Archive | Habeas

Wall Street Journal Op-Ed: Two Presidents, Two Suspensions

My op-ed in today’s Wall Street Journal compares Obama’s suspension of the ObamaCare employer mandate with Lincoln’s suspension of the writ of habeas corpus. Both Presidents were constitutional lawyers; both Presidents unilaterally suspended the law; and both suspensions were constitutionally dubious. But what they did next could not have been more different.

The op-ed is here.

UPDATE: I will be discussing this on Fox News tomorrow morning around 8:45am EST. [...]

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Boyce Martin’s Final Death Penalty Opinion

Judge Boyce Martin of the U.S. Court of Appeals for the Sixth Circuit is retiring. Martin, a former chief judge, has long been the Circuit’s liberal lion. He was a central player in some of the Circuit’s internecine squabbles and, over time, became a forceful critic of capital punishment. Today in Nichols v. Heidle, a lengthy opinion denying a death row inmate’s habeas claim, Martin wrote a concurrence that will be his last opinion in a capital case.

In this, my last death penalty case as a judge on the Sixth Circuit, I must concur in affirming the judgment of the district court. Despite my concurrence, I continue to condemn the use of the death penalty as an arbitrary, biased, and broken criminal justice tool. The facts of this case make it one of the more tragic and disturbing cases that I have heard in years. While Nichols’ actions are despicable, I cannot ignore the fact that his actions were committed in the late 1980s and that he was convicted in 1990. Nichols’ execution was supposed to take place in 1994. I have been on this bench since 1979, and for twenty-three of my thirty-four years as a judge on this Court this case has been moving through our justice system, consuming countless judicial hours, money, legal resources, and providing no closure for the families of the victims. Retired Supreme Court Justice John Paul Stevens has called for a dispassionate and impartial comparison of the enormous cost that death penalty litigation imposes on society with the benefits it produces. The time, money, and energy spent trying to secure the death of this defendant would have been better spent improving this country’s mental-health and educational institutions, which may help prevent crimes such as the ones we are presented with

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The Sixth Circuit Wins One

The U.S. Court of Appeals for the Sixth Circuit has had quite a losing streak in the Supreme Court.  For the past few years, on over twenty straight cases, the Supreme court has reversed the Sixth Circuit decision in every case in which the Court accepted cert.  The lion’s share of these cases concerned grants of habeas petitions to convicted criminals in which the Supreme Court found that the Sixth Circuit had been too quick to grant relief, suggesting at least some of the Sixth Circuit’s judges are out of step with the Supreme Court on habeas questions.

Yesterday, however, the Sixth Circuit’s cold snap ended – more or less – and in a habeas case, no less.  In McQuiggin v. Perkins, the Supreme Court agreed with the Sixth Circuit that the district court was wrong to reject a habeas petitioner’s claim of actual innocence made after the expiration of the one-year statute of limitations established under the Anti-Terrorism and Effective Death Penalty Act (AEDPA).  It wasn’t a resounding victory, as the Court split 5-4 (Kennedy and the liberals in the majority) and Justice Ginsburg’s opinion still found fault with Sixth Circuit’s analysis, vacated the court’s opinion, and left open the possibility that the habeas petitioner’s claim will ultimately fail.  Nonetheless, for the first time in quite awhile, the Supreme Court granted certiorari in a habeas case from the Sixth Circuit and did not rule for the state. [...]

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Sixth Circuit Reversed in Another Habeas Case

The U.S. Court of Appeals for the Sixth Circuit has been on quite a losing streak in the High Court, particularly when it comes to habeas cases.  This morning, the Sixth Circuit was reversed again by a unanimous court in Metrish v. Lancaster, vindicating Judge Batchelder who had dissented from the original panel opinion.  As has been the norm, the Supreme Court concluded that the Sixth Circuit was too quick to grant a habeas petition.  SCOTUSBlog has more background on the case here. [...]

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Does the Supremacy Clause mean that the federal government always wins?

Last week, I filed an amicus brief on behalf of petitions for certiorari in Chafee v. United States and Pleau v. United States. These related cases could be among the most important federalism cases before the Court this term. The amici are the Cato Institute and the Independence Institute.

The State of Rhode Island and the federal government are fighting for custody of Jason Pleau, who is accused of perpetrating a murder during the course of a bank robbery. Rhode Island got him first, by revoking his parole for previous crimes. Pleau has offered to plead guilty in Rhode Island state court, and receive a sentence of life without parole for the murder/robbery. Although Pleau’s robbery of the bank’s night depository involves no particularly strong federal interest (such as the murder of a federal officer), the U.S. Attorney for Rhode Island wants to prosecute Pleau in federal court, and has stated that capital punishment may be sought.

Over four decades ago, the States entered into an interstate compact, the Interstate Agreement on Detainers Act (IADA). The Act provides the procedures for the temporary transfer of a prisoner from one state to another state, for criminal prosecution in the second state. Congress liked IADA so much that it not only gave permission for the compact, it also enacted IADA as a federal statute, and made the U.S. a party to the compact. So under IADA, the U.S. functions just like any other “sending” or “receiving” state.

The U.S. Attorney filed a detainer under IADA, to obtain temporary custody of Pleau. IADA explicitly provides that the Governor of the sending state has an unlimited right to refuse to transfer a prisoner. Rhode Island Governor Lincoln Chafee exercised this right. Because Rhode Island does not have the death penalty, Chafee believes that [...]

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Sixth Circuit Smackdown Watch

Today the Supreme Court issued a unanimous per curiam opinion summarily reversing a divided panel of the U.S. Court of Appeals for the Sixth Circuit in Parker v. Matthews. The opinion begins:

In this habeas case, the United States Court of Appeals for the Sixth Circuit set aside two 29-year-old murder convictions based on the flimsiest of rationales. The court’s decision is a textbook example of what the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) proscribes: “using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 12).

The citation to Renico is a clear rebuke to the Sixth Circuit. Renico also reversed a Sixth circuit decision granting a habeas petition. As the Court notes later in its opinion, in Renico the Court corrected “an identical error” to that made by the Sixth Circuit here.

The reversal of the Sixth Circuit in habeas cases has become rather common. In the 2009-2010 term, when Renico was decided, the Supreme Court reversed Sixth Circuit habeas decisions in five separate cases. But it’s not just habeas cases. If I have my numbers right, the Sixth Circuit is 0-20 over the past four terms. This pattern has caused some to wonder whether the Sixth Circuit is (or could become) the “most-reversed” circuit or the “new Ninth.”

How the Sixth Circuit fares in the future will largely depend on how the court’s newest judges approach habeas cases, particularly those confirmed in the past five years. The lion’s share of the Sixth Circuit’s reversals have come from habeas cases and the lion’s share of those have involved opinions written or joined by a handful of judges who clearly have a different (and more pro-petitioner) [...]

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Sixth Circuit Splinters on Michigan Rape-Shield Statute

Yesterday, in Gagne v. Booker, the full U.S. Court of Appeals for the Sixth Circuit splintered along unusual lines over the application of Michigan’s rape-shield statute to exclude evidence relating to the complaining witness’ prior sexual conduct with the defendant. Lewis Rodney Gagne was accused of gang raping his ex-girlfriend and sought to introduce evidence that she had consented to rough, group sex with Gagne and other men on at least one prior occasion. The trial court refused to admit this evidence due to Michigan’s rape shield law. In his habeas petition, Gagne claimed the trial court’s decision violated his constitutional right to present an effective defense. The distrcit court granted Gagne habeas relief and a three-judge panel of the Sixth Circuit affirmed (then with an amended opinion). Sitting en banc, the Sixth Circuit reversed, 11-5.

What makes this decision particularly interesting is the procedural posture of the case, the appeal of a denial of a writ of habeas corpus, as the Sixth often splits along ideological lines in habeas cases. Here, however, the judges did not split along traditional ideological lines. Chief Judge Alice Batchelder delivered the opinion of the court denying habeas relief with an opinion for a seven judge plurality. Judges Boggs, Gibbons, Sutton, Cook, McKeague, and Griffin joinedthe Chief Judge. Judge Moore concurred in the judgment only, joined by Cole and Clay, as did Judge White. Judge Kethledge dissented, joined by Judges Martin, Norris, Rogers and Stranch. [...]

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President Obama versus the Constitution

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every

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The Fourth Time Is Not the Charm for Van Hook

This morning a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued an opinion in Van Hook v. Bobby for the fourth time.  On three previous occasions the panel had granted habeas relief to death row inmate Robert Van Hook , and all three times the panel was overturned — twice by an en banc court and once, summarily, by the Supreme Court.  This time, it appears, Van Hook was out of arguments, and the panel denied his petition. [...]

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Supreme Court Stays Texas Execution

Given all the attention paid to Rick Perry’s “record tally” of executions as Texas Governor, I am surprised the Supreme Court’s decision last week to stay the execution of Duane Edward Buck has not received more attention.  From the Houston Chronicle:

Buck was sentenced to die for the July 1995 shooting deaths of his former girlfriend, Debra Gardner, and her friend, Kenneth Butler. Buck also shot his sister, Phyllis Taylor, in the chest at point-blank range, but the woman recovered and later became an advocate for saving his life.

The legal fight for Buck’s life centered on a 2000 assertion by then-Texas Attorney General John Cornyn that Buck’s case was among six capital trials that might have been tainted by racial testimony from psychologist Walter Quijano.

The other five killers all received new federal court-ordered punishment hearings in which they again were sentenced to death. But Buck, whose case still was at the state level at the time of Cornyn’s pronouncement, never had his sentencing reconsidered.

Given the stay, I would think that a grant of certiorari is likely. [...]

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Sixth Circuit Splits on Juror’s Ex Parte Communication

Today, a divided panel of the U.S. Court of Appeals for the Sixth Circuit rejected death row inmate Bobby Shepherd’s appeal of the district court’s denial of his petition for a writ of habeas corpus in Shepherd v. Bagley. Among Shepherd’s claims was that his trial was constitutionally defective because one of the jurors had consulted a psychologist during the penalty phase of the trial to understand what “paranoid schizophrenia” means. This was potentially relevant because the defense had argued (unsuccessfully) that Shepherd’s paranoid schizophrenia was a mitigating factor that should weigh against imposition of the death penalty. The juror maintained that this conversation did not affect his or the jury’s deliberations, however, and the trial court concluded there was no prejudice and sentenced Shepherd to death.

One of the issues dividing the Sixth Circuit panel was whether the trial court properly handled the juror’s improper conduct and, specifically, whether the prosecution or the defense should bear the burden of proof in such a situation. Judge Kethledge, writing for the court joined by Chief Judge Batchelder (who also wrote a separate concurrence addressing this issue), concluded that the burden was on the defense to prove prejudice. Judge Merritt, in dissent, forcefully argued the burden must rest on the prosecution.

Judge Merritt argued that the burden was on the proscecution to prove that the juror’s conversation with the psychologist was not prejudicial, and that this burden was never met.  In support of his position, Judge Merritt cited the Supreme Court’s decision in Remmer v. United States, 347 U.S. 227, 229 (1954), in which the Court held that ex parte communications with jurors are “presumptively prejudicial. The majority, on the hand, concluded that Remmer had been abrogated by subsequent decisions, including Smith v. Phillips, 455 U.S. 209, 215-17 (1982), [...]

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The Stumpf Sequel

Today the U.S. Court of Appeals for the Sixth Circuit granted death row inmate John David Stumpf’s petition for a writ of habeas corpus for a second time – seven years after its first habeas grant, six years after the Supreme Court’s reversal of that decision, and four years after the subsequent oral argument. As one might expect, the panel was divided, just as it had been the first time around. Judge Daughtrey wrote the majority opinion, joined by Judge Moore. Judge Boggs dissented. Although the majority’s rationale is somewhat different this time, the arguments seem familiar. Could this decision prompt another Supreme Court reversal? Perhaps. After all, this is a habeas grant from the Sixth Circuit.

Excerpts from the opinions are below the jump. [...]

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How Long a Nap Is Ineffective Assistance of Counsel?

If your defense attorney falls asleep during your trial, and you are convicted, do you have an ineffective assistance of counsel claim? That may depend on how long your attorney was asleep, and whether you can demonstrate prejudice. Yesterday, in Muniz v. Smith, the U.S. Court of Appeals for the Sixth Circuit denied a habeas petition alleging ineffective assistance of counsel because the defense attorney fell asleep while the defendant was under cross-examination. A courtroom nap, by itself, is insufficient to establish ineffective assistance of counsel unless the attorney is asleep for a “substantial portion” of the trial, and that could not be demonstrated here. Further, the defendant could not demonstrate he was prejudiced by his attorney’s nap. [...]

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CVSG on Whether Incompetency Should Stay Habeas Proceedings

This morning the Supreme Court called for the views of the Solicitor General in Ryan v. Gonzales, a habeas case arising out of the Ninth Circuit posing the question whether a habeas petitioner is entitled to a stay of the proceedings if the petitioner is not competent to assist counsel. This question is similar to that raised in Carter v. Bradshaw, a case from the Sixth Circuit about which I blogged over the weekend. [...]

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Should Habeas Proceedings Be Stayed If the Petitioner Is Incompetent?

Last week, in Carter v. Bradshaw, the U.S. Court of Appeals for the Sixth Circuit held that habeas proceedings challenging a capital sentence should be stayed until the petitioner is competent to proceed. The opinion by Judge Martin, joined by Judge Cole, acknowledged that “federal habeas petitioners facing the death penalty for state criminal convictions do not enjoy a right to competence,” but nonetheless concluded that habeas petitioners “do have a statutory right to competence in some situations.” For example, only a competent habeas petitioner may terminate habeas proceedings once they have been initiated. By the same token, the court suggested, if a petitioner lacks the competency to assist the attorneys working on his behalf – perhaps by providing information necessary to prove an ineffective assistance of counsel claim – it is tantamount to the petitioner terminating the claim. On this basis, Judge Martin concluded that Carter’s habeas proceedings should be stayed until such time as Carter regains his competency.

Judge Martin’s opinion provoked a forceful dissent from Judge Rogers. Here is how begins:

Today the court allows habeas petitioners to prevent States from enforcing their judgments, potentially forever, on the grounds of a nonexistent right to competency in habeas proceedings. The asserted right has no basis in the Constitution or federal statutes. Civil suits can be brought by lawyers representing mentally incompetent plaintiffs, and habeas cases are no different. Nor are capital cases different in this respect.

In the concluding section, Judge Rogers writes:

Requiring competency on the part of capital habeas petitioners is not compelled by the right to competency at trial, the right to competency in waiving further habeas proceedings, or the right to be competent at the time of execution. The new ‘right’ is not provided by either the Constitution or any statute. It is

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