Posts tagged habeas
Glenarlow Wilson turns down ambiguous plea offer
Jun 30th
Glenarlow Wilson [previous coverage here and here] has rejected a plea offer from the State.
The Douglas County man imprisoned for having oral sex with a 15-year-old girl when he was 17, has turned down a plea deal a prosecutor offered in writing this week, his attorney said Friday.
B.J. Bernstein said Genarlow Wilson won’t accept the deal offered by Douglas County District Attorney David McDade because it would require him to plead guilty to a felony with a 15-year sentence and serve five years in prison.
Bernstein pointed out that a Monroe County judge granted her appeal this month, changed Wilson’s conviction to a misdemeanor and ordered him freed from prison. Attorney General Thurbert Baker, however, is appealing that judge’s ruling to the Georgia Supreme Court.
Bernstein is also concerned that Wilson would be forced to register as a sex offender under the deal, despite McDade’s contention that he could plead to an offense that does not normally require registration.
The plea deal itself is a little ambiguous or mysterious, if you prefer:
McDade spelled out his plea deal in a letter to Bernstein’s co-counsel, Rodney Zell, Monday. In the letter, McDade offers to let Wilson plead to a felony “that reflects his criminal actions with the victim in this case.”
McDade, however, does not identify possible charges. But he says Wilson could plead guilty to an offense that does not normally require sex offender registration, which has been one of the main sticking points in the case.
A series of court decisions and legislative actions, however, make it unclear whether Wilson can avoid registering as a sex offender regardless of the plea deal, said Mark Jackson, director of legal services for the Georgia Bureau of Investigation.
McDade said his offer would also let Wilson get credit for the time he has already served in prison and that he would not oppose parole for him.
HT: Audacity
Technorati Tags: glenarlow wilson
Isn’t it about the client?
Jun 12th
Mark Bennett touches upon another pet peeve of mine: the elusive client file. Mark writes,
About a month ago a man hired me to replace his previous lawyer on his felony. I drew up a motion to substitute counsel, go the client’s signature on it, and sent it to the former lawyer along with a letter requesting that he sign the motion and return it to me along with the client’s entire file “so that I [could] continue my trial preparation from where [he] left off.”
He signed the motion and returned it to me within four days, but did not send me his file. I called and talked to him, and he promised to send me the file, but still did not do so. I called him again, and he promised it on a specific day. That day has come and gone, trial is coming up quickly, and I still have no way of knowing what work, if any, the previous lawyer did (operating under the assumption that the answer is “none,” I’m doing everything that should have been done by him six months ago). I have asked the previous lawyer several more times for the file and had no further response.
Seriously. What’s up with that? I’ve run across the same problem. I request predecessor counsel’s file and it never arrives. At least Mark got to speak to the other attorney. There are times when I get no response. Nothing. Letters are written, calls are made, motions are threatened and yet nothing.
Equally bad are those that claim the files are “lost” in a “flood” or “stolen from storage”. At least those give me a chuckle.
Hello. Criminal defense bar. It isn’t about you. It is about the client. You know, the guy charged with a crime? Now I’m not saying the whole bar is guilty of this. For sure, there are plenty of attorneys that promptly turn over the file, readily admit their mistakes and are eager to assist in the defense of the client (or in habeas corpus claims). But there is a certain percentage that views any effort by a former client to secure his liberty an affront to their lawyering ability. I’d rather it never come to this. If we all did our jobs perfectly the first time, these situations would never arise. We are all human, however, and being human presupposes that we will make errors. Our clients should not suffer because of that.
HT: CDW
[This post is one in a series of ongoing posts I have conceitedly titled "psa". To read the rest of the posts, click on the "psa" category link below.]
4th Circuit’s grant in Al-Marri
Jun 12th
Of course, the other big news yesterday was the 4th Circuit’s (!) grant of a habeas corpus petition in Al-Marri v. Wright [pdf]. The basics:
In a sharp rebuke to the Bush administration’s detention policies, a federal appeals court ruled Monday that the government cannot continue to hold a U.S. resident — a suspected Al Qaeda sleeper agent arrested in Peoria in late 2001 — without filing charges against him.
The 2-1 decision by a 4th U.S. Circuit Court of Appeals panel in Richmond, Va., means the government must release Ali Saleh Kahlah al-Marri, a legal U.S. resident, from military custody and either charge him in the criminal justice system, deport him or free him.
The blogosphere has plenty of coverage on this and I will be back later with more, once I’ve had a chance to digest the opinion. From the little I’ve read since yesterday, there are some choice quotes.
Here is Scotusblog’s fantastic analysis.
“The President cannot eliminate constitutional protections with the stroke of a pen by proclaiming a civilian, even a criminal civilian, an enemy combatant subject to indefinite military detention,” the Court said.
The Fourth Circuit panel majority ruled that Congress has not taken away the legal right of Ali Saleh Kahlah al-Marri to challenge his detention, thus limiting the reach of the Military Commissions Act’s court-stripping provisions. “As an alien captured and detained within the United States,” the Court said, “he has a right to habeas corpus protected by the Constitution’s Suspension Clause.” The Court said, though, that it was avoiding “difficult constitutional questions” about the MCA’s court-stripping provision, finding that it could interpret the MCA to stay clear of those issues. It found that the MCA withdraws habeas only for those properly detained as enemy combatants, and it ruled that al-Marri’s detention did not meet that test because of the lack of presidential authority.
Here is Volokh’s coverage.
The Government will seek en banc review by a full panel of the 4th Circuit.
Glenarlow Wilson wins state Habeas and State appeals
Jun 11th
Update: The State has appealed the grant of the habeas corpus petition. Several commenters (here and around the blogosphere) wonder why. The CNN article provides some clues:
In a written statement, Georgia Attorney General Thurbert Baker said he filed the appeal to resolve “clearly erroneous legal issues,” saying that while the judge did have the authority to grant habeas relief, he did not have the authority “to reduce or modify the judgment of the trial court.”
That’s exactly why I thought they were appealing (see comments below). I haven’t dealt with habeas trials where the claim raised was an 8th Amendment claim, so this particular remedy might be appropriate (maybe CDW has some input). However, in the context of your regular habeas petition claims, the remedy is usually to vacate the conviction and return the case to the trial docket. In the limited circumstance of breach of plea agreement (Santobello v. New York) claims, specific performance may be ordered by a court, but that clearly isn’t the case here.
In addition, I think the State doesn’t want to leave this opinion out there to serve as precedent for future habeas petitions.
Original: Glenarlow Wilson’s (previous coverage here) state petition for a Writ of Habeas Corpus was granted today, on the grounds that his sentence was “cruel and unusual” (he was sentenced to 1o years and life-time sex offender registration). The Habeas judge instead imposed a sentence of 12 months to serve.
Judge Wilson agreed the 10-year prison sentence “would be viewed by society as ‘cruel and unusual’ in the Constitutional sense of disproportionality.”
“The fact that Genarlow Wilson has spent two years in prison for what is now classified as a misdemeanor… and will spend eight more years in prison is a grave miscarriage of justice,” Wilson wrote in his order, which was released this morning.
“If any case fits into the definitive limits of a miscarriage of justice, surely this case does.”
Wilson added, “If this court, or any court, cannot recognize the injustice of what has occurred here, then our court system has lost sight of the goal our judicial system has always strived to accomplish… Justice being served in a fair and equal matter.”
While Wilson should be released within 48 hours, it is more likely than not that the released will be stayed pending an appeal by the State.
So what happened to the death penalty bill?
Jun 10th
For those interested, I promised to answer this question over the weekend. Here’s the answer: It got screwed.
The bill was HB 7365 – An Act Concerning the Procedure in a Capital Felony Trial. The provisions were that if a death penalty jury was deadlocked on the punishment to be imposed, the jury would be discharged and the judge would impose LWOP. It was voted out of the Judiciary Committee and then things started going downhill. Among other things, I wanted to point out this amendment that was proposed:
(a) any person convicted of a capital felony and sentenced to death who takes a direct appeal of such conviction to the Supreme Court shall file such appeal not later than twenty-one days after imposition of sentence.
(b) The defendant’s briefs and the state’s briefs shall be filed in accordance with a schedule that will ensure that all briefs are filed not later than four months after the date of the imposition of sentence.
(c) The Supreme Court shall schedule oral argument not later than six months after the date of the imposition of sentence.
This amendment called for oral argument in a death penalty case within six months of the imposition of the sentence. This would have been a logistical nightmare. I’m not sure transcripts would be ready in 6 months, let alone the four month limit for filing the briefs.
It also affected the timeline for filing a Petition for Writ of Habeas Corpus:
(a) An application for a writ of habeas corpus challenging a capital felony conviction or the imposition of a sentence of death shall be brought not later than one hundred eighty days after the date of the imposition of such sentence. Such application shall fully plead all cognizable claims that the defendant’s conviction or sentence was entered in violation of the Constitution or laws of the state or the Constitution of the United States.
(b) Notwithstanding the provisions of subsection (a) of this section, the filing of a subsequent application for a writ of habeas corpus shall not be barred if (1) the facts underlying the claim were unknown to the defendant or the defendant’s attorney and could not have been ascertained by the exercise of due diligence prior to the filing of the earlier application, and (2) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would have reasonably led the original trier of fact to have either found the defendant not guilty or not sentence the defendant to death. The court shall hold a hearing on such subsequent application not later than one hundred eighty days after the filing of such application.
Anyone that practices Habeas law will tell you that filing an Amended Petition in a regular felony trial case within six months is a tall order, let alone a capital felony trial case. Keep in mind that the Habeas and direct appeal would proceed simultaneously under the provisions of this amendment.
There needs to be serious debate in the legislature about the death penalty. The last time there was serious debate, the abolition of the death penalty received 60 votes. The debate was shelved pending the execution of Michael Ross, because legislators felt it was an inappropriate time. Since then, it has not been revived. Aside from geographical disparities in the imposition of the death penalty, there are racial disparities as well, which need to be evaluated and discussed. With an election year next year, there’s little hope of serious debate any time soon.
Technorati Tags: connecticut, death penalty
AEDPA blog
May 24th
There’s a new blog in the blawgosphere: The AEDPA Law and Policy Blog. Here’s the latest post:
The Sixth Circuit, sitting en banc, reversed an earlier panel decision and held today that the police can make a limited inquiry of a suspect held in custody who has asked for a lawyer when the police are informed by a third party that the suspect has changed his mind and wishes to make a statement. In this case, the third party was the suspect’s mother.
It has been added to the blogroll.
Technorati Tags: habeas corpus, aedpa
Casiano issued: law becomes slightly clearer
May 22nd
The CT Supreme Court issued State v. Casiano yesterday. Casiano was before the Supreme Court on a motion for review filed by the defendant.
Defendant sought to have counsel appointed to represent him in filing a Motion to Correct Illegal Sentence. The trial court denied the request. The defendant appealed (both on the merits of the Motion and the denial of counsel). The Appellate Court remanded to the trial court with an order to appoint counsel to file a motion for review which was transferred to the Supreme Court.
The Supreme Court finds that there is a right to counsel to determine whether meritorious claims exist and if such claims exist, then right to counsel to file the Motion exists. If there are no meritorious claims, then there is no right to counsel in filing the Motion (Shouldn’t this be obvious?)
In doing so, the Court finds that a “Motion to Correct an Illegal Sentence” fits within the statutory requirement of “any criminal action”.
In light of the nature of a motion to correct an illegal sentence, we conclude that, under our expansive interpretation of the term ‘‘any criminal action’’ in Gipson, that language is sufficiently broad in scope to encompass such a motion and any direct appeal from a denial of the motion. A motion to correct an illegal sentence under Practice Book § 43-22 constitutes a narrow exception to the general rule that, once a defendant’s sentence has begun, the authority of the sentencing court to modify that sentence terminates.
This does clear up an area of law that was causing some confusion; but how this will impact habeas corpus petitions remains to be seen. Another opinion recently issued held that there was no right to counsel when filing a Petition for a New Trial.
Slew of opinions released today
May 16th
Restoring Habeas
May 16th
In 2006, the right to file the Great Writ was stripped for certain detainees. A week or so ago, Congress almost included a provision that would restore that right, but it was cut at the end. The ACLU has set up this amusing website: FindHabeas and even have an interactive timeline of Habeas Corpus. There is a petition to restore the right to seek redress via the Great Writ here. From that site:
In the fall of 2006, Congress passed a law governing military commissions, which included a provision that stripped certain detainees of their habeas corpus rights. Habeas corpus has been the bedrock of our justice system for centuries. The Supreme Court asserted that it “is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.” Without habeas corpus rights, detainees are denied a fair hearing in federal court to challenge the lawfulness of their detention. The government is left free to imprison people indefinitely without charge or trial or other fair hearing, no matter how inhumane the conditions of confinement or the treatment of the detainees. Such a policy is not only unconstitutional, it is also un-American and undermines our national character.
As lawyers, law students, law school deans, law school professors, retired judges, retired prosecutors and retired public defenders, we condemn the denial of habeas corpus rights to detainees and call for a restoration of our constitutional values. It is incumbent upon Congress to ensure that our laws reflect who we are as a society, that we are a people committed to accountability and basic fairness. In the face of adversity, adhering to our values does not make us less secure, but rather strengthens us as a nation.
Things you should tell your client
May 10th
In continuation of a series of posts about client representation in criminal cases, I have this to add:
Tell your clients about any post-conviction proceedings. Tell your client of his/her right to appeal (if there is such a right), right to seek sentence review (if such a right exists) and, equally important, that he/she has one year from when the conviction becomes final [please explain what that means] to seek redress in Federal court via a habeas corpus petition. Also explain that state collateral proceedings will toll that one year statute of limitations period.
The reason for this is that clients don’t know jack. More often than not, if a client receives a lengthy sentence, he will wait a while after the appeal is decided before pursuing state habeas options. That “a while” is usually more than a year. Which means that even if there is a successful habeas claim, it can never be presented in Federal Court.
The other day I was assigned a client who, luckily, has two months left out of that one year period. He didn’t do that intentionally. He had no idea. I barely noticed it. We got lucky. Next time, maybe not.
The more you know…
Technorati Tags: federal habeas corpus, criminal law
No right to appellate counsel to challenge denial of petition for new trial
May 9th
Today, the Appellate Court issued Small v. State [pdf], holding that the trial court did not abuse its discretion in denying appointment of counsel to appeal its decision to deny a petition for new trial. It is interesting for two reasons:
- It unequivocally holds that a petition for new trial is not a criminal proceeding; rather it is a civil proceeding
- There is currently an unresolved question as to whether there is right to counsel in another collateral proceeding – a Motion to Correct Illegal Sentence. [P.B. 43-22]
The petitioner also asserts that § 51-293 permits a trial court to appoint a special public defender in appropriate cases. Assuming, without deciding, that those statutes provided the petitioner an avenue for requesting court-appointed counsel, we determine that the court did not abuse its discretion in this case because the petitioner is neither statutorily nor constitutionally entitled to court-appointed counsel.
There are statutory exceptions to the rule, however. The biggest being habeas corpus cases. However, as the Court explains,
‘‘[I]ndigent persons accused of a crime must be provided appointed counsel, Gideon [v. Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963)]. But the Sixth Amendment [to the United States constitution] only applies to a defendant’s trial and first appeal as of right, not to appeals afforded on a discretionary basis, collateral proceedings, or civil proceedings . . . .’’ (Emphasis added.) Bourdon v. Loughren, 386 F.3d 88, 96 (2d Cir. 2004), citing Pennsylvania v. Finley, 481 U.S. 551, 555–57, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987).
What this means for right to counsel on Motions to Correct remains to be seen. There are several other criminal opinions issued today, but none piqued my interest quite like this one. They can be found here.
Technorati Tags: petition for new trial, right to counsel, connecticut
What really grinds my gears
May 6th
Update: Mark Bennett adds his thoughts.
Warning: this is a rant. This has been festering inside me for quite a while now. Occasionally, I will try habeas corpus cases. Some of them will be challenges to pleas, enforcement of plea agreements and then the usual ineffective assistance claims. What really grinds my gears is the lack of co-operation from trial counsel. It seems as though there is a certain percentage of attorneys that don’t like it when their former clients file petitions for writ of habeas corpus alleging IAC.
Why? Isn’t it supposed to be about the client? Isn’t that the bottom line? My view has always been that IAC claims don’t mean that I’m a bad lawyer; merely that someone else sees something that I didn’t do. If that will help my client, I am all for it. I just don’t understand that mentality. I’ve had attorneys fail to turn over files, turn over files that are about 2 cms thick, refuse to cooperate prior to the hearing – even testify adversely to the client to save face [I'm obviously not advocating blindly "falling on the sword", but c'mon].
If you are ever the focus of a habeas petition, talk to the habeas lawyer. Another thing that does is gives the habeas attorney information. Clients claim many things; you might be able to help the habeas lawyer sort out the colorable claims from the frivolous ones.
I don’t know, it just grinds my gears. On that note, enjoy this video:
[youtube]http://www.youtube.com/watch?v=e5NpCuqMwzo[/youtube]
Life does not mean sixty
Apr 30th
The Supreme Court released an interesting opinion today in Mead v. Commissioner [pdf], where the central issue was the retroactive application of a statute defining life as sixty years to inmates serving life sentences under a prior statutory scheme. At the time Petitioner committed his offense, life meant “natural life”. Subsequently it was changed to mean “not less than 10 to 25 years and not more than life”. Finally, it was changed to its current form, meaning “sixty years”. The Habeas Court rejected petitioner’s argument on the grounds that statutes affecting substantive rights are meant to apply prospectively only. The Supreme Court held that:
We conclude that § 53a-35b affects substantive rights and, in the absence of any clear and unequivocal expression by the legislature rebutting the presumption of prospective application, that the statute does not apply retroactively to persons sentenced prior to its enactment.
The Court does make an interesting observation, however. Petitioner’s counsel, in his reply brief, makes the argument that if the statute is not retroactive, then Respondent’s classification of the sentence as an indeterminate sentence is wrong. The Court seems to agree with this position, but then goes on to state:
We conclude, however, that we need not decide this issue which, as we noted previously, the petitioner raised for the first time in his supplemental brief and to which the commissioner has had no opportunity to respond.14 The petitioner makes no claim that, if we were to conclude that § 53a-35b is not retroactive, then the commissioner’s treatment of his sentence as an indeterminate sentence of twentyfive years to life imprisonment under § 53a-35 instead of a definite sentence of life imprisonment under § 53-11 would have some deleterious effect on him.
Accordingly, even if we were to assume that the commissioner improperly applied § 53a-35 to the petitioner, any such impropriety necessarily would be deemed harmless because the petitioner has not claimed that he will suffer any deleterious effect as a result of serving a sentence in accordance with § 53a-35 when § 53a-35b is not given retroactive application.
Interesting…..
Skakel hearing takes Brady twist
Apr 20th
Michael Skakel’s hearing for a new trial wrapped up day 3 yesterday and the testimony took an interesting turn. His trial counsel, Mickey Sherman, testified yesterday that the state withheld key evidence suggesting that the killer was someone other than Skakel.
The profiles at issue are of former tutor Kenneth Littleton and of Skakel’s older brother, Thomas Skakel, who was 17 at the time of the crime. In the profiles, two lead investigators on the case state it had been established that on the night of the killing, Oct. 30, 1975, then 15-year-old Michael Skakel left Belle Haven with two of his brothers and a cousin to drive the cousin home and stay there to watch a Monty Python comedy on television.“We had a very definite alibi defense; it was the bulwark of our case,” Sherman testified. “Michael Skakel wasn’t guilty. Michael Skakel wasn’t there.”
Sherman said the reports, co-authored by former lead inspector Jack Solomon and subsequent lead inspector Frank Garr, amounted to “independent corroboration … of the belief that Mr. Skakel was not there.”
A third document, referred to as “the time frame” that Skakel’s attorneys claim was also withheld, documents Littleton’s moves in the years following Martha’s murder and corresponding crimes, including murders, that occurred in his proximity.
However, these claims seem to do little to bolster the claim for a new trial. On the other hand, they might serve to make a future Habeas claim only stronger.
During Skakel’s trial in 2002, Sherman, with Solomon on the witness stand, asked to be given the reports. The trial judge said, “Not now,” and Solomon’s testimony proceeded. Because Sherman never renewed his request for the reports before the trial ended, this prong of the petition for a new trial may be in jeopardy.Skakel’s current lawyers, Hope Seeley and Hubert Santos, also claim the prosecution’s failure to turn over a police sketch of a man a Belle Haven security guard saw walking in the area of the crime scene warrants a new trial.
The sketch arguably bears a strong resemblance to Littleton, but this is another area where Sherman dropped the ball at trial and Skakel may not be able to benefit.
The state Supreme Court, in unanimously upholding Skakel’s conviction last year, noted that the state should have turned over the sketch. However, because the sketch is referenced in two reports that Sherman clearly had in his possession before trial, the high court deemed it harmless error, because Sherman had notice of the existence of the sketch and didn’t pursue it.
The new trial claim centers around “new evidence” that Skakel was not the killer, based on testimony of one individual who was present in the area, but was not mentioned in any police report. However, these instances of Sherman dropping the ball are more effective in a Habeas trial, seeking to overturn his conviction.
Technorati Tags: michael skakel, petition for new trial, habeas corpus
An abomination – AL execution sans representation
Mar 26th
It’s true. Alabama does not provide indigent death row inmates with representation (that link is to a TimesSelect article, so it’s not free. You could just sign up for a trial membership). It is the only state in the country to (not) do so. In Alabama, there is no statutory right to counsel in petitions for writ of habeas corpus, which, as everyone knows, are the last avenue for a death row inmate seeking to challenge his/her conviction.
Alabama’s attitude? To disregard the landmark provisions of Gideon v. Wainwright and basically shrug. I cannot believe that in 2007, there is still a state that doesn’t think it needs to provide representation to indigent defendants.
Inmates filed a class action lawsuit, which was rejected by the 11th circuit in 2006 [Barbour v. Haley (.pdf)]. Now they are seeking cert. to SCOTUS. Hopefully SCOTUS accepts cert and stomps down hard on this bizarre practice.
Thankfully, in CT, there is a statutory right to counsel for habeas petitioners and death row inmates.
HT: Prof. Berman, who thinks this will (and should) create a blawgosphere storm and CapDefWeekly.
Technorati Tags: right to counsel, alabama, barbour v. haley
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