CA9 — memorandum decisions

Menchaca v. Hamlet, No. 06-17249 — The California courts did not unreasonably apply federal law to conclude that “some evidence” supported the 2000 decision of the California Board of Prison Terms finding Menchaca unsuitable for parole.

Osumi v. Giurbino, No. 06-56215 — The California courts did not unreasonably apply federal law to conclude that trial counsel was not ineffective for failing to challenge a photo lineup, and that trial counsel was not ineffective for failing to call an expert to testify regarding the unreliability of eyewitness testimony.  The disposition cites Carey v. Musladin, 127 S. Ct. 649 (2006), for the proposition that because the state court’s decision was not “clearly erroneous,” federal habeas relief is not available.

Stallings v. U.S. (CA7)

Stallings v. U.S., No. 06-3914 (CA7) — Yesterday the Seventh Circuit granted a habeas petitioner the functional equivalent of a Paladino remand on an appeal from the denial of a 2255 motion in the district court.  The petitioner had been convicted of possession of a firearm by a convicted felon.  He was sentenced in November 2004, after Blakely v. Washington, 542 U.S. 296 (2004), was decided, to 188 months in prison.  Given his criminal history, Stallings faced a 180-month mandatory minimum sentence.  The applicable Guidelines range was 188 to 235 months.  The sentencing judge explained, “I believe I am required to impose a certain, at least minimum sentence….  I think the sentence is appropriate.  If it turns out I’m wrong, we’ll do it again.”

Stallings filed a direct appeal, and the briefing took place after the Supreme Court decided United States v. Booker, 543 U.S. 220 (2005), and the Seventh Circuit decided its post-Booker cases Paladino and Schlifer.  Appellate counsel did not raise a Booker claim, and the Seventh Circuit affirmed the conviction and sentence in December 2005.

In February 2006, Stallings filed a 2255 motion, raising a claim of ineffective assistance of counsel on direct appeal regarding appellate counsel’s failure to raise a Booker claim.  The district court denied the motion, ruling that Stallings was “foreclosed from raising” a Booker claim in a 2255 motion.  The Seventh Circuit certified his IAC claim for appeal, and ordered the parties to discuss whether counsel’s failure to ask for a limited remand under Paladino constituted ineffective assistance.

The court first held that merely mentioning Blakely at a sentencing hearing that took place during the interregnum in the summer and fall of 2004 did not suffice to preserve a full Booker claim, so as to entitle a defendant to harmless-error review under the Schlifer decision.  Trial counsel merely asked the district court about the governing law in the wake of Blakely; he did not “offer a view of the law or suggest that Mr. Stallings had been sentenced improperly,” and thus did not preserve any Booker error.

The court then ruled that appellate counsel performed deficiently by failing to ask for a Paladino remand.  “Had Mr. Stallings asked for a Paladino remand on direct appeal, we would have granted it; the sentencing judge’s cryptic comment about having imposed an ‘appropriate’ sentence is not enough from which to conclude that the district court would not have considered a lower sentence had it understood the advisory nature of the guidelines.”  The Paladino approach required the district court to assess whether the failure to appreciate the advisory nature of the Guidelines resulted in a different sentence.  Because the answer to this question was not evident from the record, the court could not determine whether appellate counsel’s deficient performance was prejudicial.  The Seventh Circuit thus remanded the case for the district court to answer the Paladino question.

Trotter v. Sec’y, Dep’t of Corrections (CA11)

Trotter v. Sec’y, Dep’t of Corrections, No. 07-15755 (CA11, capital case) — The question in this case is whether an amendment to the list of statutory aggravating factors worked an ex post facto change in the law, and whether the Florida Supreme Court reasonably found no ex post facto violation.

A jury found Trotter guilty of robbery and first-degree murder, and recommended a death sentence by a 9-3 vote.  One statutory aggravating factor in effect at Trotter’s trial was whether the crime was committed “while under sentence of imprisonment.”  At the time of the murder, Trotter had been under sentence of community control for a prior robbery and burglary conviction.  The trial court relied on this and three other aggravating factors to impose a death sentence.

On appeal, Trotter argued that community control was not a sentence of “imprisonment,” and thus that aggravating factor did not apply to him.  The Florida Supreme Court agreed, vacated the death sentence, and remanded for resentencing.  Before the new sentencing hearing took place, the Florida legislature amended the statute to expressly include community control as a form of “imprisonment.”  It also allowed the prosecutor to introduce and argue “victim impact evidence.”

The prosecutor referred to the victim as a “warm, loving person” at the second sentencing hearing.  The jury recommended a death sentence by a vote of 11-1.  The trial court again imposed the death penalty, relying on the fact that Trotter had been on community control at the time of the murders.  The Florida Supreme Court rejected Trotter’s ex post facto challenge to the revised aggravating factor, characterizing it as a “refinement” in the definition of “imprisonment” instead of a substantive change in the law.  It also summarily rejected Trotter’s claim regarding the prosecutor’s use of victim impact evidence.  Finally, it “receded” from its original ruling on the community-control aggravating factor, thus rendering Trotter’s trial “error-free” in its opinion.

The Florida courts rejected Trotter’s motion for post-conviction relief.  He then filed a federal habeas petition, challenging the revision to the community-control aggravating factor and the admission of victim impact evidence as violating the Ex Post Facto Clause.  The district court found violations, but ruled that they were harmless because the Florida Supreme Court had expressly disclaimed reliance on either the community-control status and the victim impact evidence in affirming Trotter’s death sentence.

The Eleventh Circuit ruled that Trotter was not, in fact, subjected to an ex post facto law with respect to the community-control aggravating factor.  This was so because of the Florida Supreme Court’s “recission” from the community-control aggravating factor.  As an ipse dixit, the Eleventh Circuit ruled that community control was a form of “imprisonment” at the time of Trotter’s crime, because that was the basis of the Florida Supreme Court’s ruling affirming the death sentence on resentencing.  As for the victim impact evidence introduced at the resentencing hearing, the law allowing this evidence to be presented merely altered the rules of evidence governing the trial of a crime committed before the change in the law.  The Supreme Court had already ruled by the time of Trotter’s crime that such a modification was not an ex post facto law.  Accordingly, the Florida Supreme Court’s rejection of his ex post facto claims was not an unreasonable application of federal law.

Pondexter v. Quarterman (CA5)

Pondexter v. Quarterman, No. 06-70048 (CA5, capital case) — The Fifth Circuit upheld the district court’s denial (on remand from a prior appeal) of the petitioner’s IAC claim.  Pondexter told a fellow inmate in the county jail that he knew the victim was already dead when he shot her.  The inmate told a state investigator.  Pondexter’s codefendant was tried first, and the state proved that the codefendant shot and killed the victim before Pondexter shot the victim.  At Pondexter’s trial, defense counsel did not call a pathologist to testify to this fact.  The state’s pathologist testified that the victim was still alive at the time of both shootings, and either gunshot alone could have been fatal.  Pondexter was convicted and sentenced to death.

The Texas Court of Criminal Appeals affirmed the conviction and sentence.  In state habeas proceedings, Pondexter argued that trial counsel was ineffective for failing to consult and call a pathologist to testify.  The state habeas court held a one-day evidentiary hearing, at which a defense pathologist testified that the shot Pondexter fired was only “potentially” fatal.  There was no evidence before the state habeas court regarding trial counsel’s strategic decision, if any, not to call a pathologist.  The state habeas court recommended denying Pondexter’s state habeas petition, and the Texas Court of Criminal Appeals adopted the recommendation.

The federal district court initially granted relief on the IAC claim relating to the pathologist, but the Fifth Circuit reversed in a prior decision.  On remand, the district court denied relief on other IAC claims, and certified three of them for appeal.

The Fifth Circuit began by faulting Pondexter for failing to present evidence to the state habeas court about whether trial counsel consulted a pathologist, and then faulting the state for failing to bring that “important point” to the court’s attention.  Even so, the Fifth Circuit assumed that trial counsel did not consult a pathologist, and evaluated Strickland prejudice on this assumption.  (The court did not reach the prejudice prong of Strickland in the prior appeal; nevertheless, the court felt that this was the stronger basis for denying Pondexter’s claim.)

Although the district court and the prior panel of the Fifth Circuit had found the state courts’ finding on prejudice to be not unreasonable, Rompilla v. Beard, 545 U.S. 374 (2005), required a different standard of review.  The state courts never ruled on prejudice.  They ruled on deficient performance alone, rejecting Pondexter’s IAC claim on that basis.  Under Rompilla, a federal habeas court was permitted to evaluate this prong de novo.  The Fifth Circuit did so, even though the prior panel had ruled that it had to determine whether a no-prejudice finding, even an implicit one, was an unreasonable application of Strickland.

In light of the overwhelming evidence of guilt presented at Pondexter’s trial, the Fifth Circuit ruled that, under de novo review, he did not show prejudice stemming from any failure to consult with or call a pathologist to testify at trial.

The court rejected other claims the district court had certified for appeal.

Smulls v. Roper (CA8)

Smulls v. Roper, No. 05-2456 (CA8 en banc, capital case) — In the course of a robbery, Smulls shot the owners of a jewelery shop.  He was eventually convicted of first-degree murder and related crimes, and sentenced to death.  During voir dire at his trial on the murder charge, Smulls challenged under Batson v. Kentucky, 476 U.S. 79 (1986), the prosecution’s decision to exercise a peremptory strike to remove the only African-American juror from the venire.  As a result, Smulls was tried and convicted before an all-white jury.

The prosecutor explained that the juror in question had a particular demeanor — a “glare on her face, an aversion of her eyes, and an irritated answer to one of” the prosecutor’s voir dire questions.  The juror in question sorted mail at Monsanto, and the prosecutor had had “bad experiences” with “postal workers” as jurors in the past.  The prosecutor also pointed out that he struck a white juror with a “confrontational attitude.”  Smulls replied that these reasons were a pretext, and pointed to other reasons relating to other venirepersons.  The trial court denied the Batson challenge.

The Missouri Supreme Court upheld the trial court’s denial of the Batson challenge on direct appeal.  It later denied Smulls’s motions for post-conviction relief.  The federal district court denied habeas relief, and the Eighth Circuit certified the Batson claim for appeal.

Smulls first argued that the Missouri courts unreasonably applied the Batson jurisprudence by failing to make specific factual findings relating to the validity of the prosecutor’s race-neutral explanations of the strike.  Citing Carey v. Musladin, 127 S. Ct. 649 (2006), the court rejected this argument because no clearly established federal law requiring state courts to make findings at each step of the Batson analysis.  Even if the analysis in Snyder v. Louisiana were relevant, Snyder was not clearly established law at Smulls’s trial, and cannot provide a basis for relief.  In any event, the Court’s death-qualification jurisprudence (the Witherspoon-Witt line of cases) did not require factual findings at each step; it is enough for the judge to find the juror qualified under Witherspoon or not qualified, and the same is true in the Batson context.

Moreover, the factual finding denying the Batson challenge was entitled to a presumption of correctness under § 2254(e)(1).  The presumption of correctness, reasoned the Eighth Circuit, does not allow a federal court to question the adequacy of the evidence before the trial court.

The Missouri Supreme Court did not reach a result contrary to Batson when it upheld the trial court’s denial of Smulls’s Batson claim.  At the third step, the defendant must show by a preponderance of the evidence that the prosecutor’s proffered reasons are pretextual.  The Missouri Supreme Court concluded that the trial court did not clearly err in doing so.  Thus, it was not necessary to fault the state courts for requiring Smulls to prove the race of each veniremember, as long as the ultimate ruling on the Batson challenge was not contrary to clearly established federal law.

Smulls also argued the rejection of his Batson challenge was based on an unreasonable determination of the facts.  The Missouri Supreme Court had ruled that the prosecutor’s reasons were “the type typically found to be race neutral” and were supported by the reasons he gave regarding a white veniremember.  These findings were entitled to the presumption of correctness, even though they were made by an appellate court.  The mere fact that the prosecutor used a peremptory challenge to strike the only African-American juror, in light of the whole record, did not rebut the presumption of correctness.  Accordingly, the state courts’ denial of Smulls’s Batson claim was not based on an unreasonable determination of the facts.

Query whether this decision squares with the Ninth Circuit’s decision in Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004), which explained how to reconcile the presumption of correctness with the limitation on relief set forth in § 2254(d)(2) (the “unreasonable determination of the facts” limitation).  Taylor held that the presumption of correctness attaches only after the state court’s factual determinations survive an intrinsic review; the “unreasonable determination of the facts” prong of AEDPA demanded an extrinsic review of all the facts in the case, not simply those available to the state courts.

CA9 — memorandum decisions

Nasrichampang v. Woodford, No. 07-55247 (argued) — The California Court of Appeal did not unreasonably conclude that a co-defendant who testified for the state under a plea agreement, and whom trial counsel adequately cross-examined, did not render ineffective assistance of counsel.

Magdaleno v. Giurbino, No. 07-55420 (argued) — The California Court of Appeal did not unreasonably conclude that the petitioner’s right of confrontation was not violated when a witness’s preliminary hearing testimony was introduced at trial, because the prosecution made a good-faith effort to have the witness testify at trial.  Moreover, the testimony was harmless beyond a reasonable doubt.  This dispo cites Crawford v. Washington, 541 U.S. 36 (2004), for the definition of “testimonial.”

U.S. v. Lopez (CA9)

United States v. Lopez, No. 07-35589 (CA9) — The Ninth Circuit revised its July 16, 2008, opinion today.  It did not change either the holding of the case or the underlying reasoning.  The Ninth Circuit held that the Lopez’s underlying 2255 motion was second or successive, that she needed prior authorization to file the 2255 motion, and that although the court would construe her motion as a request for authorization, it would deny her request because she did not show by clear and convincing evidence that no reasonable factfinder would have found her guilty of the underlying offense.

In 2002 Lopez was indicted, along with her two roommates, on several counts of possession of crack cocaine with intent to distribute.  A confidential source testified at the trial, as did a government investigator, who testified that there was no material in the confidential source’s file that Brady v. Maryland, 373 U.S. 83 (1963), required the government to disclose.  But police in Spokane, Washington, had told the FBI agent responsible for investigating Lopez that they were not using the confidential source because his information was unreliable.  Spokane police did not transmit a written memorandum of this conclusion to the federal officers responsible for prosecuting Lopez.  Evidence was also admitted at the trial regarding at least one other controlled purchase of crack cocaine from Lopez and her associates in which the government used a different confidential source.  Lopez was convicted, and the Ninth Circuit affirmed her conviction on direct appeal in 2004.

In 2005, Lopez filed a 2255 motion raising an IAC claim, a claim of jury bias, a due process claim, and a claim under United States v. Booker, 543 U.S. 220 (2005).  The district court denied the motion, and Lopez apparently did not appeal.

Lopez filed the 2255 motion at issue in this case in 2006, after information regarding the “unreliable” source came to light in another case.  Counsel for Lopez discovered that the Spokane Police deemed this source unreliable for the first time at this point.  Lopez’s motion argued that the prosecution failed to disclose this information to her during her trial in 2002 in violation of Brady.  The district court denied the motion on the merits of the Brady claim, reasoning that the information was not material.  Lopez appealed to the Ninth Circuit.

The district court had ruled that Lopez’s Brady claim was not “second or successive” because she could not have discovered the claim until after her first 2255 motion had been resolved.  Even so, the Ninth Circuit held, the district court should not have allowed Lopez’s 2006 motion to go forward without authorization from the court of appeals.  In an effort to prevent “the government in effect [from profiting] from its failure to meet its obligations under Brady,” the court construed Lopez’s 2006 motion as a request to file a second or successive 2255 motion.  That request, in turn, required the court to determine whether the Spokane Police’s information would have established by clear and convincing evidence that no reasonable factfinder would have convicted Lopez.  The court concluded that this standard had not been met.

The Ninth Circuit concluded that the new information was not material; hence, Lopez could not make out a Brady violation, and a fortiori did not meet the standard for filing a second or successive 2255 motion.  This confidential source’s information did not directly inculpate Lopez.  Defense counsel had an ample opportunity to develop the nature and extent of the source’s bias and lack of credibility on cross-examination.  There was ample other direct evidence of Lopez’s guilt presented at the trial.  Hence, the late disclosure of the confidential source’s “unreliability” did not undermine confidence in the verdict.  Because there was no Brady violation, the court denied Lopez’s request for authorization to file a second or successive 2255 motion.  This was so even though the government was at fault for failing to disclose the information it knew about the reliability of the confidential source.