By David M. Barron,
Capital Post Conviction Unit
Supreme Court of the United States
Allen v. Siebert, (2007) (per curiam)
The Court held that the statute of limitations for filing a state post conviction action remains a filing requirement when the state law says the expiration of the statute of limitations is an affirmative defense. Thus, the one-year statute of limitations for filing a federal habeas petition is not tolled by an untimely post conviction action in jurisdictions where the timeliness of the action is an affirmative defense.
Stevens, J., joined by Ginsburg, J., dissenting: They believe “[t]here is an obvious distinction between time limits that go to the very initiation of a petition, and time limits that create an affirmative defense that can be waived,” and there is reasonable basis for concluding that an untimely petition has not been “properly filed” for purposes of the AEDPA when the state statute of limitations is jurisdictional.
Norris v. Jones, (Oct. 16) (Scalia, J., dissenting from the denial of an application to vacate a stay of execution)
Scalia voted to vacate the stay of execution because he thought the lower court’s decision to stay the execution was based on the mistaken premise that the grant of certiorari in Baze v. Rees, , “calls for the stay of every execution in which an individual raises an Eighth Amendment challenge to the lethal injection protocol. The grant of certiorari in a single case does not alter the application of normal rules of procedure, including those related to timeliness. In this case, Jones’s challenge to the lethal injection protocol, which was brought nine years after his conviction and sentence became final, was dilatory.”
Emmett v. Kelly, (2007)
(Stevens, J., joined by, Ginsburg, J., respecting the denial of certiorari)
They “remain firmly convinced that no State should be allowed to foreshorten this Court’s orderly review of federal constitutional claims of first-time habeas petitioners by executing prisoners before that review can be completed. Both the interest in avoiding irreversible error in capital cases, and the interest in the efficient management of our docket, would be served by a routine practice of staying all executions scheduled in advance of the completion of our review of the denial of a capital defendant’s first application for a federal writ of habeas corpus. Such a practice would be faithful to the distinction between first and successive habeas petitions recognized by Congress in the Antiterrorism and Effective Death Penalty Act (AEDPA) and would accord death row inmates the same, rather than lesser, procedural safeguards as ordinary litigants.”
Supreme Court Grants of Certiorari
Kennedy v. Louisiana, (cert. granted, Jan. 4, 2008)
1. Whether the Eighth Amendment’s Cruel and Unusual Punishment Clause permits a State to punish the crime of rape of a child with the death penalty.
2. If so, whether Louisiana’s capital rape statute violates the Eighth Amendment insofar as it fails genuinely to narrow the class of such offenders eligible for the death penalty.
Arave v. Hoffman, (cert. granted, Nov. 5, 2007) (dismissed as moot because inmate abandoned claim that counsel was ineffective during plea bargaining)
Five weeks before his trial, Respondent Maxwell Hoffman rejected an offer by the state to recommend a life sentence if he would plead guilty to first-degree murder. Hoffman’s attorney, William Wellman, recommended Hoffman reject the offer because the Ninth Circuit had earlier determined the Constitution required juries to find statutory aggravating factors, while in Idaho, judges made such findings. Wellman believed if Hoffman received a death sentence it would be reversed on appeal. However in Walton v. Arizona, (1990), the Supreme Court determined the Constitution permits judges to find statutory aggravating factors. Nevertheless, the Ninth Circuit determined Wellman’s representation was ineffective during plea negotiations because he “based his advice on incomplete research, and second, Wellman recommended that his client risk much in exchange for very little.” The Ninth Circuit also concluded, “Hoffman’s desire to have the State prove its case was not a principled stand against accepting a plea agreement,” but “a misunderstanding of aiding and abetting liability led him to believe that the State was not likely to prove a first-degree murder charge against him.”
1. Because the Ninth Circuit did not require Hoffman to prove Wellman’s recommendation constituted “gross error” and mandated Wellman “be prescient about the direction the law will take,” did the Ninth Circuit err by rejecting this Court’s prohibition regarding the use of hindsight to conclude Hoffman established deficient performance?
2. Because Hoffman failed to allege he would have accepted the state’s plea offer but for Wellman’s advice and the Ninth Circuit determined Hoffman’s decision to reject the offer was not a “principled stand,” did the Ninth Circuit err by concluding Hoffman established prejudice?
The Court added the following question presented:
What, if any, remedy should be provided for ineffective assistance of counsel during plea bargain negotiations if the defendant was later convicted and sentenced pursuant to a fair trial?
Baze and Bowling v. Rees, et al.,
Although the Court has authorized civil actions challenging portions of a method of execution, it has not addressed the constitutionality of a method of execution or the legal standard for determining whether a method of execution violates the Eighth Amendment in over 100 years--leaving lower courts with no guidance on the law to apply to the many lethal injection challenges filed since the Court’s rulings allowing the claim in a civil action. Lower courts have been left to look to cursory language in the Court’s opinions dealing with the death penalty on its face and prison conditions. As a result, the law applied by lower courts is a haphazard flux ranging from requiring “wanton infliction of pain,” “excessive pain,” “unnecessary pain,” “substantial risk”, “unnecessary risk,” “substantial risk of wanton and unnecessary pain,” and numerous other ways of describing when a method of execution is cruel and unusual.
Considering that at least half the death row inmates facing an imminent execution in the last two years have filed suit challenging the chemicals used in lethal injections, certiorari petitions and stay motions on the issue are arriving before the Court so often that this issue is one of the most common issues. Thus, it is important for the Court to determine the appropriate legal standard, particularly because the difference between the standards being used is the difference between prevailing and not.
This case presents the Court with the clearest opportunity to provide guidance to the lower courts on the applicable legal standard for method of execution cases. This case arrives at the Court without the constraints of an impending execution and with a fully developed record stemming from a 20-witness trial. The record contains undisputed evidence that any and all of the current lethal injection chemicals could be replaced with other chemicals that would pose less risk of pain while causing death than the tri-chemical cocktail currently used. Although this automatically makes the risk of pain associated with the use of sodium thiopental, pancuronium bromide, and potassium chloride unnecessary, relief was denied on the basis that a “substantial risk of wanton and unnecessary pain” had not been established. This squarely places the issue of whether “unnecessary risk” is part of the cruel and unusual punishment equation and whether an “unnecessary risk” exists upon a showing that readily available alternatives are known.
The Kentucky Supreme Court’s decision gives rise to the following important questions:
I. Does the Eighth Amendment to the United States Constitution prohibit means for carrying out a method of execution that create an unnecessary risk of pain and suffering as opposed to only a substantial risk of the wanton infliction of pain?
II. Do the means for carrying out an execution cause an unnecessary risk of pain and suffering in violation of the Eighth Amendment upon a showing that readily available alternatives that pose less risk of pain and suffering could be used?
III. Does the continued use of sodium thiopental, pancuronium bromide, and potassium chloride, individually or together, violate the cruel and unusual punishment clause of the Eighth Amendment because lethal injections can be carried out by using other chemicals that pose less risk of pain and suffering?
Stays of Execution
Each execution scheduled for after September 25, 2007, has been stayed on a case by case basis pending the Supreme Court of the United States ruling in Baze and Bowling v. Rees, et al., No. 07-5439. Stays have been granted by the Supreme Court of the United States, the United States Court of Appeals for the Eighth Circuit, the Arizona Supreme Court, the Georgia Supreme Court, the Nevada Supreme Court, the Texas Court of Criminal Appeals.
United States Court of Appeals for the Sixth Circuit
Wilson v. Parker, (6th Cir., Jan. 29, 2008) (Boggs, C.J., joined by, Gibbons and Cook, JJ.)
Unsatisfied with the qualifications of the attorneys the trial court appointed to represent him, which volunteered based on a sign posted on the courthouse door, Wilson informed the court that he wanted new counsel but did not want to go pro se. When Wilson told the judge that the appointed attorneys do not represent him, the court told Wilson that he would represent himself and the appointed attorneys would remain as stand-by counsel. The court then explained the hazards of proceeding pro se and concluded that Wilson was acting consciously and voluntarily.
Wilson’s waiver of the right to counsel was not rendered invalid because he was forced to choose between going pro se or continuing with allegedly incompetent counsel: For a waiver of counsel to be knowing and intelligent, all the record must show that the defendant was offered counsel, the risks and dangers of proceeding pro se were explained to the defendant, and the defendant knows what he is doing by waiving counsel. Noting that the trial judge had a lengthy colloquy with Wilson that was modeled after the standards for obtaining a waiver set out for federal district courts, to which Wilson responded, “I will proceed pro se,” the court held that the state court’s determination that the waiver of counsel was knowing and intelligent was not contrary to nor an unreasonable application of clearly established Supreme Court law.
Proceeding pro se prohibits prevailing on an ineffective assistance of counsel claim: Because Wilson elected to proceed pro se, Wilson waived his right to the effective assistance of counsel. With regard to pre-waiver ineffectiveness for failing to investigate mitigating evidence, Wilson’s decision to proceed pro se prevents a finding of prejudice.
Wilson did not suffer actual prejudice from being tried jointly with his codefendant: Because the damaging testimony introduced at trial would have been admissible if Wilson had been tried separately and because Wilson did not cross-examine the codefendant, thereby failing to minimize the impact of her testimony blaming him for the murder, Wilson did not suffer actual prejudice from being tried jointly with his codefendant.
Direct appeal counsel was not ineffective for raising ineffective assistance of trial counsel on direct appeal: Because Wilson repeatedly questioned his trial counsel’s performance during the trial, Wilson might have been prevented from raising the issue in post conviction proceedings if he had not raised it on direct appeal because the claim was apparent from the record. Thus, it was not objectively unreasonable for defense counsel to raise ineffective assistance of counsel on direct appeal. Further, even if the claim was raised solely in post conviction proceedings, Wilson would not have prevailed because he chose to represent himself at trial.
Wilson was not denied a forum to bring his ineffective assistance of direct appeal counsel claim in state court: The court ruled that the United States Supreme Court case law on the right to effective assistance of counsel only applies where the appeal was dismissed in its entirety because of the performance of counsel, not to cases where particular claims were not raised on direct appeal or were raised and should not have been.
Fautenberry v. Mitchell, (6th Cir., Jan. 25, 2008) (Batchelder, J., joined by Gilman, J.; Moore, J., dissenting) (denying habeas relief)
Failing to meaningfully communicate with defendant is not ineffective assistance of counsel: Fautenberry claimed that his counsel rendered deficient performance by not meaningfully communicating with him. The Sixth Circuit, however, ruled that the Sixth Amendment protects the defendant’s right to have counsel acting in the role of advocate by subjecting the prosecution’s case to meaningful adversarial testing. Thus, it is the adversarial process, not the accused’s relationship with counsel that can give rise to an ineffective assistance of counsel claim. Even if the relationship with counsel could amount to cognizable claim, the record suggests that Fautenberry was responsible for the lack of communication because he refused to cooperate with his lawyers.
Counsels’ mitigation investigation was not unreasonable: Fautenberry claimed that further investigation would have revealed past head injuries and alerted his attorneys to the likelihood that he had permanent brain damage. Rejecting this claim, the court noted that counsel retained numerous experts and that Fautenberry’s brain damage went undiscovered likely because he refused to submit to a neuropsychological examination; thereby making it Fautenberry’s fault. The court also ruled that even assuming the retained expert was incompetent, that does not help Fautenberry because a licensed practitioner is presumed competent and counsel had no good reason to believe his expert was incompetent.
Even if the investigation was unreasonable, Fautenberry suffered no prejudice: The alleged mitigation that Fautenberry claims the jury did not hear was: 1) his personal struggle with, and his family’s history of, depression; 2) the connection between his abusive childhood and the commission of these murders; 3) his head injuries and resulting organic brain damage; and, 4) the sexual aspects of the murders he committed. But, the three-judge panel that sentenced Fautenberry to death found the following mitigating circumstances did not outweigh the aggravators: 1) Fautenberry’s “past history”; 2) his abuse as a child; 3) the “rage” of his childhood; 4) his abuse of drugs and alcohol; and, 5) his low self-esteem and rejection. Believing that the omitted mitigating evidence mirrored the evidence actually presented at the sentencing phase and the mitigators found by the sentencing body, the court held that the failure to uncover the mitigating evidence presented in post conviction did not prejudice Fautenberry. The court also found that the brain impairments Fautenberry suffers from - - impulse control problems, modulation of affect, planning, problem solving, and the capacity to tolerate frustration - - was not likely to have changed the outcome because it could just as easily have been considered aggravating instead of mitigating.
Trial counsel did not have a conflict of interest because he was a trustee of the township where the victim’s body was found: A habeas petitioner can established ineffective assistance of counsel without showing prejudice by demonstrating that counsel labored under an actual conflict of interest, which is a conflict of interest that adversely affects counsel’s performance. Because Fautenberry has not established that the township had an interest in the outcome of the case or that serving as a trustee for the township adversely affected trial counsel, Fautenberry has not shown an actual conflict of interest, thereby requiring denial of his claim.
No constitutional violation by being sentenced by a three-judge panel instead of a jury: After ruling that this claim was procedurally defaulted, the court stated that there is no constitutional right to be sentenced by a jury in state court. Thus, in the absence of a statutory right, which does not exist in Ohio, Fautenberry’s waiver of a trial by jury also waived the right to a jury determination of whether to impose death.
Victim impact evidence: The court found that the state court’s determination that the admission of improper victim impact evidence was harmless was not an unreasonable application of Supreme Court law since Supreme Court law does not say automatic reversal is required. The court also noted that Supreme Court case law concerning the admissibility of victim impact evidence may not apply because the concerns expressed in those cases only exist when a jury, not a judge, determines whether to impose death.
The court also rejected Fautenberry’s claim that the prosecution failed to disclose material, exculpatory evidence and that his no-contest plea was not knowing and voluntary.
Moore, J., dissenting: She believes that “simply hiring any so-called expert, regardless of the quality of the expert’s work, does not entitle counsel to a free pass with regards to their own performance at the mitigation phase. . . . when defense counsel is on notice of past incidents that would suggest brain damage, [there] can [be] no rational trial strategy that would justify the failure of defense counsel to investigate and present evidence of his brain impairment.” Here, counsel was aware of numerous red flags, including: mental illness in Fautenberry’s family, that physical abuse was a frequent element in Fautenberry’s childhood, that he was hit in the back of the head by a wooden swing, which may have fractured his skull, and that he suffered a head injury in the military. Moore believes this evidence provided notice to Fautenberry’s attorneys of the possibility of an organic brain defect. Counsel, however, believed there was no organic brain damage and presented a witness who impressed that conclusion to the sentencing panel three separate times. Doing so was deficient because counsel did not have a basic understanding of forensic science. If they did, they would have been able to sufficiently evaluate the correctness of their expert’s analysis and would have concluded that further investigation was necessary. Thus, the failure to collect and present readily obtainable evidence of Fautenberry’s brain damage was an abdication of advocacy. Fault for this cannot be laid on a man who supposedly suffers from an organic brain impairment. Being that brain impairment is very significant mitigation and the sentencing panel was repeatedly told that Fautenberry was mentally healthy, there is a reasonable probability that one member of the panel would have voted for less than death if informed of Fautenberry’s brain impairment. Thus, Moore believes Fautenberry was prejudiced by counsels’ deficient performance and would grant him a new sentencing hearing.
Brooks v. Bagley, (6th Cir., Jan. 22) (Sutton, J., joined by, McKeague and Griffin, JJ. denying habeas relief)
AEDPA 2254(d) applies to merits rulings rendered only as an alternative to a procedural default: Because the language of 2254(d) does not distinguish between cases involving alternative rulings but instead refers to any claims that were adjudicated on the merits in state court proceedings, the court ruled that 2254(d) applies to alternative rulings by a state court.
Trial counsel was not ineffective for failing to present additional mental health evidence:
Undisputed evidence at trial showed that Brooks suffered from schizophrenia. In post conviction, the following unpresented mitigating evidence was uncovered: 1) Brooks’ belief in voodoo and his mutilation of dolls and destruction of property; 2) Brooks accusation that his wife was having an incestuous relationship with their oldest son; and, 3) Brooks’ refusal to allow the oldest son to display his athletic trophies. Finding that this information merely echoed evidence already presented to and considered by the sentencing body and that none of the affidavits showed how this evidence would have impacted the sentencer, to the extent the record showed that this evidence was not uncovered by trial counsel, the court held that state court reasonably determined that the result would have been same if this mitigating evidence has been presented.
Spisak v. Hudson, (6th Cir., Jan. 11) (before Martin, Moore, and Clay, JJ.)
In Spisak v. Mitchell, (6th Cir. 2006), the court granted Spisak sentencing phase relief on an ineffective assistance of counsel claim because trial counsel closing argument focused almost entirely on the heinous nature of Spisak’s crimes and his deficient nature as a person, for which there was no evidence in the record suggesting Spisak consented to counsel’s remarks. The warden sought certiorari and the Supreme Court of the United States vacated the decision and remanded for further consideration in light of Carey v. Musladin, (2006), and Schriro v. Landrigan, (2007). On remand, the Sixth Circuit reinstated its opinion in Spisak v. Hudson.
Musladin is distinguishable and does not prevent relief for three reasons: 1) Musladin involved a habeas petition alleging an infringement on the right to a fair trial based upon spectator conduct whereas Spisak alleged constitutionally ineffective assistance of counsel as a result of counsel’s arguments to the jury; 2) unlike Musladin, the court’s holding in Spisak did not address an undeveloped area of the law; rather, the court’s holding relied on well-settled Supreme Court precedent regarding ineffective assistance of counsel; and, 3) the fact that the Supreme Court has not squarely addressed a situation involving a counsel’s deficient performance during closing arguments of the mitigation phase of a trial does not preclude a finding that the state court unreasonably applied federal law concerning ineffective assistance of counsel - - a court may find the application of a principle of federal law unreasonable despite the involvement of facts different from those of the case in which the principle was announced.
Landrigan is distinguishable and does not prevent relief: Unlike Landrigan, defense counsel here described Spisak as undeserving of sympathy and demented. Also, there was no evidence that Spisak consented to this line of argument or prevented counsel from presenting a more persuasive case for leniency. Finally, the court noted that lending credence to the aggravating evidence presented by the prosecution is much more egregious than failing to introduce mitigation.
Morales v. Mitchell, (6th Cir. 2007) (Moore, J., joined by, Clay, J.; Suhrheinrich, J., dissenting) (granting sentencing phase on failure to investigate and present mitigation)
The court ruled that trial counsel’s failure to conduct a reasonable mitigation investigation prejudiced Morales, but denied all other claims.
Trial counsel’s deficient mitigation investigation: Trial counsel failed to interview any member of Morales’ family, any of his friends, or anyone else who knew him. Counsel also failed to search for any records pertaining to Morales’ education, health, mental problems, or juvenile offense, and did not retain a mitigation expert. Counsel also did not prepare Morales for his unsworn statement to the jury at the penalty phase. Finally, counsel failed to adequately investigate Morales’ cultural background and the effect it had on his life, and the possibility of a neurological cause of Morales’ mental and emotion deficiencies due to his lifelong alcohol consumption. As a result, counsel presented no sworn testimony or any evidence at all at the sentencing phase.
The mitigating evidence trial counsel did not discover and the impact of it: 1) the chaotic and dysfunctional family environment in which Morales was raised; 2) the alcohol abuse by Morales’ mother and father; 3) the effect that his mentally retarded brother had on his life; 4) the effect that the suicide of his emotionally disturbed sister had on him; 5) the effect of Morales’ mother’s emotional problems on his development; 6) the role of alcohol in the Native American Indian culture in which he was raised; 7) the early (since age 9) and continued use of alcohol by Morales; 8) Morales’ drug use; 9) the lack of parental supervision during Morales’ youth and adolescence; and, 10) the lack of counseling or programming received by Morales when he was incarcerated in the Mansfield Correctional Facility. The documentation of this, the court held, establishes that counsel failed to adequately investigate and thus was unable to present compelling mitigating evidence that was readily available at the time of trial. Comparing it to cases where prejudice has been found for not presenting compelling mitigating evidence, the court held that “it is reasonably probable that at least one juror hearing that evidence would have been persuaded to impose a life, rather than death sentence.” Thus, the court granted sentencing phase relief.
The trial court did not err in excusing a juror based on death penalty viewpoints: Recognizing that “isolated statements indicating an ability to impose the death penalty do not suffice to preclude the prosecution from striking for cause a juror whose responses, taken together, indicate a lack of such ability or a failure to comprehend the responsibilities of a juror,” the court held that the district court did not err in upholding the excusal of a juror who said “I guess I could” impose the death penalty when the circumstances in which the juror said he could impose death did not include the circumstances of the murder in which Morales was charged.
After finding that a guilt phase ineffective assistance of counsel was not defaulted by the failure to present it on direct appeal since it relied on evidence from outside the record, the court found the claim meritless because there was no medical proof of the mental condition that counsel failed to present at the guilt phase and because the one unhelpful comment by a witness was admitted over a defense objection.
Suhrheinrich, J., dissenting: He believed that the unpresented mitigating evidence was made known to the jury through Morales’ unsworn statement to them and that it did not rise to the level of other cases in which prejudice had been found. He also noted that the “new” evidence would have opened the door to prejudicial information.
Harbison v. Bell, (6th Cir. 2007) (Siler, J., joined by, Cook. J.; Clay, J., dissenting):
This case arose out of a Rule 60(b) motion that was partially denied on the merits and partially transferred to the Sixth Circuit for authorization to file a successive habeas petition. The majority denied authorization, ruling that the newly discovered evidence was unlikely to change the result of the trial. The court also rejected the appeal of the denial of the 60(b) motion, first ruling that a certificate of appealability (COA) is necessary to appeal the denial of 60(b) relief and that Harbison had not met the standard for issuance of a COA - - a substantial showing of the denial of a federal right, which is satisfied by demonstrating that reasonable jurists could disagree with the district court’s resolution of the constitutional claims or that jurists could conclude that the issues raised are adequate to deserve further review. The court the held that the 60(b) motion was also untimely because it was not filed within one year of judgment and even if timely, he failed to meet the extraordinary circumstance requirement for the grant of 60(b) relief under the “catch-all” provision. This was because Harbison’s claims remain procedurally defaulted albeit for a different reason than the court ruled in habeas proceedings. The court also ruled that the federal habeas appointment statute (18 U.S.C. §3599) does not authorize federal compensation for legal representation in state matters, thereby prohibiting the appointment of counsel for clemency proceedings.
Clay, J., dissenting: He believes Harbison presented a meritorious claim and thus established cause ad prejudice to overcome any procedural default.
Garner v. Mitchell, (6th Cir. 2007) (Moore, J., joined by, Martin, J.; Rogers, J., dissenting) (finding that Miranda waiver was not knowing and intelligent, given expert’s interpretation of test result as showing lack of full comprehension of warnings)
The procedural default defense was waived: Although the defense of procedural default can be addressed by an appellate court when raised for the first time on appeal as was the case here, even though the default appeared apparent on the record, the court exercised its discretion to not do so because the district court expended a consider amount of time in deciding the Miranda claim and because the petitioner faces the death penalty.
De novo review applies to the Miranda claim: The state argued that modified AEDPA review, in which the court conducts and independent review of the record and applicable law but can granted habeas relief only if the state court’s decision was contrary to or an unreasonable application of clearly established federal law, should apply to this claim that was not raised in state court. The Sixth Circuit, however, has only applied this modified review when the state court decides the issue in question but does not articulate its reasoning and when the state court decision does not squarely address the federal constitutional issue in question but its analysis bears some similarity to the requisite constitutional analysis. Without a state court decision on the claim at issue or analysis similar to the requisite constitutional analysis, the court held that de novo review is required.
The district court did not err in expanding the record: Appellate courts review a district court’s decision to expand the record under the abuse of discretion standard. A prisoner may introduce new evidence in support of an evidentiary hearing or relief without an evidentiary hearing only if the prisoner was not at fault in failing to develop that evidence in state court. Because Garner’s request for an evidentiary hearing, discovery, and expert funds were denied in state court, he was not at fault for failing to discover this evidence in state court.
Legal standards governing validity of waivers: Whether the waiver of Miranda rights is knowing and intelligent is a matter which depends in each case upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. A court must examine the totality of the circumstances to determine whether a suspect’s waiver was knowing and intelligent, including inquiries into the suspect’s age, experience, education, background, and intelligence, and whether he has the capacity to understand the warnings given him and the consequences of waiving them.
Garner’s waiver was not knowing and intelligent: Garner was 19 years old at the time of the offense, a product of a very abusive and disorganized family. He completed only the seventh grade, doing poorly in school. He also had an I.Q. of 76. And, an expert testified that Garner’s “borderline intelligence, functional brain impairment, abusive and socially deprived background, and long history of impulsivity raise serious questions as to whether he could or did understand the consequences of signing the waiver of rights.” On a test used specifically to determine ability to understand Miranda rights, Garner scored the same as an average twelve-year old, and could not define the word “right” or understand the right to remain silent. The expert testimony went unrebutted. The totality of these circumstances, the court held, establish that Garner’s Miranda waiver was not made knowingly and intelligently. Noting that the state did not argue that the error was harmless, the court ruled that the admission of the statement was not harmless and granted Garner a new trial, refusing to rule on his other claims.
Bey v. Bagley, (6th Cir. 2007) (Batchelder, J., joined by, Rogers and Sutton, JJ. denying habeas relief)
To establish the killer’s identity, the prosecution introduced evidence of a similar murder for which Bey had been convicted. The court held that use of this prior murder to establish identity did not violate due process and that Bey presented no Supreme Court authority contrary to Ohio’s rule for admission of other acts’ evidence.
In re Bowling, (6th Cir., Sept. 12, 2007) (Moore and Gilman, JJ.; Gibbons, J., dissenting):
After being denied authorization to file a successive habeas petition alleging that his execution was barred by his mental retardation, Bowling filed a habeas petition in federal district court raising five issues that he claimed could be raised in the first instance since the federal right they stemmed from was not recognized until after the district court had denied his first-in-time habeas petition. Those five claims are: 1) applying the procedural default rule to bar a claim of mental retardation violates Atkins; 2) executing Bowling violates the Eighth Amendment because he is mentally retarded; 3) Kentucky’s procedures for adjudicating Atkins claims violate due process; 4) Kentucky’s definition of mental retardation and its procedures for determining mental retardation violate the Eighth Amendment; and, 5) Atkins increases the mitigating value of intellectual impairment, which mandates a new sentencing hearing. The federal district court transferred the case to the Sixth Circuit for authorization to file a successive habeas petition. Bowling filed a motion to retransfer the case to the district court as an initial habeas petition.
The court ruled that the phrase “second or successive” is a term of art that is not to be read literally. To determine whether a petition is “second or successive” and thus requires authorization from the circuit court to file, courts apply the abuse of the writ doctrine. If the petitioner has a legitimate excuse for failing to raise the claim in a previous habeas petition (not deliberate abandonment or inexcusable neglect), the claim is not successive and thus can proceed initially in the district court. With regard to claims one, three, and four, the court held that the factual basis did not exist until the Kentucky courts ruled on Bowling’s Atkins’ claim in 2005, making the claim unavailable at the time the first habeas petition was decided or when Bowling sought authorization to file a successive petition in 2004. Thus, the court ruled that these claims were not successive and had to be retransferred to the district court for consideration in the first instance as an initial habeas petition. As for the second and fifth claims, the court ruled they were presented in Bowling’s 2004 application to file a successive habeas petition and thus are an abuse of the writ.
Gibbons, J., dissenting: She believes that controlling Sixth Circuit precedent is that if a previous petition had been dismissed on the merits, then any subsequent petition is “second or successive.” Because Bowling’s previous habeas petition was denied on the merits, she would rule that all of Bowling’s claims are successive. She also believes that the majority’s approach of looking at whether the factual basis for a claim existed at the time of the earlier petition to determine whether the claim is “second or successive” render the portion of the Anti-terrorism and Effective Death Penalty Act authorizing a successive petition when the factual predicate of the claim could not have been discovered previously through the exercise of due diligence a nullity, the end result of which is the elimination of the gatekeeping requirements applicable to such claims.
Note: This decision means that if the federal district court rules in Bowling’s favor on claims one, three, or four, the writ of habeas corpus will issue with regard to Bowling’s death sentence unless the state courts provide Bowling with a procedure for determining mental retardation that conforms with the federal constitution.
Wilson v. Mitchell, (6th Cir. 2007) (Cole, J., joined by, Clay, J.; Rogers, J., concurring in result) (denying habeas relief)
The court held that harmless error review applies when an invalid death eligibility factor is considered by the jury in a state where the jurors can only consider the aggravating circumstances laid out by statute. Based on the facts of this case, the court held that an instruction shifting the burden to the petitioner to establish that he lacked the intent due to intoxication to commit kidnapping was harmless because the burden shifting instruction did not have a substantial and injurious effect on the verdict since the evidence strongly supported the death specification beyond a reasonable doubt.
Note: This case has a lengthy and detailed discussion of the type of review when an aggravator is found invalid, tracing Supreme Court and Sixth Circuit case law on the issue.
Reynolds v. Bagley, (6th Cir. 2007) (Martin, J., joined by Cole and Sutton, JJ. denying habeas relief)
District court did not abuse its discretion in denying an evidentiary hearing: Noting that the denial of an evidentiary hearing in federal court is reviewed on appeal under the abuse of discretion standard but that the court must take into account whether a state court’s decision to deny an evidentiary hearing was contrary to or a unreasonable application of clearly established law, the court ruled that it was not unreasonable for the state court to deny an evidentiary hearing since Reynolds had failed to make an initial showing that he would prevail if the information he intended to develop at the hearing was true. Thus, the federal district court did not abuse its discretion in denying an evidentiary hearing.
Trial court did not err in failing to dismiss a potential juror before he made comments to the entire panel: One of the potential jurors knew a key witness and also prosecutor, noting in the presence of the other potential jurors that he always found the witness to be truthful and that the prosecutor was efficient. This potential juror was excused for cause but counsel never asked the court to strike the entire venire panel based on these statements. Finding that Reynolds has failed to show any actual bias by the jurors, the court denied the claim but noted that it can conceive of a hypothetical situation in which a single venire member’s comments could irreparably prejudice the remaining jurors.
The court also denied an IAC for failing to retain an alcohol expert, finding that the state court’s ruling that the failure to obtain an expert to supplement the lay testimony on the effect alcoholism had on Reynolds’ behavior did not prejudice Reynolds was not ureasonable.
Bowling v. Haeberline, (6th Cir. 2007) (Batchelder, J., joined by, Merritt and Cook, JJ.) (reinstating habeas petition that was improperly dismissed as a mixed petition)
While a CR 60.02 motion was pending on Bowling’s behalf in state court, Bowling filed a federal habeas petition because it was unclear if a 60.02 motion tolled the statute of limitations for filing a habeas petition. Sua sponte and without notice, the federal district court dismissed Bowling’s habeas petition because Bowling had a pending state court action against the same judgment of conviction he challenged in his federal habeas petition. Believing that “judgment” and “claim” is the same thing, the court ruled that Bowling’s state court action rendered his federal claims unexhausted and his habeas petition thus premature. The habeas petition was dismissed, but the district court granted a certificate of appealability on whether the court properly dismissed Bowling’s habeas petition. The Sixth Circuit held that the district court erred in dismissing Bowling’s habeas petition, reinstated the petition, and remanded it for further proceedings.
Dismissing a habeas petition on timeliness grounds sua sponte and without notice is improper: District courts are allowed, but not obligated, to consider, sua sponte, the timeliness of a state’ prisoner’s habeas petition. But, “before acting on its own initiative, a court must accord the parties fair ‘notice’ and an opportunity to present their positions.” Because the district court did not do so, it erred in dismissing Bowling’s habeas petition.
“Judgment” and “claim” have distinct meanings: A “judgment” means a judgment of conviction, while a “claim” means an assertion of error in that judgment. A person is usually incarcerated under a single judgment but raises numerous claims of constitutional error to challenge that judgment. A court must evaluate a habeas petition on the status of its included claims.
What is an unexhausted claim? A claim that has not been presented to the state court and litigated to the highest state forum. Whenever a person has the right under state law to raise, by any available procedure, an issue presented in the habeas petition, but has not done so, the claim is deemed unexhausted.
Note: Claims that were not presented in state court are considered exhausted when no state court forum remains to present those claims. But, they may be procedurally defaulted by the failure to present them in state court in accord with a state rule.
What is a mixed petition? A petition that contains exhausted and unexhausted claims
Mixed petitions must be dismissed: A federal court cannot grant habeas relief on a claim unless the petitioner has exhausted state remedies. District courts must dismiss a mixed petition, leaving the petitioner with the choice of returning to state court to exhaust his claims or amending the habeas petition to present only exhausted claims to the district court.
Note: While the court does not discuss it, district courts have the option of holding a mixed petition in abeyance while the inmate exhausts any unexhausted claim in state court. This is usually done when failing to do so means the statute of limitations for filing a habeas petition may run before the inmate returns to federal court.
Bowling’s petition was not a mixed petition and thus should not have been dismissed: Bowling’s habeas petition “contained only claims that had been fully exhausted in state court. The fact that he had an independent proceeding pending in state court did not render his federal petition a mixed petition.” Thus, it should not have been dismissed as a mixed petition. Rather, Bowling should have been able to proceed on his exhausted claims in federal court while simultaneously pursuing claims that were not contained in his habeas petition in state court.
Can Bowling file a federal habeas petition in the future that contains only the claims he is currently exhausting in state court: The court expressly stated it does “not opine on whether Bowling would abuse the writ if he ever does bring his current state-court claims to federal court in a successive petition.”
United States District Courts of Kentucky
Moore v. Rees, et al., (E.D.Ky, Oct. 1, 2007) (granting Epperson’s motion to intervene)
To establish a viable case for permissive intervention, a proposed intervenor must show that its motion to intervene is timely made and that he or she alleges at least one question of law or fact common to those already before the court. The court must then consider whether permitting intervention will cause any undue delay or prejudice to the existing parties, and balance any other relevant factors to determine whether intervention should be allowed. Timeliness for purposes of intervention is not determined by whether the claim of the intervenor is timely asserted - - matters governed by the statute of limitations and the doctrine of laches - - but instead by how long the proceedings had been pending and the length of time the proposed intervenor waited before seeking to intervene after becoming aware of the factual and/or legal basis for doing so. Finding that Epperson waiting until the conclusion of his direct appeal before moving to intervene was reasonable, the court ruled that his motion to intervene is timely. Being that only limited discovery has taken and further discovery has been stayed pending resolution of other preliminary matters, the court held that the parties would not be prejudiced by permitting Epperson to intervene. And, Epperson’s claims are nearly identical to those asserted by the existing plaintiff. For these reasons, the court allowed Epperson to intervene.
Moore v. Rees, et al., (E.D.Ky, Sept. 25, 2007)
After unsuccessful state court lethal injection litigation, Baze and Bowling moved to intervene in a federal court lethal injection lawsuit. The court held that res judicata barred intervention.
Rooker-Feldman doctrine does not bar Baze and Bowling from intervening: This doctrine prohibits federal courts from having subject matter jurisdiction over an action that effectively serves as an appeal from a state court judgment. The doctrine applies only where the prior state court judgment is the source of the injury complained of in the subsequent federal action. Thus, if a plaintiff in a federal court action asserts the prior state court judgment violated his or her substantive or procedural due process rights, the state court judgment is the source of the injury and the federal court has no jurisdiction to review it. The same is true when the plaintiff does not expressly identify the state court judgment as the source of the injury but where the conduct complained of is either enabled by or the inevitable consequent of the prior state court judgment. By contrast, where the subsequent action merely calls into question the propriety of the prior state court judgment, i.e., asserting the same claims in federal court that were previously asserted in state court, the effect of the prior state court adjudication is governed by ordinary application of principles regarding claim and issue preclusion. Because Baze does not expressly identify the prior state court judgment as the source of his injury, because he challenged the constitutionality of an ongoing corrections’ policy, and because the minor change in the protocol (removing possibility of inserting I.V. in the neck) does not affect the core of Baze’s allegations, the future conduct of corrections in carrying out Baze’s death sentence is not the product of the state court litigation. Thus, intervention is not barred by the Rooker-Feldman Doctrine.
Baze and Bowling satisfy the requirements of permissive intervention: To establish a viable case for permissive intervention, a proposed intervenor must show that its motion to intervene is timely made and that he or she alleges at least one question of law or fact common to those already before the court. The court must then consider whether permitting intervention will cause any undue delay or prejudice to the existing parties, and balance any other relevant factors to determine whether intervention should be allowed. Because the claims in Baze’s proposed intervenor complaint are almost exactly the same as presented by Moore, because the case remains in the early stages of discovery, and because the parties will not be prejudiced by intervention, Baze satisfied the requirements to intervene.
Intervention is barred by res judicata: Res judicata bars a claim where there is: 1) a prior final decision on the merits by a court of competent jurisdiction; 2) a subsequent action between the same parties or their privies; 3) an issue in the subsequent action which was litigated or which should have been litigated in the prior action; and, 4) an identity of the causes of action. Even if these four prongs are satisfied, res judicata does not bar a claim if a litigant did not receive a full and fair opportunity to litigate the claim or issue (in other words, deprived of a hearing in accord with due process). Typically, this occurs where a hearing was held with only a few days notice, the opportunity to present evidence or arguments were strictly limited, or the scope of the appeal was very narrow. None of that was the case here. Baze received a full trial on the merits where approximately twenty witnesses testified. Finding that the trial comported with due process, the court ruled that Baze received a full and fair hearing in state court, thereby meaning res judicata bars intervention.