Payne v. Allen (CA11)

Payne v. Allen, No. 06-15674 (CA11, capital case) — Payne had been convicted of three counts of capital murder, one for each of three discrete theories charged under Alabama law.  Protracted trial, direct appeal, state post-conviction, and federal habeas proceedings ensued.  The Eleventh Circuit certified three claims for appeal.

The court first ruled that Alabama’s rule requiring claims of IAC at trial to be brought on direct appeal, established in Ex parte Jackson, 598 So. 2d 895 (Ala. 1992), was firmly established and regularly followed so as to be adequate to support procedural default.  The Eleventh CIrcuit identified seven published opinions in which the Alabama Court of Criminal Appeals followed the Jackson rule between 1992 and 1996, when the Alabama Supreme Court overruled it.  Payne’s direct appeal took place in 1994, during the Jackson regime.  Accordingly, the district court correctly ruled that the claim was procedurally defaulted.  Even so, the court examined the merits of the claim under the guise of the cause-and-prejudice inquiry.  However, the Eleventh Circuit concluded that the Alabama courts’ rejection of his IAC of appellate counsel claim — which accused direct appeal counsel of failing to raise the trial-level IAC claim — was not unreasonable.

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.

U.S. v. Orozco (CA10)

U.S. v. Orozco, No. 07-3315 (CA10, unpublished order) — The Tenth Circuit denied a COA in a 2255 case.  The petitioner had waived his right to file a direct appeal and a 2255 motion when he pleaded guilty to distributing methamphetamine in federal court.  He filed a direct appeal anyway, which the court dismissed.  He then filed a 2255 motion, asserting a claim of IAC on direct appeal and a claim under United States v. Booker, 543 U.S. 220 (2005).  The district court dismissed the 2255 motion in light of the waiver provision of Orozco’s plea agreement.  The Tenth Circuit denied the COA because the dismissal in light of the waiver provision was not “reasonably subject to debate.”

CA6 — memorandum disposition

Suttles v. Wilson, No. 06-3585, 06-3652 — Owing to an irreconcilable conflict between defense counsel and a prosecution witness, the court granted the writ of habeas corpus and ordered the State of Ohio to retry petitioner within 180 days.  The petitioner argued that appellate counsel was ineffective for failing to raise the conflict on appeal.  The court held that appellate counsel performed deficiently for failing to raise the conflict on appeal, and that deficient performance prejudiced the petitioner insofar as the conflict adversely affected the petitioner.

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.