Archive | Habeas

When Judges Decide Against Type

The U.S. Court of Appeals for the Sixth Circuit has been one of the more divided appellate courts, particularly when it comes to habeas cases. Ideological splits on the court are common in such cases, especially so in capital cases or when claims of ineffective assistance of counsel are raised. Some judges on the Sixth Circuit are notorious for liberally granting ineffective assistance of counsel claims, while others are known for approaching any such claims with extreme skepticism. But it would be a mistake to assume that the judges on the Sixth Circuit (or any Circuit, for that matter) simply vote their ideological preferences or reflexively support or oppose certain types of claims without regard for the legal merits.

Case in point is today’s decision in Hardaway v. Robinson. Holland Hardaway was convicted of murder and given consecutive 40 to 80 year prison terms. Hardaway filed a habeas petition to challenge his conviction alleging, among other things, the ineffective assistance of counsel. Hardaway drew a fairly conservative panel — Judges Batchelder, Rogers and Kethledge. This would doom his ineffective assistance claim, right? Not in this case. In an opinion by Judge Rogers, the panel unanimously concluded that Hardaway had been denied the effective assistance of counsel, and that this violation was not cured by Hardaway’s subsequent ability to challenge his conviction in collateral state proceedings. [...]

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One More 5-4 Decision

This morning, with its end-of-term orders, the Supreme Court issued a 5-4 per curiam opinion in Sears v. Upton, a capital habeas case in which five justices voted to grant the petition of ceriorari, summarily vacate the decision below, and remand for further proceedings.  According to the brief per curiam opinion, after determining that Sears had received inadequate assistance of counsel, the state court failed to apply the proper Sixth Amendment inquiry to determine whether Sears was prejudiced.  The opinion notes that Chief Justice and Justice Alito would not have granted certiorari, and Justice Scalia, joined by Justice Thomas, dissented.

SCOTUSBlog has more on today’s orders here. [...]

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Is the Sixth Now the “Most Reversed” Circuit?

The Daily Journal reports that the U.S. Court of Appeals for the Sixth Circuit has gone 0-5 before the Supreme Court this term.  As I noted here, all five cases were pro-prisoner habeas cases.  The article discusses the role of the Michigan AG’s office in encouraging the Supreme Court to review the Sixth Circuit’s habeas handiwork.

As for why the Supreme Court suddenly became interested in 6th Circuit habeas rulings, court-watchers say part of the reason is that Michigan Solicitor General Eric Restuccia went to great lengths to flag the issue in his briefs. Of the five 6th Circuit habeas cases decided this term, three were out of Michigan.

In five briefs filed last year, Restuccia mentioned the other petitions he was filing in an attempt to highlight the failure of the 6th Circuit to follow habeas corpus rules as revised by Congress in the Antiterrorism and Effective Death Penalty Act back in 1996.

“These cases evidence a pattern by the 6th Circuit of usurping the role of the State courts by failing to properly apply the AEDPA,” he wrote in a passage that appeared in all five briefs.

Joy Yearout, a spokeswoman for the Michigan Attorney General’s office, said Thursday that the state is “going to keep filing petitions as long as the 6th Circuit continues its pattern of failure to accord proper deference to state court determinations.”

One has already been filed and another will be filed in the coming weeks, she added.

The Michigan AG’s office is not alone.  Prosecutors within the Sixth Circuit are well aware that some of the Circuit’s judges are out-of-step with existing Supreme Court precedent on habeas.  Now that the Supreme Court appears to be aware of this as well, I would expect state AGs to become increasingly aggressive at seeking [...]

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Is the Sixth Circuit the New Ninth (At Least in Habeas Cases)?

With today’s decision in Berghuis v. Thompkins the Supreme Court has once again reversed the U.S. Court of Appeals for the Sixth Circuit in a habeas case.  Indeed, this is the fifthsuch reversal this year.  In each case, a panel of the Sixth Circuit granted a prisoner’s habeas corpus petition.  In each case, the Supreme Court reversed.  Three of these decisions were unanimous (Berghuis v. Smith, Smith v. Spisak and Bobby v. Van Hook), one was 6-3 (Renico v. Lett).  Today’s decision was 5-4.  Overall, this means the Circuit could only muster 7 of 45 available votes in support of its decisions.

It’s hardly unheard of for a single circuit to be reversed five or more times in a single term.  The number of cases up for review in any given year is a sufficiently small and unrepresentative sample to preclude drawing any sweeping conclusions.  Still, it is unusual to see a circuit fare so poorly in a single area of the law in a single term, and in such a uniform direction.

The spate of reversals is also notable because the Sixth Circuit has been so divided in habeas cases of late.  As I’ve chronicled over the past several years (see, e.g., here, here and here), the judges on the Sixth Circuit are deeply split over the proper standard of review in habeas cases, particularly when the death penalty is involved.  Indeed, the Circuit released yet another divided panel decisionin a habeas case this morning.   The uniformity of the reversals suggest that one side in the Sixth Circuit’s habeas disputes has the better of the argument, at least under existing law.  If current law is too restrictive on this score — and it may well be — then it [...]

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No Habeas Jurisdiction Over Bagram Air Force Base

This morning, the U.S. Court of Appeals for the D.C. Circuit handed down its opinion in Al Maqaleh v. Gates.  The opinion for the court, by Chief Judge David Sentelle and joined by Judge David Tatel and Senior Judge Harry Edwards, begins:

Three detainees at Bagram Air Force Base in Afghanistan petitioned the district court for habeas corpus relief from their confinement by the United States military.1 Appellants (collectively “the United States” or “the government”) moved to dismiss for lack of jurisdiction based on § 7(a) of the Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600 (2006) (“MCA”). The district court agreed with the United States that § 7(a) of the MCA purported to deprive the court of jurisdiction, but held that this section could not constitutionally be applied to deprive the court of jurisdiction under the Supreme Court’s test articulated in Boumediene v. Bush, 128 S. Ct. 2229 (2008). The court therefore denied the motion to dismiss but certified the three habeas cases for interlocutory appeal under 28 U.S.C. § 1292(b). Pursuant to that certification, the government filed a petition to this court for interlocutory appeal. We granted the petition and now consider the jurisdictional question. Upon review, and applying the Supreme Court decision in Boumediene, we determine that the district court did not have jurisdiction to consider the petitions for habeas corpus. We therefore reverse the order of the district court and order that the petitions be dismissed.

UPDATE: More from Lyle Denniston on SCOTUSBlog. [...]

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Sixth Circuit Now 0-4 in Habeas Cases This Term

This morning the Supreme Court released its opinion in Renico v. Lett.  By a vote of 6-3, the Court overturned a decision by the U.S. Court of Appeals for the Sixth Circuit granting habeas relief to Reginald Lett, who had been convicted of murder in Michigan. Chief Justice Roberts’ majority opinion begins with the following summary:

This case requires us to review the grant of a writ of habeas corpus to a state prisoner under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d). The District Court in this case issued the writ to respondent Reginald Lett on the ground that his Michigan murder conviction violated the Double Jeop-ardy Clause of the Constitution, and the U. S. Court of Appeals for the Sixth Circuit affirmed. In doing so, how-ever, these courts misapplied AEDPA’s deferential standard of review. Because we conclude that the Michigan Supreme Court’s application of federal law was not unreasonable, we reverse.

Justice Stevens dissented, joined by Justice Sotomayor in full and Justice Breyer in part.

Of note, this is the fourth  reversal of a Sixth Circuit decision granting a prisoner’s habeas petition this term.  The other three were Berghuis v. Smith, Smith v. Spisak and Bobby v. Van Hook.  One more Sixth Circuit habeas case remains, Berghuis v. Thompkins.  Will the Supreme Court reverse in all five?  We’ll see. [...]

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Sixth Circuit 0-3 in Habeas Cases This Term

This morning, the Supreme Court unanimously reversed the U.S. Court of Appeals for the Sixth Circuit in Berghuis v. Smith.  The Court held, in an opinion by Justice Ginsburg, that the Sixth Circuit had erroneously concluded that the Michigan Supreme Court’s rejection of criminal defendant Diapolis Smith’s Sixth Amendment claim involved an unreasonable application of clearly established federal law, as is required to grant a habeas petition under the Anti-Terrorism and Effective Death Penalty Act (AEDPA).  Smith had argued that jury selection in his trial had violated his Sixth Amendment right to an impartial jury drawn from a representative cross-section of the community.

Of note, this is the third reversal of a Sixth Circuit decision granting a crminal defendant’s habeas petition this term.  The first two were Smith v. Spisak and Bobby v. Van Hook.  Two more Sixth Circuit habeas cases remain, Renico v. Lett and Berghuis v. Thompkins.  As I noted here, in all five cases, the Sixth Circuit granted the habeas petition.  Will the Supreme Court reverse in all five?  We’ll see.  Three down, two to go. [...]

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Where is Gao Zisheng?

One of the foremost attorneys in China, Gao Zisheng believed in the rule of law, and began to try to use the law to protect human rights. Senator Byron Dorgan (D-N.D.) describes what happened next:

He wrote an open letter to the United States Congress asking us to pay some attention to the lack of human rights that existed in China. For writing an open letter to members of the United States Congress in 2007, Gao Zhisheng, one of the most distinguished human rights — noted and distinguished human rights lawyers in China, was imprisoned for 58 days and brutally tortured.
Now, in 2009, he was detained 80 days ago by ten members of the secret police in China and has not been heard from since.
Let me tell you what his transpired. Mr. Gao Zhisheng has represented some of the most vulnerable people in China. They include persecuted Christians, coal miners and others. He always believed in the power of law; using the law to battle corruption, to overturn illegal property seizures, to expose police abuses, to defend religious freedom. He’s a devout Christian. He fought to protect those who engage in peaceful spiritual and religious practice in China.
And in 2005, they took away his license to practice law, closed his law practice. As I said, in 2007, they arrested him, threw him in prison and tortured him. Eventually he was released and brought back home and placed under police surveillance at home. The surveillance proved almost harsher than prison. In fact, a member of the communist police moved into their living room, prevented his daughter from going to school; his 16-year-old daughter barred from attending schools. 24-hour surveillance.

He wrote an open letter to the United States Congress asking us to pay some attention to the lack [...]

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Court Reverses in Smith v. Spisak

The Supreme Court released one opinion today — and it was not the eagerly anticipated Citizens United.  The Court released another habeas decision instead.  In Smith v. Spisak, a unanimous Court reversed the U.S. Court of Appeals for the Sixth Circuit’s grant of death-row inmate Frank Spisak’s habeas petition.  Justice Breyer wrote the opinion, and Justice Stevens wrote an opinion concurring in part and concurring in the judgment.

All nine justices agreed that even if Spisak’s trial counsel had been ineffective at the penalty phase, there was no reasonable probability that he was prejudiced by this fact.  The Court also held that the trial court’s mitigation jury instructions did not violate clearly established Federal law. Justice Stevens disagreed on this latter point, but nonetheless concluded Spisak was not entitled to relief because his conduct had so “alienated and ostracized the jury, and his crimes were monstrous” that there was no reasonable probability of a different outcome.

This is the second reversal of a Sixth Circuit decision granting a habeas petition this term.  (The first was Bobby v. Van Hook.)  Three more Sixth Circuit habeas cases remain, Renico v. Lett, Berghuis v. Thompkins, and Berghuis v. Smith.  Of note, all five cases involve the review of pro-defendant appellate decisions.

I previously blogged on the Spisak case here.

[NOTE: As initially posted, I inadvertantly omitted one of the cases.] [...]

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D.C. Circuit Upholds Broad Detention Authority

Earlier today the U.S. Court of Appeals for the D.C. Circuit released its opinion in Al Bihani v. Obama, its first substantive post-Boumediene Guantanamo detainee habeas decision.  In an opinion by Judge Janice Rogers Brown, the court rejected Al Bihani’s habeas claims, affirmed the district court’s denial of his habeas petition and embraced a fairly expansive assertion of the federal government’s detention authority.  Judge Brown also wrote a short separate concurring opinion, and Senior Circuit Judge Stephen Williams wrote a separate opinion concurring in part and concurring in the judgment.  Judge Brett Kavanaugh joined Judge Brown’s opinion for the court in full.

Unless it is overturned, this decision could be quite significant.  SCOTUSblog has coverage here.  University of Texas law professor Robert Chesney has also written a useful summary of the opinion for his national security law e-mail distribution list which I’ve reproduced below the fold. [...]

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Ineffective Ineffective Assistance of Counsel Decisions

This week, for the third time this term, the Supreme Court reversed a lower court’s handling of an ineffective assistance of counsel claim in a capital case with a per curiam opinion. In the first two cases, Bobby v. Van Hook (6th Circuit) and Wong v. Belmontes (9th Circuit), the Court vacated lower court decisions in favor of capital defendants.  In each case, the Court thought the appellate court had been too solicitous of the defendant’s ineffective assistance of counsel claim.  Yet this week in Porter v. McCollum (11th Circuit), the Court reversed a decision that had rejected the defendant’s claim of ineffective assistance of counsel.  In all three case, the Court made its decision without oral argument (indeed, without the benefit of briefs beyond those from the cert petition stage).  Thus, it would appear the Court is quite unhappy with how appellate courts are handling ineffective assistance claims. [...]

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“It Is a Bad Idea . . . to Leave the Judge with a Smoldering Suspicion . . .”

On Friday, in Johnson v. Sherry, a divided panel of the U.S. Court of Appeals for the Sixth Circuit vacated the district court’s denial of William Johnson’s petition for a writ of habeas corpus and remanded the case for additional proceedings to determine whether Johnson received inadequate assistance of counsel.  In his habeas petition, Johnson maintained that his representation had been constitutionally inadequate because his attorney failed to object to the temporary exclusion of the public from his murder trial.  Judge Clay delivered the opinion of the court, joined by Judge Cole.

Judge Kethledge dissented from the court’s judgment.  His dissenting opinion begins:

In defending a murder charge, it is a bad idea, I think, to leave the judge with a smoldering suspicion that your client had a role in killing two of the prosecution’s key witnesses before trial. A lawyer who minimizes that danger—by consenting to, rather than fighting, closure of the courtroom during the testimony of three surviving witnesses, out of a total of 18 testifying witnesses in the case—does not thereby render constitutionally ineffective assistance of counsel. That is all the more true, in my opinion, when there is not a shred of evidence that the closure had the slightest effect on the trial’s outcome.

The majority concludes otherwise. The majority suggests that the closure fight here was one worth having—indeed, that it was constitutionally mandated—its ethereal upside and concrete downside notwithstanding. The majority then sidesteps the absence of any actual prejudice resulting from Johnson’s consent to the closure—and with it, the plainly stated actual-prejudice requirement of Strickland v. Washington, 466 U.S. 668 (1984)—by holding that Johnson need not show any prejudice at all in support of his ineffective-assistance-of-counsel claim. That holding is not supported by “clearly established Federal law, as determined by the Supreme

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When Ineffective Assistance Becomes Malpractice

Ineffective assistance of counsel is a common habeas petition claim, particularly in capital cases.  This has led me to wonder whether legal representation that is constitutionally deficient should presumptively constitute legal malpractice.  After all, for a capital defendant, effective assistance of counsel can be a matter of life and death.  Yet it is rare that defense attorneys are sanctioned for providing inadequate assistance to capital defendants.

One reason for the lack of sanctions may be that the threat of sanctions could discourage attorneys from representing capital defendants, making it more difficult for them to get proficient counsel.  On the other hand, I have also heard it claimed that the low likelihood of sanctions gives defense attorneys an incentive to “tank” bad cases, such as by providing sub-par performance at the penalty phase after losing at the guilt phase, so as to plant grounds for appeal. Such conduct would be worthy of sanction for sure, but I don’t know how often it occurs, if at all.  But what of shoddy or negligent legal work?  Should that be sanctionable too?

Yesterday the U.S. Court of Appeals for the Sixth Circuit decided Johnson v. Mitchell, an appeal from a district court’s denial of habeas relief for convicted murderer Gary Van Johnson. The three-judge panel, in an opinion by Judge Martha Craig Daughtrey, denied six of Johnson’s seven claims, yet granted relief on an ineffective assistance claim. Based on the facts described by the Court, if there’s a case in which a lawyer should be sanctioned for inadequate assistance, this would be it.

The key facts are these.  Johnson was initially convicted in 1983 and sentenced to death.  A new attorney represented Johnson on appeal, arguing (among other things) that Johnson had received ineffective assistance of counsel during the penalty phase of his [...]

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Good Luck, Mike

This morning, at the U.S. Supreme Court, my colleague Michael Benza will argue on behalf of the respondent in Smith v. Spisak.  He will argue that the U.S. Court of Appeals for the Sixth Circuit correctly granted a writ of habeas corpus to death row inmate Frank Spisak due to constitutionally defective jury instructions and ineffective assistance of counsel.  The case raises a thorny AEDPA issue which has gotten most of the attention, but I think the ineffective assistance claim is more interesting.  Basically, the case raises the question whether a closing argument can be so defective and counter-productive that it constitutes ineffective assistance of counsel.  Quite a few prominent trial advocacty experts think so.  If so, Spisak could be that case.

UPDATE: I have a PDF of the closing argument in the mitigation phase  but I’m having trouble posting it.  Check back to see if I’ve figured it out.  Here is a PDF of the full closing from the mitigation phase of the trial.

Meanwhile, here’s an early report on the oral argument.

UPDATE: Here’s the transcript. [...]

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