Posts tagged habeas
Sizzle turns to fizzle (Supreme Court ARO 11/9/07)
Nov 9th
When I got to work this morning and followed my daily routine of checking the judicial branch website to see if there were any opinions being issued today, I was excited. Giddy, even. (Get it? Giddy…)
The Supreme Court had decided to release opinions in three very, very interesting cases. As luck would have it, the opinions were extremely anti-climactic. Nothing in any of these opinions was of substantive value. *grumble* *grumble*
The first, State v. Khadijah, was the appeal from the reversal by the appellate court of the defendant’s conviction. The defendant was convicted of failure to appear, because, after returning from work at 8am, she had fallen asleep on the couch and her boyfriend had forgotten to wake her up in time. The appellate court found that the evidence was insufficient to sustain the conviction on the “willful” element of the charge. The Supreme Court dismissed the State’s appeal on the grounds that cert had been improvidently granted.
Next up, Porter v. Commissioner, was also dismissed on the grounds that cert had been improvidently granted. Porter appealed from the Appellate Court’s denial of his appeal. The appellate court had concluded that the habeas court did not abuse its discretion in denying certification to appeal. Mr. Porter claimed that his appellate counsel was ineffective for not raising the issue of instructional error (which issue was not reached on his direct appeal because it was not adequately briefed – as found by the same appellate court). Nope, no good.
Finally we come to Taylor v. Commissioner. The petitioner claimed that his plea was involuntary. The habeas court denied the petition and denied certification to appeal. On appeal, the appellate court remanded to the habeas court with an order to make findings on whether petitioner had proven cause and prejudice which excused his procedural default. The State appealed, saying that the appellate court improperly found that the habeas court had abused its discretion in denying certification. It was an interesting issue because the appellate court had ruled that if there is no evidence on the record of cause and prejudice, then it can find so, but if there is evidence of cause and prejudice and there is no finding, then it must remand for the habeas court to make that finding. Unfortunately, we got no guidance, because the Supreme Court agreed with the State that the appellate court incorrectly found that the habeas court had abused its discretion in denying certification to appeal. So boo.
Skakel files federal habeas
Nov 7th
After being denied a new trial in State court, Michael Skakel is now going straight to federal court. His attorneys filed a petition for writ of habeas corpus (not petition for new trial as the Courant first reported), raising essentially the same failed claims from his direct appeal to the Connecticut Supreme Court.
I’m not sure if this means that he is forgoing an appeal from the denial of petition for new trial, but it does almost certainly mean that no IAC claim will be raised in federal court. That will surely come in state court, but further down the line.
Again I am a little surprised as to why they chose to go this route, as with the petition for new trial. Perhaps his one year was almost up.
Either way, I think Skakel’s best bet is the IAC claim against “Mickey” Sherman.
Crack is not pot, dammit (Appellate Court ARO 10/31/07).
Oct 31st
You’d think that this would be an easy one. However, 50% of the judges that looked at this case disagreed. Luckily one of those was the trial judge, so the 3-judge panel of the Appellate Court overturned the conviction.
In State v. Browne [pdf], the defendant argued that his conviction should be overturned because the search warrant was not valid. In the specificity portion of the warrant, the items sought were listed as “cocaine, crack cocaine”, but the cops seized marijuana and Browne was convicted of possession of marijuana.
The cop that prepared the warrant testified that the reason he entered cocaine instead of marijuana (which was the focus of the investigation all along) was that he cut and pasted from another warrant and left it in. Apparently, only the mouse was working on his computer.
The Court doesn’t buy this and says particularity means particularity:
This argument was addressed in the recent United States Supreme Court case of Groh v. Ramirez, 540 U.S. 551, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004). In Groh, the court held: “The fact that the application adequately described the ‘things to be seized’ does not save the warrant from its facial invalidity. The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents. See Massachusetts v. Sheppard, 468 U.S. 981, 988, n.5 [104 S. Ct. 3424, 82 L. Ed. 2d 737] (1984) (‘[A] warrant that fails to conform to the particularity requirement of the Fourth Amendment is unconstitutional’)
Obviously, since this is a reversal of a conviction, there has to be a dissent [pdf].
There’s also a pretty summary disposal of a habeas appeal, some constancy claims from a child sex assault conviction that are handily dismissed and this last one that holds that evidence of unemployment is admissible as motive for robbery (and then the usual: even if it was prejudicial, it was harmless. I really hate harmless error. Hate.)
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Thoughts on the Genarlow Wilson decision
Oct 26th
In the end, the Georgia Supreme Court achieved the correct result. In a 4-3 opinion [pdf - make sure you read both the majority and the dissent] issued today, it found Genarlow Wilson’s 10 year sentence to be “cruel and unusual punishment” for the crime of which he was convicted. However, I’m not sure this majority opinion is that sound or has any precedential value whatsoever.
Specifically, I’m not sure that its distinguishment of Widner [pdf] is appropriate. The Court says that the main reason Widner is distinguishable (in Widner, the defendant was 18 and the “victim” was a few days shy of 14) is because the legislative change that altered the punishment for Genarlow did not do so for Widner.
What troubles me about this is that the Court seems to take its cues on the “evolving standard of decency” from legislative acts. While it expressly disavows that contention, nothing else in the opinion seems to support that notion. The court is essentially saying that a 10 year sentence for consensual oral sex between a 17 year old and a 15 year old is “cruel and unusual”, but it is okay if the actors are 18 and 14, because the legislature didn’t want to change that.
The Court doesn’t provide much by way of support for the evolving standard argument. It cites statutes from sister states that don’t punish the same conduct to this extent, but as far as I could see, there was no discussion of when those statutes were enacted or how long they were in effect. It then discusses Georgia statutes for seemingly far worse crimes but with far less punishment, but I don’t think it’s very instructive to compare manslaughter to consensual oral sex. Could that argument then be applied to larcenies as well?
The Court also dismisses that dissent’s contention that this opinion would have implications for several other defendants. It emphasizes that this is a very limited factual scenario they are dealing with.
It seems to me to be a very result oriented decision (and they got the result right), but whether it would stand up to SCOTUS scrutiny is beyond me. Thankfully, the AG seems willing to accept the Court’s decision and doesn’t seem like he will appeal.
Other blog coverage: from SL & P (here and here) and MUCH more here (and in the comments), Volokh, ConcurringOpinions and OfCounsel. My prior coverage :
Skakel petition denied; should he have gone straight to habeas?
Oct 25th
Judge Karazin today issued his Memorandum of Decision [pdf] denying Michael Skakel’s petition for new trial, holding that most of what Skakel based his claims on was not newly discovered evidence.
Skakel sought a new trial based on Gitano “Tony” Bryant’s claim that his two friends told him they got Moxley “caveman style.” Bryant and Skakel attended the same private school.
Karazin wrote in his ruling that Bryant’s statements were admissible, but not credible.
“The corroboration for Bryant’s claim is minimal,” he wrote. “No one has any recall of ever seeing Bryant and his companions in Belle Haven on the night of the murder.”
“The testimony of Bryant is absent any corroboration,” Karazin wrote. “It lacks credibility, and therefore would not produce a different result in a new trial.”
He also claimed that there were three newly discovered witnesses that undermined and directly contradicted the testimony of the state’s “star” witness: Gregory Coleman. Coleman had testified that Skakel confessed to him when they were in private school together. These three witnesses would have testified that Skakel did not confess.
Judge Karazin ruled, however, that these three witnesses could have been discovered prior to trial with due diligence. There’s more:
Karazin said [trial attorney Michael "Mickey"] Sherman did not ask for a ruling during the trial about [state inspector] Garr’s book deal, calling the move “either a lack of due diligence or a strategic decision.”
Skakel’s attorneys also said the state failed to hand over reports on other suspects and a sketch that they said resembled an early suspect.
But Karazin noted that the state Supreme Court found that Skakel’s defense was aware of the reports and the sketch during the trial, but failed to make a timely request for them.
So this brings me to my second thought. Judge Karazin’s description of several of the claims raised by Skakel made some habeas petitions I’ve seen seem meritorious. An appeal, probably forthcoming, seems unlikely to result in a reversal of Judge Karazin’s ruling.
On the other hand, there seems to be plenty of evidence that Mickey Sherman was pretty ineffective in representing Skakel. So why not go straight to the habeas corpus court one might wonder.
I think it might have something to do with getting yet another court to document the shortcomings of Mickey Sherman’s representation of Skakel. Clearly, it is a topic of discussion in news reports.
This strategy (if indeed it is a strategy) carries some pitfalls, though. Like yesterday’s opinion from the Appellate Court and a few lines from Judge Karazin’s decision, there is always the (great) likelihood that such a court would include throwaway statements that effectively preclude habeas relief. The appellate courts are only too happy to do that: “Cumulative”; “wouldn’t have made a difference”; “evidence was extremely strong”; “harmless error” are some examples.
Judge Karazin uses a few: “admissible but not credible”and “lack of due diligence or tactical decision”.
All in all, I think Skakel might have been better served by filing a petition for Writ of Habeas Corpus instead of the petition for new trial, but I’m just me and that’s why they pay Santos & Seeley the big bucks.
Appellate Court ARO 10/24/07
Oct 24th
The Appellate Court released two criminal opinions (yes, they are criminal!) today. In State v. Mourning [pdf], they upheld the defendant’s convictions for conspiracy to commit murder, manslaughter and possession of a firearm.
Two interesting issues raised on appeal were that 1) there was insufficient evidence to prove the conspiracy and 2) the jury’s verdicts on manslaughter and conspiracy to commit murder were legally inconsistent. The court quickly dismissed the insufficiency claim, holding that there was plenty for the jury to conclude as it did. On the inconsistency argument, the appellate court conceded that the specific intent required for each was different. However, it then pointed to appellate precedent to claim that it didn’t mean they were mutually exclusive. The defendant claimed that where, as in this case, the “act” was a single gunshot, you cannot have two separate intents. With the same gunshot, you cannot intend to kill the victim and seriously injure him.
No dice, says the appellate court, seemingly saying that one is a lesser of the other. I think they’re plain wrong.
There is also an interesting confrontation issue, involving an inmate who claimed he had seen the shooting. The inmate provided a statement, but prior to testifying, invoked his fifth-amendment privilege. The appellate court held that the claim was unpreserved because defense counsel did not pursue the offer of proof. Habeas alert!
Oh wait, no. The court seems to kill any habeas claim by stating that it’s possible that this inmate’s testimony was cumulative, which is why his statement was not admitted by the trial court.
I hate when they do that.
On to the next: State v. Moreno-Cuevas. Here, the defendant- who appeared pro-se – raised some vague claim of constitutional error in addition to prosecutorial and judicial misconduct impropriety. He was convicted of trespass because he chose to remain on campus at his university well past the 10pm limit that was imposed. The Court says there isn’t an “inkling” of a Constitutional claim here. Goodbye.
By the way, if you’re a PD in Connecticut, after you read this, you better go to New Case News and read a fuller synopsis.
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Rewind: The maelstrom that is cover your ass-ery
Sep 3rd
Ah, just one glorious day before Gideon returns to the Constitution State to resume blogging duties. With the trip coming to a close, it’s a good idea to remind ourselves of our ethical duties. So here’s the most commented post at “a public defender”:
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My post two days ago about the appropriateness of comments made to the media has sparked intense discussion in the comments here and in posts from Scott and the Texan.
Let’s take Mark’s post first. He writes:
Let me be the dissenting voice here. Scott is wrong. Miranda is way wrong. I’ve written about this before — it’s a common ethical violation.
Everything I tell my client is privileged. The fact that I have discussed a plea offer with my client is privileged. The advice that I gave him regarding that offer is way privileged.
As Scott does, I disagree with Mark. It’s not that “this is how it has always been done”, but that it’s not privileged at all. It does not require disclosing the content of anything conversation, but simply the fact that you have discussed it with the client (which is an ethical obligation in of itself). Taking Mark’s position a little bit further, he is then implying that parts of the Boykin canvass are unethical. What’s the difference between stating on the record: “I have discussed the State’s offer with my client and advised him of the consequences of the plea and he has decided to accept/reject the offer” and responding to the Judge’s question during a canvass: “Have you discussed [insert any of the requirements of a valid plea here] with your client?”
Scott and Mark then misinterpret certain comments made by me and Miranda. First Mark writes:
If you want to make a record to prevent your client from having a chance of prevailing on a writ of habeas corpus, first ask yourself whether it is for your own sake or for his. Then, if you think that there is no conceivable way your client will suffer because you make a record, don’t do it publicly. Do it privately — in a letter to the client, with a copy to your file. Nobody but you and the client needs to know.
Scott follows up with:
But let’s turn to the really fascinating aspect of this debate, Miranda’s position that a lawyer’s CYA statement, in anticipation of a writ of habeas corpus or ineffective assistance of counsel (IAC) claim, justifies doing SOMETHING to protect the lawyer. I feel confident that Mark and I will agree that this is blasphemy.
What smacked me upside the head was Miranda’s, and to some extent Gid’s, suggestion that lawyers should engage in defensive lawyering for fear of an IAC claim. Why? If a defendant later claims that you failed to represent him adequately, so what? Will you melt? Will your self-esteem crumble? Will your friends and neighbors shun you? Who cares?
We’re not suggesting that you do this to protect yourself from a future IAC claim; rather that it is good practice (and we’d prefer) that the record be clear. Clients, in habeas petitions, claim all sorts of things. If the lawyer doesn’t do a good job of peppering the file with memos and correspondence (with many do not) and if the record isn’t clear as to what the client was advised of, then it is unimaginably difficult, given the high IAC standard, to determine what is a viable claim and what is not.
Imagine the scenario where the attorney does not state on the record whether he has discussed the state’s offer with the client. The transcript referencing the rejection of the offer is one of a court appearance where a continuance was sought and the judge opens the proceedings by saying simply: “I have been informed that the offer has been rejected. This matter is placed on the trial list. Continued to xx/xx”.
The client then claims that he was never informed of this offer and thus could not have rejected it.
How easy would it be for an unethical lawyer to simply show up for the habeas trial, get on the stand and say: “Oh I discussed it.”
Who is the habeas court going to believe?
It is to protect the client that we are recommending making complete records.
The impact of AEDPA
Aug 21st
A groundbreaking study was released today, examining the impact of AEDPA on Federal Habeas Corpus petitions. The executive summary is here and the full report is here [both are .pdf files]. From the press release:
Before the 1996 law, known as the Anti-terrorism and Effective Death Penalty Act or “AEDPA,” federal courts granted a writ of habeas corpus to a state prisoner in about one of every 100 non-capital cases filed. A writ of habeas corpus is a mandate from a court to a prison official ordering that an inmate be be released from custody, re-sentenced, or retried. King’s research found that after the new law was enacted, the grant rate was closer to one in every 300 cases.
“More than one in every five of these cases was dismissed because the prisoner missed the new filing deadline,” said King.
The study also found a federal court was much more likely to overturn the conviction or sentence of an inmate on death row compared to other prisoners. King found that in the capital cases that had reached conclusion in federal court by the study’s end, one of every eight death sentences was invalidated.
Congress hoped to speed up federal habeas review when it amended the habeas law in 1996, but this new research found that habeas cases now take longer to finish. King said one of every four cases filed by death row inmates between 2000 and 2002 had not been resolved by the end of November 2006.
Sleeping lawyers: Not just in Texas
Aug 21st
We all know the story of the Texas lawyer who fell asleep during a capital trial, but now Scott points to one in New York. Unfortunately, as was the case with the Texas appeal, the court in NY also found that it was not ineffective, because, in essence, the lawyer did some “lawyering”.
Here’s another *ahem* reason the petition was denied: the judge that heard the petition for a new trial was the same judge that presided over the trial itself.
Scott does a good job, as usual, of pointing out how stupid this decision is, but misses one important question: What was the same judge doing hearing the petition for a new trial? If the defendant had filed a petition for writ of habeas corpus, the judge should have recused herself. Precisely for the reason that no judge will admit that there was a sleeping lawyer in the courtroom and they did not catch it, should this judge have not been presiding over this hearing.
I don’t know much about the NY post-conviction process, so maybe someone can clue me in. Was this a petition for writ of habeas corpus? If not, is that available to this defendant?
Either way, judges do the darnest things.
The maelstrom that is cover your ass-ery
Aug 16th
My post two days ago about the appropriateness of comments made to the media has sparked intense discussion in the comments here and in posts from Scott and the Texan.
Let’s take Mark’s post first. He writes:
Let me be the dissenting voice here. Scott is wrong. Miranda is way wrong. I’ve written about this before — it’s a common ethical violation.
Everything I tell my client is privileged. The fact that I have discussed a plea offer with my client is privileged. The advice that I gave him regarding that offer is way privileged.
As Scott does, I disagree with Mark. It’s not that “this is how it has always been done”, but that it’s not privileged at all. It does not require disclosing the content of anything conversation, but simply the fact that you have discussed it with the client (which is an ethical obligation in of itself). Taking Mark’s position a little bit further, he is then implying that parts of the Boykin canvass are unethical. What’s the difference between stating on the record: “I have discussed the State’s offer with my client and advised him of the consequences of the plea and he has decided to accept/reject the offer” and responding to the Judge’s question during a canvass: “Have you discussed [insert any of the requirements of a valid plea here] with your client?”
Scott and Mark then misinterpret certain comments made by me and Miranda. First Mark writes:
If you want to make a record to prevent your client from having a chance of prevailing on a writ of habeas corpus, first ask yourself whether it is for your own sake or for his. Then, if you think that there is no conceivable way your client will suffer because you make a record, don’t do it publicly. Do it privately — in a letter to the client, with a copy to your file. Nobody but you and the client needs to know.
Scott follows up with:
But let’s turn to the really fascinating aspect of this debate, Miranda’s position that a lawyer’s CYA statement, in anticipation of a writ of habeas corpus or ineffective assistance of counsel (IAC) claim, justifies doing SOMETHING to protect the lawyer. I feel confident that Mark and I will agree that this is blasphemy.
What smacked me upside the head was Miranda’s, and to some extent Gid’s, suggestion that lawyers should engage in defensive lawyering for fear of an IAC claim. Why? If a defendant later claims that you failed to represent him adequately, so what? Will you melt? Will your self-esteem crumble? Will your friends and neighbors shun you? Who cares?
We’re not suggesting that you do this to protect yourself from a future IAC claim; rather that it is good practice (and we’d prefer) that the record be clear. Clients, in habeas petitions, claim all sorts of things. If the lawyer doesn’t do a good job of peppering the file with memos and correspondence (with many do not) and if the record isn’t clear as to what the client was advised of, then it is unimaginably difficult, given the high IAC standard, to determine what is a viable claim and what is not.
Imagine the scenario where the attorney does not state on the record whether he has discussed the state’s offer with the client. The transcript referencing the rejection of the offer is one of a court appearance where a continuance was sought and the judge opens the proceedings by saying simply: “I have been informed that the offer has been rejected. This matter is placed on the trial list. Continued to xx/xx”.
The client then claims that he was never informed of this offer and thus could not have rejected it.
How easy would it be for an unethical lawyer to simply show up for the habeas trial, get on the stand and say: “Oh I discussed it.”
Who is the habeas court going to believe?
It is to protect the client that we are recommending making complete records.
Cover your ass-ery
Aug 14th
Update 2: For those who don’t want to read the comments (shame on you!), here’s my follow up post.
Is the only thing that can explain the following comment to the press by a lawyer about his client:
Reyes’ attorney, William Gerace, said that the private company’s results were also a match. Gerace said that Reyes’ decision to not accept a plea deal of 15 years is a bad one.
“He’s being very foolish in my view. He was given a plea bargain that’s not a lenient plea bargain, but under the circumstance, if he goes to trial, he will get a lot more,” Gerace said.
Gerace said the evidence against his client is too strong and that if there is a trial, Reyes could go to prison for more than 20 years.
Update: The news story linked to above leads one to believe that these statements were said to the press, but it is not explicit in that regard. However, the video that accompanies the story has a clip of Attorney Gerace speaking to the media and this Courant story also clarifies that these comments were indeed to the press.
Miranda, in the comments below, raises an interesting question: Is it useful, or shall we say not despicable, for an attorney to make a limited statement on the record reflecting that after being advised by counsel, the client has decided to reject the offer?
Looking at this from a future habeas perspective, Attorney Gerace will certainly be safe from claims that he did not adequately convey the state’s offer to him, but what of a general ineffectiveness claim? Do these comments hurt his client? Would they not support a claim that he was pressured into taking a plea agreement or that his attorney failed to adequately represent him and conduct an investigation into his defense, supported by his comments to the press acknowledging his client’s guilt and his desire to have him plead guilty?
Scott weighs in on this topic as well
Tough on crime: At what cost?
Aug 7th
As the two Cheshire suspects make their first appearance in Part A today and as calls for tougher penalties and stricter parole regulations make the rounds, it is important to remind ourselves of the cost that comes with being “tough on crime”. For those who have been around long enough, this smacks of the measures taken by the state in the 80s. The Waterbury Republican-American has this detailed story on the costs involved and the consequences on the state’s budget:
While people still mourn the dead and seethe over crime, there has been little discussion of the costs and consequences of getting tougher on crime and criminals.
Yet, the price tag and the implications are considerable.
“To be sure, every citizen must understand that major changes, whether in longer sentences or more monitoring, comes with a price tag. A big one. Potentially hundreds of millions of tax dollars,” House Speaker James A. Amann, D-Milford, said.
In the early 80′s, Connecticut eliminated parole and changed the state’s sentencing structure, going from indeterminate sentences to definite sentences. This led to significant overcrowding and a massive expansion of prisons in Connecticut.
Habeas petition denied; makes newspaper; newspaper uses wrong terms
Aug 3rd
That a Petition for Writ of Habeas Corpus was denied is not news – it is to be expected – but that it made this morning’s Courant is certainly news.
Richard Lapointe, convicted 20 years ago of killing his wife’s grandmother, will not get a new trial.
In a written decision in Rockville Thursday, Superior Court Judge Stanley T. Fuger denied the request for a new trial, which means Lapointe will remain behind bars for life, plus 60 years, without the possibility of parole.
Fuger said the evidence put forward by Lapointe’s attorney was much like his 83-page petition – “exceeding in extraneous detail, yet lacking in key substance.” And more than one-third of the 177 exhibits presented at a hearing July 16-20 for a new trial were completely irrelevant to the case.
Okay, this really irks me. It isn’t a hearing for a new trial. It is a hearing on a Petition for Writ of Habeas Corpus. How hard is it to get the story straight? Yes, that’s the eventual result, in that if the conviction is found to be unconstitutional as a result of a violation of the Sixth Amendment guarantee of effective assistance of counsel, then the remedy is a new trial, but this is not a petition for a new trial. [Jamie Spencer expressed the same frustration with incorrect reporting a few weeks ago.]
To get Lapointe’s case heard, [his lawyer] Casteleiro had to prove that Lapointe’s counsel was ineffective during his original trial and in his bid for a new trial, which meant he had to prove that Lapointe’s counsel’s errors were so serious that he was deprived of a fair trial.
I guess that’s what he had to prove, but this shorthand seems quite inadequate. What he had to prove was that the trial attorney’s performance was below the standard of a reasonably competent criminal defense lawyer and that but for his deficient performance, the outcome would have been different (he would have been acquitted).
See? That wasn’t hard. Sixth Amendment jurisprudence 101.
State and federal Habeas Corpus resource page
Jul 11th
For those interested, the Yale Law Library has compiled this resource page for CT and Federal Habeas Corpus resources.
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