CA5 — memorandum disposition

Kyles v. Quarterman, No. 06-20495 — The court affirmed the denial of a 2254 petition challenging changes in Texas’s parole procedures for life prisoners.  There was no evidence to support the contention that the members of the Texas parole board who favored granting him parole would eventually be involved in the actual parole decision.  Accordingly, the state courts’ rejection of the claim was not unreasonable.

CA9 — memorandum disposition

Digiusto v. Farwell, No. 07-15176 (argued) — The court affirmed the denial of petitioner’s IAC claim, and affirmed the denial of an evidentiary hearing.  Trial counsel knew enough about the photographs that allegedly constituted child pornography to competently advise the petitioner not to risk a trial on the issue of whether the subject were engaged in “sexual conduct” as defined by Nevada law.

Railey v. Webb (CA6)

Railey v. Webb (CA6, No. 06-5806) — The petitioner filed a 2254 petition challenging his guilty-plea convictions and 10 years in prison for three assault counts, including one episode where he shot and injured his girlfriend while target shooting.

Railey alleged judicial bias because the prosecutor who appeared at two pretrial hearings was the uncle of the trial judge.  The state post-conviction court found that defense counsel knew about the relationship and waived it on Railey’s behalf.  In any event, state law required Railey to show actual bias, and mere allegations of bias stemming from a family relationship did not satisfy this standard.  Surveying constitutional law as AEDPA required, the Sixth Circuit concluded that kinship is not a kind of judicial bias that may give rise to a constitutional obligation for a judge to recuse himself.  But, the court also ruled, this obligation is not clearly established.  The relevant Supreme Court law, ending with Bracy v. Gramley, 520 U.S. 899 (1997), could be read to impose a constitutional requirement of recusal in any situation giving rise to an appearance of bias.  But it could also be read to require a showing of actual bias in situations of kinship.  “Regardless of the preferred reading — or the merits of one reading over the other — the fact that there are two or more reasonable readings compels the conclusion that this precedent is not ‘clearly established.’”

Because there was no clearly established Supreme Court law, the court could not rule that the Kentucky courts had unreasonably applied Supreme Court law in requiring Railey to show actual bias between the judge and the prosecutor.

Railey also claimed trial counsel was ineffective for failing to inform him of the relationship between the prosecutor and the judge.  But he did not show that there was a reasonable probability he would have gone to trial if he had known about it.  Thus the court rejected this IAC claim.

The court also rejected Railey’s claim that counsel were ineffective for failing to pursue a voluntary intoxication defense.  But that defense was not available under Kentucky law, because the assault charges he faced were general intent crimes.  And counsel did argue his intoxication in mitigation of his sentence.  Thus counsel did not perform deficiently.

Finally, Railey argued that his plea was not knowing and voluntary because he did not know about the voluntary intoxication defense.  But the court ruled that he had not overcome the presumption attached to state-court determinations that he had pleaded guilty voluntarily.  He explained to the trial judge that he understood he was pleading guilty, and that he had discussed his case with his attorneys, and he signed a statement to that effect.  He did not explain how the state courts’ conclusion was unreasonable.

CA10 — memorandum dispositions

Jackson v. Ray, No. 08-6099 (8/27/08) — In a lengthy order, the court denied a COA to appeal the denial of a 2254 petition.  The state courts rejected the petitioner’s Fourth Amendment claims on the merits, and so Stone v. Powell, 428 U.S. 465 (1976), precluded review in federal habeas.  Likewise, his due process challenges to the state post-conviction proceedings were precluded.  The double-jeopardy claim, based on multiple punishments for the “same offense,” was meritless because under Oklahoma law the petitioner had been properly sentenced for two different offenses, albeit to concurrent terms.  The court denied a COA on the IAC claims because the petitioner did not allege facts which, if true, would entitle him to relief.  Finally, the court rejected the cruel and unusual punishment challenge to the sentence.

Anderlohr v. Mullen, No. 07-7076 (8/26/08) — The court denied a COA to appeal the denial of a 2241 petition.  The petitioner sought to challenge the revocation of parole by the Governor of Oklahoma, and subsequent amendment of sentence on the revocation from concurrent with to consecutive to the sentence on the underlying offense.  The district court had denied the petition as untimely.  The court reasoned that the petition was clearly untimely because the petitioner was not diligent in exhausting his administrative appeals relating to the Governor’s decision.

Rath v. Att’y Gen. of Colo., No. 08-1193 (8/26/08) — The court denied a COA in a 2254 case.  The district court properly denied an evidentiary hearing under 2254(e)(2).  The petitioner was not entitled to relief from defects in state post-conviction proceedings, and there was no fraud in the trial record.

CA4 — memorandum dispositions

Williams v. Chapman, No. 08-6357 — The court summarily affirmed the denial of a 2241 petition.

Vines v. Watson, No. 08-6517 — The court dismissed for lack of jurisdiciton an appeal from an order dismissing a 2254 petition and ordering the petitioner to show cause that the petition was not time barred.  The order being appealed was not final, as the petitioner was allowed to explain why his petition should not be subject to the one-year limitations period.

CA4 — more COA denials

The Fourth Circuit issues unusually verbose COA denial orders.  They’re boilerplate, but they’re very long.

They go something like this:

[Petitioner] seeks to appeal the denial of his [2254 petition/2255 motion].  He needs a COA.  This is the legal standard for a COA:  2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322 (2003); Slack v. McDaniel, 529 U.S. 473 (2000); Rose v. Lee, 252 F.3d 676 (4th Cir. 2001).  We have independently reviewed the record and conclude that [petitioner] has not made the requisite showing.  Accordingly, we deny a COA, dispense with oral argument, and dismiss the appeal.

Such a verbose explanation is unnecessary; after all, denying a COA only takes one word — “DENIED.”  The orders seldom explain whether the denial was on the merits or for procedural reasons (a COA is required in either instance).  One assumes the district court also denied a COA, because if the district court had granted one the circuit would have no reason to reconsider the scope of the COA without specifically being asked to do so.

Because these orders contain no legal analysis, I’m going to stop posting them to the blog.  Of course, if one of them is interesting, or if the Fourth Circuit changes its practice, I’ll reevaluate.

CA9 — memorandum dispositions

Gutierrez v. Runnels, No. 07-55419 (argued) — The court affirmed the denial of a 2254 petition.  Trial counsel neither performed deficiently, nor did the petitioner suffer prejudice, with respect to advice about not pursuing a voluntary intoxication defense at trial.  The petitioner’s statements regarding the amount of drugs he had taken was not consistent, and his behavior during the car chase tended to disprove the defense because he was able to “fairly successfully navigat[e] his van during a high-speed chase while shooting from outside the window after announcing his intent to shoot.”  Because the voluntary intoxication defense would likely not have succeeded, the petitioner suffered no prejudice from choosing to plead guilty rather than go to trial.

U.S. v. Clark-Aigner, No. 06-35965 (argued) — The petitioner cannot claim the benefit of the prison mailbox rule because he did not diligently follow up with the court after a reasonable time elapsed and he noticed his petition had not been filed.  His lack of diligence also precludes equitable tolling.  Hence the district court properly dismissed the 2255 motion as time barred.

CA10 — memorandum decisions

Adams v. Wiley, No. 08-1204 — The court affirmed the denial of a 2241 petition.  The petitioner is a federal prisoner whose convictions were affirmed on direct appeal and who has filed two 2255 motions in the court of conviction.  The court affirmed, because a 2241 petition is not a substitute for a 2255 motion, and the petitioner had not shown that the 2255 remedy was inadequate or ineffective to protect his rights.  The second-or-successive petition rules of AEDPA do not establish that the 2255 remedy is inadequate or ineffective.

Uecker v. Romero, No. 08-2118 — The court denied a COA to appeal the dismissal of a 2254 petition as untimely.  The mere fact that the petitioner arguably did not learn that he could file a federal habeas petition until four years after his conviction became final does not entitle him to a new one-year period under 2244(d)(1)(D).

Thompson v. McKune, No. 08-3038 — The court denied a COA on the merits of the petitioner’s 2254 claims.  The Fourth Amendment claim was not cognizable under Stone v. Powell, 428 U.S. 465 (1976), because the petitioner had had a full and fair opportunity to litigate it in state court.  The evidence was sufficient to support the convictions.  Any sentencing error did not affect the petitioner’s due process rights.  Nor did the sentencing process run afoul of Apprendi v. New Jersey, 530 U.S. 466 (2000), or Cunningham v. California, 549 U.S. 270 (2007).

U.S. v. Shaw, No. 08-3078 — The court denied a COA on the merits of the petitioner’s 2255 motion.  The petitioner had pleaded guilty and waived his right to appeal and to collaterally attack his sentence.  He nevertheless filed a 2255 motion, claiming trial counsel was ineffective for failing to file a notice of appeal.  But he never alleged that he had instructed his counsel to do so until he applied with the circuit for a COA.  Because the petitioner had not alleged facts that would entitle him to relief, the court denied the COA.

CA4 — memorandum decisions

Young v. Johnson, No. 07-6973 — COA denied on the merits of a 2254 petition.

Smith v. Kelly, No. 08-6281 — COA denied on the merits of a 2254 petition.

Ford v. Warden, No. 08-7023 — Appeal dismissed for lack of jurisdiction due to a late notice of appeal.

U.S. v. Florence, No. 08-7033 — COA denied on the merits of a 2255 motion.

U.S. v. Sehen, No. 08-7050 — COA denied on the merits of a 2255 motion.

Blog break.

Sorry for the light blogging lately.  It’s gonna continue for the rest of the week.  I’m moving to another state, and I’m the only one who puts this together.

Blogging will resume after the weekend.