extradition demand stated that the petitioner had been charged with the commission of a crime in the state of Texas, "was present in [Texas] at the time of the commission of said crime," "thereafter fled from the justice of [Texas]," and had taken refuge in Connecticut. The extradition demand consistently referred to the petitioner as a "fugitive." In response, on April 29, 2003, our governor exercised his power, pursuant to General Statutes § 54-163, to issue a warrant for the arrest of the petitioner. The petitioner was arrested on May 2, 2003.
The issue in this case boiled down to whether Petitioner was a fugitive from justice. Both parties agreed that if Petitioner were a fugitive from justice, then the extradition would be legal and vice-versa. The rest of the decision is rather technical and deals with whether C.G.S 54-161 (return to this state of person imprisoned or held in another state) overruled Moulthrope v. Matus, 139 Conn. 272 (holding that a person extradited involuntarily could be considered a fugitive under common law). Needless to say, the Court holds that the extradition, being involuntary, does not make him a fugitive and therefore the extradition demand was invalid.
For those trying to get a good grasp on the extradition statutes of CT, I’d recommend reading this case because it goes into depth, exploring the statutes and similar statutes in other states.
Ineffective Assistance of Counsel claim prevails! Finally!
Mar 15th
One thing I did want to comment on (since it is a little close to home) is a decision handed down on February 24, 2005 by Judge Kaplan in the Judicial District of Tolland, reported today by the Law Tribune, granting a habeas petition. You have to understand how rare this occurrence is. Maybe 1 out of 100 habeas petitions are granted. Hence the shamelessly stolen title.
In Arrington v. State (State, not Warden, because Arrington was out on an appeal bond), the petitioner was convicted of negligent homicide with a motor vehicle [C.G.S. 14-222a] and sentenced to 6 months suspended after 60 days. The Petitioner claimed that his trial attorney failed to investigate his defense and failed to call two eyewitnesses that would have supported his defense.
Arrington was driving on a highway in a white tractor cab without the trailer attached. The state claimed that he veered into the right lane without signaling, causing the driver of an SUV in that lane to swerve toward the breakdown lane to avoid a collision. The driver of the SUV lost control of the vehicle, which rolled down an embankment, ejecting and killing the driver.
At Arrington’s criminal trial, only two eyewitnesses testified. One was the decedent’s passenger (and sister). The other was the driver who pursued Arrington and got his plate number. Both witnesses identified a photo of Arrington’s white cab as the vehicle that caused the accident. Arrington did not testify.
Two other eyewitnesses gave written statements to Trooper Henry Arroyo. One said that he didn’t see the vehicle that veered into the decedent’s lane; he only heard a car horn. But the other witness, Barbara Raven, wrote that she observed a “big white 18 wheeler” veer into the right lane. Although the trooper testified that Raven told him several months later that she saw a tractor without a trailer, Griffin never spoke with her or investigated further. Neither side called Raven to testify at the criminal trial.
Judge Kaplan held that this failure to call the two potentially exculpatory witnesses was deficient performance by his trial attorney and the testimony of these eyewitness would have cast reasonable doubt on the guilt of Arrington. So he granted the habeas and ordered a new trial.
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