Posts tagged habeas
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.
proposed federal legislation in Schiavo
Mar 9th
Jurist reports that federal lawmakers have introduced legislation that would allow federal courts to hear habeas petitions involving an incapacitated person whose life support is about to be removed.
FL Sen. Mel Martinez, with support from FL Rep. Dave Weldon, filed Tuesday S. 539 [bill summary], which would extend federal habeas protections to incapacitated persons. Martinez said incapacitated persons such as Schiavo should have the same due process protections as those on death row. Terri’s husband Michael Schiavo’s attorney said the bill would lead to never-ending petitions for review of state court decisions. Previously, Florida state courts have ruled that Michael Schiavo could have Terri’s feeding tube removed, although a judge issued a stay of that order that has delayed any action until March 18. Terri’s parents Bob and Mary Schindler, who oppose removing the feeding tube, sought a new battery of medical tests [AP report] Tuesday to determine whether there is a chance Schiavo could regain brain function. Schiavo suffered severe brain damage when her heart stopped beating for several minutes in 1990.
The act, which can be found here, states
(b) Purposes- It is the purpose of this Act–
(1) to facilitate balancing the acknowledged right of persons to refuse consent to medical treatment and unwanted bodily intrusions with the right to consent to treatment, food, and fluids so as to preserve their lives; and
(2) in circumstances in which there is a contested judicial proceeding because of a dispute about the expressed previous wishes or best interests of a person presently incapable of making known a choice concerning treatment, food, and fluids the denial of which will result in death, to provide that the fundamental due process and equal protection rights of incapacitated persons are protected by ensuring the availability of collateral review through habeas corpus proceedings.
The proposed bill goes on to state
Sec. 2256. Extension of habeas protections to certain persons subject to court orders
`(a) For the purposes of this chapter, an incapacitated person shall be deemed to be in custody under sentence of a court established by Congress, or deemed to be in custody pursuant to the judgment of a State court, as the case may be, when an order of such a court authorizes or directs the withholding or withdrawal of food, fluids, or medical treatment necessary to sustain the person’s life. In a habeas corpus proceeding under this section the person having custody shall be deemed to encompass those parties authorized or directed by the court order to withdraw or withhold food, fluids, or medical treatment, and there shall be no requirement to produce at the hearing the body of the incapacitated person.
`(b) Subsection (a) does not apply in the case of a judicial proceeding in which no party disputes, and the court finds, that the incapacitated person, while having capacity, had executed a written advance directive valid under applicable law that clearly authorized the withholding or withdrawal of food or fluids or medical treatment in the applicable circumstances.
`(c) As used in this section, the term `incapacitated person’ means an individual who is presently incapable of making relevant decisions concerning the provision, withholding, or withdrawal of food, fluids, or medical treatment under applicable State law.
`(d) Nothing in this section shall be construed to create substantive rights not otherwise secured by the Constitution and laws of the United States or of the several States.’.
I’m not quite sure that the Habeas remedy was created for this purpose. It seems to be a stretch to say that an incapacitated person is "deemed to be in custody under a sentence of a court". In a normal proceeding, where someone is "incompetent", a guardian is appointed to confer with counsel. Taking the Schiavo case, who would the court appoint as counsel? This seems to be just another forum for collateral review of an already hotly contested case, put forth by those who might be against the idea of euthanasia or physician assisted suicide.
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