Two More Habeas Cases Split Sixth:
I don't follow other circuit courts of appeal closely enough to know for sure whether the U. S. Court of Appeals for the Sixth Circuit is particularly divided over the handling of habeas corpus petitions, but it sure seems that way. The latest evidence is two opinions issued by two different divided panels yesterday.
In Van v. Jones, a panel addressed the question of first impression whether a Michigan defendant's consolidation hearing is a "critical stage" of the criminal proceedings against him, such that the absence of counsel requires the issuance of a writ of habeas corpus. Chief Judge Danny Boggs, writing for the majority, answered the question in the negative, after an extensive review of the "critical stage doctrine" and how it could apply to a consolidation hearing.
It is settled that a complete absence of counsel at a critical stage of a criminal proceeding is a per se Sixth Amendment violation warranting reversal of a conviction, a sentence, or both, as applicable, without analysis for prejudice for harmless error. . . . But what is a critical stage?
If the consolidation hearing was a critical stage because Van's counsel was entirely absent, there is no need to make a showing of prejudice. Whether it was a critical stage depends on whether there was a reasonable probability that Van's case could suffer significant consequences from his total denial of counsel at this stage Perhaps the best way of reaching an answer to that query is to ask whether Van had any opportunity, subsequent to the consolidation hearing, to recover or exercise whatever privilege he lost at the hearing.
Here, it seems that the balance tips on the side of this being a procedural step where counsel's absence would, as a structural matter, be unlikely to be necessary to prevent incurable prejudice. This is not to say, however that counsel's action in not appearing for a noticed hearing on the motion to consolidate was professional or excusable, nor that, in an appropriate case, a claim for ineffective assistance of counsel might succeed. However, Van's claim here is not couched in terms of ineffective assistance of counsel, nor, on this record, is it likely that he could demonstrate prejudice.
Judge Cook wrote a concurring opinion noting that "in the abstract, consolidation surely could expose a defendant to a risk of prejudice," but that such prejudice was not possible in this case because, "under Michigan law, Van could not have avoided consolidation."
Judge Moore dissented, arguing that "a defendant who is unrepresented by counsel at a consolidation hearing is exposed to a serious risk of prejudice." Judge Moore noted that, because "joint trials are often favored at law," counsel is necessary to counterbalance a trial judge's potential tendency to favor consolidation. Thus, Moore would have held that a consolidation hearing is always a critical stage of the pretrial process, and the absence of counsel at such a hearing is per se reversible error.
In Benge v. Johnson, the court considered Michael Benge's habeas petition challenging his conviction and death sentence for aggravated murder and aggravated robbery. The panel easily disposed of six of Benge's claims, but divided on the seventh, "whether a jury instruction incorrectly precluded the jury from considering the affirmative defense of voluntary manslaughter."
Judge Gilman, joined by Judge Rogers, rejected Benge's claim.
In attempting to excuse his procedural default, Benge must demonstrate "that there was cause for the default and prejudice resulting from the default, or that a miscarriage of justice will result from enforcing the procedural default in the petitioner's case." [citation omitted]. Because we conclude that Benge has failed to show the actual prejudice necessary to excuse his procedural default, we will assume without deciding that the district court correctly determined that the first prong of Strickland was satisfied. . . .
The dissent correctly notes that the erroneous jury instruction effectively foreclosed the
possibility that the jury could have found Benge guilty of the robbery but not guilty of the murder. We also recognize, as the dissent emphasizes and as the district court itself
acknowledged, that "[a] conviction for aggravated robbery does not as a matter of law preclude an affirmative defense of provocation with regard to a related murder charge." . . But the dissent fails to persuade us that there is a reasonable probability that a properly instructed jury would have concluded that Benge met this affirmative burden. . . .
What Benge could have done, however, is irrelevant at this stage in the proceedings. We must be able to say that a reasonable probability exists that a properly instructed jury would have concluded that Benge had shown provocation by a preponderance of the evidence. Given that Benge's provocation defense rested almost exclusively on his own extremely dubious and at times inconsistent testimony, we are unable to so conclude.
Judge Martin dissented.
Although I agree with the bulk of the majority's analysis, I believe that Benge has presented one meritorious claim that should entitle him to a writ of habeas corpus. When Benge's attorney failed to object to the jury instructions regarding the lesser included offense of voluntary manslaughter, resulting in a jury charge that the Ohio Supreme Court later acknowledged was erroneous, he failed to provide Benge effective assistance of counsel. Because I believe a habeas writ should issue regarding that claim under Strickland v. Washington, 466 U.S. 668 (1984), I respectfully dissent.
UPDATE: Decision of the Day also profiles these two cases here. (Also note that DotD has a new address.)
Another Habeas Division on the Sixth:
Yesterday the U.S. Court of Appeals for the Sixth Circuit issued yet another divided panel opinion in a habeas case. In Hamilton v. Morgan, the panel majority denied the Quinn Hamilton's habeas petition seeking to overturn his state court conviction for armed robbery and evading arrest on the grounds that he was prejudiced by the state court's decision to declare a potential witness unavailable for trial and permit the state to introduce prior testimony from a preliminary hearing and suppression hearing instead. Judge Eugene Siler, joined by Judge Alice Batchelder, found that the state made sufficient good faith efforts to procure the relevant witness before trial, and that when these efforts were unsuccessful, "the decision of the Tennessee courts to allow prior testimony of a witness deemed unavailable for trial was neither 'contrary to' nor 'an unreasonable application of' federal law."
Judge Karen Moore dissented. According to Judge Moore, the prosecutor failed to meet his burden of showing that the witness was unavailable because "he submitted no evidence in support of his motion" (emphasis in original), and because the reliance upon prior testimony "almost certainly influenced the jury's verdict." Wrote Moore, "[b]ecause the majority's decision effectively eradicates the burden of proof that the Supreme Court established, I respectfully dissent."
Another Day, Yet Another Habeas Division on the Sixth:
Today the U.S. Court of Appeals for the Sixth Circuit issued yet another divided panel decision in a habeas case. In Simmons v. Kapture, Patrick Simmons filed a petition for a writ of habeas corpus to challenge his guilty plea for "assault with intent to do great bodily harm less than murder" in Michigan state court. According to Simmons, his plea was not knowing and voluntary and he denied effective assistance f counsel at the plea stage. Simmons has initially lost his case, but the Supreme Court accepted cert in the case and remanded it to the Sixth Circuit for reconsideration in light of Halbert v. Michigan (2005), under which Simmons may have been entitled to an attorney for his appeal in state court.
Judge Boyce Martin, joined by Judge Martha Daughtrey, held that Halbert applied retroactively to Simmons because it did not announce a new rule of criminal procedure, and instead merely applied prior holdings. Thus, the panel majority concluded, "Simmons is
entitled to a writ of habeas corpus based on the state's failure to appoint him appellate counsel forhis motion for leave to appeal his guilty plea."
District Judge Danny Reeves, sitting by designation, dissented on the grounds that the rule in Halbert should not apply retroctrively to Simmons' case because it was a "new rule" of criminal procedure that was not dictated by prior precedent, and because it coul not satisfy either exception to the bar on retroactive application of such a rule.
Sixth Circuit Habeas Divisions Continue:
Today the U.S. Court of Appeals for the Sixth Circuit denied the petition for panel rehearing and rehearing en banc in Slagle v. Bagley. As I posted here, the original three-judge panel split over whether Billy Slagle's capital conviction for the aggravated murder of Mari Anne Pope (whom he stabbed seventeen times with sewing scissors) should be overturned due to alleged prosecutorial misconduct in the form of improper statements by the prosecuting attorney. Judge John Rogers and Cheif Judge Danny Boggs concluded that the statements were insufficient to render the trial and resulting conviction unfair. Judge Karen Moore dissented.
Today, Judge Moore reiterated her dissent from the original panel's decision, and Judge Boyce Martin dissented from the decision to deny the petition for en banc review. Accoring to Judge Martin:
Any student or practitioner of the law — indeed, any casual viewer of Law & Order — would find it obvious that the repeated, unduly prejudicial comments of the prosecutor in this case were highly improper. And yet an attorney not only admitted to practice in Ohio, and not only employed by the state prosecutor's office, but charged with the duty to prosecute a criminal trial with the highest possible stakes, found it appropriate to repeatedly make such comments. Further, the state trial judge, who is entrusted with profound Constitutional responsibilities, presided over a trial where these comments were made over and over again. The debasement of the ethical code of our profession and the rules of evidence and procedure that occurred at Slagle's trial are emblematic of how the politicization of the death penalty has undermined the administration of criminal law in this country.
Chief Judge Boggs also wrote a decision concurring in the denial of rehearing en banc, which reads:
Because dissents from our court's denial of rehearings en banc are quite rare, the lack of any countering views at the time of such a dissent may be taken to mean that the contrary views presented are unanswerable.
Instead, it is usually the case that the original opinion has carefully considered and answered any substantive points made in the dissent from denial of rehearing en banc.
So it is in this case. Judge Rogers's excellent opinion carefully applied existing law with respect to analyzing statements, made during the course of a long and contentious trial, that may be characterized as improper statements by a prosecutor. The law never has been, in a capital case or otherwise, that every or even multiple prosecutorial errors, objected to or not, cured or not, can bring a grant of habeas corpus in federal court, years or decades down the road. Instead, the law prescribes a method for analyzing the import, motive, frequency, and prejudice from any such remarks, which is exactly what Judge Rogers's opinion did, and that opinion fully answers the substantive portion of the dissents.
And that's not all, for the Sixth Circuit issued an opinion in another habeas case today in which the court panel was once again divided. In Carroll v. Renico
, the court, in an opinion by Judge Rogers joined by Judge Jeffrey Sutton, rejected Jarmaine Carroll's petition for a writ of habeas corpus alleging improper jury contact and a violation of his Sixth Amendment right to counsel by allowing co-defendant's counsel to "stand in" for Carroll's attorney during reinstruction of the jury. Judge Eric Clay agreed with the majority on the first claim, but dissented on the Sixth Amendment claim.
I should also note that the Sixth Circuit issued another interesting divided opinion in a non-habeas case arising out of a man's arrest for yelling "God Damn" at a town meeting. In this case, Chief Judge Boggs wrote for the majority, while Judge Sutton wrote a dissent. Howard Bashman has more on this decision here.