2020 Term Decisions of Interest to Capital Habeas Practitioners
Dunn v. Reeves, 594 U.S. ___, 141 S.Ct. 2405 (2021) (per curiam). Reversing grant of habeas relief by Eleventh Circuit Court of Appeals in Alabama death penalty case on claim that trial counsel was ineffective in failing to develop and present evidence of petitioner’s intellectual disability as mitigating evidence. The Alabama court did not violate clearly established federal law when it rejected petitioner’s contention that that his attorneys were ineffective in failing to hire a neuropsychological expert they had successfully obtained funding to retain. Petitioner did not call trial counsel as witnesses at the state post-conviction hearing to explain this omission. The Eleventh Circuit mischaracterized the state court decision when it held that the state court, in denying relief, had adopted a per se rule that the absence of testimony by trial counsel would always preclude a finding of deficient performance. Rather, the actual analysis of the claim by the state court indicated a case-specific approach and the record supported a number of theories for why counsel proceeded as they did. “[T]he Alabama court’s treatment of the spotty record in this case was consistent with this Court’s recognition that ‘the absence of evidence cannot overcome the strong presumption that counsel’s conduct fell within the wide range of reasonable professional assistance.’” (Citations and internal quotation marks and brackets omitted).
Edwards v. Vannoy, 593 U.S. ___, 141 S.Ct. 1547 (2021). Ramos v. Louisiana, 140 S.Ct. 1390 (2020), which held that a state jury must be unanimous to convict a defendant of a serious offense, announced a new rule of criminal procedure that does not apply retroactively on federal collateral review. The Teague retroactivity exception for new rules of criminal procedural that are considered "watershed" rules has never been found to apply and is eliminated.
Jones v. Mississippi, 593 U.S. ___, 141 S.Ct. 1307 (2021). Supreme Court precedent does not require a sentencer to make a finding of permanent incorrigibility before sentencing an individual who committed a homicide when he or she was under 18 to a sentence of life without parole. Under Montgomery v. Louisiana, 577 U. S. 190 (2016), the decision in Miller v. Alabama, 567 U. S. 460 (2012) - that an individual who commits a homicide when he or she is under 18 may be sentenced to life without parole, but only if the sentence is not mandatory and the sentencer therefore has discretion to impose a lesser punishment - is retroactive. But "to the extent that Montgomery’s application of the Teague standard is in tension with the Court’s retroactivity precedents that both pre-date and post-date Montgomery, those retroactivity precedents—and not Montgomery—must guide the determination of whether rules other than Miller are substantive."
Alaska v. Wright, 593 U.S. ___, 141 S. Ct. 1467 (2021) (per curiam). In non-capital case where petitioner pleaded guilty in federal court to failing to register as a sex offender and the registration requirement was premised on a prior Alaska conviction for sexual abuse of a minor, the fact that the petitioner’s state-court conviction served as the predicate for his federal charge did not render him “in custody pursuant to the judgment of a State court” as required by Section 2254(a) in order to challenge the Alaska conviction.
Mays v. Hines, 592 U.S. ___, 141 S.Ct. 1145 (2021) (per curiam). In Tennessee death penalty case, reversing the grant of habeas relief by the Sixth Circuit Court of Appeals on claim that trial counsel had been ineffective at the guilt and sentencing phases of the trial by failing to suggest that the man who discovered the victim’s body was the actual killer. The victim worked at a motel where petitioner had rented a room. Her body was found stabbed to death by a regular patron of the motel. In state post-conviction proceedings, the patron’s account for his presence at the motel was shown to have been false. While he claimed at trial to have simply stopped by to visit the motel owners and fortuitously found the victim when he entered a room to use the bathroom, in fact he was there for a regular tryst with a woman who was not his wife. Although defense counsel was aware of the affair at the time of trial, defense counsel decided to forgo eliciting the embarrassing information. In granting relief, the Sixth Circuit failed to “carefully consider all the reasons and evidence supporting the state court’s decision” that petitioner had failed to establish prejudice. Instead of evaluating the substantial evidence linking petitioner to the crime, e.g., his “flight [from the motel] in a bloodstained shirt, his theft of the [victim’s] vehicle and money, and his ever-changing stories about stabbing and robbing various people on the day of the crime,” the court of appeals focused on all the reasons why it thought the third party “could have” been a viable alternative suspect. “This approach plainly violated Congress’ prohibition on disturbing state-court judgments on federal habeas review absent an error that lies ‘beyond any possibility for fairminded disagreement.’” (Citations omitted.)
Shinn v. Kayer, 592 U.S. ___, 141 S.Ct. 517 (2020) (per curiam). Reversing the grant of habeas relief on claim of ineffective assistance of counsel at the sentencing phase of Kayer’s Arizona capital trial. The Ninth Circuit Court of Appeals violated AEDPA jurisprudence in ruling that the state court unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984) when the state court held that Kayer had failed to establish prejudice from trial counsel’s alleged deficient performance. The federal appeals court arrived at its conclusions about the significance of the mitigating evidence trial counsel had failed to develop and present “without ever framing the relevant question as whether a fairminded jurist could reach a different conclusion.” Because the state postconviction court did not articulate its specific reasons for finding that Kayer failed to establish prejudice, the Supreme Court looked to what theories or arguments could have supported the state court’s conclusion. Perhaps the most probable was that the state postconviction court simply found “that the new mitigation evidence offered in the postconviction proceeding did not create a substantial likelihood of a different sentencing outcome.” In finding to the contrary, the Ninth Circuit impermissibly substituted its own judgment as to the relative weight of the aggravating and mitigating evidence instead of asking “whether a fairminded jurist could take a different view.” Unlike the Ninth Circuit, a fairminded jurist could have given substantial weight to Kayer’s prior conviction for burglary given that it involved a handgun and the capital crime was committed by a firearm. And a fairminded jurist could also have taken a different view of the mitigating evidence than did the Ninth Circuit. While the Ninth Circuit found that evidence of Kayer’s bipolar disorder and untreated alcohol and gambling addictions supported the finding of the statutory mitigating circumstance of mental impairment, “reasonable jurists could debate the extent to which these factors significantly impaired [Kayer’s] ability to appreciate the wrongfulness of his conduct or to conform his conduct to the law at the time of the murder” given that
the record reveals that Kayer had extensive opportunities to consider his actions—planning the murder in advance, driving his victim to a remote area, and subsequently returning to the murder scene and shooting the victim in the head a second time. Moreover, Kayer’s planning of the murder, efforts to hide the body, interactions with [the victim] before and after the murder, and attempts to profit from his crimes using an alias display a measure of control and intentionality.
The Ninth Circuit had relied on Arizona Supreme Court direct appeal decisions in its prejudice analysis, concluding that they established a reasonable probability that the state supreme court would have reversed Kayer’s death sentence on direct appeal had trial counsel developed the mitigating evidence that was presented in the postconviction proceeding. But “because the facts in each capital sentencing case are unique, the weighing of aggravating and mitigating evidence in a prior published decision is unlikely to provide clear guidance about how a state court would weigh the evidence in a later case.” And the Arizona Supreme Court decision focused on by both the Ninth Circuit and Kayer had distinguishable aggravating and mitigating circumstances, thus falling “far short of placing the state court’s prejudice determination in this case beyond the realm of fairminded disagreement.”
2019 Term Decisions of Interest to Capital Habeas Practitioners
Barr v. Lee, 591 U.S. ___, 140 S.Ct. 2590 (2020) (per curiam) - Granting United States' application to vacate a preliminary injunction that had been issued by a district court barring federal executions using a single drug—pentobarbital sodium. "Vacatur of that injunction is appropriate because, among other reasons, the plaintiffs have not established that they are likely to succeed on the merits of their Eighth Amendment claim." Although there were competing expert opinions on whether use of pentobarbital sodium causes pulmonary edema prior to unconsiousness or death, "[t]he plaintiffs in this case ha[d] not made the showing required to justify last-minute intervention by a Federal Court."
Sharp v. Murphy, 591 U.S. ___, 140 S.Ct. 2412 (2020) (per curiam) - The judgment of the Tenth Circuit Court of Appeals finding Oklahoma death row inmate entitled to habeas relief is affirmed for the reasons stated in McGirt v. Oklahoma.
McGirt v. Oklahoma, 591 U.S. ___, 140 S.Ct. 2452 ( 2020) - Reversing state court convictions of enrolled member of the Seminole Nation of Oklahoma where offenses occurred on the Creek Reservation which is under the exclusive jurisdiction of the United States pursuant to the federal Major Crimes Act, 18 U. S. C. §1153(a).
Andrus v. Texas, 590 U.S. ___, 140 S.Ct. 1875 (June 15, 2020) (per curiam) - Trial counsel in this Texas death penalty case performed deficiently as to the sentencing phase by: (1) performing "almost no mitigation investigation, overlooking vast tranches of mitigating evidence"; (2) presenting evidence that "backfired by bolstering the State's aggravation case"; and (3) failing to adequately "investigate the State's aggravating evidence." Regarding prejudice, the Supreme Court found it unclear whether the Texas Court of Criminal Appeals considered this prong of Strickland when it rejected in a single sentence the recommendation of the state habeas court to grant a new sentencing hearing based on ineffective assistance of counsel. It observed that the concurring opinion by the state appellate court did analyze prejudice. In that analysis, the concurrence appeared to assume that the Strickland prejudice inquiry turns principally on how the facts of the case at issue compare with the facts in Wiggins. The Supreme Court noted, however, "that we have never before equated what was sufficient in Wiggins with what is necessary to establish prejudice." The case is remanded for the Texas Court of Criminal Appeals "to address Strickland prejudice in light of the correct legal principles articulated" in this decision.
Banister v. Davis, 590 U.S. ___, 140 S.Ct. 1698 (2020) - A motion brought under Federal Rule of Civil Procedure 59(e) to alter or amend a habeas court’s judgment does not qualify as a successive petition. A Rule 59(e) motion is instead part and parcel of the first habeas proceeding.
Ramos v. Louisiana, 590 U.S. ___, 140 S.Ct. 1390 (2020) - The Sixth Amendment right to a jury trial—as incorporated against the States by way of the Fourteenth Amendment—requires a unanimous verdict to convict a defendant of a serious offense.
Kahler v. Kansas, 589 U.S. ___, 140 S.Ct. 1021 (2020) - The Due Process Clause does not require Kansas to adopt an insanity test that turns on a defendant's ability to recognize that his crime was morally wrong.
McKinney v. Arizona, 589 U.S. ___, 140 S.Ct. 702 (2020) - Affirming the Arizona Supreme Court's decision upholding McKinney's death sentences after the Arizona Supreme Court reweighed the aggravating and mitigating evidence, including mitigation the Ninth Circuit Court of Appeals had found the state supreme court had previously refused to consider. The holding in Clemons v. Mississippi, 494 U.S. 738 (1990) allowing the reweighing of aggravating and mitigating evidence by an appellate court applies in cases like this where there has been a violation of Eddings v. Oklahoma, 455 U.S. 104 (1982). The decisions in Ring v. Arizona, 536 U.S. 584 (2002) and Hurst v. Florida, 577 U.S. ___, 136 S.Ct. 616 (2016), did not overrule Clemons. "Under Ring and Hurst, a jury must find the aggravating circumstance that makes the defendant death eligible. But importantly, in a capital sentencing proceeding just as in an ordinary sentencing proceeding, a jury (as opposed to a judge) is not constitutionally required to weigh the aggravating and mitigating circumstances or to make the ultimate sentencing decision within the relevant sentencing range." Because Ring and Hurst do not require jury weighing of aggravating and mitigating circumstances, they do not prohibit judicial reweighing under Clemons. Although a Ring error did occur in this case because the sentencing judge rather than the jury found the existence of aggravating factors, the Ring rule was not retroactively applicable to what the state court characterized as a collateral proceeding as opposed to the reopening of the direct appeal.
2018 Term Decisions of Interest to Capital Habeas Practitioners
Flowers v. Mississippi, 588 U.S. ___, 139 S.Ct. 2228 (2019) - The trial court clearly erred in denying a Batson v. Kentucky, 476 U.S. 79 (1986), challenge to the prosecutor’s exercise of peremptory strikes at petitioner’s Mississippi capital trial. In reaching that conclusion, the Court relied upon indicia of discriminatory intent including the prosecutor’s history of removing as many African-American prospective jurors as possible through each of petitioner’s five prior trials, excessively disparate voir dire questioning of black and white panelists, and comparative analysis indicating that at least one struck panelist was materially distinguishable from an accepted white panelist only on the basis of race.
Gamble v. United States, 587 U.S. ___, 139 S.Ct. 1960 (2019) - The Court rejected a request to overrule the “dual-sovereignty doctrine” applicable to the Double Jeopardy clause, under which “a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute,” “[o]r the reverse may happen ....”
Bucklew v. Precythe, 587 U.S. ___, 139 S.Ct. 1112 (2019) - Baze and Glossip govern all Eighth Amendment method of execution challenges including Bucklew’s as-applied argument that the State’s method of execution would inflict unconstitutionally cruel pain on him because of his particular medical condition. Bucklew failed to satisfy the Baze-Glossip test. For two independent reasons he did not present a triable question on the viability of nitrogen hypoxia as an alternative to the State’s lethal injection protocol. First, Bucklew failed to offer a sufficiently detailed proposal to permit a finding that the State could carry it out relatively easily and reasonably quickly. Second, the State had a “legitimate” reason for declining to switch from its current method of execution as a matter of law – namely, choosing not to be the first to experiment with a new, “untried and untested” method of execution. Finally, even if nitrogen hypoxia were a viable alternative, neither of Bucklew’s theories showed that nitrogen hypoxia would significantly reduce a substantial risk of severe pain.
Madison v. Alabama, 586 U.S. ___, 139 S.Ct. 718 (2019) - Under Ford and Panetti, the Eighth Amendment may permit executing a prisoner even if he cannot remember committing his crime. The Eighth Amendment applies similarly to those experiencing psychotic delusions and those suffering from dementia. The issue is whether the condition impedes the requisite comprehension of the punishment. Remand for renewed consideration of Madison’s competency.
Garza v. Idaho, 586 U.S. ___, 139 S.Ct. 738 (2019) - Trial counsel performed deficiently in failing to file a notice of appeal as requested by his client even though defendant’s plea agreement contained an appeal waiver. The presumption of prejudice recognized in Roe v. Flores-Ortega, 528 U. S. 470, applied despite the waiver of appeal.
Timbs v. Indiana, 586 U.S. ___, 139 S.Ct. 682 (2019) - The Eighth Amendment’s Excessive Fines Clause is an incorporated protection applicable to the States under the Fourteenth Amendment’s Due Process Clause.
Moore v. Texas, 586 U.S. ___, 139 S.Ct. 666 (2019) (per curiam) - Reversing the ruling by the Texas Court of Criminal Appeals (TCCA) that Moore did not prove he is intellectually disabled. In a prior decision reversing the TCCA in Moore’s case, the Supreme Court identified at least five errors made by the TCCA in its analysis of Moore’s adaptive functioning. “After reviewing the trial court record and the court of appeals’ opinion, we agree with Moore that the appeals court’s determination is inconsistent with our opinion in Moore. We have found in its opinion too many instances in which, with small variations, it repeats the analysis we previously found wanting, and these same parts are critical to its ultimate conclusion.” On the basis of the trial court record, “Moore has shown he is a person with intellectual disability.”
Stokeling v. United States, 586 U.S. ___, 139 S.Ct. 544 (2019) - Stokeling’s prior Florida robbery conviction qualified as a “violent felony” for purposes of the Armed Career Criminal Act (ACCA). The ACCA defines “violent felony,” in relevant part, as “any crime punishable by imprisonment for a term exceeding one year” that “has as an element the use, attempted use, or threatened use of physical force against the person of another,” §924(e)(2)(B)(i). ACCA’s elements clause encompasses a robbery offense like Florida’s that requires the defendant to overcome the victim’s resistance.
Shoop v. Hill, 586 U.S. ___, 139 S.Ct. 504 (2019) (per curiam) - Reversing ruling by the Sixth Circuit Court of Appeals that the state court’s rejection of Hill’s claim that he is ineligible for the death penalty due to his intellectual disability was contrary to clearly established Supreme Court precedent at the time of the state court decisions. In reaching its conclusion, the Sixth Circuit “relied repeatedly and extensively on . . . Moore v. Texas, 581 U. S. ___ (2017), which was not handed down until long after the state-court decisions.” Such reliance “was plainly improper under §2254(d)(1).” The Sixth Circuit’s decision is vacated and the case remanded so that Hill’s claim regarding intellectual disability can be evaluated based solely on Supreme Court precedent that was clearly established at the relevant time.
2017 Term Decisions of Interest to Capital Habeas Practitioners
Sexton v. Beaudreaux, 585 U.S. ___, 138 S.Ct. 2555 (2018) (per curiam) - In murder and attempted robbery case, grant of habeas relief by Ninth Circuit Court of Appeals on claim of ineffective assistance of counsel is reversed. The petitioner had alleged that trial counsel was ineffective in failing to seek suppression of certain eyewitness identification testimony. The state habeas court had summarily denied the claim. Looking to the state court record, there was “at least one theory that could have led a fairminded jurist to conclude that the suppression motion would have failed.” It would have been reasonable to conclude that the petitioner failed to prove that the identification was not reliable under the totality of the circumstances. In analyzing the claim, the Ninth Circuit erred by essentially inverting the Richter rule. Instead of asking whether there were arguments or theories that could have supported the state court’s ruling the Ninth Circuit considered arguments against the state court’s decision that had not even been raised in the state habeas petition. Further, the Ninth Circuit failed to apply appropriate deference to the state court decision. “The Ninth Circuit essentially evaluated the merits de novo, only tacking on a perfunctory statement at the end of its analysis asserting that the state court's decision was unreasonable.” Yet this was an instance where deference to the state court should have been “near its apex” given that general rules were at issue as to both the propriety of the identification and the effectiveness of trial counsel.
Carpenter v. United States, 585 U.S. ___, 138 S.Ct. 2286 (2018) - Acquisition of cell-site records, which allows law enforcement to track a cell phone user’s past movement, is a Fourth Amendment search requiring a warrant supported by probable cause.
Currier v. Virginia, 585 U.S. ___, 138 S.Ct. 2144 (2018) - In case where defendant was charged with burglary, grand larceny and unlawful possession of a firearm by a convicted felon, defendant’s consent to severance of the firearm charge precluded a Double Jeopardy challenge to the firearm conviction that occurred in a trial taking place after defendant was acquitted of the burglary and grand larceny charges.
Collins v. Virginia, 584 U.S. ___, 138 S.Ct. 1663 (2018) - The automobile exception to the Fourth Amendment does not give a police officer the right to enter a home’s curtilage to access a vehicle without a warrant.
McCoy v. Louisiana, 584 U.S. ___, 138 S.Ct. 1500 (2018) - In capital murder case, defendant’s Sixth Amendment right to choose the objective of his defense was violated by defense counsel’s admission during the trial, over defendant’s express objection, that defendant had in fact killed the three victims. Even where defense counsel reasonably concludes that the best chance of avoiding a death sentence is an admission of some liability for the murders, if the defendant makes plain that his objective is to maintain innocence and seek an acquittal then defense counsel must abide by that objective. The error here was structural.
Wilson v. Sellers, 584 U.S. ___, 138 S.Ct. 1188 (2018) - When conducting analysis under 28 U.S.C. § 2254(d), and there is an unexplained state-court decision on the merits, a federal habeas court should “look through” that decision to the last related state-court decision that provides a relevant rationale and presume that the unexplained decision adopted the same reasoning. The State, however, may rebut the presumption by showing that the unexplained decision most likely relied on different grounds than the reasoned decision below.
Ayestas v. Davis, 584 U.S. ___, 138 S.Ct. 1080 (2018) - In an appeal concerning the denial of funding to a habeas petitioner, the Supreme Court assumes, without deciding, that a COA is required to appeal the denial of funds and finds that the rule applied by the district court in denying funding was not only debatable but actually erroneous. The district court’s ruling on the funding request was not an administrative decision such that the court of appeals and the Supreme Court lacked jurisdiction to hear the appeal. The lower courts applied the wrong legal standard when denying petitioner funds under 18 U.S.C. §3599(f). The statute authorizes funding that is “reasonably necessary” for the representation of an applicant. The Fifth Circuit’s requirement that an applicant establish a “substantial need” for the funding was arguably more demanding than the statute requires. The Fifth Circuit exacerbated the problem by invoking precedent that a habeas petitioner seeking funding must present “a viable constitutional claim that is not procedurally barred.” This precedent is too restrictive after Trevino v. Thaler. What the statutory phrase calls for is a determination by the district court, in the exercise of its discretion, as to whether a reasonable attorney would regard the services as sufficiently important. In making this assessment, the district court is “to consider the potential merit of the claims that the applicant wants to pursue, the likelihood that the services will generate useful and admissible evidence, and the prospect that the applicant will be able to clear any procedural hurdles standing in the way.” The Supreme Court declines to address the respondent’s argument, which was not presented below, that funding is never “reasonably necessary” in a case like this one, where a habeas petitioner seeks to present a procedurally defaulted ineffective-assistance-of -trial-counsel claim that will depend on facts outside the state-court record. This is because, according to respondent, the fruits of the federally funded investigation would be inadmissible under 28 U. S. C. §2254(e)(2). This argument remains open to be raised in the Fifth Circuit on remand.
Tharpe v. Sellers, 583 U.S. ___, 138 S.Ct. 545 (2018) (per curiam) - In Georgia death penalty case, remanding to the Eleventh Circuit for further consideration of whether petitioner is entitled to a COA to appeal the denial of his Rule 60(b) motion which sought to reopen his federal habeas proceedings regarding a claim that a juror was biased against him because of his race. The Eleventh Circuit appeared to deny a COA on the ground that petitioner could not establish prejudice in connection with his procedurally defaulted bias claim. This was premised on the state court’s factual finding that the juror at issue did not vote for a death sentence based on petitioner’s race. Although that finding was entitled to a presumption of correctness that could only be overcome by clear and convincing evidence (see 28 U.S.C. §2254(e)(1)), given the juror’s remarks about race contained in his affidavit, it was at least debatable among jurists of reason whether petitioner met his burden of overcoming the presumption of correctness. The Supreme Court expressed no views on the other grounds on which the district court denied the Rule 60(b) motion which the Eleventh Circuit did not address.
Dunn v. Madison, 583 U.S. ___, 138 S.Ct. 9 (2017) (per curiam) - In Alabama capital case, the state trial court did not unreasonably apply Ford v. Wainwright, 477 U.S. 399 (1986) or Panetti v. Quarterman, 551 U.S. 930 (2007), nor unreasonably assess the evidence before it, in determining that Madison was competent to be executed. In reaching a contrary conclusion the majority of the Eleventh Circuit panel had relied on evidence that Madison, due to several recent strokes, did not recall having committed the capital murder, although he understood that he had been convicted of the crime and that was the basis for his upcoming execution. In reversing the grant of habeas relief, the Supreme Court explained: "Neither Panetti nor Ford 'clearly established' that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case." It noted, however, that it "express[ed] no view on the merits of the underlying question outside of the AEDPA context."
Kernan v. Cuero, 583 U.S. ___, 138 S.Ct. 4 (2017) (per curiam) - Reversing grant of habeas relief in non-capital case where the prosecution was permitted to amend the criminal complaint after petitioner had pled guilty with an agreement to a maximum sentence of fourteen years and four months. As a result of the amendment, the maximum sentence was significantly greater. Petitioner was given the opportunity to withdraw his guilty plea in light of the amendment; he ultimately pleaded guilty to the amended complaint with a longer sentence than he originally agreed to. The Ninth Circuit had found that federal law mandated specific performance of the original plea agreement. In this post-AEDPA case, the Supreme Court found that the issue before it was whether its prior decisions "(1) clearly require the state court to impose the lower sentence that the parties originally expected; or (2) instead permit the State’s sentence-raising amendment where the defendant was allowed to withdraw his guilty plea?" Because there was no decision from the Supreme Court clearly establishing that a state court must choose the first alternative, it reversed the Ninth Circuit’s decision.
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.