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.

Wilson v. Sirmons (CA10)

Wilson v. Sirmons, No. 06-5179 (CA10, capital case) — The panel affirmed the denial of the petitioner’s guilt-phase claims, and remanded for an evidentiary hearing with respect to the petitioner’s claim of IAC at sentencing.  The court’s opinions total 180 pages.

This case involves a robbery and murder committed by four men, including Wilson, at a convenience store in Tulsa, Oklahoma.  Wilson and three accomplices robbed the convenience store after Wilson’s shift there had ended.  One of the accomplices dragged the clerk on duty into the back room and beat him to death with a baseball bat.  The clerk had been bound and handcuffed.  A piece of the handcuffs was embedded into the clerk’s skull, and the body was discovered lying in a pool of milk, beer, and blood.

Wilson and one of his accomplices were tried together before separate juries.  Wilson was convicted of first-degree felony murder and robbery, and sentenced to death.  On direct appeal, the Oklahoma Court of Criminal Appeals reversed the robbery conviction under the merger doctrine but affirmed the murder conviction and death sentence; the U.S. Supreme Court denied certiorari review.  The Oklahoma Court of Criminal Appeals also denied Wilson’s petition for post-conviction relief.  The district court denied the 2254 petition, but certified 14 issues for appeal.

The court considered Wilson’s claim of IAC at sentencing to be most persuasive.  Although Wilson’s trial counsel did present some mental health evidence at the sentencing hearing, “the investigation and presentation of some mitigating evidence is not sufficient to meet the constitutional standard [under Strickland v. Washington, 466 U.S. 668 (1984),] if counsel fails to investigate reasonably available sources or neglects to present mitigating evidence without a strong strategic reason.”

Trial counsel hired a mental health expert three weeks before trial began, even though counsel had been appointed two years before trial began.  This expert concluded that Wilson’s IQ was 126, that there was no evidence neurological or organic brain damage, and that he suffered from anxiety, PTSD, and bipolar disorder.  Counsel did not discuss these findings with the expert until the day before the sentencing hearing began.  Character witnesses at the trial included teachers and fellow church parishioners, but none of them provided much meaningful insight.  The mental health expert was thus the most important witness for Wilson at the sentencing hearing.  Yet the “entirety of [the expert's] description of Mr. Wilson’s psychological state is no more than a page of the sentencing transcript.”  Moreover, what “occurred on cross-examination was a train wreck for Mr. Wilson,” because the prosecutor was able to get the expert to concede that psychopaths like Mr. Wilson are the most likely to reoffend.

Direct appeal counsel provided the expert with more information relating to Wilson’s background.  This information allowed the expert to conclude that Wilson is a paranoid schizophrenic.  The information shed more light on Wilson’s relationship with his father, which may have led to his mental health difficulties.  But the Oklahoma Court of Criminal Appeals ignored this investigation when it rejected Wilson’s IAC claim.  “The mere fact that more evidence could have been presented is not,” the state court ruled, “sufficient to show counsel was deficient.”  The district court, too, found no deficient performance in trial counsel, and denied relief.

The court chastizes the Oklahoma attorney general’s office for its skimpy presentation on this claim.  Its entire argument on this claim is that “Trial counsel did not provide deficient performance” becuase trial counsel hired a mental health expert.  This argument was “unresponsive” to the IAC claim because “the defendant has introduced specific evidence indicating that counsel hired the expert so late in the process that he was unable to complete necessary mental health evaluations, that counsel failed to gather or provide readily available relevant information that would have affected the diagnosis, and that counsel failed to present the expert’s actual diagnoses to the jury.”

The court proceeded to review Wilson’s IAC claim de novo, apart from the strictures of AEDPA deference.  “When a state court’s disposition of a mixed question of law and fact… is based on an incomplete factual record, through no fault of the defendant, and the complete factual record has since been developed and is before this Court, we apply de novo review to our evaluation of the underlying claim.”

The Tenth Circuit also found that Wilson had been “diligent” in developing the facts before the Oklahoma Court of Criminal Appeals.  Wilson had uncovered evidence not presented to the trial court, and then asked the Oklahoma Court of Criminal Appeals for an evidentiary hearing so that he could present that new evidence in a procedurally proper manner.  Schriro v. Landrigan, 127 S. Ct. 1933 (2007), did not bar an evidentiary hearing in federal court, because in that case the state courts did consider non-record evidence and nevertheless declined to hold an evidentiary hearing.  In this case, by contrast, the state courts did not consider the non-record evidence, and if they had, they arguably might have granted relief.

In light of Rompilla v. Beard, 545 U.S. 374 (2005); Wiggins v. Smith, 539 U.S. 510 (2003); and Williams v. Taylor, 529 U.S. 362 (2000); and its own precedents, the court found that Wilson received ineffective assistance of counsel.  There remained a question of prejudice, and it was to resolve this issue that the court remanded the case for a hearing.

King v. Schriro (CA9)

King v. Schriro, No. 06-99006 (CA9, capital case) — King was sentenced to death for felony murder committed while robbing a convenience store in Phoenix, Arizona.  King was the only one convicted in the crime.  There were several witnesses.  After exhausting his direct appeal and state post-conviction proceedings, two certified issues reached the Ninth Circuit:  vouching for a prosecution witness, and ineffective assistance of counsel at sentencing.

The Ninth Circuit rejected the vouching claim under the auspices of Carey v. Musladin, 549 U.S. 70 (2006).  The question that mattered was whether the Arizona Supreme Court had unreasonably concluded that the prosecutor’s comments seriously affected the fairness or integrity of the proceedings.  During opening statements, the prosecutor suggested that one of the state’s witnesses might not testify truthfully.  “If he testifies truthfully,” the proescutor remarked, “he will implicate the defendant, Eric King, without a doubt.”  This statement, according to the Arizona Supreme Court, merely prepared the jury for the possibility that his testimony might differ from his account to the police officers.  It did not suggest that he knew things the jury did not.  The conclusion that there was no improper vouching for this witness was not unreasonable.

As for another witness, the prosecutor remarked that “she’s scared to death” to testify.  The prosecutor simply wanted to “prepare the jury for” the demeanor of the witness.  This may have been “improper and colorful hyperbole,” but it had no effect on the trial.  Because there is no reason to infer that a prosecutor’s ambiguous remark should bear its most damning meaning, the state courts’ conclusion that this was not improper vouching was not unreasonable.

Four months elapsed since the end of King’s trial and the sentencing hearing; a new lawyer represented King at the hearing.  Although this did not afford the defense much opportunity to prepare a mitigation case, there was no evidence in the record that a more searching investigation would have changed the outcome of the sentencing hearing.  A private investigator submitted an affidavit stating that the mitigation investigation on King’s behalf was inadequate, but the court pointed out that the affidavit did not identify any investigation she had done, or what beneficial evidence such an investigation might have uncovered.  The report of a second psychologist, obtained during state post-conviction proceedings, largely duplicated psychological evidence presented at the sentencing hearing.  Accordingly, there was not a reasonable probability that the result of the sentencing hearing would have been different if defense counsel had further investigated the case.

The court also declined to expand the COA to reach issues relating to an alibi witness, confrontation rights, double-counting, challenges to Arizona’s death penalty scheme, and IAC for failing to present an alibi defense.

Forsyth v. Ault ( CA8 )

Forsyth v. Ault, No. 07-2839 ( CA8 ) — The petitioner in this case was convicted of murdering his estranged wife, his three children, and two children of his wife’s boyfriend.  The issues in this case surround trial counsel’s efforts to challenge the petitioner’s competence to stand trial and to present defenses of insanity or diminished capacity, and appellate counsel’s failure to raise the deficiencies of trial counsel in this regard.  Five psychiatrists evaluated the petitioner during his state-court proceedings — four in anticipation of trial, and the fifth during state post-conviction proceedings.  The four pretrial psychiatrists all agreed that the petitioner had been competent to stand trial; two of them agreed that the petitioner was not legally insane, and two of them believed there was not enough evidence to determine whether he was legally insane.  The post-conviction psychiatrist opined that the petitioner both had not been competent to stand trial and also had been legally insane.  Before the crimes, the petitioner had a long history of clinical depression, the intensity of which was debated.

The state court of appeals had rejected claims that trial counsel was ineffective for failing to challenge both the petitioner’s competence to stand trial as well as for failing to raise a defense of diminished capacity or insanity, and that appellate counsel was ineffective for failing to raise these issues on appeal.  The district court found these rulings were not based on an unreasonable application of federal law and not based on an unreasonable determination of the facts.

Trial counsel had argued that the petitioner was not legally competent to stand trial on account of his amnesia with respect to the three days surrounding the date of the crime.  Although the amnesia was genuine, under Iowa law amnesia alone is not sufficient to demonstrate an inability to communicate with counsel.  Accordingly, the state trial court had rejected the petitioner’s claim of incompetence.  But the petitioner claimed trial counsel should also have argued that the petitioner’s delusions that his family was still alive should have made him incompetent.  But the psychiatrists testified at the competency hearing that these delusions were fading with time.  Accordingly, trial counsel did not unreasonably curtail investigations into these delusions, and thus did not perform deficiently.  Furthermore, the state appellate court had ruled that arguing this aspect of the competence claim would have been futile because the mental health experts that evaluated him did not regard the delusions as significantly impinging on the competence inquiry.  Accordingly, the state courts did not unreasonably reject this IAC claim.

As to the claims related to the insanity and diminished capacity defenses, the state court’s rulings also were not unreasonable.  Trial counsel’s investigation led him to conclude that the factual evidence was sufficient to raise a reasonable doubt as to the petitioner’s guilt.  Counsel testified at the state post-conviction hearing that presenting both factual defenses and legal defenses — effectively arguing, “I didn’t do it, but if I did I was insane” — tended to undermine the strength of the factual defenses.  In the absence of any other evidence of the petitioner’s insanity, this strategic decision was reasonable.  Counsel was not, the court noted, obliged to search for a mental health expert who would present a favorable opinion at trial.  Accordingly, the state courts did not unreasonably reject this IAC claim.  Because the state courts did not unreasonably reject the trial-related IAC claims, they did not also unreasonably reject the appeal-related IAC claims.

Freeman v. Att’y General (CA11)

Freeman v. Attorney General, State of Florida, No. 07-11658 — The district court correctly denied Freeman’s habeas petition challenging the State of Florida’s decision to charge him with a capital crime because the victims were black and he is white, and trial counsel’s effectiveness for failing to raise this issue at trial and sentencing.

In the fall of 1986, Freeman went on a robbery spree during which he killed two people.  He was tried separately for each of the murders.  He offered to plead guilty to two counts of first-degree murder in exchange for a sentence of two consecutive life terms with the possibility of parole after 50 years.  The prosecutor rejected the offer, and he was ultimately sentenced to death.  The Florida Supreme Court affirmed.

In state post-conviction proceedings, Freeman argued that the state’s decision to seek the death penalty was based on impermissible considerations of race, and that trial counsel’s failure to raise this issue constituted ineffective assistance.  The trial court initially denied the claims without a hearing, but the Florida Supreme Court remanded and ordered the trial court to conduct one.

At the hearing, four lawyers testified — Freeman’s two trial lawyers, the prosecutor, and the prosecutor’s supervisor.  It was established that the prosecutor’s office had a protocol for determining which cases would be prosecuted as capital cases, as part of which the cases would be vetted by a committee and ultimately approved by the supervising prosecutor.  The committee unanimously recommended a death sentence because Freeman’s crimes were part of a spree.  Although trial counsel testified that the prosecutor told him he rejected the plea offer because the state “needed to get their numbers up on whites killing blacks,” the prosecutor recalled that he rejected the offer because of the aggravating factors present in the case.

The trial court denied the post-conviction petition again.  It found that the prosecutor’s alleged retort about his statistics was nothing more than a “somewhat ill-considered retort” in light of then-current litigation in McCleskey v. Kemp, 481 U.S. 279 (1987), in which racial bias in death-penalty charging decisions was a prominent national concern.  The evidence did not disclose a racial motivation to charge Freeman with a capital crime because he is white.  The Florida Supreme Court agreed with this assessment of the evidence and affirmed the trial court’s denial of post-conviction relief.

Freeman filed a federal habeas petition raising these claims.  The state had argued that his claims were defaulted because Freeman did not raise them on direct appeal, but the district court denied the petition on the merits.  The state court’s conclusion that race did not motivate the charging decision was “fatal to each of Freeman’s claims” in the eyes of the district court.  The district court certified his due process and IAC claims for appeal.

The Eleventh Circuit first ruled that Freeman’s claims were not procedurally defaulted because the Florida courts had addressed them on the merits.  Under McCleskey, Freeman had to show that the prosecutor’s decision to charge him with a capital crime was motivated by a discriminatory purpose.  In light of the facts found by the state trial court, however, this was simply not true — the prosecutors had charged Freeman with a capital crime because of the severity of his criminal conduct.  Freeman did not demonstrate that these factual determinations were unreasonable by clear and convincing evidence.  Accordingly, Freeman’s claims of equal protection, due process, and IAC all failed.

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.