CA10 — memorandum dispositions

Bowen v. Kansas, No. 08-3022 — The court vacated a COA as improvidently granted and dismissed an appeal in a § 2254 case.  The petitioner was arrested when police arrived to serve an outstanding warrant; they discovered significant evidence of a methamphetamine manufacturing operation, including a book entitled Secrets of Methamphetamine Manufacture.  After the Kansas Court of Appeals ordered a hearing on an IAC claim, it reversed and remanded for a new trial.

At the new trial, new counsel and the prosecution agreed to have a bench trial on stipulated facts — the transcript of the first trial minus the petitioner’s testimony, so that he could retain his right not to testify on his own behalf.  The petitioner invoked this right, and he was again convicted and sentenced, although his second sentence was 12 months less than his first.  (Both sentences were in excess of 25 years.)  The state courts affirmed the second conviction on direct review.

In state post-conviction proceedings, the petitioner argued that he had never voluntarily waived his right to jury trial and that his trial counsel never explained the terms of the stipulation to him.  Trial counsel continued to represent him on direct appeal, and refused to raise these claims.  The Kansas Court of Appeals deemed these claims to be procedurally barred because he could have raised them on direct review, and the Kansas Supreme Court denied review.

The petitioner pressed his two state post-conviction claims in federal court, and ultimately the Tenth Circuit certified for appeal the claim regarding the waiver of the jury trial.  The court ruled it was procedurally defaulted.  The failure to raise a “trial error” such as the voluntariness of waiving a jury trial was an independent and adequate basis for denying relief; for this proposition, the Tenth Circuit cited two prior unpublished dispositions of the court.  Nor was the fact that direct appeal counsel was the same lawyer as trial counsel “cause” to excuse the procedural default.  To the extent that that fact goes to ineffectiveness, Edwards v. Carpenter, 529 U.S. 446 (2000), did not allow the court to lift the default because the ineffectiveness claim was unexhausted.

Pierce v. Romero, No. 08-2005 — The court denied a COA and dismissed an appeal because the notice of appeal was not timely filed.  The district court denied judgment on November 20, 2007, and the petitioner averred that he mailed his notice of appeal to the U.S. Court of Appeals for the Federal Circuit on December 14, 2007.  The Federal Circuit did not transfer the notice of appeal to the U.S. District Court for the District of New Mexico, the court in which it could properly have been filed.  Instead, it returned the notice to the petitioner, who refiled it in the district court on December 28, 2007.  The rule allowing for transfer of notices of appeal filed in the wrong court, 28 U.S.C. § 1631, did not apply because the Federal Circuit did not deem the notice of appeal “filed.”  Accordingly, the appeal was not timely.

CA5 — memorandum disposition

Shelton v. Quarterman, No. 06-10448 — This is a murder case.  The petitioner was convicted of shooting his business partner and his partner’s wife outside their home.  The partner died; the wife survived.  The partner’s wife claimed that the petitioner’s wife participated in the chooting; the petitioner’s wife was never charged.  The partner’s wife sued the petitioner’s wife for wrongful death.  During discovery, additional facts related to the murder emerged that were not presented at the petitioner’s trial.  Eventually the wrongful death lawsuit was dismissed, and the petitioner’s wife won a libel judgment for public allegations that she was involved in the shooting.

The lawyer who represented the petitioner’s wife at trial wrote a letter to the petitioner, explaining the additional evidence that had emerged during discovery and describing his belief that the prosecution had wrongfully withheld the evidence at the trial.  The petitioner then sought state habeas relief, which both the trial court and the Texas Court of Criminal Appeals denied.

The petitioner then filed a § 2254 petition, and also asked for discovery and to expand the record in federal court.  The district court denied both the requests for evidentiary development as well as the petition on the merits.  The Fifth Circuit certified the issues for appeal.

As for the petitioner’s request for additional discovery, it was grounded in an allegation that the prosecution had presented false testimony from the partner’s at the criminal trial.  But the petitioner failed to allege what was false about the testimony, such that further discovery would have allowed him to flesh that out.  Moreover, the trial court in the wrongful death lawsuit never ruled that the partner’s wife had lied on the stand.  Records from the company that maintained a portable toilet in which evidence of the shooting was found were not material under Brady.  Phone records the prosecution allegedly withheld were not exculpatory.  Because these allegations were insufficient to establish “just cause” for discovery, Bracy v. Gramley, 520 U.S. 899 (1997), the district court did not abuse its discretion to deny discovery.

As for the petitioner’s request to expand the record, the court began by noting that the provisions of § 2254(e)(2) apply to requests to expand the record as well as for evidentiary hearings.  Because the petitioner did not apprise the state habeas courts of the evidence by which he sought to expand the record, he had “failed to develop the factual basis of the claims” in state-court proceedings.  The facts were not sufficient to establish by clear and convincing evidence that no reasonable factfinder would have convicted him, so the district court properly denied the request to expand the record, and for an evidentiary hearing as well.

Finally, trial counsel was not ineffective for failing to investigate the records maintained by the portable toilet company regarding the maintenance of the particular toilet where inculpatory evidence was found.  The records were not “facially exculpatory,” and they did not indicate that the jury would have believed his alibi explanation that he placed the evidence in the portable toilet on a different day.  In light of the strength of the other evidence against the petitioner, the court concluded that the state courts’ conclusion on Strickland prejudice was not unreasonable.

Moses v. Payne (CA9)

Moses v. Payne, No. 07-35468 — The court affirmed the denial of a § 2254 bringing challenges to evidentiary rulings of the trial courts.  The petitioner was accused of killing his wife; his mother called the police from California.  The coroner testifed at the trial; he described the wounds inflicted on the victim’s body, and gave an opinion that the death was a “homicide.”  The coroner explained that he was using the word in a “mixed medical/legal” sense, “signifying the likelihood of another person’s responsibility leading to the death.”  Faced with evidence that the victim’s blood alchol level was .15% at the time of death, the coroner conceded that people having “difficulty with drugs and alcohol” are at a higher risk of suicide.

A ballistics expert also testified for the prosecution.  This expert testified that, based on the objective evidence relied on by the coroner, the death was more likely a homicide than a suicide or an accidental shooting during a struggle over a weapon.

There was also testimony of a domestic dispute between the petitioner and the victim, and how the victim had to be hospitalized.  The emergency room doctor testified that the victim had told him that the petitioner had broken her jaw.  One of the children said that the petitioner had kicked the victim, and so child welfare personnel testified.  The child welfare officer’s testimony supported the prosecution’s theory that the victim was preparing to leave the petitioner on the night she was killed.

The defense’s theory was that the victim had committed suicide.  Doctors from the hospital where the victim had been treated for drug abuse and depression testified for the defense.  The defense wanted an expert to testify regarding symptoms of depression (in order to rebut prosecution testimony), but the trial court excluded the expert.  The trial judge also excluded a photograph of the victim’s unclothed, emaciated body, ruling that it would be too prejudicial to the jury.  The defense wanted to portray the victim as suffering from an eating disorder.  The petitioner was convicted of second-degree murder and sentenced to 420 months in prison.  The Washington Court of Appeals affirmed the conviction, and the Washington Supreme Court denied review.

The court ruled that the victim’s statement to the treating physician did not implicate Crawford v. Washington’s definition of “testimony,” 541 U.S. 36 (2004), because her statements were made for purposes of treatment rather than in order to implicate the petitioner in a crime.  Accordingly, the state court’s evidence ruling was not an unreasonable application of Crawford.  As soon as the victim mentioned she had spoken with child welfare officials, however, her statements became “testimonial,” and the trial court erred in admitting them.  Nevertheless, the state appellate court ruled that admitting them was harmless under Chapman v. California, 386 U.S. 18 (1967).  The Ninth Circuit ruled that admitting these statements did not have a “substantial and injurious effect on the verdict” in light of the overwhelming evidence that the petitioner had killed his wife.  As for the testimony that the petitioner had kicked the victim on a previous occasion, the court reasoned that because this testimony merely served to explain why child welfare personnel were involved, Crawford was not implicated and no habeas relief was available.

The court also considered whether excluding expert testimony under state evidence rules (analogous to Fed. R. Evid. 702) violated the petitioner’s constitutional right to present a defense.  Because Rule 702 was intended to “assist the trier of fact” in admitting expert testimony, there was no violation of Supreme Court case law forbidding rules of evidence that excluded evidence for arbitrary reasons.  The court then cast the petitioner’s argument as challenging the trial court’s exercise of its discretion to exclude testimony under Rule 702.  But because there was no clearly established Supreme Court law regarding the point at which an exercise of “discretion” under Rule 702 violated the Constitution, there could be no habeas relief on this claim because of Carey v. Musladin, 127 S. Ct. 649 (2006).  The same reasoning applied to admitting the victim’s diary, to excluding the photographs of her emaciated body, and to allowing experts to give opinion testimony as to whether the cause of death was “homicide.”

Judge Gould dissented from the court’s ruling on the Rule 702 issue.  For him, excluding the expert testimony regarding the effects of depression “should shake our confidence that the jury reached its verdict after a fair trial.”  Judge Gould’s first point of departure was whether the court could consider any judicial decision other than one issued by the Supreme Court.  The majority had ruled that it could not; Judge Gould pointed out that while Supreme Court decisions are the only relevant source of “clearly established” law under AEDPA, circuit precedent could help explain what an “unreasonable application” of clearly established law might be.  Although clearly established federal law allowed states to exclude evidence in certain limited circumstances, the scope of that exclusion was directly related to the magnitude of the infringement on the defendant’s right to present a defense.  The greater the intrusion on that right, the narrower the scope of the exclusion.  Because Rule 702 was used to completely exclude the testimony of an important defense expert, it could be justified only in the face of a minimal incursion on the petitioner’s right to present a defense.

Judge Gould then pointed out that excluding a defense witness entirely strikes at “the heart of the defendant’s right to mount a defense.”  It was critical to the petitioner’s defense, moreover, to know whether his wife had committed suicide.  The victim had been shot in the head; the petitioner’s fingerprints were on the gun; the victim had suffered from suicidal ideation.  The critical question for the jury was whether the petitioner had shot his wife and tried to blame it on her suicidal thoughts, or whether she had shot herself despite his attempts to stop her from doing so.  “Determination of those facts is in the province of the jury.  But what we must do is to ensure that the process by which the jury receives the question is a fair one, so that we can have confidence in its determination of criminal guilt beyond a reasonable doubt.”

There was no indication that the expert’s testimony would not be reliable (cf. Crane v. Kentucky).  The expert would have helped the jury to understand major depression and suicide generally, the implications of a diagnosis of major depression, and the inconsistencies between the affect and the internal thoughts of a person suffering from major depression.  Although the jury did have testimony from others who had treated the victim, they had no other testimony regarding the likelihood that she would have recovered before her death.  At best the expert’s testimony was “partially cumulative.”  In light of the importance this testimony had to the petitioner’s defense, Judge Gould had “grave doubt” about the harmlessness of excluding it.

CA8 — memorandum disposition

Ivy v. Sanders, No. 07-2663 — The district court could not entertain a § 2241 petition asserting an actual innocence claim, where the petitioner had already litigated it in a § 2255 motion.

Smith v. Berghuis (CA6)

Smith v. Berghuis, No. 06-1463 — The Sixth Circuit ordered a new trial for a Michigan prisoner who was denied a jury drawn from a fair cross-section of the community.

The petitioner is African-American.  He was charged in Kent County, Michigan, where the largest city is Grand Rapids, with one count of second-degree murder and two counts of possession of a firearm during commission of a felony.  According to the 1990 census, 7.8% of the eligible jury pool for the entire county, and 18.1% of the jury pool for the city of Grand Rapids, was African-American.  Grand Rapids accounted for 37% of the total population of the county but 85% of the total African-American population.  Yet of the entire jury venire, which numbered between 60 and 100 people (the record wasn’t clear), only 3 were African-American.  Those three were excluded before voir dire began, and the 14 people who eventually were seated on the petit jury were white. The petitioner challenged this arrangement as violating his right to a jury drawn from a fair cross-section of the community, but the trial judge disagreed.  He was later convicted of the murder count and one of the firearm counts.

The Michigan Court of Appeals ordered a hearing on the petitioner’s fair cross-section claim.  The county court administrator testified about how jury pools were drawn.  The county obtained the list of all licensed drivers and holders of state identification cards who lived in the county.  Then it sent out questionnaires, only 75% to 80% of which garnered an initial response.  Follow-up letters explaining the penalties for failing to respond increased the response rate to 85% or 90%, but the administrator explained that the largest non-response rate occurred among members of minorities.  The county did not keep track of the race of individuals who responded or claimed exemptions from jury service.  Those exemptions included prior felony convictions and inability to find childcare or to take time off from work.

Ultimately, the county made changes to the procedures by which it constituted its jury pools, but did not make up for the lack of minorities serving on its juries.  Statistical evidence confirmed this.  Other testimony at the hearing highlighted the fact that the statutory exemptions overly impacted African-Americans.

The trial court resolved the claim against the petitioner, finding that while the county’s procedures did underrepresent African-Americans in the jury pool, they did not “systematically exclude” African-Americans.  The Michigan Court of Appeals did conclude that the procedures systematically excluded African-Americans, but the Michigan Supreme Court did not.  It therefore affirmed the petitioner’s convictions and sentence.  Ultimately, the Sixth Circuit Court of Appeals took up the fair cross-section claim, on which it granted relief.

The court held that the Michigan Supreme Court unreasonably applied controlling Supreme Court decisions articulating the fair cross-section requirement.  To be sure, the absolute disparity between the number of eligible blacks (7.28%) and the number in the jury venire (~6%) was not constitutionally significant.  But because of the relative smallness of the absolute numbers, the comparative disparity mattered more.  In the six months before the petitioner’s trial began, the comparative disparity was 18%.  In the month his trial actually began, it was 34%.  These numbers demonstrated that the underrepresentation of blacks in the jury pool was unfair and unreasonable.

Even so, they did not help to explain whether the Michigan Supreme Court unreasonably applied clearly established federal law to reject the petitioner’s claim.  The relatively small size of the African-American population made both measures of disparity somewhat unreliable.  Even so, examination of how the system operates ex ante might give the petitioner the benefit of the doubt, such that if there is a certain likelihood that the system will systematically exclude blacks from the beginning, the claim will prevail.  And it was on this score that the Michigan Supreme Court went astray.

As the court put it, the county allowed “prospective jurors to essentially opt out of jury service if jury duty would constitute a hardship based on child care concerns, transportation issues or the inability to take time from work.”  These exemptions disproportionately affected African-American jurors more.  64% of single-parent households were black, while only 19% were white.  Allowing single parents to opt out disproportionately affected African-Americans.  The Michigan Supreme Court dismissed this evidence as relating to socioeconomic factors rather than the system by which potential jurors were identified.  But “the Sixth Amendment is concerned with social or economic factors when the particular system of selecting jurors makes such factors relevant” to identifying potential jurors.  The system here took into account the socioeconomic factor of being the sole breadwinner for a family, and that socioeconomic factor disproportionately impacted African-Americans.

Moreover, those African-Americans that did appear for jury duty were diverted from hearing cases in the division of the trial court where the petitioner’s trial took place.  His was a circuit court, where jurors were drawn from all over the county.  Residents of Grand Rapids, where most of the county’s African-American population lived, were given priority for the city’s district court instead.  As a consequence, fewer African-Americans were available to serve on juries in the county circuit court.  The Michigan Supreme Court dismissed this assertion because the petitioner did not indicate precisely how many African-American jurors were diverted to district courts.  But the Sixth Circuit found this reasoning to be unreasonable inasmuch as the fair cross-section requirement was concerned with systematic exclusion.

These two facts together demonstrated a prima facie violation of the fair cross-section requirement.  The burden then shifted to the state to demonstrate that the systematic exclusion satisfied some significant state interest.  But the state could not do so.  Indeed, since petitioner’s trial the state court in the county where the trial took place has stopped allowing for the automatic exemption for economic hardships precisely because such an exemption disproportionately impacts minorities.  Nor was there a significant state interest in ensuring that residents of Grand Rapids served on the district court rather than the circuit court.  Accordingly, the Michigan Supreme Court’s rejection of the petitioner’s fair cross-section claim was unreasonable.  The Sixth Circuit ordered a new trial.

CA9 — memorandum dispositions

Skattebo v. Carey, No. 06-15723 (argued) — The court affirmed the denial of a § 2254 petition.  The petitioner claimed trial counsel was ineffective for relying on cross-examination from a prior trial to support a heat-of-passion defense to murder charges, rather than allowing the petitioner to testify personally on an imperfect self-defense theory.  Based on the course of testimony at the prior trial, counsel made a strategic decision to pursue a heat-of-passion defense, which had been corroborated by several witnesses.  In light of this testimony, counsel’s decision at the second trial was not unreasonable.  This is especially true because allowing the petitioner to testify regarding an imperfect self-defense theory would have afforded the prosecution an opportunity to undermine the heat-of-passion theory as well.

Alaimalo v. United States, No. 07-56621 (screening) — The district court correctly dismissed the § 2241 petition for lack of jurisdiction because the petitioner did not demonstrate that the § 2255 remedy was ineffective or inadequate to afford him relief from his sentence.

CA9 — memorandum disposition

Wright v. Crawford, No. 07-16316 (argued) — The petitioner had been convicted of six felony charges in connection with a string of over 50 residential burglaries in Las Vegas; two of the charges were for firearms offenses.  The petitioner had also suffered six prior convictions in California, and thus was found to be an habitual criminal under Nevada sentencing law.  He was sentenced to six terms of 10 years to life on each of the felony counts, grouped into three consecutive blocks of two concurrent 10-years-to-life terms.  In other words, his total sentence was 30 years to life.

In federal habeas, the petitioner brought an exhausted claim that the structuring of his sentences violated the Eighth Amendment’s ban on cruel and unusual punishments.  Constrained by AEDPA, the court affirmed the district court’s denial of relief.  The only “clearly established” law with respect to noncapital sentences is the “gross disproportionality” principle of Harmelin v. Michigan, 501 U.S. 957 (1991), under which life sentences for habitual nonviolent offenders constitute cruel and unusual punishment unless there is the possibility for parole, however remote.  See Solem v. Helm, 463 U.S. 277 (1983).  Nothing in Lockyer v. Andrade, 538 U.S. 63 (2003), changed this landscape.  “Given the seriousness of the underlying crimes in Wright’s case, compared to those in Andrade, the state court did not violate clearly established Federal law.”

The court notably did not mention its precedent in Ramirez v. Castro, 365 F.3d 755 (9th Cir. 2004), a post-Andrade case in which the court held a sentence under California’s three-strikes law to constitute cruel and unusual punishment.

CA4 — memorandum disposition

United States v. Snyder, No. 05-7731 — This order is confusing.  The district court denied the § 2255 motion but certified for appeal whether the public-safety exception to Miranda allowed the trial court to admit statements the defendant made concerning the location of a weapon.  The court ruled that trial counsel was not ineffective for failing to ask for suppression of the statements.  (That’s not the claim certified for appeal, but both roads lead to the same place.)

CA10 — memorandum disposition

Harris v. Wilmer, No. 08-1162 — This is an appeal from the denial of a § 2241 petition.  The petitioner pleaded guilty to a federal crime and received a 300-month sentence.  The plea agreement required him to waive his right to file a § 2255 motion challenging his sentence.  He filed one anyway, in federal court in Indiana, which was denied as untimely and barred by the plea agreement.  He did not appeal to the Seventh Circuit.  Later on, while imprisoned in Colorado, he filed a § 2241 petition challenging his conviction and sentence.  The district court denied it because the claims he raised were more appropriate for § 2255 motions and he had filed in the wrong district.  The Tenth Circuit affirmed because he had not shown that the § 2255 remedy was ineffective or inadequate merely because he was precluded from filing either a first (because of the plea agreement) or second (because of AEDPA) § 2255 motion.

CA11 — memorandum disposition

Antonelli v. Warden, USP Atlanta, No. 08-10608 — No authorization is required to file a second or successive § 2241 petition, but the court affirmed the denial of the § 2241 petition.

The petitioner had been convicted in 1978 of bank fraud and sentenced to 22 years in prison.  While on federal parole in 1994, he pleaded guilty to criminal trespass and DUI in Chicago.  He later sought to withdraw the guilty pleas because they were uncounseled by filing a § 2241 petition in Arkansas, claiming that the Federal Parole Commission erroneously deprived him of credit against his sentence.  The district court there denied relief, and the Eighth Circuit affirmed.  The district court in Georgia (where the petitioner is now incarcerated) denied the same § 2241 petition as second or successive.

The Eleventh Circuit ruled that under 28 U.S.C. § 2244(b), the second-or-successive petition bar imposed by AEDPA does not apply to § 2241 petitions.  The court agreed with the similar conclusions of the Seventh, Third, Ninth, and Sixth Circuits.  As long as the § 2241 petition is not the functional equivalent of either a prior § 2254 petition or § 2255 motion, AEDPA’s second-or-successive bar does not apply.  Because the petitioner in this case was ultimately challenging the denial of federal parole, and that claim was properly included in a § 2241 petition, the second-or-successive bar did not apply.

However, § 2241 does contain a procedural bar for claims already resolved in a prior § 2241 petition.  For this reason, the district court properly dismissed the § 2241 petition in this case.