The 28 U.S.C. § 2254 Blog

CA7 remands for hearing on federal prisoner’s claim regarding failure to file appeal.

Dowell v. United States, No. 10-2912 (7th Cir. Sept. 17, 2012) (Williams, J.) — The Seventh Circuit held that a collateral-attack waiver in a federal prisoner’s plea agreement could not be enforced where (1) the defendant had reserved the right to appeal a certain issue and (2) the defendant sought to litigate, in § 2255 proceedings, whether his lawyer was ineffective for failing to file a notice of appeal. The court then remanded the case for an evidentiary hearing under Roe v. Flores-Ortega, 528 U.S. 470 (2000).

The petitioner had been charged with possessing 50 grams or more of crack cocaine with intent to distribute. In a plea agreement, the petitioner specifically reserved the right to challenge his designation as a career offender under U.S.S.G. § 4B1.1, but otherwise agreed to waive his right to file a § 2255 motion to challenge his conviction or sentence (including the manner in which the sentence was determined). The district court computed his Guidelines range at 262-327 months but ultimately imposed a sentence of 180 months’ imprisonment.

Counsel failed to file a notice of appeal within the 10-day period (the sentence was imposed in 2008). The petitioner submitted a letter to the district court some five months after sentencing, asking it to treat the letter as a notice of appeal because his lawyer did not follow his instructions to file a notice of appeal. The district court ultimately determined that the letter was untimely if construed as a notice of appeal, and so the Seventh Circuit dismissed the attempted direct appeal for lack of jurisdiction. The petitioner then sought postconviction relief on the ground that his lawyer was ineffective for failing to timely file a notice of appeal, but district court later dismissed the petitioner’s § 2255 motion as barred by the waiver provision in the plea agreement.

The Seventh Circuit vacated and remanded for further proceedings. The court concluded that the petitioner had voluntarily entered into the plea agreement, including the waiver provision, but noted that the waiver was enforceable only to the extent that the petitioner’s claims fell within its scope. Here, because the petitioner had expressly reserved the right to appeal the career-offender designation, the parties necessarily expected that the petitioner would have a meaningful opportunity to raise that claim. “A meaningful opportunity to appeal includes the effective assistance of counsel in filing the appeal.” Because the petitioner contended that he did not receive effective assistance in filing the appeal, the court held that his claim was not barred by the waiver provision in his plea agreement. On the merits, the court noted that the record was inadequately developed with regard to the petitioner’s instructions to his trial lawyer, the court remanded for a hearing.


Written by Keith Hilzendeger

October 24, 2012 at 12:27 pm

CA9 clarifies when state courts’ failure to hold a hearing leads to an unreasonable factfinding process.

Hibbler v. Benedetti, No. 11-16683 (9th Cir. Sept. 10, 2012) (Ikuta, J.) — The Ninth Circuit affirmed the denial of habeas relief to a Nevada state prisoner, holding that the Nevada state courts did not unreasonably reject his claim that trial counsel ineffectively allowed him to plead guilty without first ensuring that he was competent to do so.

The petitioner was charged with kidnapping and attempted murder in relation to an attack on his eight-year-old daughter. He was evaluated for competency to stand trial, and the evaluator concluded that the petitioner was competent. Over a year and a half after this evaluation, the petitioner pleaded guilty to reduced charges in exchange for a potentially shorter prison sentence. Both the petitioner and his lawyers attested in writing that they had no reason to believe that the petitioner did not understand the charges against him or was suffering from a mental defect. The trial judge confirmed this in the plea colloquy. But when it came time for sentencing, he wanted to withdraw his plea because he claimed he had been awake for two days on psychotropic medication and was simply agreeing with whatever questions were posed to him. After a substitution of counsel in connection with an attempt to withdraw the plea, the trial court sentenced the petitioner to 5 to 15 years in prison as stipulated in the plea agreement. The state habeas court denied his IAC claim without a hearing because the record belied the factual basis of the claim.

The primary issue in this appeal is whether the state habeas court’s failure to hold an evidentiary hearing made its factfinding process unreasonable under 28 U.S.C. § 2254(d)(2). The court said that AEDPA doesn’t help to answer this question, so it drew on a related context: whether a district court’s failure to hold a hearing requires a remand for hearing, a question reviewed for abuse of discretion. Arguing by analogy, the court said that “if a district court would be within its discretion in denying an evidentiary hearing, a state court’s similar decision is probably not objectively unreasonable.” And a district court doesn’t abuse its discretion in denying a hearing if a petitioner’s allegations are refuted by the state-court record. See Totten v. Merkle, 137 F.3d 1172 (9th Cir. 1999).

Here, the district court didn’t abuse its discretion to deny a hearing because the state-court record conclusively refuted the petitioner’s allegation that his lawyers were ineffective in allowing him to plead guilty without first ensuring that he was competent to do so. Overlooking the 18-month gap between the competency evaluation and the change-of-plea hearing, the court focused entirely on the fact that both the petitioner and his lawyers averred that the petitioner understood the nature of the plea agreement and was not suffering from any mental defect. “Because Hibbler’s factual allegations are refuted by the record, a district court hearing Hibbler’s petition de novo could have reasonably determined that Hibbler was not entitled to an evidentiary hearing on his claim. A state court could also have reasonably determined that an evidentiary hearing would be fruitless.” See Schriro v. Landrigan, 550 U.S. 465 (2007). Thus the state courts’ factfinding process was not unreasonable. For similar reasons, the state court’s rejection of his claim was not based on an unreasonable application of the law.

Written by Keith Hilzendeger

October 1, 2012 at 11:54 am

CA9 denies relief to Arizona death-row prisoner who did not fairly present his claims.

Wood v. Ryan, No. 08-99003 (9th Cir. Sept. 10, 2012) (Thomas, J.) — Agreeing with the district court that several claims were unexhausted and others meritless, the Ninth Circuit affirmed the denial of habeas relief to an Arizona death-row prisoner.

1. Five claims of prosecutorial misconduct during cross-examination were correctly denied on the merits. The court could not say that any of the prosecutor’s questions on cross-examination rendered the trial fundamentally unfair. See Darden v. Wainwright, 477 U.S. 168 (1986).

2. Four other claims of prosecutorial misconduct during closing argument had not been fairly presented to the Arizona Supreme Court. They were not specifically raised on direct appeal, and a general allegation of prosecutorial misconduct does not fairly present any particular instance of such misconduct as a ground for reversal. See Picard v. Connor, 404 U.S. 270 (1971). Arizona procedure did not permit the petitioner to incorporate portions of his state postconviction petition into his petition for review to the Arizona Supreme Court by reference unless the petitioner included that document in an appendix to the petition, and here the trial-level petition was not in the appendix. Thus the claims were procedurally defaulted, and the overwhelming evidence of premeditation at trial undermined any claim of fundamental miscarriage of justice.

3. Trial counsel adequately presented a defense of impulsivity at the guilt phase, and thus did not ineffectively fail to raise his mental state as a defense to the charge of premeditated murder. Trial counsel’s failure to object to certain questions the prosecutor asked on cross-examination was consistent with that defense, and thus did not amount to deficient performance. Other guilt-phase IAC claims were not fairly presented to the Arizona Supreme Court simply because the petitioner had raised these first two IAC claims.

4. The evidence of impulsivity presented at trial was sufficient to raise a mental-health case against the death penalty at the sentencing phase. Furthermore, the fact that trial counsel asked the trial court to give him an expert to perform “brain mapping” meant that trial counsel was not ineffective in that regard, even if the trial court rebuffed the request. Trial counsel wasn’t ineffective for failing to instruct the petitioner to express remorse to a presentence report interviewer, because the petitioner wrote a letter to the judge in which he expressed remorse. The petitioner’s military records were before the judge, so trial counsel wasn’t ineffective for failing to present them.

5. The petitioner’s claim that appellate counsel was ineffective for failing to withdraw after identifying a conflict was procedurally defaulted. It was never presented in state court.

6. Nor had the petitioner fairly presented his claim that the trial court erred by granting his request nor expert assistance with brain mapping. He only referred to it in passing on direct appeal, which isn’t sufficient to fairly present the claim. See Castillo v. McFadden, 399 F.3d 993 (9th Cir. 2004). Nor did the Arizona Supreme Court’s independent review of the sentence exhaust the claim. See Moormann v. Schriro, 426 F.3d 1044 (9th Cir. 2005).

CA10 holds motion for DNA testing does not trigger statutory tolling.

Woodward v. Cline, No. 12-3114 (10th Cir. Sept. 7, 2012) (Hartz, J.) — The Tenth Circuit denied a certificate of appealability to a Kansas state prisoner seeking to appeal the dismissal of his § 2254 petition as untimely. The court held that a postconviction motion for DNA testing did not qualify for statutory tolling because that motion “did not call for reexamination of the judgment” of conviction or a claim against the judgment or sentence. Cf. Wall v. Kholi, 131 S. Ct. 1278 (2011).

Written by Keith Hilzendeger

September 28, 2012 at 9:47 am

WA SCT adopts Schlup gateway for excusing a procedural bar.

In re Personal Restraint of Weber, No. 85992-2 (Wash. Sept. 6, 2012) (C. Johnson, J.) — The Washington Supreme Court held that the procedural gateway for defaulted claims of Schlup v. Delo, 513 U.S. 298 (1995), applies to excuse a state procedural bar, but that the petitioner here couldn’t qualify because he didn’t show even by a preponderance of the evidence that it was more likely than not that he was factually innocent of the underlying crimes.

At his trial for attempted murder, assault, and firearms offenses, the petitioner presented a defense of misidentification. Trial testimony was circumstantial, but the jury ultimately convicted him. This proceeding is an untimely (and hence procedurally barred) personal restraint petition in which the petitioner claimed his trial lawyer was ineffective for failing to interview witnesses who could have supported his misidentification defense. He attached several affidavits to the petition in support. In In re Personal Restraint of Carter, 263 P.3d 1241 (Wash. 2011), the court had held that actual innocence of a sentencing enhancement can support equitable relief from a procedural bar. Here, the court extended Carter to include claims of actual innocence of the underlying crime. Because of the similarity to Schlup, the court adopted that standard and applied it to determine whether to excuse the untimeliness procedural bar. Ultimately, however, none of the petitioner’s affidavits allowed him to pass through the Schlup gateway because they did not undermine the trial testimony that suggested the petitioner was correctly identified as the assailant because of a distinctive tattoo on his neck.

Written by Keith Hilzendeger

September 27, 2012 at 11:02 am

CA6 holds Ohio death-row prisoner’s sentencing-phase IAC claims were exhausted.

Carter v. Mitchell, No. 06-4238 (6th Cir. Sept. 6, 2012) (Martin, J.) — The Sixth Circuit affirmed in part and remanded in part a district court’s denial of habeas relief to an Ohio death-row prisoner.

1. The district court correctly denied relief on the petitioner’s claim that the trial court treated the “nature and circumstances” of the crime as aggravating, and not mitigating, in violation of the Eighth Amendment. First, the court held that the Ohio Supreme Court’s independent reweighing of aggravatng and mitigating factors effectively denied this claim sub silentio, such that under Harrington v. Richter, 131 S. Ct. 770 (2011), AEDPA’s limitation on relief applied. And while under Ohio law it’s improper to treat the “nature and circumstances” of the crime as aggravating, see State v. Wogenstahl, 662 N.E.2d 311 (Ohio 1996), the Sixth Circuit had previously held that doing so does not violate the Eighth Amendment, see Smith v. Mitchell, 348 F.3d 177 (6th Cir. 2003). Moreover, the Ohio Supreme Court’s independent review cured any Eighth Amendment error the trial court may have introduced in this regard. See Slagle v. Bagley, 457 F.3d 501 (6th Cir. 2006).

2. The district court also correctly ruled that the petitioner’s claims of IAC of appellate counsel were unexhausted and therefore procedurally defaulted. The petitioner first presented this claim to the Ohio Court of Appeals (the same court that had initially heard his direct appeal) some five years after the judgment became final. That court denied the request as untimely, and the petitioner did not seek review of that determination in the Ohio Supreme Court. One year after that, the petitioner presented the claim to the Ohio Court of Appeals for a second time; the court denied the claim as impermissibly successive, and the Ohio Supreme Court affirmed this denial on the ground that the second attempt to present the claim was procedurally barred by virtue of the petitioner’s failure to appeal the denial of the first attempt. The Sixth Circuit held the claim to be unexhausted (because of the failure to present the claim to the Ohio Supreme Court on the first attempt) and thus procedurally defaulted. It also found no cause and prejudice to excuse the default because an Ohio prisoner enjoys no constitutional right to counsel in connection with Ohio’s procedure for raising claims of IAC of appellate counsel. For that reason, this appellate IAC claim could not be used as cause and prejudice to excuse the default of other claims (such as his sentencing-phase IAC claim, discussed next).

3. However, the district court erred when it ruled that two claims of ineffective assistance of trial counsel at the penalty phase were also unexhausted and thus procedurally defaulted. The district court erred when it ruled that under Ohio law, these IAC claims must have been presented at the same time that the petitioner presented his appellate IAC claims. They do not. Moreover, the Ohio state courts had addressed these claims both on direct appeal and in postconviction proceedings. Thus they were exhausted. It did not matter (as Judge Sutton in dissent believed) that the petitioner had presented the claims to the district court both as freestanding grounds for relief and as claims as to which he was relying on the appellate IAC claim in order to excuse any procedural default. Both the habeas rules and the Federal Rules of Civil Procedure permit habeas petitioners to allow claims to do double duty in this way. And the court held that it was free to consider de novo whether the manner in which the petitioner presented his claims to the district court amounted to a forfeiture of the claims as stand-alone grounds for relief. “We are not bound by the district court’s misreading of the record.” Furthermore, the petitioner’s motion to expand the COA before the court of appeals plainly presented these claims both as substantive grounds for relief and as potentially procedurally defaulted claims as to which the petitioner was relying on appellate IAC in order to cure any procedural default. Finally, the petitioner did not fundamentally alter the claims as they were presented to the Ohio courts. Accordingly, the court remanded the case to the district court for further proceedings on the merits.

CA10 holds that Martinez doesn’t apply in Oklahoma.

Banks v. Workman, No. 10-5125 (10th Cir. Sept. 5, 2012) (Gorsuch, J.) — The Tenth Circuit affirmed the denial of relief to an Oklahoma death-row prisoner.

1. A violation of the petitioner’s Confrontation Clause rights did not have a substantial and injurious effect on the verdict. The petitioner’s brother — also serving a life sentence for an unrelated murder — took the Fifth when called to testify at the petitioner’s trial; this made him unavailable to testify and his out-of-court statements inadmissible unless they bore particularized guarantees of trustworthiness. But the prosecutor called the brother to the stand anyway, and asked the brother repeated badgering questions, all of which the brother refused to answer, and the last of which was, “Did your brother [meaning the petitioner] tell you that he killed Sun Travis?” The Oklahoma Court of Criminal Appeals found this question to violate the petitioner’s right of confrontation, but held the violation harmless. The Tenth Circuit, applying the habeas harmlessness standard, agreed. The evidence against the petitioner was overwhelming, even though the petitioner was charged with both premeditated and felony murder and it wasn’t possible to tell which theory (or both) the jury convicted on. Cf. Yates v. United States, 354 U.S. 298 (1954). But because there was ample evidence to support either theory of conviction, the court didn’t reach issues relating to procedural default and appellate waiver of the Yates issue. Moreover, this error was harmless at the penalty phase because counsel’s case against the death penalty didn’t include a residual-doubt theory.

2. The prosecution didn’t violate its obligations under Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose a note written to a corrections officer by the petitioner’s codefendant’s mother. The note read that the petitioner had told the codefendant that “the brother was the one who did the murder but was not sure.” The petitioner, alas, has committed two murders — one in which his brother was the codefendant and one in which the brother was not, and this case involved the one in which his brother was not his codefendant. Still, the court reasoned, the note was ambiguous, and thus the Oklahoma Court of Criminal Appeals didn’t unreasonably conclude that the note was not material under Brady. Nor would the note have led to the discovery of other admissible evidence if it had been disclosed before trial.

3. The court held that a trial-level IAC claim was procedurally defaulted pursuant to an adequate and independent ground in state law. This claim related to the penalty phase, where trial counsel failed to object to the fact that a defense expert showed up to testify while intoxicated. Indeed, the level of intoxication was so great that the judge called the expert a “drinking man.” The trouble was that the petitioner did not raise this claim until a second round of state postconviction review, by which point the claim was procedurally barred. The Tenth Circuit held that Oklahoma’s waiver rule was adequate and independent. See Thacker v. Workman, 678 F.3d 820 (10th Cir. 2012). The rule particularly was independent even though the court had the discretion to relax it to protect “fundamental rights.” See Gutierrez v. Moriarty, 922 F.2d 1464 (10th Cir. 1992); see also Gardner v. Galetka, 568 F.3d 862 (10th Cir. 2009).

4. The procedural default of this IAC claim couldn’t be excused by appellate counsel’s failure to raise it on direct appeal. That appellate IAC claim was unexhausted, and postconviction counsel’s failure to raise the appellate IAC claim could not constitute cause and prejudice because Martinez v. Ryan, 132 S. Ct. 1309 (2012), only applied to trial-level IAC claims, and in any event didn’t apply in Oklahoma because Martinez also applies only when postconviction proceedings are the first opportunity to raise IAC claims (which isn’t true in Oklahoma, because they must instead be raised on direct appeal).

5. Finally, the court rejected a number of prosecutorial misconduct claims.