2016 Term Decisions of Interest to Capital Habeas Practitioners
Davila v. Davis, 582 U.S. ___, 137 S.Ct. 2058 (June 26, 2017) - The ineffective assistance of post-conviction counsel does not provide cause to excuse the procedural default of an ineffective assistance of appellate counsel claim.
Jae Lee v. United States, 582 U.S. ____, 137 S.Ct. 1958 (June 23, 2017) - Petitioner, a lawful permanent resident who had spent 35 years in the United States after leaving South Korea with his parents when he was 13 and never returning to South Korea, established prejudice from his attorney's deficient performance in advising him to accept a guilty plea in a drug case after erroneously informing petitioner that he he did not face mandatory deportation. That there was a likelihood of an increased sentence as well as deportation had petitioner gone to trial did not negate the showing of prejudice where the record established that deportation was the determinative issue in petitioner's acceptance of the plea; it would not be irrational for someone in petitioner’s position to risk additional prison time in exchange for holding on to some chance of avoiding deportation.
Weaver v. Massachusetts, 582 U.S. ___, 137 S.Ct. 1899 (June 22, 2017) - A petitioner raising a claim of ineffective assistance of trial counsel for failing to object to closure of the courtroom to the public during jury selection is required to prove prejudice. For purposes of this case, the Court accepts the petitioner’s interpretation of Strickland prejudice as requiring a showing of either a reasonable probability of a different outcome in the petitioner’s case, or, that the particular public-trial violation was so serious as to render petitioner’s trial fundamentally unfair. The Court distinguishes a public-trial violation during jury selection from other errors that have been deemed structural “because they cause fundamental unfairness, either to the defendant in the specific case or by pervasive undermining of the systemic requirements of a fair and open judicial process.” These errors include: (1) failure to give a reasonable-doubt instruction; (2) biased judge; and (3) exclusion of grand jurors based on race. Regarding claims involving allegations of race or gender discrimination in the selection of the petit jury, which have necessitated automatic reversal where preserved and raised on direct review, “this opinion does not address whether the result should be any different if the errors were raised instead in an ineffective-assistance claim on collateral review.” Looking to prejudice here, the Court finds that petitioner failed to show either a reasonable probability of a more favorable result or that the trial was fundamentally unfair.
Turner, et al. v. United States, 582 U.S. ___, 137 S.Ct. 1885 (June 22, 2017) - Affirming denial of Brady claim where prosecution withheld evidence that petitioners argued supported an alternative theory of the crime. Considering the withheld evidence “in the context of the entire record,” that evidence was too little, too weak, or too distant from the main evidentiary points to meet Brady’s materiality standard.
McWilliams v. Dunn, 582 U.S. ___, 137 S.Ct. 1790 (June 19, 2017) - In capital case where petitioner was evaluated pre-trial at a state hospital for purposes of determining competence and mental state at the time of the offense, and prior to judicial sentence by a neuropsychologist employed by the State’s Department of Mental Health, but was denied his request for appointment of an expert to assist in reviewing the prior evaluations and extensive medical records in order to prepare and present mitigation evidence, the Alabama Court of Criminal Appeal’s finding of no violation of Ake v. Oklahoma, 470 U.S. 86 (1985) was contrary to, or involved an unreasonable application of clearly established federal law. There was no dispute that petitioner met the threshold criteria for application of Ake in that he was indigent, his mental condition was relevant to punishment, and his mental state at the time of the offense was seriously in question. In such a situation, “Ake clearly established that a defendant must receive the assistance of a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively ‘assist in evaluation, preparation, and presentation of the defense,’ 470 U.S., at 83 . . .." Whether or not Ake clearly established the right to a qualified mental health expert retained specifically for the defense team, rather than a neutral expert available to both parties, need not be decided in this case. The case is remanded for consideration of whether the error had a substantial and injurious effect or influence on the verdict. Although the Eleventh Circuit had concluded below that it did not, the court of appeals reached that conclusion by considering only whether a few additional days to review the neuropsychologist’s findings would have made a difference. On remand, the court of appeals is to “consider whether access to the type of meaningful assistance in evaluating, preparing, and presenting the defense that Ake requires would have mattered.”
Jenkins v. Hutton, 582 U.S. ___, 137 S.Ct. 1769 (June 19, 2017) (per curiam) - Reversing grant of sentencing phase relief where Sixth Circuit erred in reaching the merits of Ohio death row inmate’s defaulted claim that his due process rights were violated because the trial court failed to instruct the jury that, when weighing aggravating and mitigating factors, the jury was limited to the two aggravating factors it found at the guilt phase of the trial. The first reason the Sixth Circuit gave for excusing the default was that the jury had not found the existence of aggravating circumstances. In fact, at the guilt phase the jury had found: (1) defendant engaged in a course of conduct designed to kill multiple people; and (2) defendant committed the murder in the course of kidnaping. The second reason given by the Sixth Circuit for excusing the default rested on a legal error in applying the miscarriage of justice test of Sawyer v. Whitley, 505 U.S. 333 (1992). The Court assumes, without deciding, that the alleged instructional omission can provide a basis for excusing default. The appeals court concluded that the allegedly improper weighing instruction could have allowed the jury to rely on invalid aggravating circumstances when it recommended a death sentence. The correct inquiry under Sawyer, however, assuming instructional error occurred, was “[w]hether, given proper instructions about the two aggravating circumstances, a reasonable jury could have decided that those aggravating circumstances outweighed the mitigating circumstances.”
Virginia v. LeBlanc, 582 U.S. ___, (June 12, 2017) (per curiam) - Virginia trial court did not unreasonably apply Graham v. Florida, 560 U.S. 48 (2010) when it ruled that Virginia’s “geriatric release” program, which replaced Virginia’s abolished traditional parole system, satisfied Graham in case involving a 16-year-old sentence to life for rape. In so ruling, the Court noted that the next logical step from Graham may or may not be to hold that a geriatric release program violates the Eighth Amendment. The arguments for and against, however, cannot be resolved on federal habeas review.
Moore v. Texas, 581 U.S. ___, 137 S.Ct. 1039 (March 28, 2017) - The conclusion by the Texas Court of Criminal Appeals ("CCA) that Moore’s IQ scores established that he was not intellectually disabled ("ID") was irreconcilable with Hall v. Florida, 572 U.S. 5 (2014). The CCA's consideration of the adaptive functioning issue deviated both from prevailing clinical standards as well as from older ones the state court claimed to apply. The CCA focused on Moore’s perceived adaptive strengths whereas “the medical community focuses the adaptive-functioning inquiry on adaptive deficits.” In addition, the CCA stressed Moore’s improved behavior in prison despite the fact that clinicians caution against reliance on adaptive strengths developed in controlled settings. The CCA also found that Moore’s record of academic failure and history of childhood abuse detracted from a determination that his intellectual limitations were related to his adaptive deficits. The medical community, however, treats those things as risk factors for ID. Indeed, “[c]linicians rely on such factors as cause to explore the prospect of [ID] further, not to counter the case for a disability determination.” The CCA also departed from clinical practice by requiring Moore to establish that his adaptive deficits were not related to a personality disorder. Clinical literature recognizes the existence of coexisting conditions and states that the presence of a personality disorder or mental illness is not evidence that the person at issue is not ID. The CCA’s reliance on its Briseno factors created an unacceptable risk that persons with ID will be executed.
Rippo v. Baker, 580 U.S. ___, 137 S.Ct. 905 (March 6, 2017) (per curiam) - Death sentence and capital conviction reversed where Nevada Supreme Court applied incorrect legal standard in ruling on claim that trial judge was required to disqualify himself from presiding over Rippo’s trial. At the time of trial, the trial judge was the target of a federal bribery probe and the District Attorney’s Office that was prosecuting Rippo was participating in the investigation. The Nevada Supreme Court denied relief on the ground that Rippo’s allegations did not support the assertion that the trial judge was actually biased in Rippo’s case. The correct test for recusal, however, is whether, objectively speaking, the probability of bias on the part of the judge is too high to be constitutionally tolerable. The case is remanded to the Nevada Supreme Court for application of the correct standard.
Pena-Rodriguez v. Colorado, 580 U.S. ___, 137 S.Ct. 855 (March 6, 2017) - Reversing convictions for harassment and unlawful sexual contact where two jurors revealed post-trial that another juror during deliberations had expressed anti-Hispanic bias toward Pena-Rodriguez and his alibi witness. The state court had affirmed the convictions on the ground that Colorado’s anti-impeachment rule precluded the state courts from considering the statements. The Supreme Court ruled: “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.”
Buck v. Davis, 580 U.S. ___, 137 S.Ct. 759 (Feb. 22, 2017) - In death penalty case out of Texas where petitioner sought to reopen federal habeas proceedings in light of Martinez and Trevino, the Fifth Circuit’s denial of a COA is reversed. First, the Fifth Circuit exceeded the limited scope of the COA analysis by essentially conducting merits review in determining that Buck was not entitled to a COA. Second, regarding petitioner’s procedurally defaulted ineffective assistance of trial counsel claim, petitioner established deficient performance by his trial attorney who introduced expert testimony at the sentencing phase that petitioner’s race predisposed him to violence. Petitioner was prejudiced by counsel’s action as there was a reasonable probability that at least one juror would have harbored a reasonable doubt about petitioners future dangerousness had the expert testimony not been presented. (A finding of future dangerousness by the jury was required before a sentence of death could be imposed.) Third, the district court abused its discretion in denying petitioner’s Rule 60(b) motion to reopen the proceedings as the circumstances of this case were extraordinary. The State’s argument that Teague precluded petitioner from relying on Martinez and Trevino was waived.
Bosse v. Oklahoma, 580 U.S. ___, 137 S.Ct. 1 (Oct. 11, 2016) (per curiam) - Payne v. Tennessee, 501 U.S. 808 (1991) did not overrule the holding in Booth v. Maryland, 482 U.S. 496 (1987) that the admission of a victim’s family members’ characterizations and opinions about the crime, the defendant, and the appropriate sentence violates the Eighth Amendment.
2015 Term Decisions of Interest to Capital Habeas Practitioners
Williams v. Pennsylvania, ___ S.Ct. ___ (June 9, 2016) - In this death penalty case, the Due Process Clause required a justice of the Pennsylvania Supreme Court to recuse himself from participating in the Commonwealth's appeal of the decision of a postconviction court granting relief to Williams. The justice at issue had been the district attorney who gave his official approval to seek the death penalty against Williams. The likelihood of bias on the part of the justice was too high to be constitutionally tolerable.
Lynch v. Arizona, 136 S.Ct. 818 (2016) (per curiam) - In sentencing phase of capital trial, defendant's due process rights were violated when the State put defendant's future dangerousness at issue and defendant was precluded from informing the jury of his parole ineligibility if he received a life sentence. The possibility of executive clemency or future legislative changes did not justify refusal of a parole ineligibility instruction.
Johnson v. Lee, ___ S.Ct. ___ (May 31, 2016) (per curiam) - The Ninth Circuit erred in finding that California's "Dixon" bar, which states that claims raised for the first time in collateral proceedings are defaulted if they were available during the direct appeal, was not adequate to preclude federal habeas review of defaulted claims. California's procedural bar is longstanding, oft-cited, and shared by habeas courts across the Nation.
Foster v. Chatman, 136 S.Ct. 1737 (May 23, 2016) - In this death penalty case, the Supreme Court had jurisdiction to review the judgment of the Georgia Supreme Court denying Foster a Certificate of Probable Cause to appeal the denial of a Batson claim that had been raised in a state habeas proceeding. Although the lower court ultimately rejected the claim on the procedural ground of res judicata because the claim had been raised and rejected on direct appeal, it did so only after examining the entire record and ruling that even with the new evidence discovered post-appeal Foster failed to establish purposeful discrimination and thus he could not overcome the procedural bar. The procedural ruling therefore was not independent of federal law. As to the merits, Foster established purposeful discrimination in the State's strikes of two black prospective jurors. Although the trial court accepted the prosecution's justifications for those strikes, the record belied much of the prosecutor's reasoning.
Kernan v. Hinojosa, ___ S.Ct. ___ (May 16, 2016) (per curiam) - In a case involving an ex post facto challenge to a change in law regarding good-time credits for prisoners, the Ninth Circuit erred in determining that the claim had not been adjudicated on the merits by the California Supreme Court, thereby authorizing de novo review of the claim. The error occurred because the Ninth Circuit "looked through" the California Supreme Court's summary denial of Hinojosa's habeas petition to the "reasoned" decision of the lower court that a different county was the proper venue for Hinojosa's habeas petition, a procedural rather than merits based ruling. The presumption that a silent rejection by a higher court rested on the same procedural ground as the lower court was rebutted. This was because the California Supreme Court could not have relied on the same ground as the lower court as the California Supreme Court was the only venue where Hinojosa could have sought an original habeas corpus petition in that court.
Welch v. United States, 136 S.Ct. 1257 (2016) - Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the residual clause of the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii) was void for vagueness, is a substantive decision that is retroactive in cases on collateral review.
Woods v. Etherton, 136 S.Ct. 1149 (April 4, 2016) (per curiam) - Reversing grant of habeas relief in a case involving conviction for possession with intent to deliver cocaine. The winning claim had been ineffective assistance of appellate counsel for failing to raise a Confrontation Clause challenge to admission of testimony about an anonymous tip and failing to argue that trial counsel was ineffective for not objecting to the testimony. Under AEDPA, both appellate counsel and the state habeas court were to be accorded the benefit of the doubt. The Sixth Circuit failed on both counts.
Wearry v. Cain, 136 S.Ct. 1002 (March 7, 2016) (per curiam) - In Louisiana death penalty, case, a Brady violation is found where the prosecution withheld evidence that could have undermined the credibility of two prosecution witnesses. Although the key prosecution witness's veracity was challenged at trial, his credibility would have been further diminished by suppressed medical records that might have shown that the witness' account of the events was not possible and police records indicating that the witness coached an inmate to lie about the murder and that the witness may have implicated Wearry to settle a score. Also suppressed was evidence that another prosecution witness may have been motivated to testify against Wearry because of the possibility of a reduced sentence on an existing conviction, rather than because, as the witness testified, his sister knew the victim's sister.
Montgomery v. Louisiana, 136 S.Ct. 718 (Jan. 25, 2016) - Miller v. Alabama, 132 S.Ct. 2455 (2012), which held that a juvenile convicted of a homicide offense could not be sentenced to life in prison without parole absent consideration of the juvenile’s special circumstances in light of the principles and purposes of juvenile sentencing, announced a new substantive rule that is retroactive in cases on state collateral review as well as federal habeas proceedings.
Kansas v. Carr, 136 S.Ct. 633 (Jan. 20, 2016) - Supreme Court case law does not require capital sentencing courts to affirmatively inform the jury that mitigating factors need not be proven beyond a reasonable doubt. Assuming without deciding that it would be unconstitutional to require the defense to prove mitigating circumstances beyond a reasonable doubt, "the record belies the defendants' contention that the instructions caused jurors to apply that standard of proof." The joint sentencing phase for two defendants, who are brothers, did not violate the Constitution. Admission of mitigating evidence by one brother that was allegedly prejudicial and inadmissible against the other brother had the trials been severed did not so infect the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process.
Hurst v. Florida, 136 S.Ct. 616 (Jan. 12, 2016) - Florida's death penalty scheme, which required the trial judge alone to find the existence of an aggravating circumstance, is unconstitutional. Hildwin v. Florida, 490 U.S. 638 (1989) (per curiam) and Spaziano v. Florida, 468 U.S. 447 (1984) are overruled "to the extent they allow a sentencing judge to find an aggravating circumstance, independent of a jury’s factfinding, that is necessary for imposition of the death penalty." It is up to the state court to determine whether the constitutional error is harmless in this case.
White v. Wheeler, 136 S.Ct. 456 (Dec. 14, 2015) (per curiam) - Reversing grant of habeas relief in Kentucky death penalty case on Witherspoon/Witt claim. "The Court of Appeals did not properly apply the deference it was required to accord the state-court ruling." The confirmation by the juror at issue that he was "not absolutely certain whether [he] could realistically consider" the death penalty "was a reasonable basis for the trial judge to conclude that the juror was unable to give that penalty fair consideration. The trial judge’s decision to excuse [the juror] did not violate clearly established federal law by concluding that [the juror] was not qualified to serve as a member of this capital jury. . . . And similarly, the Kentucky Supreme Court’s ruling that there was no error is not beyond any possibility for fairminded disagreement." The Sixth Circuit erred in relying on the fact that the trial judge's initial assessment of the juror's answers and demeanor did not lead to an immediate strike of the juror for cause. That the trial judge reviewed the transcript and reflected on the juror's answers before granting the prosecutor's cause challenge did not result in the ruling being entitled to less deference. "As a final matter, this Court again advises the Court of Appeals that the provisions of AEDPA apply with full force even when reviewing a conviction and sentence imposing the death penalty. See,e.g., Parker v. Matthews, 567 U. S. ___ (2012) (per curiam); Bobby v. Dixon, 565 U.S. ___ (2011) (per curiam); Bobby v. Mitts, 563 U. S. 395 (2011) (per curiam); Bobby v. Van Hook, 558 U. S. 4 (2009) (per curiam)."
Maryland v. Kulbicki, 136 S.Ct. 2 (Oct. 5, 2015) (per curiam) - In 1995 homicide trial involving testimony by a prosecution expert about Comparative Bullet Lead Analysis (CBLA), defense counsel did not perform deficiently in failing to discover and utilize in cross-examination a report that purportedly presaged the flaws in CBLA evidence.
2014 Term Decisions of Interest to Capital Habeas Practitioners
Glossip v. Gross, 576 U.S. ___ (June 29, 2015) - In civil rights action filed by Oklahoma death row inmates, petitioners failed to establish a likelihood of success on the merits of their claim that the use of midazolam in the lethal injection protocol violates the Eighth Amendment. Petitioners failed to establish that any risk of harm was substantial when compared to a known and available alternative method of execution.
Brumfield v. Cain, 135 S.Ct. 2269 (2015) - In case involving a claim of ineligibility for the death penalty under Atkins v. Virgina, the state court's denial of relief was premised on two unreasonable factual determinations - that petitioner's IQ score was inconsistent with a finding of intellectual disability and that petitioner had failed to present any evidence of adaptive deficits. Because petitioner satisfied § 2254(d)(2)'s requirements, he was entitled to merits relief on the Atkins claim.
Davis v. Ayala, 135 S.Ct. 2187 (2015) - Any federal constitutional error that may have occurred when petitioner's trial attorney was excluded from hearing the prosecutor's explanations for his strikes of prospective jurors after trial counsel made a Batson motion was harmless.
Ohio v. Clark, 135 S.Ct. 2173 (2015) - No Confrontation Clause violation occurred where teachers were allowed to testify about statements made by the child victim identifying the defendant as the child's abuser even though the child did not testify. Considering all the relevant circumstances, the child's statements were not testimonial.
Woods v. Donald, 135 S.Ct. 1372 (2015) (per curiam) - No clearly established Supreme Court precedent supported petitioner's claim that he was entitled to relief under United States v. Cronic because his trial attorney was briefly absent during testimony concerning other defendants.
Christeson v. Roper, 135 S.Ct. 891 (2015) (per curiam) - Petitioner was entitled to substitute counsel where his original appointed counsel missed the filing deadline and suffered from a conflict of interest in arguing petitioner's entitlement to equitable tolling.
Jennings v. Stephens, 135 S.Ct. 793 (2015) - Where petitioner raised three theories of ineffective assistance of counsel at sentencing in the district court and prevailed on two of them, during the warden's appeal petitioner was entitled to raise all three theories to defend the judgment without taking a cross-appeal. This was because each of the theories involved the same relief -- a new sentencing hearing. And because petitioner was simply defending the judgment on an alternative ground, he was not required to obtain a certificate of appealability.
Warger v. Shauers, 135 S.Ct. 521 (2014) - Federal Rule of Evidence 606(b), which provides that certain juror testimony regarding what occurred in a jury room is inadmissible "[d]uring an inquiry into the validity of a verdict," precludes a party seeking a new trial from using one jury's affidavit of what another juror said in deliberations to demonstrate the other juror's dishonesty during voir dire.
Glebe v. Frost, 135 S.Ct. 429 (2014) (per curiam) - Grant of habeas relief reversed where Ninth Circuit erroneously found that the Supreme Court had clearly established that a partial restriction in defense closing argument was structural error. In this robbery case, the trial court had precluded the defense from simultaneously contesting criminal liability and arguing duress. On appeal, the Washington Supreme Court agreed with Frost that his constitutional rights were violated when he was prevented from presenting both theories during summation. The state supreme court also found, however, that the error was harmless beyond a reasonable doubt. The Ninth Circuit ruled that the state supreme court unreasonably applied clearly established federal law by failing to classify the error as structural error. This could not stand. The Supreme Court assumed without deciding that a constitutional error had occurred but explained that it was not clearly established that such an error was not subject to harmless error analysis. It accepted for the sake of argument that Herring v. New York, 422 U.S. 853 (1975) established that complete denial of summation amounts to a structural error. Even if that was true, that did not clearly establish that a restriction of summation also amounts to structural error. In bridging the gap between the facts of this case and Herring, the Ninth Circuit erred in citing circuit precedent. On remand, the Ninth Circuit could address Frost’s alternative argument that it was unreasonable for the state court to have found harmlessness on the facts of this case.
Lopez v. Smith, 135 S.Ct. 1 (2014) (per curiam) - Grant of habeas relief reversed where Ninth Circuit erroneously found that the Supreme Court had clearly established that there is a constitutional denial of notice where a defendant is initially apprised of the possibility of conviction on an aiding-and-abetting theory, the prosecution focuses at trial on a direct liability theory, and then the prosecution requests and receives an aiding-and-abetting instruction. The Ninth Circuit mistakenly relied on three older Supreme Court cases “that stand for nothing more than the general proposition that a defendant must have adequate notice of the charges against him.” “This proposition is far too abstract to establish clearly the specific rule respondent needs.” The Ninth Circuit further erred in looking to circuit precedent that it concluded faithfully applied the principles of these older cases. Under § 2254(d), circuit precedent cannot refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that the Supreme Court has not announced. The Ninth Circuit also erred in granting relief under § 2254(d)(2). The Ninth Circuit had found that the state court unreasonably determined the facts when concluding that preliminary hearing testimony and the prosecutor’s pre-argument request for an aiding-and-abetting instruction adequately put Smith on notice of the prosecution’s aiding-and-abetting theory. This was, in fact, not a factual disagreement but based on a legal conclusion about the adequacy of the notice provided which falls under § 2254(d)(1). And because there was no clearly established Supreme Court precedent establishing the relevant standard, “the Ninth Circuit had nothing against which it could assess, and deem lacking, the notice afforded [Smith] by the information and proceedings. It therefore had no basis to reject the state court’s assessment that [Smith] was adequately apprised of the possibility of conviction on an aiding-and-abetting theory.”
2013 Term Decisions of Interest to Capital Habeas Practitioners
Hall v. Florida, 134 S.Ct. 1986 (2014) - Florida’s rigid rule precluding all further exploration of intellectual disability for capital defendants/petitioners who, from test scores, are deemed to have an IQ above 70 creates an unacceptable risk that persons with intellectual disability will be executed, and thus is unconstitutional.
White v. Woodall, 134 S.Ct. 1697 (2014) - Kentucky Supreme Court did not violate clearly established Supreme Court precedent when it ruled that the Fifth Amendment's requirement of a no-adverse-inference instruction to protect a nontestifying defendant at the guilt phase is not required at the penalty phase. Section 2254(d)(1) provides a remedy where state courts unreasonably apply clearly established federal law but does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error.
Hinton v. Alabama, 134 S.Ct. 1081 (2014) (per curiam) - Ineffective assistance of counsel found where trial counsel's mistake of law resulted in a failure to seek additional funds for a forensic expert to rebut the state's experts after it became obvious that the only individual who had been willing to examine the evidence in the case for the limited funds that had initially been allocated was incompetent and unqualified. Petitioner was prejudiced because there was a reasonable probability that trial counsel would have hired an expert who would have instilled in the jury a reasonable doubt as to petitioner's guilt had the attorney known that additional funding was available under state law.
Kansas v. Cheever, 134 S.Ct. 596 (2013) - Where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit an offense, the prosecution may introduce evidence from a court-ordered mental evaluation of the defendant in rebuttal without violating the defendant’s Fifth Amendment rights. Mental-status defenses include those based on psychological expert evidence as to a defendant’s mens rea, mental capacity to commit the crime, or ability to premeditate.
Burt v. Titlow, 134 S.Ct. 10 (2013) - The Supreme Court unanimously reversed the Sixth Circuit’s grant of relief in this Michigan second degree murder case, finding that Titlow had failed to carry her burden of establishing either that trial counsel’s performance had been deficient, or that the state court’s denial of relief had been based on an unreasonable determination of the facts. (Case involved advice by new counsel to withdraw negotiated guilty plea after Titlow had proclaimed her innocence. Titlow went to trial and received a sentence substantially longer than the term specified in the plea agreement.)
2012 Term Decisions of Interest to Capital Habeas Practitioners
Ryan v. Schad, 133 S.Ct. 2548 (June 24, 2013) (per curiam). Assuming without deciding that the Ninth Circuit had discretion to withhold issuance of its mandate after the Supreme Court denied the Arizona death row inmate’s certiorari petition, the appeals court abused its discretion by doing so based on an argument it had rejected many months before and relying on case law that had been reversed by the Supreme Court.
Salinas v. Texas, 133 S.Ct. 2174(June 17, 2013). Defendant’s Fifth Amendment rights were not violated by the prosecutor’s comments on defendant’s silence as to a certain question that was asked of him during voluntary noncustodial interrogation.
Nevada v. Jackson, 133 S.Ct. 1990 (June 3, 2013) (per curiam). Reversing grant of habeas relief. No prior decision of the Supreme Court clearly established that in a rape case the exclusion of evidence that police had been unable to substantiate the alleged victim’s previous reports of assault by petitioner violated petitioner’s constitutional rights.
Trevino v. Thaler, 133 S.Ct. 1911 (May 28, 2013). Where, as in this Texas capital case, a State’s procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise an ineffective assistance of trial counsel claim on direct appeal, the exception recognized in Martinez v. Ryan, 566 U.S. 1 (2012) applies, i.e., a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance of trial counsel if state post-conviction counsel was ineffective in failing to raise that claim in the first instance.
McQuiggin v. Perkins, 133 S.Ct. 1924 (May 28, 2013). Actual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar, as it was in Schlup v. Delo, 513 U.S. 298 (1995) and House v. Bell, 547 U.S. 518 (2006), or, as in this case, expiration of the statute of limitations. "A federal habeas court, faced with an actual-innocence gateway claim, should count unjustifiable delay on a habeas petitioner’s part, not as an absolute barrier to relief, but as a factor in determining whether actual innocence has been reliably shown."
Metrish v. Lancaster, 133 S.Ct. 1781 (May 20, 2013). Reversing Sixth Circuit. Michigan Appellate Court did not unreasonably apply clearly established Supreme Court precedent when it decided that the trial court did not violate due process by precluding defendant from relying on a diminished capacity defense to the murder and related firearm charges. Although at the time of the charged offense Michigan intermediate courts had found that diminished capacity was an available defense under state law, prior to the defendant’s retrial the Michigan Supreme Court had interpreted the clear language of the relevant statute as barring such a defense. Even though the Michigan Supreme Court had previously acknowledged in passing the concept of a diminished capacity defense, it had never specifically authorized its use. "This Court has never found a due process violation in circumstances remotely resembling Lancaster’s case— i.e., where a state supreme court, squarely addressing a particular issue for the first time, rejected a consistent line of lower court decisions based on the supreme court’s reasonable interpretation of the language of a controlling statute. Fairminded jurists could conclude that a state supreme court decision of that order is not ‘unexpected and indefensible by reference to [existing] law.’"
Marshall v. Rodgers, 133 S.Ct. 1446 (April 1, 2013) (per curiam). Reversing grant of habeas relief. No clearly established Supreme Court precedent mandated that a trial court grant a pro se defendant’s request for the assistance of counsel in preparing a motion for new trial. "Although an appellate panel may, in accordance with its usual law-of-the-circuit procedures, look to circuit precedent to ascertain whether it has already held that the particular point in issue is clearly established by Supreme Court precedent [citations omitted], it may not canvass circuit decisions to determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to this Court, be accepted as correct. [Citations omitted.]"
Chaidez v. United States, 133 S.Ct. 1103 (Feb. 20, 2013). Padilla v. Kentucky, 130 S.Ct. 1473 (2010), which held that the Sixth Amendment requires defense attorneys to inform non-citizen clients of the deportation risks of a guilty plea, does not apply retroactively to cases final on direct review at the time Padilla was decided. This was because Padilla did more than simply apply the general rule of Strickland v. Washington, 466 U.S. 668 (1984) to yet another factual situation. Instead, Padilla had to first address whether the Strickland standard applied at all before determining how it applied to the facts of the case.
Evans v. Michigan, 133 S.Ct. 1069 (Feb. 20, 2013). Where the trial court granted defendant's motion for a directed verdict of acquittal of the arson charge based on its erroneous view that an element of the offense was that the burned building was a dwelling, the Double Jeopardy Clause barred a retrial.
Johnson v. Williams, 133 S.Ct. 1088 (Feb. 20, 2013). For purposes of §2254(d), when a state court rules against a defendant in an opinion that rejects some of the defendant’s claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. If, for example, the defendant raised a claim where the state standard is less protective than the federal standard or the federal precedent was mentioned only in passing, the presumption may be rebutted—either by a habeas petitioner (to show that the federal court should consider the claim de novo) or by the State (to show that the federal claim should be regarded as procedurally defaulted). Here, the Ninth Circuit erred in concluding that the state court had overlooked Williams' Sixth Amendment claim.
Ryan v. Gonzales/Tibbals v. Carter, 133 S.Ct. 696 (Jan. 8, 2013). Both the Ninth and Sixth Circuits erred in holding that district courts must stay federal habeas proceedings when petitioners are adjudged incompetent. "We are not persuaded by the Ninth Circuit's assertion that a habeas petitioner's mental incompetency could 'eviscerate the statutory right to counsel' in federal habeas proceedings. Given the backward-looking, record-based nature of most federal habeas proceedings, counsel can generally provide effective representation to a habeas petitioner regardless of the petitioner's competence." As for the Sixth Circuit, it erred in finding that 18 U.S.C. § 4241 creates a statutory right to competency in habeas proceedings. Although district courts do retain discretion to enter a stay, the district court did not abuse its discretion in denying a stay to Gonzales because he raised only record-based claims subject to review under 28 U.S.C. § 2254(d). Regarding Carter, the district court had found that four of his claims could benefit from input from him, justifying a stay. Because, however, three of the claims had been adjudicated on the merits in state court, review under 28 U.S.C. § 2254(d) was limited to the state court record and so a stay would not be necessary. Even assuming the fourth claim was both unexhausted and not subject to procedural default, an indefinite stay of the habeas proceedings would not be justified. "If a district court concludes that the petitioner's claim could substantially benefit from the petitioner's assistance, the district court should take into account the likelihood that the petitioner will regain competence in the foreseeable future. Where there is no reasonable hope of competence, a stay is inappropriate and merely frustrates the State's attempts to defend its presumptively valid judgment."
2011 Term Decisions of Interest to Capital Habeas Practitioners
Miller v. Alabama & Jackson v. Hobbs, 132 S.Ct. 2455 (2012) [non-capital] - The "mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment's prohibition on 'cruel and unusual punishments.'" Id. at 2460.
Williams v. Illinois, 132 S.Ct. 2221 (2012) [non-capital] - The Confrontation Clause was not violated by testimony from a prosecution expert that a DNA sample from defendant matched the DNA profile that was derived from a sample taken from the victim even though that profile was contained in a report prepared by a non-testifying witness.
Parker v. Matthews, 132 S.Ct. 2148 (2012) (per curiam)- The Sixth Circuit violated AEDPA's restrictions by finding the petitioner entitled to relief from his capital convictions on the "flimsiest of rationales." Even if the Kentucky Supreme Court had relied on an unexpected formulation of extreme emotional disturbance in upholding petitioner's convictions, that was irrelevant because the jury had been properly instructed under the prior formulation and the Kentucky Supreme Court found that the evidence was sufficient to support its finding. The Kentucky Supreme Court did not contravene clearly established federal law by its rule that the prosecution is not required to come forth with evidence negating the presence of extreme emotional disturbance unless the defendant's evidence is of such probative force that the defendant would be entitled to acquittal of murder as a matter of law. It was not unreasonable for the Kentucky Supreme Court to conclude that the jurors were entitled to consider the tension between the defense expert's testimony and their own common-sense understanding of emotional disturbance. "In resolving the conflict in favor of [the defense expert], the Sixth Circuit overstepped the proper limits of its authority." Id. at 2153. In addition, the Sixth Circuit appeared to fail to consider that the jurors could have found the symptoms described by the defense expert to be inadequate to establish what is required to reduce murder to manslaughter under Kentucky law. The Sixth Circuit's conclusion that the prosecutor's argument violated due process by suggesting that petitioner colluded with his lawyer and the defense expert to manufacture an emotional disturbance defense was unsupportable in light of the prosecutor's immediate clarification that he was not suggesting collusion. In addition, the Sixth Circuit cited no Supreme Court precedent to support its conclusion that due process prohibits a prosecutor from emphasizing a criminal defendant's motive to exaggerate exculpatory facts. Even if a comment by the prosecutor could be understood as denigrating the emotional disturbance defense and thereby directing the jury to inappropriate considerations, this would not establish that the Kentucky Supreme Court's rejection of the prosecutorial misconduct claim "'was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Id. at 2155 (quoting Harrington v. Richter, 131 S.Ct. 770, 786-787 (2010).) It was also error on the part of the Sixth Circuit to consult its own precedent rather than that of the Supreme Court in assessing the reasonableness of the Kentucky Supreme Court's decision because the Sixth Circuit's test for prosecutorial misconduct is not clearly established federal law under the AEDPA.
Coleman v. Johnson, 132 S.Ct. 2060 (2012) (per curiam) - The Third Circuit Court of Appeals failed to afford due respect to the role of the jury and the state courts of Pennsylvania in finding insufficient evidence to support a conviction for first degree murder on an accomplice/co-conspirator theory.
Blueford v. Arkansas, 132 S.Ct. 2044 (2012) - Double Jeopardy Clause did not bar the retrial of the defendant on charges of capital murder and first-degree murder even though the foreperson of the initial jury had reported that the jury was unanimous against guilt on those charges but deadlocked on the lesser charge of manslaughter. This was because further deliberations occurred after the revelation and before a mistrial was declared. The foreperson's report prior to the end of deliberations lacked the finality necessary to amount to an acquittal of the two offenses. In addition, the trial court did not abuse its discretion in declaring a mistrial and not first offering the jury the opportunity to acquit on some of the offenses.
Wood v. Milyard, 132 S.Ct. 1826 (2012) [non-capital] - Although a court of appeals is not absolutely prohibited from itself raising a forfeited timeliness defense, here the Tenth Circuit Court of Appeals abused its discretion in dismissing the habeas petition as untimely. In the lower court, the State was well aware of the arguments that supported an untimeliness defense and yet twice informed the district court that it would not challenge the timeliness of the petition. Given this waiver, the Tenth Circuit Court of Appeals should have proceeded as the district court had and addressed the merits of the petition.
Lafler v. Cooper, 132 S.Ct. 1376 (2012) [non-capital] - In cases where deficient advice from counsel leads to the rejection of a favorable plea offer and the defendant receives a harsher result after a fair trial, in order to establish prejudice the defendant must show that had competent advice been provided there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea offer and the prosecution would not have withdrawn the offer in light of intervening circumstances), that the court would have accepted the offer's terms, and that the terms of the offer were was less severe than the judgment and sentence received at trial. If prejudice is established, the remedy is in the discretion of the court. It may be to reduce the sentence or, where the plea included dismissal of some charges that the defendant was convicted of at trial, to require the prosecutor to reoffer the plea. The AEDPA provided no bar to relief in this case because the state court's analysis of the ineffective assistance of counsel claim was contrary to Supreme Court precedent. Instead of applying Strickland, the state court denied relief on the ground that the rejection of the plea had been knowing and voluntary, In this case, deficient performance was conceded and prejudice was established. The remedy ordered by the district court - specific performance of the plea offer -- was, however, erroneous. Instead, the State is ordered to reoffer the plea. The state trial court can then exercise its discretion in deciding whether to vacate the convictions and resentence pursuant to the plea, to vacate only some of the convictions and resentence accordingly, or to leave the convictions and sentence from trial unchanged.
Missouri v. Frye, 132 S.Ct. 1399 (2012) [non-capital] - Defense counsel performed deficiently in failing to advise his client of a formal plea offer that appeared favorable to the defendant and allowing the offer to lapse without the defendant's knowledge. In order to establish prejudice where deficient performance results in a lapsed or rejected plea offer, the defendant must establish a reasonable probability that the offer would have been accepted and that the plea would have been entered without the prosecutor withdrawing the offer or the trial court refusing to accept the deal. The case is remanded for a determination of whether the defendant can meet the prejudice test.
Martinez v. Ryan, 132 S.Ct. 1309 (2012) [non-capital] - "[W]hen a State requires a prisoner to raise an ineffective-assistance-of-trial-counsel claim in a collateral proceeding, a prisoner may establish cause for a default of an ineffective-assistance claim in two circumstances. The first is where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial. The second is where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To overcome the default, a prisoner must also demonstrate that the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit." Id. at 1318.
Martel v. Clair, 132 S.Ct. 1276 (2012) - When evaluating motions to substitute counsel in capital cases under 18 U.S.C. section 3599, courts are to employ the same "interests of justice" standard that applies in non-capital cases under section 3006A. In this case, the district court did not abuse its discretion in denying petitioner's second request for substitute counsel under the "interests of justice" standard given: (1) the district court received the motion on the eve of its deciding petitioner's ten-year-old habeas petition; and (2) three months earlier petitioner had complained about counsel and following the district court's inquiry into the matter the district court was informed that the dispute had been resolved. Although the second motion contained a new significant charge of error -- that appointed counsel had refused to investigate newly discovered physical evidence -- the timing of the motion precluded a finding of abuse of discretion.
Wetzel v. Lambert, 132 S.Ct. 1195 (2012) (per curiam). Reversing Third Circuit decision finding Brady violation at capital trial based on nondisclosure of a police activity report that Lambert claimed could have been used to impeach the co-defendant as to his contention that Lambert, rather than the person he named as a co-defendant in the activity report, had participated with him in the capital offense. The Third Circuit failed to address the reasonableness of the state court’s conclusion that the “suppressed” police activity sheet was utterly ambiguous as to what offense it was referring to, and, therefore, not material. Because this finding was reasonable, whether or not the state court was unreasonable in its alternative conclusion that the notation was cumulative in light of other impeachment of the co-defendant was beside the point.
Howes v. Fields, 132 S.Ct. 1181 (2012) [non-capital]. Sixth Circuit erred in ruling that Supreme Court precedents clearly establish that a prisoner is in custody within the meaning of Miranda v. Arizona, 384 U.S. 436 (1966), if the prisoner is taken aside and questioned about events that occurred outside the prison walls. Not only is such a per se rule not clearly established, it is wrong. "
Maples v. Thomas, 132 S.Ct. 912 (2012). Abondonment by state post-conviction counsel, which led to the procedural default of Alabama death row inmate's claims, provided cause to overcome the default. "[U] under agency principles, a client cannot be charged with the acts or omissions of an attorney who has abandoned him. Nor can a client be faulted for failing to act on his own behalf when he lacks reason to believe his attorneys of record, in fact, are not representing him."
Perry v. New Hampshire, 132 S.Ct. 716 (2012) [non-capital]. Declining to extend the pretrial screening for reliability that exists when an identification was infected by improper police influence to instances where suggestive circumstances where not arranged by law enforcement officers.
Gonzalez v. Thaler, 132 S.Ct. 641 (2012) [non-capital]. A judge's failure when issuing a certificate of appealability (COA) to adhere to the requirement of 28 U.S.C. § 2253(c)(3) that the judge identify the specific issue that meets the COA standard -- a substantial showing of a denial of a constitutional right -- does not deprive the appellate court of subject-matter jurisdiction to adjudicate the habeas petitioner's appeal. If a state prisoner does not seek review of his or her conviction in a State's highest court, the one-year limitation period for filing a federal habeas petition begins to run when the time for seeking such review in state court expires. This is when the judgment is "final" for purposes of the federal statute of limitations. (Dissent by Scalia.)
Smith v. Cain, 132 S.Ct. 627 (2012). Reversing denial of post-conviction relief where the prosecution failed to disclose statements by the only eyewitness to the five murders that he was unable to describe or identify any of the three assailants. The suppressed evidence was material given that the eyewitness provided the only evidence linking the defendant to the murders and the undisclosed statements directly contradicted the eyewitness' emphatic identification of the defendant at trial as the first gunman to enter the room where the killings occurred. That the eyewitness made inconsistent statements on the night of the murder suggesting that he could identify the first gunman did not render the undisclosed statements immaterial. Nor did the State's speculation that the undisclosed statements could have been made because of the eyewitness' fear of retaliation. (Dissent by Thomas.)
Hardy v. Cross, 132 S.Ct. 490 (2011) (per curiam) [non-capital]. The Seventh Circuit departed from the standard of deference owed to state court decisions under § 2254(d) when it ruled that the state court unreasonably applied federal law by finding that the State had exercised reasonable diligence in attempting to secure the presence of the alleged victim at the retrial of sexual assault charges, thereby allowing admission of the alleged victim's prior testimony. While the Seventh Circuit criticized the State for failing to contact the alleged victim's current boyfriend or any of her friends in the area, neither her family members nor the other persons the State did contact indicated that the boyfriend or the friends knew where the alleged victim was. The Seventh Circuit also wrongly criticized the State for failing to make inquiries at the cosmetology school where the alleged victim had once been enrolled because there was no reason to believe that anyone at the school had greater information about the alleged victim's whereabouts than her own family. Finally, the Seventh Circuit erred in finding the State's efforts insufficient because it failed to serve the alleged victim with a subpoena after she expressed fear about testifying at the retrial. This was not unreasonable given that the alleged victim had expressed fear about testifying at the initial trial and yet did so. In addition, she had agreed to testify at the retrial. "[T]the deferential standard of review set out in 28 U.S.C. § 2254(d) does not permit a federal court to overturn a state court's decision on the question of unavailability merely because the federal court identifies additional steps that might have been taken."
Greene v. Fisher, 132 S.Ct. 38 (2011) [non-capital]. The "clearly established" law that federal courts must look to when applying § 2254(d) is Supreme Court precedent in existence at the time the state court adjudicated the claim at issue on the merits and does not include Supreme Court decisions issued after the adjudication even if issued before the defendant's conviction became final.
Bobby v. Dixon, 132 S.Ct. 26 (2011) (per curiam). The Sixth Circuit erred in finding that the state court decisions allowing admission of Dixon's confession to murder contravened clearly established federal law. First, during a chance encounter with a detective at the local police station, Dixon had been issued Miranda warnings but declined to discuss the disappearance of the victim without his lawyer present. Dixon then left the station. The Sixth Circuit incorrectly found that Miranda clearly established that later interrogation of Dixon was therefore prohibited. The Supreme Court had never held that a person can invoke his Miranda rights anticipatorily in a context other than custodial interrogation. The Sixth Circuit also erred in finding a Fifth Amendment violation during a later interview when the detective urged Dixon to cut a deal before his accomplice did. "Because no holding of this Court suggests, much less clearly establishes, that police may not urge a suspect to confess before another suspect does so, the Sixth Circuit had no authority to issue the writ on this ground." Finally, the Sixth Circuit was wrong in holding that the Ohio Supreme Court unreasonably applied Supreme Court precedent when it found no constitutional violation from the admission of the confession that occurred after Miranda rights were provided but followed an earlier interrogation where the rights had intentionally not been given to Dixon. The facts of this case, including that Dixon had denied knowing anything about the victim's disappearance during the initial unwarned interrogation and Dixon had declared his intention to tell the police what happened to the victim before the second interrogation even began, distinguished this case from the two-step interrogation technique found to be unconstitutional in Missouri v. Seibert, 542 U.S. 600 (2004).
Cavazos v. Smith, 132 S.Ct. 2 (2011) (per curiam) [non-capital]. In assault case involving the death of an infant where prosecution experts opined the death was caused by shaken baby syndrome and the defense experts disagreed, the Ninth Circuit clearly erred in granting habeas relief on a claim of insufficient evidence. The Ninth Circuit erroneously substituted its judgment for that of the jury on the question of whether the prosecution or the defense witnesses more persuasively explained the cause of death. Notably, the Supreme Court twice before had vacated the judgment and called the Ninth Circuit's attention to decisions "highlighting the necessity of deference to state courts in § 2254(d) cases," and yet each time the Ninth Circuit had reinstated its judgment "without seriously confronting the significance of the cases called to its attention," i.e., Carey v. Musladin, 549 U.S. 70 (2006) and McDaniel v. Brown, 130 S.Ct. 665 (2010) (per curiam). Dissent by Ginsburg, with Breyer and Sotomayor.