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.”
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.
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.
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.
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...
“Whether the Sixth Circuit erred in holding that the Michigan Supreme Court failed to apply clearly established precedent by denying habeas relief on double jeopardy grounds when the state trial court declared a mistrial after the foreperson said that the jury was not going to be able to reach a verdict.” Read More...
SCOTUS Finds Death Penalty Counsel Ineffective for Failing to Put on Post Traumatic Stress Evidence in Mitigation Hearing
This past Wednesday, the U.S. Supreme Court heard oral arguments in Wood v. Allen, trying to come up with a working definition of AEDPA deference in habeas corpus cases.Petitioner’s trial teams had three attorneys (one of which had less experience than the others). This lawyer handled the penalty phase, during which he failed to present mitigation evidence, obtained from a competency evaluation, of Wood’s significant mental impairments. It is unclear from the oral arguments what standard the Court will ultimately adopt. It appears that he entire Court was very concerned about articulating a standard that would not further complicate habeas proceedings. What standard they will ultimately choose, however, was in no way clear.Read More...
This week the Court will hear oral arguments in Beard v. Kindler, Supreme Court No. 08-992. The issue is whether a partially enforced fugitive absconder rule constitutes adequate and independent grounds to justify Pennsylvania’s upholding of Joseph Kindler conviction. Mr. Kindler escaped twice from prison. A Pennsylvania state court held, and the state supreme court agreed, that Kindler waived his right to appeal when he fled. But the Third Circuit disagreed and affirmed the district court’s grant of habeas relief.In Beard, the Court will consider when state courts have resolved an inmate’s claims on “adequate grounds” such that federal courts may not review that inmate’s habeas claims. In particular, the Court will consider whether a state procedural default rule like Pennsylvania’s is “inadequate” solely because it is discretionary
There is compelling evidence that death row inmate Troy Davis may be innocent, but federal and state courts have consistently refused to hear the evidence. Mr. Davis has exhausted all conventionlal challenges to his conviction, Mr. Davis has resorted to an original writ of habeas corpus in the United States Supreme Court. If that petition fails, Mr. Davis will be executed. In refusing to hear Mr. Davis’s appeals, courts have relied on provisions contained in the 1996 Anti-Terrorism Act (“AEDPA”) and held that they are barred from hearing the petition. Mr. Barr argues that the courts have misread the law. For more information on Mr. Davis’s case, please see his website which contains many of the opinions and a nice time line of the case.
Tucker was a State appeal of the grant of a habeas corpus. Mr. Tucker was convicted of home invasion of his former neighbor’s home. U.S. Magistrate Komives and U.S. District Judge Zatkoff granted a writ of habeas corpus finding no evidence that the Defendant committed the crime. A sharply divided Sixth Circuit reinstated the convictions. What is striking about the case is the dueling use of facts between Judge Ackerman (for the majority) and Judge Keith (in the minority) and how AEDPA deference can be used to conceal poor state court workmanship.
On a hot summer day, Nicholas Sutliff was mowing his back lawn. He had locked his front door, but left the back door unlocked for access to the home. While he was mowing, Mr. Sutliff saw Raymond Tucker jump over a low fence in his backyard and run by Mr. Sutliff. Raymond Tucker used to live next to Mr. Sutliff, but had moved out “many years” before; the Tucker family still lived next door.
Mr. Sutliff checked his back door, saw it was ajar, briefly checked his house and found nothing amiss. Judge Ackerman does not state whether the neighbors were the Tuckers, or whether Raymond was visiting. He then briefly spoke to his neighbors to see if they had seen Raymond that day and then returned home and checked his house more carefully. Mr. Stuliff then noticed two rings missing from his dresser. He reported it to the police, Mr. Tucker was arrested, and then convicted.
Judge Ackerman’s opinion makes a convincing case that this was a routine burglary case and that the only question was whether home invasion could be sustained on circumstantial evidence. If this was the case, plainly Judge Zatkoff was wrong granting the writ.
Judge Keith’s dissent, however, describes a significantly different case and points out that this might easily be a case where an innocent might have convicted. Mr. Sutliff who was painted by the majority as a competent witness with good observation skills and knowledge of the facts, was painted as a very different gentleman in the dissent.
Mr. Sutliff was an individual with very “poor vision” due to his diabetes, who was not wearing his glasses, that his “eyes fluctuate,” when he identified an individual he had not seen in years. Mr. Tucker had moved out of his parent’s home a full twenty years earlier. It had been several years since Mr. Sutliff had seen Mr. Tucker.
While Judge Ackerman points to the sharpness of Mr. Sutliff’s recall; Judge Keith points to the fact that the dresser was cluttered and that Mr. Sutliff thought he had put his rings there. Judge Ackerman’s opinion is premised on the fact that the state court judge convicted Mr. Tucker because it thought that Mr. Sutliff stated that he saw Mr. Tucker entering his home. This was a point that Mr. Sutliff stated the exact opposite. Even though the state judge based his finding of facts on a critical mistake of facts, the majority ignores the fact that the state judge made such an error (a statutory AEDPA exception to the deference rule) and then “hides behind the AEDPA statute and claims that because its hand are tied, injustice must prevail.” According to Judge Keith: “just saying it, does not make it so.”
The majority placed a great deal of evidence on ambiguous evidence that it characterized as flight and more importantly on Mr. Tucker’s not speaking to Mr. Sutliff. Reading the opinion, however, it is clear that Mr Sutliff and Mr. Tucker did not get along. Inferring guilt from silence on an on the street passing is hardly proof of anything.
In reading this dueling recitation of the facts, it seems like politicians may not be the only ones who need a factcheck.org.
Sixth Circuit Reaffirms that an Attorney Cannot Exercise "Strategy" if (s)he Never Did Basic Investigation
The writ of habeas is the main vehicle which state prisoners use to challenge their convictions in federal court when there is a good argument that the conviction was obtained in violation of the federal laws or the constitution. The writ has been used to challenge such unjust convictions as that of former boxer and current international civil rights activist “Hurricane Rubin Carter.”
In 1996, in the wake of the Oklahoma Federal Courthouse bombing, Congress passed the Anti-Terrorism and Effective Death Penalty Act. For the first time in the history of the writ of habeas corpus. Congress in its infinite wisdom believed that weakening the power of federal courts to hear such actions would deter the likes of individuals such as Timothy McVeigh.
One of the key provisions of the act was to provide that a federal court must defer to the ruling of a state court unless is to contrary to clear United States Supreme Court holding or is objectively unreasonable. This provision has been interpreted by federal courts to hold that state court rulings which are only contrary to decisions of lower federal courts or which are contrary to the reasonable import (but not clear US Supreme Court holding) must be upheld unless the state court’s interpretation of the law is clearly unreasonable. A good example of this principle is shown in the Court’s 2006 decision in Carey v Musladin. In that case, the victim’s family wore buttons to court with a message calling for justice in memory of the victim. The defendant in the state case had successfully convinced the lower federal appellate court that this conduct violated his constitutional right to a fair trial. The United States Supreme Court reversed. Justice Thomas, writing for a six justice majority , found that the conduct of this group of non-parties might have violated the defendant’s constitutional rights, but no clear U.S. Supreme Court decision had held this. They therefore reinstated the conviction. Three Justices wrote separately, raising questions about allowing spectators to engage in courtroom activity that arguably might impair trial fairness.
A question which has remained unanswered is what federal courts are required to do with state court rulings which are either completely unresponsive to the federal question or where the ruling is so summary that it is impossible to discern the mental process of the state judge(s) who decided the case. Are federal courts required to create a hypothetical state court ruling and defer to it? Or are federal courts permitted to decide the issue for the first time? In Bell v Kelly, the Court has agreed to examine some part of this quandary. The Court has granted certiorari to consider:
“1) whether the deferential 28 U.S.C. § 2254(d) standard should apply to a claim resting on evidence that the state court did not consider and was thus introduced for the first time on federal habeas”
Oral arguments are scheduled for November 12th. Mr. Bell’s brief on the merits is available here. The Government’s brief has not been filed yet. The SCOTUS Wiki description of the case and other key documents in the case is available here.