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July 17-20, 2025
Cincinnati, OH

30th ANNUAL NATIONAL FEDERAL HABEAS CORPUS SEMINAR (NHS)

PROGRAM DESCRIPTION
This year marks the 30th Anniversary of the National Habeas Seminar, the only program of its kind focusing on representation in capital habeas cases in toto and open to Attorneys of all experience levels working in Capital Habeas Units, CJA Panel Attorneys and others who represent death sentenced inmates in federal habeas corpus proceedings. Among other topics, experienced Supreme Court Advocates and Capital Habeas Practitioners will address the impact of this term's Supreme Court decisions (and cases currently pending in the Court) on capital post-conviction and clemency practice, as well as sessions addressing new developments and trends in the federal courts of appeal and other state and federal courts relating to the application of AEDPA. There will also be sessions on emerging trends in capital cases where intellectual disability, competency or other aspects of a client's mental health or cognitive abilities are at issue. The program will likewise address new legislative initiatives and administrative actions that may affect capital habeas representation. For those new to capital post-conviction practice, the program offers an introductory track. Individual case consultations will also be available, upon request, to persons attending the seminar.

Registration will open by late April.

On February 25, 2025, the Supreme Court issued its decision in Glossip v. Oklahoma, 604 U.S. ___, ruling that "the prosecution violated its obligations under Napue [v. Illinois, 360 U.S. 264 (1959)]," entitling Richard Glossip to a new trial.  The Napue violation concerned the prosecutor's failure to correct false testimony by the key prosecution witness about the reasons for his lithium prescription.  Although the state court had held that Glossip's claims were procedurally barred under Oklahoma's Post-Conviction Procedures Act (PCPA), this was not an independent state ground precluding federal review because the state court's application of the procedural bar was contingent in its conclusion that the state Attorney General's concession of federal constitutional error was baseless.   

Effective January 17, 2025, United States Attorney General Garland denied Arizona's application for certification that it was compliant with the requirements for the expedited federal habeas corpus procedures in Chapter 154 of title 28 of the United States Code.  Click here to view the notice of the denial.  

One of the requirements of Chapter 154 is that a State has "established a mechanism for the appointment, compensation, and payment of reasonable litigation expenses of competent counsel in State postconviction proceedings brought by indigent prisoners who have been sentenced to death." 28 U.S.C. 2265(a).   After having reviewed Arizona’s submissions pursuant to the governing statute and regulations, Attorney General Garland "determine[d] that the record does not demonstrate that [Arizona's] postconviction capital counsel mechanism adequately provides for the compensation of counsel."  Arizona had "declined to address public comments questioning the sufficiency of its $100 maximum hourly rate for capital counsel, nor did it respond to any of the Department’s requests for information on that issue."   Although then-Attorney General Barr concluded in 2020 that Arizona’s compensation mechanism satisfied the “otherwise reasonably designed” criterion of 28 CFR 26.22(c)(2), "intervening developments have unsettled the basis on which he reached that determination."  

Based on the recent rates of inflation, Arizona’s $100 maximum hourly rate has lost approximately 20 percent of its purchasing power since then-Attorney General Barr’s assessment, see U.S. Bureau of Labor Statistics, CPI Inflation Calculator,

https://www.bls.gov/data/inflation_calculator.htm (last visited Jan. 12, 2025) (“Inflation Calculator”), and would likely continue to diminish in value over the 5-year certification period, 28 CFR 26.23(e).

On November 4, 2024, the Supreme Court issued a per curiam opinion vacating the judgment of the Eleventh Circuit that affirmed a grant of habeas relief to Alabama death row inmate Joseph Smith on his Atkins claim and remanding for  further consideration.  Hamm v. Smith, 604 U.S. ___ (Nov. 4, 2024) .  Smith had obtained five full-scale IQ scores, ranging from 72 to 78.  Because his claim of intellectual disability depend s in part on whether his IQ is 70 or below, analyzing Smith’s intellectual functioning "requires evaluating his various IQ scores" and the Su preme Court has not yet "specified how courts should evaluate multiple IQ scores."  The District Court found that Smith’s IQ could be as low as 69 given the standard error of measurement for his lowest score of 72 and granted relief.  In affirming the grant of relief, it was unclear to the Su preme Court whether the Eleventh Circuit afforded conclusive weight to the fact that the lower end of the standard-error range for Smith’s lowest IQ score is 69.  If so, the appeals court's "analysis would suggest a per se rule that the lower end of the standard-error range for an offender’s lowest score is dispositive."  On the other hand, "the Eleventh Circuit also approvingly cited the District Court’s determination that Smith’s lowest score is not an outlier when considered together with his higher scores. That analysis would suggest a more holistic approach to multiple IQ scores that considers the relevant evidence, including as appropriate any relevant expert testimony."   Because of this lack of clarity and because the Supreme Court's "ultimate assessment of any petition for certiorari by the State may depend on the basis for the Eleventh Circuit’s decision," the State's petition for certiorari is granted, the Eleventh Circuit's judgment is vacated, and the case  is remanded "for further consideration consistent with this opinion."  Justices Thomas and Gorsuch would have granted the certiorari petition and set the case for argument.  

The ninth edition of the Trial Manual for the Defense of Criminal Cases (“Trial Manual 9”) by Anthony G. Amsterdam and Randy Hertz has just been published.  A free .pdf copy is available to attorneys in public defender and community defender offices, to attorneys in legal services organizations, and to other attorneys whose practice is predominantly pro bono.  To request a copy, activate this link:  https://www.ali.org/trial-manual/ 

Although this is primarily a manual for defense lawyers in criminal trials, it deals exhaustively with all of the procedural issues that are the stuff of appeals and the grist for post-conviction claims of constitutional violations and jurisdictional defects as well as those that underlie IAC and Brady claims cognizable in state post-conviction and federal habeas proceedings.  A summary of its coverage is set out below.

If anybody wants a hard copy version, the authors are once again negotiating with Amazon to keep the price down to a reasonable figure.  Last year, Amazon’s price for the 4-volume TM8 was $ 58.24 total, plus postage; this year the manual is up to five volumes so the price will be slightly higher but probably not much. Precise details will become available on the Amazon website when print production is completed. (Caveat:  Don’t be surprised if the first box you receive contains only two or three of the five volumes you’ve ordered. The rest will arrive in a day or two.)

SUMMARY:

TRIAL MANUAL 9 FOR THE DEFENSE OF CRIMINAL CASES
by Anthony G. Amsterdam and Randy Hertz

The Trial Manual 9 for the Defense of Criminal Cases is a guidebook for criminal defense lawyers at the trial level. It covers the information a defense attorney has to know, and the strategic factors s/he should consider, at each of the stages of the criminal trial process. It is organized for easy access by practitioners who need ideas and information quickly in order to jump-start their work at any given stage.

The Manual begins with an overview of criminal procedure and then focuses on the issues a defense attorney is likely to confront, and the steps s/he will need to take, at the early stages of a criminal case, including: the first steps to be taken to locate, contact and protect a client who has been arrested or summoned or who fears s/he is wanted for arrest; arguing for bail or other forms of pretrial release; conducting the initial client interview; developing a theory of the case; dealing with police and prosecutors; planning and overseeing the defense investigation; conducting the preliminary hearing; grand jury practice; handling arraignments; plea bargaining; obtaining and resisting discovery; challenging indictments and informations; and seeking diversion or transfer to juvenile court. It also addresses the additional considerations that may arise when representing a client who is mentally ill or intellectually disabled.

The Manual next conducts an in-depth examination of the pretrial motions that defense attorneys commonly litigate in criminal cases. This includes lengthy chapters on suppression of tangible evidence, suppression of statements of the defendant, and suppression of identification testimony. These chapters provide detailed information about federal constitutional doctrines and a large number of state constitutional rulings that confer heightened protections. The chapters also provide suggestions for framing suppression arguments and conducting suppression hearings effectively.

The Manual then discusses the immediate run-up to trial: issues relating to the timing of pretrial and trial proceedings; interlocutory review of pretrial rulings; and the concrete steps that counsel will need to take to prepare for trial, including working with expert witnesses where appropriate.

Moving on to the trial stage, the Manual discusses the decision to elect or waive jury trial; jury selection procedures and challenges before and at trial; general characteristics of trials; opening statements; evidentiary issues and objections at the trial of guilt or innocence; techniques and tactics for handling prosecution and defense witnesses; trial motions; closing arguments; requests for jury instructions and objections to the court’s instructions; and jury deliberations. Issues, procedures, and strategies unique to bench trials are discussed in tandem with the parallel aspects of jury-trial practice.

Finally, the Manual discusses posttrial motions and sentencing and concludes with a short summary of appellate and postconviction procedures and a précis of the first steps to be taken in connection with them.

The structure and presentation of material are designed to facilitate the conversion of text into defense motions and other types of briefing. Three of the documents in the text are available for direct downloading from the ALI website: section 2.5’s flow-chart of procedures in summary, misdemeanor, and felony cases; section 4.5’s questionnaire for obtaining information pertinent to bail from the client; and section 6.15’s checklist for interviewing the client. The bail questionnaire and the interview list are in Word format that can be edited and thus customized to an individual user’s practice and/or turned into a form for use in taking notes in real time during client interviews. The downloadable versions of these documents are available at www.ali.org/trial-manual.

James S. Liebman and Anthony Amsterdam have authored a new article discussing the potential implications of the Supreme Court's recent opinion overruling deference to certain federal agency decisions.  The article is loper_bright_and_the_great_writ.pdf Will the New Constitutionalists End "Treason to the Constitution," Restore the Judicial Power, and Make the Law of the Land Supreme Again?  The abstract of the article reads:

 Chevron deference is dead. The Court’s forty-year, seventy-decision experiment with Article-III-court deference to “reasonable” agency interpretations of ambiguous federal statutes failed, killed in part by concern that it unduly curbed “the judicial Power” to enforce the rule of law in the face of politics, partisanship, and mission-driven agency decisionmaking. “AEDPA deference” lives. The Court’s twenty-five year, seventy-two decision experiment with Article-III-court deference to “reasonable” state-court interpretations of the Constitution under the 1996 Antiterrorism and Effective Death Penalty Act continues to relegate criminal defendants to prison or death, notwithstanding federal habeas judges’ independent judgment that the state courts have misread or misapplied the federal Constitution in adjudicating these defendants’ claims.

     How can this be? Only if state judges have more authority to make constitutional law by which federal judges may be bound than federal agencies have to make sub-constitutional law by which federal judges may be bound.

     This is obviously wrong. Federal agencies are creatures of Congress to which it may appropriately delegate some of its power to make the law that federal courts then are duty-bound to apply. Neither Congress nor any other authority save the American people by amendment may delegate the making of constitutional law.

     Constitutional text and history make the wrongness even clearer. The Framers wrote the Constitution precisely to quell the “violence of faction” that the States exhibited under the Articles of Confederation. They understood faction to produce “improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury.” So the Framers resolved to bind “the judges in every State” to treat the Constitution as the supreme Law of the Land; and the Framers gave federal judges—protected by life tenure and irreducible salaries—“the judicial Power” to neutralize factious state-court decisions by exercising independent judgment whenever Congress gave them jurisdiction to review those decisions. Congress, for its part, has always mandated federal-court as-of-right review of state custody on either writ of error (1789-1914) and/or habeas corpus (1867-today). And throughout more than two-and-a-third centuries, the Supreme Court has issued one federal-courts classic opinion after another, characterizing deference to Congress’ or state courts’ reasonable-but-wrong constitutional judgments as “treason to the Constitution.”

     The New Constitutionalists successfully challenged Chevron under the banner of reasserting the rule of law to protect “small” businesses and “the citizenry” against politics and special interests. The test of their bona fides is whether they will take the same course in cases of individuals criminally sentenced to imprisonment or execution through “improper Verdicts in State tribunals obtained under the biassed directions of a dependent Judge, or the local prejudices of an undirected jury.”

On June 10, 2024, the Supreme Court granted Alabama's certiorari petition in Alabama v. Williams, 23-682 (case below: 73 F.4th 900 (11th Cir.), vacated the judgment finding Marcus Williams entitled to habeas relief as to his death sentence, and remanded to the United States Court of Appeals for the Eleventh Circuit for further consideration in light of Thornell v. Jones, 602 U. S. ___ (2024).  The second question presented in the certiorari petition was: "Was it proper to find Strickland prejudice without considering the double-edged nature of Williams’s 'hypersexuality' and the new aggravating evidence of his second violent sex crime?"

The Supreme Court in Thornell v. Jones, 602 U.S. ___ (May 30, 2024), reversed the grant of habeas corpus relief by the Ninth Circuit Court of Appeals to Arizona death row inmate Danny Jones on a claim of ineffective assistance of counsel at sentencing.  Jones was sentenced to death for three murders with aggravating circumstances factors of multiple murder, murder for pecuniary gain, “especially heinous, cruel or depraved” murders and murder of a young child.  The Supreme Court found that the Ninth Circuit had departed from Strickland v. Washington's prejudice inquiry in at least three ways: (1) "it failed adequately to take into account the weighty aggravating circumstances in this case"; (2) it applied a "clearly unsound" rule prohibiting a court considering a Strickland claim from "assessing the relative strength of expert witness testimony," e.g., comparing defense expert testimony with a contrary opinion of a prosecution expert in order to determine what weight to accord to the defense expert; and (3) finding the District Court erred by attaching diminished persuasive value to Jones’s mental health conditions because it saw no link between those conditions and Jones’s conduct when he committed the three murders.  This last mistake by the Ninth Circuit was based on its misinterpretation of Eddings v. Oklahoma, 455 U. S. 104 (1982).  The Supreme Court clarified that while Eddings held that a sentencer may not “refuse to consider . . . any relevant mitigating evidence” (Id., at 114), it did not hold that a sentencer cannot find mitigating evidence unpersuasive.

When the Strickland prejudice analysis is properly applied, Jones is not entitled to habeas relief: "Most of the mitigating evidence Jones presented at the federal evidentiary hearing was not new, and what was new would not carry much weight in Arizona courts. Conversely, the aggravating factors present here are extremely weighty. As a result, there is no reasonable probability that the evidence on which Jones relies would have altered the outcome at sentencing."

On January 22, 2024, the Supreme Court (with Justice Gorsuch recused) granted one of two pending certiorari petitions filed by Oklahoma death row inmate Richard Glossip, 22-7466.  The questions presented in the petition are:

     Justin Sneed was, in the State’s words, its “indispensable witness,” and Richard Glossip’s “fate turned on Sneed’s credibility.” Sneed is the person who “bludgeoned the victim to death, and his testimony linking Glossip to the murder was central to the conviction.” State Stay Resp. 10, Glossip v. Oklahoma, No. 22A941 (U.S.). He only claimed Mr. Glossip was involved after being fed Mr. Glossip’s name six times and threatened with execution. And his accounting of basic facts about the crime has shifted dramatically with each telling.

     With Sneed’s credibility already tenuous, the State undisputedly hid from the jury Sneed’s having “seen a psychiatrist” who diagnosed Sneed with a psychiatric condition that rendered him volatile and “potentially violent,” particularly when combined with methamphetamine use, a street drug Sneed was abusing at the time he murdered Barry Van Treese. Id. In fact, the State allowed Sneed to affirmatively tell the jury he had not seen a psychiatrist.

     Before the Oklahoma Court of Criminal Appeals (OCCA), the State confessed error, admitting that the failure to disclose the truth about Sneed’s psychiatric condition, leaving the jury with Sneed’s uncorrected false testimony and then suppressing this information for a quarter-century, rendered “Glossip’s trial unfair and unreliable.” Id. at 4–5. Before this Court, the State has admitted Mr. Glossip is entitled to a new trial on these grounds, as well as in light of “cumulative error” regarding “multiple issues raised in Glossip’s Post-Conviction Relief Application.” Id. at 4. But the OCCA has refused to stop the execution of an innocent man who never had a fair trial.

     This petition presents the following questions:

     1. a. Whether the State’s suppression of the key prosecution witness’s admission he was under the care of a psychiatrist and failure to correct that witness’s false testimony about that care and related diagnosis violate the due process of law. See Brady v. Maryland, 373 U.S. 83 (1963); Napue v. Illinois, 360 U.S. 264 (1959).

        b. Whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims. See Kyles v. Whitley, 514 U.S. 419 (1995).

2. Whether due process of law requires reversal, where a capital conviction is so infected with errors that the State no longer seeks to defend it. See Escobar v. Texas, 143 S. Ct. 557 (2023) (mem.).

The Supreme Court added the following question for the parties to address:

Whether the Oklahoma Court of Criminal Appeals' holding that the Oklahoma Post-Conviction Procedure Act precluded post-conviction relief is an adequate and independent state-law ground for the judgment. 

On December 13, 2023, the Supreme Court granted the certiorari petition of the Director of the Arizona Department of Corrections in Thornell v. Jones, 22-982.  The question presented is:

     Over thirty years ago, Respondent Danny Lee Jones beat Robert Weaver to death and also beat and strangled Weaver’s 7-year-old daughter, Tisha, to death, for which he was convicted and sentenced to death. The district court denied habeas relief following an evidentiary hearing on Jones’s ineffective-assistance-of-sentencing-counsel claims. But a Ninth Circuit panel reversed the district court, giving no deference to the district court’s detailed factual findings. Judge Mark Bennett authored a nine-judge dissent from the denial of en banc rehearing.

     The Question Presented is:

     Did the Ninth Circuit violate this Court’s precedents by employing a flawed methodology for assessing Strickland prejudice when it disregarded the district court’s factual and credibility findings and excluded evidence in aggravation and the State’s rebuttal when it reversed the district court and granted habeas relief?