The 28 U.S.C. § 2254 Blog

CA4 holds that jurisdictional objection under 2241(a) can be waived.

Keith Hilzendeger — Fri, 04 Mar 2011 22:51:46 +0000

Kanai v. McHugh, No. 10-6086 (4th Cir. Mar. 4, 2011) (Keenan, J.) — The Fourth Circuit reversed the grant of a habeas petition filed by a West Point cadet who sought discharge from the Army as a conscientious objector. Along the way, the court held that 28 U.S.C. § 2241(a), which authorizes district courts to issue writs of habeas corpus “within their respective jurisdictions,” does not confer subject-matter jurisdiction on a district court, but either concerns personal jurisdiction over the respondent (here, the Secretary of the Army) or venue. See Rumsfeld v. Padilla, 542 U.S. 426, 434 n.7 (2004). Because personal jurisdiction (as opposed to subject-matter jurisdiction) can be forfeited if not timely objected to, the court concluded that the Army had forfeited its objection to personal jurisdiction over the respondents, even though the only connection between the petitioner and the Army was his enrollment at West Point, which is in New York, outside the territorial boundaries of the District of Maryland.

CA9 holds that a federal prisoner must have one unobstructed procedural shot at raising an actual-innocence claim.

Keith Hilzendeger — Mon, 28 Feb 2011 21:23:45 +0000

Alaimalo v. United States, No. 08-56349 (9th Cir. Feb. 28, 2011) (B. Fletcher, J.) — The Ninth Circuit reversed a district court’s dismissal of a federal habeas petition brought by a federal prisoner under 28 U.S.C. § 2241. The court held that the prisoner was entitled to an unobstructed procedural shot at raising his actual-innocence claim, which was based on Ninth Circuit law issued after the prisoner’s direct appeal and first § 2255 motion were decided. On the merits, the court granted relief and remanded for issuance of the writ (although this did not have any net effect on his actual sentence because he was convicted of other crimes not at issue here and was serving a life sentence).

The petitioner was convicted of, among other things, importing methamphetamine from California to Guam in violation of 21 U.S.C. § 952. At the time of his conviction, this conduct was considered importation because the drugs had to move over international waters; however, in 2003 the Ninth Circuit sitting en banc held that this conduct was not
importation. See United States v. Cabaccang, 332 F.3d 622 (9th Cir. 2003) (en banc). Beginning in March 2005, the petitioner filed three habeas petitions under 28 U.S.C. § 2241 in which he argued that he was actually innocent of the § 952 charge in light of Cabbacang. The third of those petitions, which the district court dismissed for lack of jurisdiction, is under review in this case.

1. The district court had jurisdiction because of the escape hatch of 28 U.S.C. § 2255(e), which allows a federal prisoner to seek postconviction relief under 28 U.S.C. § 2241 if § 2255 is “inadequate or ineffective to test the legality of his detention.” That phrase requires a prisoner to be afforded an “unobstructed procedural shot” at securing relief, whether on direct appeal, in postconviction proceedings, or otherwise. Here, because Cabaccang was not decided until after the prisoner’s direct appeal and first § 2255 motion were adjudicated, and his first two habeas petitions were dismissed on procedural grounds, the district court had jurisdiction under § 2241 to grant relief. The second-or-successive-petition bar of AEDPA, see 28 U.S.C. § 2244(a), expressly does not apply. See Stanko v. Davis, 617 F.3d 1262 (10th Cir. 2010). Because the government did not contest the petitioner’s innocence under Cabaccang, he was entitled to the writ.

2. The petitioner did not abuse the writ, and the government didn’t even argue abuse of the writ as a defense. Preventing fundamental miscarriages of justice — such as the imprisonment of an actually innocent person — is the purpose of the writ. Because the petitioner here is innocent, the abuse-of-the-writ doctrine does not bar this petition.

3. Even if the law-of-the-case doctrine applied to successive habeas petitions (as opposed to different phases of adjudicating the same habeas petition), it would not be followed because it was “clearly wrong as a matter of law” to deny the petitioner relief on one of his previous § 2241 petitions.

4. The petitioner did not need a COA to appeal the dismissal of his § 2241 petition because the COA requirement does not apply to true § 2241 petitions.

Edward Korman, a federal district judge from Brooklyn, New York, sitting by designation, dissented. “A holding having no practical effect would not normally invite a dissenting opinion. Nevertheless, the holding of the majority that a habeas corpus petitioner may commence an unending number of successive petitions pursuant to 28 U.S.C. § 2241 until he succeeds, even where success amounts to nothing, makes bad law in an easy case.”

CA8 enforces plea agreement through a technical parsing of the terms of a 2255 waiver.

Keith Hilzendeger — Thu, 17 Feb 2011 16:35:05 +0000

Ackerland v. United States, No. 10-1864 (8th Cir. Feb. 16, 2011) (Colloton, J.) — The Eighth Circuit reversed a district court’s grant of a federal prisoner’s § 2255 motion in which the district court had ordered resentencing for the purpose of correcting an error in the petitioner’s criminal history calculation. That error stemmed from the inclusion of an uncounseled misdemeanor conviction in his criminal history score, in violation of Alabama v. Shelton, 535 U.S. 654 (2002). After concluding that the government had filed a timely notice of appeal, the court reversed the district court’s resentencing order because a provision in the petitioner’s plea agreement waived the right to raise this kind of challenge in § 2255 proceedings. The agreement “reserv[ed] only the right to appeal from an upward departure from the applicable Guideline range.” This challenge wasn’t included for two reasons — first, the petitioner wasn’t appealing his sentence, he was seeking relief in § 2255 proceedings; and second, an error in computing the criminal history score is not a “departure” as that term is understood in the Guidelines.

CA8 reminds trial courts to apply Faretta correctly.

Keith Hilzendeger — Tue, 15 Feb 2011 18:04:27 +0000

Jones v. Norman, No. 10-1614 (8th Cir. Feb. 14, 2011) (Beam, J.) — The Eighth Circuit affirmed a district court’s grant of habeas relief to a Missouri state prisoner who was denied the opportunity to represent himself as permitted by Faretta v. California, 422 U.S. 806 (1975). The court first concluded that the state had waived its procedural default defense because the state failed to include the defense in its answer to the petitioner’s amended habeas petition, which “wholly superseded” the original petition such that the district court ordered the state to file a completely new answer and raise the procedural default defense anew. The circuit did not raise the defense sua sponte on the state’s behalf because in this case the defense involved neither an obviously inadvertent omission nor an obvious computation error. On the merits, the court concluded that the trial court relied on inappropriate factors, including the petitioner’s lack of knowledge of the Missouri Rules of Criminal Procedure, his inability to articulate the range of potential sentences he faced if convicted, and his inability to take notes during the trial in the same manner as a lawyer would. If the trial court had concerns that the petitioner would not be able to represent himself without unduly disrupting the proceedings, it could have revoked the petitioner’s right to represent himself.

CA6 holds that resentencing is not available for federal postconviction petitioners unless the court finds a constitutional violation.

Keith Hilzendeger — Wed, 09 Feb 2011 21:42:20 +0000

United States v. Doyle, Nos. 09-3003, 09-3102 (6th Cir. Feb. 9, 2011) (Cook, J.) — The Sixth Circuit held that a district court has no authority to resentence a federal prisoner if the court, in considering the prisoner’s § 2255 motion, finds no constitutional violation relating to the original sentence. Here the petitioner filed a § 2255 motion claiming ineffective assistance of counsel because the petitioner’s trial attorney didn’t file a notice of appeal from his sentence. At an evidentiary hearing on the motion, however, the petitioner testified that he and his lawyer came to the strategic decision not to file a notice of appeal. The district court therefore denied the petitioner’s IAC claim, yet it resentenced the petitioner anyway, believing that the petitioner deserved an opportunity to appeal his sentence. The Sixth Circuit vacated the resentencing order because the district court correctly found no constitutional violation stemming from the original sentence.

CA9 holds that Apprendi’s prior conviction exception doesn’t extend to scope of victim’s injuries.

Keith Hilzendeger — Tue, 08 Feb 2011 19:13:03 +0000

Wilson v. Knowles, No. 07-17318 (9th Cir. Feb. 8, 2011) (Noonan, J.) — A conservative panel of the Ninth Circuit today reversed the denial of a California state prisoner’s challenge to his 25-to-life sentence imposed under California’s three-strikes law. The court held that factual findings relating to the extent of a victim’s injuries and how a car accident occurred do not fall within the prior-conviction exception to the jury-trial requirement of Apprendi v. New Jersey, 530 U.S. 466 (2000). Accordingly, the California state courts’ decision to affirm the petitioner’s sentence was unreasonable.

In 1993 the petitioner pleaded nolo contendere to gross vehicular manslaughter, in violation of Cal. Penal Code § 191.5(a), and to proximately causing bodily injury while driving under the influence of alcohol, in violation of Cal. Vehicle Code § 23153(b). The petitioner received a one-year sentence, which he served in an alcoholism treatment
facility. In this case, the petitioner was convicted by a jury of driving under the influence with a prior felony conviction. The trial judge concluded that the 1993 convictions counted as two “strikes” under California’s three-strikes law, and sentenced the petitioner to 25 years to life in prison. In order for the bodily-injury DUI charge to count as a
strike, the judge found that the petitioner had personally caused “great bodily injury” and that the victim was not an accomplice to the DUI. According to Judge Noonan, those facts were not inherent in the prior bodily-injury DUI conviction itself because they were not part of the “historical, judicially noticeable facts” that fall within the
prior-conviction exception. Nor was the Apprendi error harmless; there was no way to know whether the petitioner could, if he had had to defend against those factual allegations before a jury, have created reasonable doubt about the extent of the victim’s injuries or whether the victim was an accomplice to the bodily-injury DUI charge. The court therefore reversed the denial of the habeas petition.

Chief Judge Kozinski would have affirmed because there was no clearly established federal law placing these facts squarely outside the prior-conviction exception.

CA8 concludes that attending the same church is a race-neutral reason for exercising a peremptory strike.

Keith Hilzendeger — Mon, 07 Feb 2011 19:00:04 +0000

Stenhouse v. Hobbs, No. 09-3533 (8th Cir. Feb. 7, 2011) (Colloton, J.) — The Eighth Circuit affirmed the denial of an Arkansas state prisoner’s § 2254 petition, rejecting three Batson claims on the ground that the Arkansas state courts reasonably concluded that the prosecutor’s proffered reasons for exercising peremptory strikes against three African-American prospective jurors. One of those jurors was a fellow parishioner at defense counsel’s church; the court said that it was “quite reasonable for the prosecution to prefer a juror who did not have regular contact with a defense attorney at church.” A second juror had “basically visited with a defense witness the night before trial,” and during voir dire in another case the prosecutor commented that this juror “would require physical evidence linking the defendant to a crime, such as fingerprints.” The third prospective juror “listed his educational background as only completing the eighth grade.” Finally, the court held that a trial court’s failure to conduct a third-step Batson analysis, when it had already denied the challenge as not stating a prima facie case of race discrimination, was not an unreasonable application of Puckett v. Elem, 514 U.S. 765 (1995) (per curiam).

CA10 requires some pro se habeas petitioners to request a COA.

Keith Hilzendeger — Wed, 26 Jan 2011 22:30:47 +0000

Parker v. Province, No. 10-6143 (10th Cir. Jan. 26, 2011) (O’Brien, J.) (unpublished) — In this unpublished but perfectly citeable decision, see 10th Cir. R. 32.1, the Tenth Circuit dismissed a pro se habeas appeal brought by an Oklahoma state prisoner who is a frequent filer. After losing in district court, the petitioner filed a notice of appeal but did
not ask for a COA. When the clerk of the Tenth Circuit sent him a form on which he could request a COA, the petitioner refused, citing his belief that a COA was unnecessary. Instead of treating the notice of appeal as a request for a COA, cf. Wilson v. Belleque, 554 F.3d 816, 826-27 (9th Cir.), cert. denied, 130 S. Ct. 75 (2009); Fleming v. Evans, 481 F.3d 1249, 1253-54 (10th Cir. 2007), the court dismissed the appeal without granting a
COA because (it seems) the court is tired of listening to him.

SCOTUS holds that federal habeas courts cannot conduct substantive parole review.

Keith Hilzendeger — Mon, 24 Jan 2011 19:45:16 +0000

Swarthout v. Cooke, No. 10-333 (U.S. Jan. 24, 2011) (per curiam) — Today the Supreme Court addressed an intractable problem in the administration of California’s parole system. Under California law, a prisoner is entitled to a release date once he has served his minimum term of incarceration unless the parole board determines that “consideration of the public safety requires a more lengthy period of incarceration.” Cal. Penal Code § 3041(b). The California Supreme Court has held that this means a prisoner is entitled to a release date unless there is “some evidence” to support the conclusion that the prisoner is unsuitable for parole because he is currently dangerous. See In re Lawrence, 190 P.3d 535 (Cal. 2008). In this case the Ninth Circuit granted habeas relief because, after concluding that the “some evidence” standard is a required component of federal due process, but see Hayward v. Marshall, 603 F.3d 546 (9th Cir. 2010) (en banc), it found no evidence that the prisoner was currently dangeous. The Supreme Court summarily reversed that conclusion. “No opinion of ours supports converting California’s ‘some evidence’ rule into a substantive federal requirement. The liberty interest at issue here is the interest in receiving parole when the California standards for parole have been met, and then minimum procedures adequate for due-process protection of that interest are those set forth in” Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S. 1 (1979). Those requirements are simply notice and an opportunity to be heard, which the prisoners in this case undisputably had.

CA9 holds relief not available under 2254(e)(2) when evidence not first presented in state court.

Keith Hilzendeger — Thu, 20 Jan 2011 19:47:47 +0000

Lopez v. Ryan, No. 08-99021 (9th Cir. Jan. 20, 2011) (McKeown, J.) — The Ninth Circuit affirmed the denial of habeas relief to an Arizona death-row prisoner today. The court discussed three claims, each of which I’ll summarize here.

1. Arizona has a long and varied history of refusing to consider, or considering but giving “minimal weight” to, mitigating evidence that doesn’t bear a causal relationship to the crime. Refusing to consider the evidence at all violates Tennard v. Dretke, 542 U.S. 274 (2004), and Lockett v. Ohio, 438 U.S. 586 (1978). The Ninth Circuit, picking up on the Arizona Supreme Court’s hedging on the causal-nexus issue in State v. Newell, 132 P.3d 833 (Ariz. 2006), has held that Arizona courts can properly give minimal weight to evidence that doesn’t bear a causal nexus to the crime. Habeas relief for this kind of violation depends on how the state courts treated the evidence in any particular case; it doesn’t matter that there may have been a general legal rule that should have applied in all cases. See Styers v. Schriro, 547 F.3d 1026 (9th Cir. 2008). Here, because the Arizona Supreme Court expressly said it had considered all mitigating evidence, there was no Tennard violation, and hence no relief on the causal-nexus issue.

2. Trial counsel wasn’t ineffective for failing to supply a defense mental-health expert with either (1) information relating to the petitioner’s background, including his history of pathological intoxication, or (2) statements from two trial witnesses describing the petitioner’s behavior on the night of the murder. As for the former, the court found that the petitioner didn’t present those factual allegations to the state courts, so even if they were procedurally defaulted (an issue the court didn’t reach), 28 U.S.C. § 2254(e)(2) precluded the district court from granting relief based on those assertions. As for the latter, the court found that the trial witnesses’ testimony was merely cumulative of other evidence that trial counsel did furnish to the expert.

3. Less than a week after the murder in this case, the petitioner was arrested for an unrelated sexual assault. The prosecution file regarding that sexual assault contained a handwritten note indicating that there was insufficient evidence to convict the petitioner for the sexual assault. The petitioner argued that the note was Brady material that the prosecution failed to disclose. The court disagreed because the facts underlying the legal opinion in the note were readily available from police records of the sexual assault and that the legal opinion itself wasn’t Brady material under Morris v. Ylst, 447 F.3d 735 (9th Cir. 2006).