Great Ruling on False Light Arguments from Sixth Circuit

The Anti-Terrorism and Effective Death Penalty Act (AEDPA) definitely complicated the pursuit of habeas corpus relief. The incarcerated can no longer write successive petitions and a defendant’s appeal must contain all claims. Furthermore, the only successful habeas claims are the ones where convictions are transparently contrary to “clearly established federal law” or an “unreasonable determination of the facts in light of the evidence.” 28 U.S.C. § 2254. Supported by the United States Department of Justice, Vanderbilt University Law School released a 2007 study, “Habeas Litigation in U.S. District Courts: An Empirical Study of Habeas Corpus Cases Filed by State Prisoners Under the Antiterrorism and Effective Death Penalty Act of 1996.” Its conclusion was as follows: There are slower completion times per case and fewer petitions granted on average.

Then the Sixth Circuit issued its October 30, 2013, Peoples v Lafler opinion. A three-member panel criticized a Michigan prosecutor for a false inference argument and deemed that it was prosecutorial misconduct. The court ruled that AEDPA precluded them from reviewing the case, yet the issue that ultimately was considered dicta in the appellate opinion may nudge open AEDPA’s heavy door. In Peoples v. Lafler, two witnesses told a similar story that was the only evidence connecting Jesse Peoples to the murder of
Shannon Clark, a Detroit drug dealer fatally shot outside his home. However, the evidence was “known false testimony” and “trial counsel did not use the only hard evidence at his disposal to prove that the two witnesses not only lied, but told the same lie,” the appellate court said in its opinion.

Three months after Clark’s death, police arrested Jesse Peoples, Demetrious Powell, and Cornelious Harris after the men led police on a chase in a stolen Jaguar that ultimately crashed. Police found on the driver’s side floorboard the pistol that killed Clark. Also, a police officer witnessing the crash writes a report identifying Harris as the driver. Peoples, while awaiting trial, mailed defense counsel a copy of the police report, indictment, and criminal docket sheet showing that Harris was the Jag’s driver. However, they are ignored and Harris and Powell are able to spin a similar story about Peoples’ involvement.

The Sixth Circuit partially reversed the decision relating to Peoples’ ineffective assistance of counsel claim and remanded the case to the district court to conditionally grant a habeas corpus writ, giving the State of Michigan 90 days to retry Peoples or release him from custody. Quoting the opinion, “ ‘[i]t is particularly unreasonable to fail to track down readily available and likely useful evidence that a client himself asks his counsel to obtain.’ Couch v. Booker, 632 F.3d 241, 247 (6th Cir. 2011). Where, as here, counsel fails to use a police report, indictments, and criminal docket sheets the client himself obtained that would have proven counsel’s own defense theory, the failure is, a fortiori, unreasonable to the point of constitutional deficiency. It certainly is not, by any objective measure, sound trial strategy.”

The appellate court’s AEDPA deference delved into discussions of a “modified form of AEDPA deference,” in which the court focuses on the result rather than the reasoning of the state court. Hawkins v. Coyle, 547 F.3d 540, 546 (6th Cir. 2008). The question then, according to the court, is whether there was a reasonable likelihood that the trial’s outcome would have been different if the known false testimony had never been presented. The court concluded that there was other testimony connecting him to the murder so there was no reasonable likelihood that the outcome would have been acquittal or conviction on a lesser charge. Keep in mind, the court decided in this case to “REMAND the case to the district court with instructions to conditionally GRANT a writ of habeas corpus.”

Federal Court Grants Writ in Aceval Police Perjury Case

People v Alex Aceval is one of the strangest cases I have ever worked on. There is no disputed that the State presented perjured testimony at my client’s trial. The judge granted the prosecutor’s secret motion for permission to present this testimony and had a court reporter transcribe the motion. The prosecutor was disbarred for it. The case wrecked the judicial career of the judge who was forced into retirement with a blot on what would have been an otherwise distinguished career. Most of the police were convicted as well.

Still, the State of Michigan steadfastly argued that Mr. Aceval’s conviction was not tarnished by the perjury. Recently, Judge Tarnow disagreed. Calling the Defendant’s trial a sham the judge said that the charges should have been dismissed with prejudice. Earlier this week, Mr. Aceval was released a free man. The state has not decided whether it will appeal.

Nevada v Jackson: The Supreme Court Really Means AEDPA Deference

Reversing the Ninth Circuit, the US Supreme Court stated that a state court acts unreasonably only if there is U.S. Supreme Court decision directly adverse to the ruling of the state court. In Jackson, the trial court excluded evidence that a Complainant had made unsubstantiated allegations of sexual assault against the defendant in the past. The Nevada Supreme Court had previously ruled that such evidence of the falsity of the prior statement is inadmissible where the only evidence is “extrinsic.” The Ninth Circuit relying on U.S. Supreme Court rulings as interpreted by Ninth Circuit rulings found the ruling objectively unreasonable. The U.S. Supreme Court stated that appellate courts should not use their own rulings as a clarifying gloss. This means that the Attorney Generals throughout the country may use lower court rulings to demonstrate the reasonability of the state court rulings, but the defense may not do the contra. Heads they win; tails we lose. Nevada v. Jackson, No. 12–694, 569 U. S. ____ (2013).

SCOTUS to Decide Whether There is an "Actual Innocence" to AEDPA's Statute of Limitations

While the rest of Washington braces for Hurricane Sandy, the Supreme Court was in full session. They granted four petitions today including MaQuiggin v Perkins, Supreme Court No. 12-126. The petition comes from Michigan and is being pursued by Michigan Deputy Solicitor B. “Eric” Restuccia. Stay tuned.

Also relevant to the criminal practitioner is the Court’s cert. grant in Travino v Thaler dealing with the limits of the Court’s ruling last term in Martinez v Ryan. The
divided Fifth Circuit decision shows a pretty disturbing Brady suppression of evidence. The State hid a statement by completely exculpating the Defendant. I will post more on this case shortly.

Petition to Watch: Ryan v James and Whether the Court Will Extend Harrington & Cullen - Updated

Many US citizens have been turned back for having a single drunk driving conviction. Under Canadian law, a drunk driving is consider an “hybrid offense” and can be prosecuted as a felony (“indictable”) offense. This has meant that an American with a comparable offense was deemed inadmissible to Canada (but could get waivers after jumping through hoops and paying fees). Recently, the Canadian Border Services Agency (“CBSA”) released its Operational Bulletin 389. This provides for streamlined (and free) waivers to individuals who have one criminal conviction (not a sex or child pornography offense) where no jail or prison was imposed. Read More...

Sixth Circuit Affirms Grant of Habeas Based on Failure to Hire Expert

Congratulations goes out to Plymouth Attorney Carole M. Stanyar for her win in the Sixth Circuit in Couch v Booker, Sixth Circuit No. 09-2230 which upheld Judge Arthur Tarnow’s grant of a habeas corpus below. Couch v Booker, 650 F Supp 683 (ED Mich, 2009).

Defense counsel failed to fully explore a causation defense. The defense attorney consulted with a noted pathologist, but failed to give him the full file. Because of this, a vital causation defense was missed. The Michigan Court of Appeals denied the Defendant an evidentiary hearing and affirmed the conviction. The federal court held an evidentiary hearing, and found that counsel was ineffective. The Sixth Circuit upheld the conviction finding that the Michigan Court’s decision was objectively unreasonable. The Court found that the ruling of was an unreasonable application of clearly established federal law. Critically, the Sixth Circuit found that the presumption of strategy afforded to an attorney’s decision could only take place after counsel did the required investigation.

Credit goes to my friend Patrick Rose at michapp.com for spotting this ruling. He has a much more extensive discussion of the ruling
here.

Troy Davis Case is Back Before SCOTUS. Is Convicting the Innocent a Self-Standing Constitutional Violation?

Thus far, the United States Supreme Court has not definitively answered the question of whether convicting an innocent individual is a constitutional violation. The widely covered Troy Davis dispute may finally force the Court to decide this question. A comprehensive analysis of the case can be found in this SCOTUS Blog article. Mr. Davis has been sentenced to death for killing a police officer. Many people believe Mr. Davis is innocent, but the evidence establishing his innocence has come very late in the proceedings and the case has numerous procedural problems. Time Magazine and many others thinking that Mr. Davis is innocent, but this case involves a cop killing and is highly politically charged. Last year, the United States Supreme Court granted Mr. Davis an unprecedented evidentiary hearing on actual innocence. The Court gave him the hearing, but denied his claim. Mr. Davis’s lawyers are back before the Supreme Court with three challenges including an original action for habeas corpus.

SCOTUS to Hear Michigan Miranda Case

The United Supreme Court has granted certiorari to hear whether police investigators must give a jail inmate his Miranda rights before questioning him on matters unrelated to what landed him behind bars. Howes v. Fields, 10-680. A great summary of the dispute can be found here.

On Monday , the justices said they will hear the Michigan Attorney General’s challenge to a federal court of appeals in favor of Randall Fields. Mr. Fields acknowledged to sheriff’s deputies that he had sexual contact with a minor. The admission took place during an interview in the same building where Fields was jailed on unrelated charges. The deputies never advised Fields he could be silent or have a lawyer, hallmarks of the Miranda warning for criminal suspects. They did tell him he could leave the interrogation room when he wanted.

Over Deference to State Court's Non-Opinions

On January 19th, 2011, the Court decided Harrington v Richter, Supreme Court NO. 09-587. The basic holding was not that disturbing. The Court held that the defense lawyer was not deficient in failing to consult blood evidence when planning strategy for trial. Justice Kagan did not participate in the consideration or decision of the case. What is particularly disturbing about this decision is that the Court’s appears to have held that the AEDPA’s presumption against overturning a state court’s decision on the merits (unless the ruling is unreasonable) applies to summary orders where the state court did not share its reasoning. The Court stated that where the state court’s decision is not accompanied by an explanation, the habeas petitioner has the burden of proving that “there was no reasonable basis for the state court to deny relief.” The Court stated “this is so whether or not the state court reveals which of the elements in a multipart claim it found insufficient. In other words, federal courts must now ask if there was a hypothetical ruling which would justify the state court’s actions. If the answer to this question is “yes,” then the federal court must uphold the state court. I hope I am reading this ruling incorrectly, but I don’t think so.

On the same day, the Court also handed down
Premo v Moore which overturned another Ninth Circuit grant of a habeas corpus finding that that the Court did not afford sufficient deference to the ruling of the Oregon Supreme Court. Collectively, it sounds like the Court is attempting to send a message to the Ninth Circuit similar to the message it sent the Sixth Circuit last year.

SCOTUS Reverses a Second IAC Ruling Based on AEDPA Deference

Today the United States Supreme Court reversed the second habeas corpus grant within a week. In Wood v. Allen, Supreme Court No. 08-9156, the Court held:

Even under Wood’s reading of §2254(d)(2), the state court’s conclusion that his counsel made a strategic decision not to pursue or present evidence of his mental deficiencies was not an unreasonable determination of the facts in light of the evidence presented in the state-court proceedings. This Court need not reach the question whether §2254(e)(1) applies in every case presenting a challenge under §2254(d)(2), see Rice v. Collins, 546 U. S. 333, 339, because its view of the state court’s factual determination here does not depend on an interpretative difference regarding the relationship between those provisions. While “[t]he term ‘unreasonable’ is . . . difficult to define,” Williams v. Taylor, 529 U. S. 362, 410, it suffices to say that a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance. See Rice, supra, at 341–342. Here, the state-court record shows that all of Wood’s counsel read the Kirkland report. Trotter testified that Dozier told him that nothing in the report merited further investigation, a recollection supported by the attorneys’ contemporaneous letters; and Trotter told the sentencing judge that counsel did not intend to introduce the report to the jury. This evidence can fairly be read to support the Rule 32 court’s factual determination that counsel’s failure to pursue or present evidence of Wood’s mental deficiencies was not mere oversight or neglect but the result of a deliberate decision to focus on other defenses. Most of the contrary evidence Wood highlights—e.g., that Dozier and Ralph put the inexperienced Trotter in charge of the penalty phase proceedings—speaks not to whether counsel made a strategic decision, but to whether counsel’s judgment was reasonable, a question not before this Court. Any evidence plausibly inconsistent with the strategic decision finding does not suffice to show that the finding was unreasonable. Pp. 8–12. Because Wood’s argument that the state court unreasonably applied Strickland in rejecting his ineffective-assistance claim on the merits is not “fairly included” in the questions presented under this Court’s Rule 14.1(a), it will not be addressed here. Pp. 12–13.



The opinion was authored by Justice Sotomayer. Justice Stevens and Kennedy dissented. Read More...

Sixth Circuit Holds That Time Limits in Conditional Habeas Corpus Grants Are Unenforceable

Decisions granting habeas corpuses for criminal defendants often contain language saying that the state court must retry the individual within so many days of the grant of the writ. When Mr. Eddleman won his habeas corpus in 2007, his writ contained similar language. The state court, however, did not comply with the time limit. Mr. Eddleman successfully petitioned the District Court to bar any further prosecution. The Michigan Attorney General’s Office appealed the ruling. On November 12, 2009, the Sixth Circuit handed down a ruling stating that the time period is was unenforceable and the Michigan court was free to violate the ruling. The Court per Judge Kethledge held that once the individual was out of MDOC custody and the conviction was vacated, the District Court lost all jurisdiction to enforce its order. Eddleman v McKee, — F3d —, 2009 WL 3763155 (6th Cir Nov 12, 2009). Read More...