Mason v. Mitchell (CA6)

Mason v. Mitchell, No. 05-4511 (capital case) — The court granted relief on a claim of ineffective assistance of counsel at the penalty phase.

The petitioner was charged in September 1993 with aggravated murder, rape, and possession of a firearm by a prohibited possessor.  He was convicted in June 1994, and two weeks later the penalty phase began.  Counsel presented testimony from two deputy sheriffs regarding the petitioner’s good behavior in jail, and from his mother, brother, sister, and cousin, who asked for mercy.  The petitioner testified, continuing to protest his innocence and asking the jury for a life sentence so that he could complete the appeals process.  The defense rested, and the prosecution did not offer any rebuttal evidence.  After four and a half hours of deliberation, the jury informed the judge they could not reach a unanimous sentencing recommendation.  Once they had slept on it, they recommended a death sentence.  The Ohio Supreme Court ultimately affirmed the conviction and sentence.

Ultimately the petitioner filed a federal habeas petition, raising a claim of ineffective assistance at sentencing.  The district court denied relief initially, and the Sixth Circuit remanded for an evidentiary hearing.  The district court held the hearing and denied relief, and the petitioner appealed.

In light of the prevalent ABA Guidelines for representing capital defendants at the penalty hearing, the court found trial counsel’s performance deficient.  The guidelines required counsel to present all reasonably available mitigating evidence.  But counsel’s preparation consisted of a 75-minute phone call with the Ohio Public Defender’s office five days before the penalty hearing.  Counsel had before him only information provided by the state; he “inexplicably failed to conduct his own independent investigation and interview members of the petitioner’s family regarding the circumstances of his childhood and background.”  He did briefly interview a couple of family members, but only after he made the decision not to include any information about the petitioner’s childhood in his mitigation case.

The information the state had provided showed that the petitioner “was born into a drug-dependent family, that the family had in the past and currently was dealing drugs, and that both parents had been previously incarcerated for drug trafficking.”  A psychological evaluation of the petitioner at the age of 13 showed he “had been exposed to quite a lot of violence” and that he came “from a family which has had many problems over the years.”  A police report from that time indicated that the petitioner had suffered several injuries from a beating at the hands of his father.  His parents would whip him and his brothers, tie them up, and stab him.  Counsel failed to talk to the petitioner’s two sisters and two brothers, who could have confirmed this information.

The failure to present this missing information was prejudicial to the petitioner.  The petitioner only had to persuade one juror to impose a noncapital sentence, and the jury was initially deadlocked.  None of the family-background evidence gave rise to a potential for rebuttal by the state; indeed, the only evidence the prosecution considered using in rebuttal was a deposition from a psychologist regarding the extent of the petitioner’s past criminal behavior.  The Supreme Court has held that the failure to present the kind of mitigation evidence not presented here is prejudicial.  See Wiggins v. Smith, 539 U.S. 510 (2003). The Ohio Supreme Court’s ruling ran contrary to Wiggins, and thus the court ordered a new penalty hearing.

Judge Boggs dissented, arguing that counsel is not ineffective merely because the petitioner receives a death sentence.  “Although one might argue that trial counsel’s decision to forego a mitigation defense based on family history was a foolish one, it was not the product of a constitutionally deficient investigation….  He possessed all of the essential facts regarding the petitioner’s background necessary to make a reasonable strategic choice.”  Judge Boogs also complained that the ABA Guidelines were an “impossibly high” benchmark for defense counsel to achieve.

Mancill v. Hall (CA11)

Mancill v. Hall, No. 07-10101 (CA11) — This case is about the exhaustion requirement, as applied to claims a Georgia habeas court heard but never ruled on.  The petitioner had been convicted on two counts of malice murder, and filed a motion for a new trial.  The trial court denied the motion for a new trial seven years later, and then the petitioner appealed.  The convictions and sentence were affirmed.  The petitioner then filed a state habeas petition, challenging the delay in deciding the motion for a new trial and claiming ineffective assistance of trial and appellate counsel.

The state habeas trial court granted the petition on the claim of delay, but did not rule on the IAC claims.  The Georgia Supreme Court ruled that the claim of delay was procedurally barred because it could and should have been raised on direct appeal, and remanded for a consideration on cause and prejudice.  The state habeas trial court found cause and prejudice and vacated the conviction and sentence.  The Georgia Supreme Court reversed again, but did not remand for consideration of the IAC claims.

The petitioner then sought federal habeas relief.  The district court ruled that the claim of delay was procedurally defaulted, and that the IAC claims were unexhausted because he did not cross-appeal them to the Georgia Supreme Court.  Furthermore, the IAC claims were procedurally barred because the petitioner could not return to pursue the cross-appeal.  The district court denied a COA, but the Eleventh Circuit granted one on the exhaustion issue.

The question is whether, in this case, the cross-appeal is part of Georgia’s established appellate review process.  See O’Sullivan v. Boerckel, 526 U.S. 838 (1999).  This was a novel issue of Eleventh Circuit exhaustion law; a related case, Pope v. Rich, 358 F.3d 852 (11th Cir. 2004), did not control because in that case the petitioner had lost in the state habeas trial court and did not petition for discretionary review of the adverse ruling.  Under ordinary civil appellate rules, which in Georgia apply in habeas cases, the appellee may “present for adjudication on the cross appeal all errors or rulings adversely affecting him.”  But there was no adverse ruling on the IAC claims, because there was no ruling at all on those claims, and so Georgia’s civil appellate rules did not allow the petitioner to raise his IAC claims before the Georgia Supreme Court.

Two cases on which the district court relied, Turpin v. Bennett, 513 S.E.2d 478 (Ga. 1999), and Head v. Thomason, 578 S.E.2d 426 (Ga. 2003), were distinguishable because the petitioners in those cases actually received adverse rulings on their claims.  Furthermore, the Eleventh Circuit had found a case in which the appellee sought review of a claim not passed on by the lower court, and the Georgia Court of Appeals had refused to review the claim for that reason.  For these reasons, the cross-appeal was not a firmly established and regularly followed component of Georgia’s appellate review process.  Accordingly, the Eleventh Circuit reversed the district court’s ruling on exhaustion, and remanded for further proceedings.

CA10 — memorandum dispositions

Garrison v. Ortiz, No. 08-1216 — The court denied a COA to challenge the admission of statements of the victim at the petitioner’s trial for first-degree murder in Colorado state court.  The victim had taken some personal calls at work, which the victim’s manager noticed had upset the victim.  The victim told the manager that someone from California had threatened to kill him.  These statements were admitted under the residual exception to the hearsay rule over the petitioner’s confrontation objection.  The court held that the statements were not “testimonial” under Crawford v. Washington, 541 U.S. 36 (2004), and Davis v. Washington, 547 U.S. 813 (2006), because the statements were meant to indicate the victim’s mood rather than to confirm that someone was, in fact, coming to kill him.  The court did comment that prior cases applying Ohio v. Roberts, 448 U.S. 56 (1980), to nontestimonial statements, such as United States v. Ramirez, 479 F.3d 1229 (10th Cir. 2007), had been “abrogated” by Crawford.  (The court made this comment in an unpublished opinion that did not cite any published opinions for this proposition.)

United States v. Minners, No. 08-5092 — The court denied a COA to appeal the dismissal of an untimely motion under 28 U.S.C. §2255.

United States v. Zunie, No. 08-2125 — The court denied a COA to appeal the denial of a § 2255 motion challenging a conviction for assault resulting in serious bodily injury in violation of 18 U.S.C. § 113.  His claims of constitutional Booker error were barred because they had been resolved on direct appeal.  A contention that the mandatory additional period of supervised release constituted additional punishment was not considered because it was raised for the first time on appeal.  Counsel was not ineffective for failing to continually insist that, under Blakely v. Washington, 542 U.S. 296 (2004), the jury had to find the facts necessary for the guidelines enhancement of his sentence.  Counsel raised this argument once during sentencing, and once was enough.

Stephens v. Miller, No. 08-5034 — The court denied a COA to appeal the denial of a § 2254 petition.  The court agreed with the district court that the petitioner’s claims were procedurally defaulted.  The petitioner was not actually innocent of the crime, so as to lift the procedural default.  Mere contradiction in witness testimony does not establish factual innocence.  Furthermore, the petitioner was tried while competent and medicated, because he continued to receive antipsychotic medication prescribed by the state hospital while confined in the county jail during his trial.

Wright v. Dexter (CA9)

Wright v. Dexter, No. 08-73272 — The court denied permission to file a second or successive § 2254 petition raising a claim under Cunningham v. California, 549 U.S. 270 (2007), because Cunningham did not announce a new rule of constitutional law.

Farley v. Bissonnette (CA1)

Farley v. Bissonnette, No. 08-1094 — The petitioner was charged with murdering her friend, and ultimately convicted.  She challenged an instruction given to the jury at trial, which told the jury that the prosecution did not have to prove that no one else may have committed the murder.  This instruction responded to the petitioner’s theory of the crime, that one of two other people may have committed the murder.  Both of those people testified at trial that they were not at the victim’s home on the night of the murder.  The judge did instruct the jury that the petitioner was presumed innocent and that the Commonwealth bore the burden of proving her guilt beyond a reasonable doubt.  The court rejected the claim, pointing out that “where the defense attempts to cast blame on someone other than the defendant, it is not unusual for the court to remind the jury that the government’s burden is to show that the defendant is guilty — not that the other person whom the defendant seeks to blame is innocent.”  After all, the defendant may have aided or abetted the murder.  In the context of the trial, the instructions as a whole did not allow the jury to convict on something less than proof beyond a reasonable doubt.  See Victor v. Nebraska, 511 U.S. 1 (1994).

The trial court’s restriction on the scope of the petitioner’s cross-examination of one of those prosecution witnesses was harmless beyond a reasonable doubt.  The defense sought to have the witness testify regarding drug-running activity in which he and the victim were involved, but the witness invoked his Fifth Amendment privilege against self-incrimination.  The Supreme Judicial Court of Massachusetts ruled that allowing the witness to invoke the privilege was error, but also had found the error harmless beyond a reasonable doubt.  The First Circuit held that this error did not have a substantial and injurious effect on the verdict.

Gingras v. Weber (CA8)

Gingras v. Weber, No. 07-3114 — The court affirmed the denial of a § 2254 petition challenging a conviction for selling marijuana.  The petitioner’s home was searched pursuant to a warrant, and the petitioner gave a statement to the police after being informed of his Miranda rights.  He filed a motion to suppress the statement before trial, which the trial court did not resolve before the petitioner pleaded guilty pursuant to a plea agreement.  The petitioner had claimed — and the Eighth Circuit ultimately considered on appeal — that trial counsel was ineffective for failing to tell him that the motion to suppress the statement had not yet been ruled on at the time he pleaded guilty, and that but for that failure he would not have pleaded.

Despite the possibility that there existed an avenue under South Dakota law for the petitioner to resolve the claim in state court, the Eight Circuit addressed the merits.  Under the pre-AEDPA standard of review, the court concluded that there was “scant support in the record” for the idea that the petitioner’s statement to the police was not voluntarily made.  He was initially upset and crying when the police came to his house, but he had calmed down sufficiently to talk to the police in a calm and coherent manner.  There was no coersion on the police’s part.  These conclusions were reasonable, and did not suggest that the trial court would have granted the motion to suppress.  Consequently, there was no prejudice under Strickland and Hill v. Lockhart, 474 U.S. 52 (1985).

The petitioner had sought an evidentiary hearing in federal court on this claim.  The Eighth Circuit affirmed the denial of the hearing, because the petitioner was not diligent in pursuing a hearing as to this claim.  The state habeas court did hold a hearing, but only on a different claim, and there was no indication that the petitioner had sought to bring this claim before the state courts on habeas review.  Consequently, he “failed to develop” the claim in state court, and was not entitled to a hearing under 28 U.S.C. § 2254(e)(2).

CA8 — memorandum dispositions

Cantrell v. Norris, No. 07-1847 — The court affirmed the denial of a preliminary injunction asking state-court clerks to adhere to the federal prison mailbox rule.

Ridling v. Norris, No. 07-1852 — Counsel was not ineffective for failing to inform the petitioner that Arkansas law required him to serve 70% of a sentence before being eligible for parole.  The state courts had found that counsel fully informed the petitioner about the consequences of his plea and the consequences of refusing to accept it, and the petitioner did not rebut the presumption that those findings were correct.

CA10 — memorandum decision

Katekaru v. Scott, No. 08-3130 — The petitioner complained that the Bureau of Prisons did not correctly compute his “good camp” time for a parole revocation following a 1987 conviction on making a false statement to the IRS.  The district court had denied a § 2241 petition in 1993 (or possibly early 1994).  Fourteen years later, the petitioner filed a Rule 60(b)(4) motion, asking the district court for relief on the ground that the judgment is void because the district court failed to docket a letter asking for relief from the judgment in the § 2241 case.  The Tenth Circuit affirmed the denial of the motion, finding no due process violation and agreeing that the judgment was not void merely because it may have been erroneous.

Jamison v. Klem (CA3)

Jamison v. Klem, No. 07-1045 (CA3) — The court granted a conditional writ on a claim that a guilty plea was not knowingly and voluntarily entered because the petitioner was not informed of a mandatory sentence applicable to the drug crimes with which he was charged.

The petitioner was charged in Pennsylvania court with possession of cocaine and marijuana with intent to deliver, possession of marijuana, reckless endangerment, and driving without a license.  He decided to enter into an open plea agreement with the government, and the prosecutor recommended “4-8 years w/ mand.” as a sentence.  At the change-of-plea hearing, the prosecutor informed the court that he would be “filing mandatory” on the case; no other mention of the mandatory sentence on the drug charge was made.  After entering the plea, the prosecutor sent a letter to the petitioner informing him that the mandatory minimum sentence was 3 years (or 5 if it was a second offense), but trial counsel testified in postconviction proceedings that he never received this letter.  In light of the petitioner’s juvenile record, the minimum sentence was 5 years.  Ultimately the petitioner received a sentence of 5 to 10 years.

The petitioner testified in state postconviction proceedings that he did not understand what “filing mandatory” meant, and that he would not have pleaded guilty if he knew he would have to serve at least 5 years on the drug charge.  Trial counsel agreed that he never told the petitioner that his mandatory minimum sentence was 5 years.  The state courts held that the statement that the sentence recommendation was “4-8 years w/ mand” was sufficient to apprise the petitioner that he was facing a mandatory sentence.

In federal court, the magistrate judge ruled that the state courts’ ruling was an unreasonable application of Boykin v. Alabama, 395 U.S. 239 (1969), because the petitioner was not given adequate notice of the minimum sentence applicable to his crime.  The district judge rejected this ruling because no clearly established federal law required that a defendant be informed of any applicable mandatory minimum sentence.

Writing for a unanimous panel of the Third Circuit, Judge McKee called the district judge’s view “myopic and constrained.”  “If we were to uphold the District Court’s view of how precisely a Supreme Court decision must resolve a given issue under AEDPA, only Supreme Court holdings arising from the identical presentation of a given legal issue would constitute ‘clearly established law.’”  Boykin, Judge McKee observed, “demands the utmost solicitude of courts to ensure that the defendant has a full understanding of what the plea connotes and of its consequences.”  In the face of Pennsylvania’s indeterminate sentencing scheme, nothing in what the prosecutor told the petitioner “provided [him] with sufficient information about the mandatory minimum sentence his plea exposed him to.”  Telling the petitioner that the prosecutor was “filing mandatory” was “far too opaque a reference to inform [the petitioner] that he may have to serve at least five years in prison if he pled guilty.”  A mandatory minimum sentence is a direct consequence of a guilty plea, one that Boykin requires be disclosed to a defendant before trial.

CA10 — memorandum disposition

Titsworth v. Mullin, No. 08-7057 — The court denied a COA to a pro se habeas petitioner.  The § 2254 petition was untimely.  The petitioner pleaded guilty to petit larceny and did not appeal.  Five years after the conviction became final, the § 2254 petition was filed.  There was no statutory tolling because he did not file any sort of postconviction motion until four years after the conviction became final.