Crime & Federalism

The nastiest issue in habeas corpus proceedings is the deadlines.  If someone questions me about a habeas petition, I immediately drop everything, and pray that we haven't missed a deadline.  In comparison to deadlines, the con law stuff is easy.  How closely do you need to read Crawford v. Washington to understand it?  Simple stuff.  You must squint your eyes when reading the AEDPA.

A recent Sixth Circuit Court of Appeals opinion provides a nice summary of the relevant one-year deadline - along with the nasty tolling provisions.  Sherwood v. Prelesnik, No. 08-1019 (6th Cir. Sept 3, 2009) (here). 

If you've never had a habeas deadline issue arise before, behold this loveliness:

Michael Sherwood, a Michigan prisoner, appeals a district court judgment dismissing his petition for writ of habeas corpus filed pursuant to 28 U.S.C.§ 2254 as barred by the one-year statute of limitations in § 2244(d). A panel of this court granted Sherwood a certificate of appealability on two issues: (1) whether a timely motion for rehearing in a state supreme court on a post-conviction appeal tolls the time for a habeas corpus petition under 28 U.S.C. § 2244(d); and (2) whether cases pending when the Supreme Court overruled Abela v. Martin, 348 F.3d 164 (6th Cir. 2003), in Lawrence v. Florida, 127S. Ct. 1079 (2007), are entitled to equitable tolling. Under the facts presented here, we answer both questions in the affirmative, and reverse the district court’s dismissal of Sherwood’s petition.

Welcome to the world of federal habeas litigation.  It's like tax law, only more demoralizing. 

Did Judge James Redwine, an Indiana state court judge, have connections to drug dealers?  Did he, when presiding over a murder trial, help cover-up a murder by protecting the real murders?  Read Harrison v. McBride (here) for more.  It's a long, but it's worth the read.  This case is better than any true-crime novel you'll read all year.

Mr. Martin, a priest, was convicted of sexually molesting a 13-year-old boy in a classic he said/she said case.  But this case had three kickers.

First, Denise Watson Gilbreath, a former Florida prosecutor, testified without objection that when she worked with Martin on policies designed to prevent priest sex abuse, Mr. Martin that he "strongly disagreed with the policy recommendation she eventually helped develop," and that Martin "became very agitated and felt that the policy needed to ensure that people accusing ministers of sexual abuse were telling the truth before the parish involved the police."  Further, "Gilbreath testified [again, without objection] that she felt that this was an inappropriate reaction that focused too greatly on protecting the accused clergymen, not the accusers."

Second, police officer Charles Morancheck testified, without objection, that at a meeting with Martin, the priest asserted his right to counsel and "provided only biographical information and did not answer questions about Carl S.’s allegations."  Further, "Morancheck testified that after describing the accusations to him, Martin did not make any verbal responses, but raised an eyebrow and pursed his lips."

Third, Martin testified and also presented character evidence. "At closing argument, the prosecutor argued that the jury should not be swayed by the testimony of Martin’s character witnesses, because even men like Jeffrey Dahmer and Theodore Oswald had character witnesses."  Martin's lawyer did not object, even though this was right after they pulled body parts from Dahmer's refrigerator. 

After being convicted and exhausting his state court remedies, the district court refused to grant his habeas petition.  A unanimous three-judge panel reversed.  (Yes, that's right - reversed.)  Martin v. Grosshans, No. 04-4247.  The panel found that Martin's trial counsel had been ineffective under Strickland, and moreover, that the state court's unreasonably applied Strickland to Martin's case.  The panel provided an interesting discussion of consciousness of guilt evidence, but before going into the legalisms, let's read between the lines for the real rule.  Here goes...

Prisoners almost always lose habeas cases, and for good reasons.  The AEDPA, unconstitutional though it might be, makes winning habeas cases difficult.  First, the procedures are agonizingly complex, and second, the AEDPA requires that even convictions obtained unconstitutionally stand, so long as the state courts did unreasonably violate the Constitution (as if there's ever a reasonable constitutional violation!).  Moreover, there is usually substantive evidence of guilt.  In drug cases, the police find drugs.  In most sex-crime cases, the police find DNA, or the complaining witness suffers some injury. 

But here, the complaining witness did not suffer and physical injury, and there wasn't any physical evidence that the priest had molested him.  In he said/she said cases, federal courts generally require state courts to comply with the Constitution.  In theory, the same AEDPA is applied to every case.  In fact, in cases lacking physical evidence, reviewing courts apply it a bit more strenuously.  Indeed, the panel called the decision to prosecute Martin "imponderable."  I've always agreed with this approach, since it's more likely an innocent person will be convicted in a weak case when the prosecution violates the Constitution.  Enough realpolitik.

The panel found that Ms. Gilbreath's testimony was irrelevant and prejudicial, and that Mr. Martin's counsel was ineffective for not objecting to it (uh, yeah).  The government argued that Gilbreath's testimony was relevant consciousness of guilt evidence.  Wrong.  "First, Martin was not even aware of the accusations against him at the time of his interactions with Gilbreath. Moreover, his contact with Gilbreath was in a completely different jurisdiction and several years after the time of the alleged assaults. Second, and most important, a belief that clergy should be protected from false allegations of sexual misconduct and afforded due process does not imply a guilty conscience."

The panel further noted that Morancheck's testimony did nothing but punish Martin for exercising his right to counsel, and thus should not have been admissible.  "Finally, Martin’s counsel was also deficient for failing to move for a mistrial after the prosecution’s closing argument. The prosecutor’s attempt to neutralize Martin’s character witnesses by referring to Jeffrey Dahmer and Theodore Oswald was inflammatory and improper." Martin was prosecuted in Wisconsin, and thus, "[t]he reference to Dahmer was particularly troubling, considering the trial took place in Wisconsin in 1995, when the memory of Dahmer’s sexual exploitation and gruesome murders of young men was still fresh in the minds of area residents."

Martin is an interesting case, and although it's only eight pages, it offers a lot to ponder.  Read it.

Habeas cases are increasingly rule-based, and federal courts won't relax these hyper-technical rules even when it's shown a prosecutor withheld Brady material and an eyewitness recanted his testimony. Daniels v. Uchtman (CA7 8.29.05). 

A prisoner can't seek federal habeas relief until after he has exhausted state court remedies.  The plaintiff has one-year from the time of being denied state court relief to file a federal habeas petition.  Another rule provides that a prisoner has only one year to seek federal habeas relief after he has learned of new evidence that casts his conviction into doubt.  What happens when these rules collide?  Answer: a person who was denied a fair trial is screwed.

In Daniels v. Uchtman, a juvenile deliquent was the primary witness against the defendant.  The juvenile deliquent was facing a pending burglarly charge, but promised a break if he would testify against Mr. Daniels.  The prosecutor never told the defense about the pending burglarly case.  The jury convicted. 

Fifteen years later, the witness recanted his testimony.  Within one-year, Mr. Daniels' defense team sought state court relief.  Within one-year of being denied state court relief, the defense team sought federal court relief.  The district court dismissed the petition as untimely, and the appellate court affirmed, writing that

the statute ran for a total of 123 days from the signing of the affidavit until Daniels filed for relief in state court. At that point, the statute was tolled. After the Illinois Supreme Court denied relief, the statute began to run again, this time for 364 days until Daniels filed his habeas petition. In the view of the district court, a total of 487 days elapsed after the date on which the factual predicate of Daniels’ claims had been discovered, making his habeas petition untimely.

Daniels is problematic since courts sometimes toll the statute of limitations.  Where, as here, the prisoner makes a good faith effort to comply with the (exceedingly complex) rules governing the writ of habeas corpus, federal courts should hear their claims.  After all, the write of habeas corpus is a constitutional right: hyper-technical rules standing in the way of this right are themselves violative of due process.

But that's neither here nor there.  We're left with Daniels, and we must understand it.  Sadly, the message from Daniels seems clear.  File fast - since it's practically impossible to know the deadlines in advance.

Irons v. Carey is a closely-watch pending Ninth Circuit case.  The issue in Irons is "whether the AEDPA unconstitutionally prescribes the sources of law that the Judicial Branch must use in exercising its jurisdiction and whether under the separation of powers doctrine this could should decline to apply the AEDPA standards in this case."  I think that Judge Noonan today hinted at his possible Irons v. Carey analysis. 

On pages 7458 - 7463 of this slip opinion, Judge Noonan thoughtfully critiqued - but dutifully applied - the AEDPA.  But on page 7458 he wrote: "Habeas corpus is a fundamental right secured by the Constitution of the United States."

By treating habeas as a fundamental right, instead of treating it as something that merely can't be suspended, he opens up habeas analysis to another world.  If the right to habeas corpus merely covers the right to not have it suspended, then the analytical question is: "Does the AEDPA suspend the writ of habeas corpus?"  By treating habeas as an affirmative right, Judge Noonan can dig into the juicy separation of powers question.

Of course, it could be loose language.  But I suspect that Judge Noonan knew what he was writing, especially in light of Irons.

Thoughts?

Petitioner Anthony Alexander Campbell appeals the denial by the district court of his petition for habeas corpus under 28 U.S.C. § 2254. Petitioner challenges his California state court burglary conviction on two grounds. He argues that his trial counsel provided ineffective assistance because of a conflict of interest: she was being prosecuted at the same time by the same district attorney’s office. In addition, he maintains that the trial court violated his due process rights by excluding him from an in-chambers meeting attended by the trial judge, the prosecutor, and his defense attorney, during which the court was informed of the prosecution of the defense attorney and concluded that the attorney did not have a conflict of interest. When presented with these arguments, the California state courts denied relief to Petitioner. Applying the deferential standard of review established under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we affirm the district court’s denial of the habeas petition.

Campbell v. Rich, No. 99-17311 (9th Cir. May 20, 2005) (en banc).  No time to read the full opinion, but this seems shocking.

UPDATE: The Recoder has an interesting write-up of Campbell v. Rich, here.

The Irons v. Carey oral argument is available for listening here.

You should start one.  If it was marginally good, it would get a lot of hits.  If it was really good, I guarantee it would be widely read.  You'd probably even get cases because of it.

Read this post by Prof Berman if you think I'm joking.

By the way, happy birthday to Professor Berman's Sentencing Law & Policy, which turned one last week.  Berman rarely sings his own praises (and, I guess when your blawg is as good as his is, there's no need to draw attention its author; the thing speaks for itself).  So I'll do it.

Berman, a sentencing law expert, began blogging right as Blakely came down.  Though there were many blawgs before his, few blawggers had his talent; and none had his timing.  Indeed, if memory serves me, several state and federal judges cited to his Blakely-related commentary, making his blawg the first one cited in a published opinion.  When he broke an exclusive story, the U.S. Supreme Court tipped its hat.  Given that blogs are still avant-garde, those nods were doubly special.

If it's true that luck is the intersection of opportunity and ability, Berman is the luckiest blawgger.  Happy Blawgday, and please, keep it up.

Under Nebraska law applicable at the time of the defendant's crime, one spouse could not testify against the other.  After the defendant's second conviction was reversed on appeal, Nebraska changed its law so that a spouse could be compelled to testify where the crime involved violence.  The Eighth Circuit held that this change in the rules of evidence was not an ex post facto violation.  Palmer v. Clarke, No. 03-3841, slip op. at 7-11 (8th Cir. May 13, 2005). 

Arguably, the holding would be dicta in federal cases, since the court conducted AEDPA review.  But the panel seemed certain that even absent the AEDPA, such a change in the rules of evidence would never violate the Ex Post Facto Clause.

There was also an interesting bill of attainder issue, which I discussed here.

There's an eye-witness account of the Irons v. Carey oral argument here.