Interesting Habeas Win

There has been more good stuff recently, and I'll try to post more next week, but for today, I put this note up on the Sixth Cir. Blog, as it was my week to post there.

Ajan v. United States, No. 09--6366 (6th Cir. Oct 3, 2013) (for publication).

Panel of Judges Keith, McKeague, and Watson (S.D. Ohio).

Drugs, aiding and abetting kidnapping, couple 924(c)s. . . . 646-month sentence. 2255 granted in part and denied in part by dist ct. Dist ct entered amended judgment and new sentence without a resentencing hrg. Petitioner did not seek a certificate of appealability (COA). Petitioner appealed, arguing he was entitled to a resentencing hrg.

Conclusions:
* No COA needed b/c petitioner appealing previously unreviewed issues.
* Ct of Appeals vacated amended judgment---dist ct to exercise its discretion in selecting a 2255 remedy.

Issues and Points:
* Whether a COA needed to appeal relief granted after a successful 2255 was an open questions in the circuit.
* Once a judgment is vacated under 2255, a district court must grant one of four remedies: 1) discharge the prisoner, 2) resentence the prisoner, 3) grant a new trial, or 4) correct the sentence.
* Here, successful 2255 led to a new judgment---the amended judgment---that was not in place at time 2255 filed.
* Petitioner was essentially appealing a new sentence and did not need a COA. Defendants entitled to direct review of sentences for non-constitutional errors.
* In terms of the merits, ambiguity existed as to what the district court perceived as its statutory authority to grant 2255 relief. So sentence vacated and case remanded. (The parties had agreed that one 924(c) was not an offense under the charged statute; the dist ct vacated the conviction for that count and sentenced the petitioner to 346 months. The dist ct essentially excised the unlawful sentence, but reinstated the others.) Issue was: did the dist ct fully appreciate its discretion?
* In terms of 924(c)s more broadly, Court of Appeals is clear: coexistence of a mandatory consecutive sentence does NOT remove a dist ct's discretion to resentence. Dist cts have the authority to resentence after reversal of a 924(c).

This opinion is pretty interesting in terms of 2255 and resentencings. The guidelines were mandatory when the petitioner was sentenced; now he gets the benefit of advisory GLs. On remand, the dist ct can consider that the count with the longest sentence has been vacated, so the dist ct has "a far less egregious set of convictions" to consider on remand. 

Lafler Playing Out: IAC

So here we go: we're starting to see ineffective-assistance cases fleshing out Lafler.

Titlow v. Burt, No. 10-2488 (6th Cir. May 22, 2012) (for publication).

Have a great Memorial Day weekend, everyone!

Chief Judge Batchelder, Judges Clay and Gilman.

Chief Judge Batchelder dissented. 

State prisoner appealed dist ct's denial of her habeas petition.  She was convicted of second-degree murder.  COA reversed.  Ineffective-assistance-of-counsel claim arising out of plea-bargaining process had merit.  Inmate's second attorney was ineffective b/c he failed to investigate case before recommending that the inmate withdraw her plea.  Under plea, inmate would have received a 7-to15-year sentence.  After being convicted by a jury, the inmate received a 20-to-40-year sentence.  COA conditionally granted the habeas petition and gave the state 90 days to reoffer the original plea or to release the inmate.

Plea:
* Inmate was represented by an attorney who negotiated a plea deal.  Charges reduced to manslaughter, 7-to-15-year sentence.  Defendant to submit to a poly and testify against co-defendant.  Defendant would not challenge the prosecutor's recommended sentencing range on appeal. 
* Defendant pleaded guilty.
* After plea, the defendant spoke with a sheriff's deputy at the local jail.  This fellow advised the defendant not to plead guilty if she believed she was innocent.  He referred the defendant to another attorney.  This attorney agreed to represent the defendant in exchange for jewelry and media rights. 
* Defendant withdrew her plea.  Based on defendant declining to testify against the co-defendant.

Post-Plea Proceedings:
* The new attorney did not obtain the file, inspect the state's discovery materials, or speak with the prior attorney for a month and a half after the withdrawal of the plea. 
* After obtaining the file, the attorney moved to withdraw.  Claimed lack of $$$ from client. 
* State court appointed a third attorney.
* Jury convicted the defendant and she got 20 to 40 years of custody.  Co-defendant was acquitted. 
* Mich Ct App affirmed sentence on direct appeal and rejected all constitutional challenges.  Mich S Ct denied leave to appeal.  Motion for relief from judgment denied.  Mich Ct App denied leave to appeal that decision. 

Habeas Review:
* The inmate sought fed habeas review.  Dist ct denied, but granted certificate of appealability.

COA Conclusions:
* While decision to plead guilty rests with client, attorney has duty to inform client of options.  Attorney must reasonably investigate case.  Defendants have the right to expect counsel to review their cases and explain the elements, evidence, and sentencing exposure.   
* As Lafler has told us, "the simple fact of a higher sentence after trial is sufficient to demonstrate prejudice" for an IAC claim. 
* Substantial disparity b/t plea offer and post-trial sentence provides evidence that a defendant would have accepted a plea deal. 
* COA recognizes that "defendants may have legitimate reasons for continuing to maintain their innocence during and even after plea negotiations." 
* No need for a defendant to support with objective evidence an assertion that they would have accepted a plea offer.
* No evidence that the second attorney explained the elements of the charges, explained the defendant's sentencing exposure, or discussed the evidence.  Attorney failed in his obligations. 
* Not sound professional judgment or strategic choice.
* Inmate can show the court would have accepted the plea and the sentence would have been less.  The court accepted the plea the first time around.  Sentence the inmate got was substantially higher than the one available under the plea. 

Remedy:
* Lafler kind of leaves this door open. . . .
* Problem here is the plea deal was based in part on the inmate's agreement to cooperate against the co-defendant.  Co-defendant was acquitted and then died, so that basis for the plea deal is now gone.
* State should reoffer the plea.  State trial court would then have discretion to vacate the trial conviction and accept the plea or leave the conviction undisturbed.  State court should recognize the plea deal as a "baseline" to consult in fashioning an appropriate remedy.
* But COA acknowledges there may be a problem if the state court just reimposes the last sentence.  But Lafler says the state court must at least consult the initital plea agreement in crafting a new sentence.  Ct's discretion is not unfettered.  If there's a problem (eg, new sentence is greater than origianl plea deal), the later remedy in fed ct is a question for another day. 

Chief Judge Batchelder's dissent:
* Mich Ct App's denial of IAC claim was reasonable. 
* It was not counsel's advice that motivated the defendant to withdraw her plea.  And even if counsel encouraged the withdrawal, such advice did not fall below an objective standard of reasonableness.
* Counsel represented the inmate for only three days before the plea withdrawal.  No time to review case file. 
* Lafler distinguishable b/c that petitioner "presented actual evidence that he received deficient advice." 
* Lafler does not require the trial ct to consult the original plea agreement.  Lafler "simply says that the 'baseline' of the original plea offer 'can be consulted in finding a remedy.'"
* Lafler does not require resentencing. 

Busy Week!!!! CP Sentencing, Habeas Rape Shield

Lots from the Circuit this week.  It was my week to blog for the Sixth Cir. blog, so I'll just point you in that direction this week.  Especially b/c it's been quite busy.  Check out the good decision on a CP sentence: it was substantively unreasonable (kudos to a WD Mich panel attorney for that one!).

Gagne v. Booker decided by en banc Court.  Addresses rape-shield, habeas, confrontation, and Sixth Am issues.  (Thanks to another blogger for covering that big opinion!)

All at www.circuit6.blogspot.com!

Rape-Shield Issues on Habeas

Sorry for the delay in posting.  Little hectic.  It was nice saying hello to many of you at CDAM in Novi a couple weeks ago.

Jordan v. Warden, Lebanon Correctional Institution, No. 10-3064 (6th Cir. Mar. 27, 2012) (for publication).

Panel of Judges Gilman, Rogers, and Stranch.

District court denied the petitioner's application for habeas relief (he had been convicted in Ohio court of rape and unlawful sexual conduct with a minor; eight-year sentence). 

Issue: did the state trial ct violate the petitioner's Sixth Amendment rights to present a defense and confront witnesses by improperly applying Ohio's rape-shield law. 

The COA affirmed the dist ct's denial of habeas relief.

Petitioner claimed he never had sex with the alleged victim.  On direct examination, the alleged victim claimed the petitioner raped her, and that it was her first experience with sex.  Defense counsel did not inquire into that latter assertion on direct examination. 

A friend of the alleged victim testified.  On cross-examination, defense counsel asked if the alleged victim had ever confided in the friend--witness that the alleged victim was having sex with people.  The friend--witness said yes, the alleged victim had so confided.  The prosecutor objected, arguing the rape-shield rules applied. 

During the bench conference on the issue, the defense stated it was not trying to get into prior sexual conduct; it was a matter of credibility.  The alleged victim had testified that it was her first sexual encounter, so the information on prior encounters went to credibility.  The trial court sustained the objection. 

Petitioner appealed to the Ohio appellate court.  Argued he should have been allowed to present the evidence of the alleged victim's sexual history.  Argued that the state had waived the rape-shield protections by choosing to introduce evidence regarding the alleged victim's lack of past sexual activity.  The Ohio appellate court found that the doctrine of waiver did not apply in the situation.  It rejected the merits of the petitioner's argument. 

The petitioner never tried to cross-examine the alleged victim on the point at issue.  So he cannot argue a confrontation-clause error to seek habeas relief.  The defense also did not object on rape-shield grounds to the state's questioning of the alleged victim regarding her alleged lack of sexual history.  The petitioner waived his challenge to the scope of cross-examination of the alleged victim. 

In terms of the cross-examination of the alleged victim's friend, trial judges have wide latitude to impose reasonable limits on cross-examination.  Rape-shield laws impose such a limit.  B/c the U.S. Supreme Court has not ruled explicitly on the issue of waiver in the rape-shield context, and b/c of the broad latitude the trial ct has on evidentiary issues, the Ohio COA's decision on waiver was not contrary to or an unreasonable application of federal law. 

In terms of the substance of that cross-examination, only cross-examination seeking evidence of bias or other motivations for a witness's testimony is constitutionally protected.  The Supreme Court has not suggested that the Constitution always confers a right to impeach the general credibility of a witness.  The Supreme Court has also not recognized a right under the Confrontation Clause to impeach adverse witnesses by putting on a third-party witness. 

The state argued that its questioning about the alleged victim's lack of sexual history did not fall under the rape-shield bar.  While questioning "the soundness of this argument," the COA (6th Cir) did not address the scope of the rape-shield law.  Rather, the COA concluded that the trial court did not err in applying the rape-shield law, even if the state's questioning about the alleged victim's lack of sexual history should have been excluded.  The defense had not objected during that questioning.  The state, on the other hand, did object during the defense's cross-examination of the alleged victim's friend.

No confrontation-clause errors based on the limitations the Ohio trial ct placed on the defense's cross-examination of the alleged victim's friend.  Even if there had been error, it would not lead to relief b/c it would be harmless.  The alleged victim's sexual history was a collateral topic and not relevant to the central issues at trial.   

Habeas and Crawford

AEDPA presents a high standard to overcome to receive relief.  See the Sixth Cir blog for my brief post on a Confrontation Clause/Crawford opinion issued yesterday.

http://circuit6.blogspot.com/

No relief for the petitioner.

Booker and Ohio Sentencing

Not too much going on this week.  But here's a note on a short, unpublished opinion on post-Booker sentencing in Ohio.

Featherkile v. Jackson, No. 10-3331 (6th Cir. Dec. 27, 2011) (unpublished).  Panel of Judges Cole, McKeague, and Griffin.  Per Curiam.

Petitioner convicted of gross sexual imposition, in Ohio state court, in 1999.  17-year sentence.  Resentenced in '06 under a new, discretionary sentencing regime after the Ohio Supreme Court applied Booker.  Case applying Booker was State v. Foster, 845 N.E.2d 470 (Ohio 2006).

Petitioner received the same 17-year sentence at resentencing.  He exhausted his state-court remedies, and then petitioned for a writ of habeas corpus in federal court.  He argued that the resentencing based on the new, discretionary sentencing regime violated ex-post-facto and due-process principles.  Specifically, he argued that the new sentence imposed a new and retroactive punishment because it was greater than the presumptive minimum sentence applicable pre-Booker and Foster. 

The appellate court considered the same claim last week in Ruhlman v. Brunsman, No. 09-4523 (6th Cir. Dec. 23, 2011).  In that case, the court concluded that resentencings under the discretionary sentencing scheme in Ohio post-Booker and Foster that result in sentences higher than the pre-Foster presumptive minimum sentence do not violate ex-post-facto or due-process principles.

Denial of petition affirmed.

Have a good New Year's celebration!!!! 

 

Habeas

Sorry for the delay in posting. It's been hectic. (The picture, like this case, demonstrates long delays and congestion.)

Published habeas decision today: United States v. Van Hook, No. 03–4207 (6^th Cir. Oct. 4, 2011). Panel of Judges Merritt, Martin, and Moore.

Procedural History:

Long procedural history (pre-AEDPA case). Petitioner filed for federal habeas relief in 1995. Ohio courts had upheld petitioner’s death sentence. Ohio courts denied post-conviction relief. Initially, the federal district court denied the petition and the appellate panel reversed, finding that the petitioner’s confession was unconstitutionally obtained. The Sixth Circuit, sitting en banc, vacated that ruling. On remand, the panel again granted habeas relief, finding that trial counsel had been ineffective. Again, the Sixth Circuit sitting en banc vacated the decision. The panel found ineffective assistance on the next remand, but narrowed the scope of its holding. The Supreme Court granted cert and reversed. The case came back to the panel, and this decision is the next in the series.

Petitioner made three claims. He asserted a Brady claim that the the trial court and prosecution wrongfully withheld two pieces of exculpatory evidence from him at trial. He argued that his trial counsel was constitutionally ineffective because counsel failed to request an independent mental-health expert and requested a presentence report for the penalty phase. And he argued that his appellate counsel for his direct appeal was constitutionally ineffective for failing to raise two grounds for relief.

Brady:

Panel found that the State of Ohio had affirmatively waived the exhaustion of state remedies on the Brady issue. But the Brady evidence would not have added anything of note to the proof. If the three trial judges had not been persuaded by expert testimony to mitigate the punishment, the court found it was highly implausible that the two pieces of Brady evidence (which similarly suggested that the petitioner may have killed the victim because of a "homophobic panic") would have altered the judges’ conclusion. The evidence was weaker and less persuasive than the actual testimony and shined no new light on the issues.

The panel found that there was overwhelming expert testimony at the trial that the petitioner neither met the Ohio standard for insanity nor suffered from a mental disease. No expert testified that the petitioner met the standard for insanity, nor did any expert testify that the murder was the result of a mental disease. Neither of the two Brady documents stated that the petitioner met the standard for insanity or suffered from a mental disease or defect. So this evidence did not undermine confidence that the Ohio courts would have reached the same determinations regarding the petitioner’s mental condition.

Overwhelming evidence at trial showed that the petitioner satisfied the statutory aggravating factor of aggravated robbery. Even if the petitioner was motivated partially, or even entirely, at the precise time of the murder by a "homophobic panic," such a factor would not change the fact that the petitioner also stole some of the victim’s personal property by the use of serious physical harm, and thus committed robbery. The Brady evidence does not undermine confidence in the trial court’s determination regarding this aggravating factor. The court denied the petitioner’s Brady claim on the merits.

IAC for Trial Counsel:

The petitioner argued that his trial counsel was constitutionally ineffective because trial counsel failed to request an independent mental-health expert and requested preparation of a presentence report for the trial court during the penalty phase. The panel found that the Sixth Circuit, sitting en banc, had already rejected these arguments.

IAC for Appellate Counsel:

Petitioner argued his appellate counsel was constitutionally ineffective for failing to raise, among the assignments of error presented on direct appeal to the Ohio Supreme Court, two specific grounds for relief: 1) The trial court should not have admitted into evidence the victim-impact statements in which the victim’s mother and an arresting police officer urged the imposition of the death penalty; and 2) the prosecution committed misconduct by referring to the petitioner’s criminal history or capacity for future dangerousness during the penalty phase.

The petitioner, however, failed to follow the Ohio state procedural rules for timely filing claims of ineffective assistance of appellate counsel. And the petitioner’s delay was not one of days, but rather of years, so it did not matter whether the rule in effect at the time presumed timeliness if within ten days or ninety days. What mattered, under either rule, was whether the petitioner showed good cause for the six-year delay. The state appellate court reasonably found that he did not make the necessary showing.

The court found that the Ohio procedural rules constituted an adequate and independent state ground to foreclose review of the federal claim.

The panel found that the district court properly concluded that the petitioner’s claim of ineffective assistance of appellate counsel was procedurally defaulted. The petitioner presented no argument that his default should have been excused due to cause and prejudice. The panel held that the petitioner’s procedural default barred habeas relief on the claim.

The panel affirmed the judgment of the district court denying the writ of habeas corpus.

A Little Mich Habeas Action to Start the Week

Crump v. Lafler, No. 09-1073 (6th Cir. September 20, 2011) (to be published). Panel of Judges Cole, Gibbons, and Cleland (E.D. Mich.). Judge Cole dissented.

Petitioner argued that Mich law governing parole created a liberty interest under the Fourteenth Amendment enforceable under 28 U.S.C. 2254. Court found that, despite Mich classifying a parole-eligible inmate as having a high probability of release, actual release determinations are uncertain and the parole board has broad discretion. There is no enforceable claim of entitlement to release. Ct affirmed dismissal of the petition.

Petitioner convicted of CSC 3rd and sentenced to 3 to 22.5 years. Also picked up a cocaine charge while on bond for the CSC. Got 7 to 20 (consecutive to the CSC) for the cocaine. Petitioner became eligible for parole in '08. He was marked as having a high probability of parole. But after the parole-board interview, the board denied parole for 18 months.

Petitioner argued that the board relied on a seven-year-old psych report that could not adequately reflect his risk of recidivism in '08. He raised other arguments regarding the board's reasons for denying parole. Petitioner filed a "motion to show cause" in federal court (W.D. Mich.), which the court interpreted as a 2254. Petitioner argued that board's decision was not supported by evidence and constituted a deprivation of liberty w/o due process. The magistrate judge recommended dismissal for failure to raise a meritorious federal claim. The district court adopted the recommendation and dismissed the petition. The ct also denied a cert of appealability. Petitioner appealed; the COA granted a certificate of appealability.

Court reiterated that "There is no constitutional or inherent right of a convicted person to be conditionally released before expiration of a valid sentence." States may establish parole systems, but there is no duty to do so. The Supreme Court found that Nebraska's parole system (in 1979) should be afforded some constitutional scrutiny b/c the statutory scheme was unique, ordering that an inmate SHALL be released unless certain factors are present. The same was true of Montana's system. And the reasoning applied even in cases where the parole board had broad discretion. Even if the board has discretion, if the board determines, in its discretion, that the factors are met such that the statute requires release, there is a liberty interest.

The Sixth Circuit, sitting en banc, decided in Sweeton v. Brown, 27 F.3d 1162 (6th Cir. 1994), that Michigan's parole system does not create a liberty interest. The Sweeton decision, however, was not dispositive b/c Mich had since amended the parole system to curtail discretion.

But Michigan's system does not presume release (e.g., release mandated unless certain factors present). Under the Mich system, any expectation of release is limited to a class of inmates. So at best, only a limited class of inmates could have a potential liberty interest. And this class is not readily discernible from the statute. And the reasons the parole board could use to deny parole are ambiguous in the statute: there is very broad discretion. Beyond this discretion, there is the issue that "the classification into which each prisoner is placed is a 'probability.' While Petitioner may have been classified as a 'high probability of parole,' a probability does not equal a presumption."

Conclusions:
Mich's amendments to the parole system do not change the holding in Sweeton. "There is no 'legitimate claim of entitlement to' parole, . . . and thus no liberty interest in parole."

Judge Cole dissented. He found that under Supreme Court precedent Michigan's parole system creates a presumption that release will be granted. There is a liberty interest for inmates classified with a "high probability of parole."

Both the majority and the dissent are fun to read. The language is energetic and the writers use entertaining and colorful analogies, examples, and quotes.