Appellate Law & Practice

CA1: okay to say prosecution doesn't have to disprove "other guy did it" theory

Farley v. Bissonnette, No. 08-1094 (10/8/08) denies a petition for a writ of habeas corpus.  The first issue was whether "the trial judge's instruction to the jury that the prosecution 'does not have the burden of proving that no one else may have committed the murder' [was] an error that was contrary to clearly established Supreme Court precedent as stated in In re Winship, 397 U.S. 358 (1970)."  The First concludes “Thus, where the defense attempts to cast the blame on someone other than the defendant, it is not unusual for the court to remind the jury that the government's burden is to show that the defendant is guilty--not that the other person whom the defendant seeks to blame is innocent.”  But really, we all know what is going on: the trial court thinks that the defendant is guilty and wants to make sure the defendant goes away.

The second issue is whether "the state court's decision that the trial judge's limitation of the petitioner's cross-examination of Ronald James, though error, was harmless beyond a reasonable doubt [was] an unreasonable application of clearly established Supreme Court precedent, namely, Delaware v. Van Arsdall, 475 U.S. 673 (1986)."  The First seems to just say that it was okay that this was considered harmless error.  Whatever.

CA1: major, yet squirly opinion on gun-type as an element v. sentencing factor

US v. O'Brien, No. 07-2312.  The First splits with other circuits and find that “[U]nder a statute forbidding the carrying and use of guns in connection with a federal crime, the nature of the weapon is to be found ... by the jury as an element of the crime.”  Specifically, under 18 U.S.C. 924(c), there was a question of whether the knowledge that a gun was modified to be a machine gun was found beyond a reasonable doubt. 

The First says some really amazing things about the post-Booker landscape (which everyone that practices criminal law must read), and notes that Congress rarely explains what is an element and what is a sentencing factor.  Saying that it is reluctantly applying Castillo v. United States, 530 U.S. 120 (2000) it concludes, “firearm type is traditionally an element of the offense--a judgment unaffected by the rephrasing of the statute.”  Legislative history doesn’t show any intent to override Castillo.  So, it gets to use the old version of the statute (rather than any constitutional formulation) to say that the jury should determine this.

CA1: switching horses on habeas

Stroyny v. Hall, No. 07-1825 (unpublished) rejects a an IAC habeas claim.  The First seems to say that his theory as to why defense counsel’s opening argument was ineffective conflicts with the argument as to culpability adduced on appeal. 

CA1: an ambiguous green light to prosecutorial (mis?)-conduct in state courts

Raposa v. Bissonnette, No. 07-2061 (unpublished) affirms a denial a petition for a habeas writ for reasons I don’t understand where the petitioner alleged “, that the prosecutor's summation violated Raposa's due process rights, as did aspects of the prosecutor's cross-examination and the state court's subsequent admission of allegedly prejudicial evidence” .  Here is the entire operative part:

The district court found that Raposa had exhausted her federal claims below, but that there was no error in the SJC's decision warranting a grant of the writ. We have given Raposa's arguments careful consideration but in the end see no reason to differ with, or add to, either part of the district court's thoughtful and well-reasoned opinion

CA1: AEDPA leads to another prosecutorial misconduct green light

Dagley v. Russo, No. 07-2059 is an affirmance of a habeas denial on the basis of prosecutorial misconduct in the form of prejudicial misstatements during closing arguments that didn’t get a curative instruction, thinking that a jury of non-lawyers would get confused.  The First has sent a clear message that prosecutors can do whatever they want, and this case is no exception.  (There seems to be one recent exception to this rule, which I reported on here.)

I guess I have to pretend that the First is taking this issue seriously.  The underlying issue is whether the prosecutor incorrectly stated state law regarding manslaughter in his closing argument.  Everyone seems to agree that he did. But the First says that the Mass. SJC Applied Donnelly v. Dechristoforo, 416 U. S. 637 (1974) well enough. 

CA1: Selya destroys the writs of corum nobis and audita querela and saves the government from its negligence

Trenkler v. US, No. 07-1678, 07-1679.  When I started reading this case, I thought it would be an interesting discussion of corum nobis.  In many jurisdictions, this writ actually is understood.  But then I realized that Selya wrote it, and whatever happens the defendant is going to lose – even though the defendant used latin.  What most people will want to know is at the end “the writ of error coram nobis, in its modern form, is ordinarily available only to a criminal defendant who is no longer in custody.”  Selya has a special message for all poor people rotting in jail or about it:

...our criminal justice system tolerates a certain risk of error might be of concern to some, but finality is indispensable to the proper functioning of that system.

The defendant (aided by a large, and therefore, morally righteous law firm) has done his best to get around AEDPA.  The First has done its best to turn back such attempts.

What is strange is that after the writ was requested, the government simply ignored an order from the District Court requesting a reply.  This is strange.  Usually the government likes to reply.

Then, after the government neglected to reply (or is that “elected”) the District Court granted the writ on the basis of a defect in the jury instructions, which the District Court found was "fundamental to the validity of the judgment."  It cited the All Writs Act.

After figuring that it has jurisdiction, the First gets to the issue.  However, the First does explain why a case, from the Supreme Court, Pickett's Heirs v. Legerwood, 32 U.S. (7 Pet.) 144, 148 (1833), doesn’t apply because “The Court there explicitly admonished that it was not ‘called upon to decide’ whether the case before it "was a case proper for the application of [the coram nobis] remedy."  Whatever the case, the First finds a bunch of caselaw that says that corum nobis is reviewable, and the Supremes back then were talking about whether it had supervisory power over the writ.  Moreover, the First says, the government has the statutory authority to appeal the grant of the writ.  Looking at United States v. Morgan, 346 U.S. 502, 513 (1954) which says that the writ is a "step in the criminal case and not, like habeas corpus where relief is sought in a separate case and record, the beginning of a separate civil proceeding." the First says that that footnote doesn’t really matter, but what really matters is whether the writ is criminal or civil in nature.  Seyla says “civil” because it would give the government more power to appeal, and therefore it isn’t even time-barred as it under the civil, rather than crimnial deadlines.

What that in mind, Selya says that this is really a 28 U.S.C. § 2255 petition.  Selya concludes that the District Court, in excusing the government’s negligence actually went to the merits, and notes that when late filing is excused the merits are reached.  Then Selya starts putting the nails in the coffin.  He says since 28 U.S.C. § 2255 is so specific it practically eviscerates the All Writs Act’s ability to issue such relief-granting common law writs.  And, he cautions court to “to plot, and then to patrol, the boundaries between section 2255 and the universe of old common-law writs. Otherwise, artful pleaders will tiptoe around those boundaries and frustrate Congress's discernible intent.”  Therefore, Selya (or his intern) concludes that there is no way this poor (as in not a lot of money) can get relief, except for transferring it under AEDPA to the First, as there was no newly-discovered evidence. 

At the end there is some pithy stuff about the “Rule of Law” and all that crap.  Surprisingly, “...our criminal justice system tolerates a certain risk of error might be of concern to some, but finality is indispensable to the proper functioning of that system.”

CA1: no habeas in dual-theory case

Leftwich v. Maloney, No. 06-2583.  In this habeas case, Selya makes one thing clear: he knows how to use big words to keep the damned damned.  He says there is one issue, “Was the evidence sufficient, in terms of the Due Process Clause, to ground a conviction for first-degree murder either as a principal or as a joint venturer?”  Selya figures out which theories of guilt (joint venturer or principal) the state courts passed on and concludes that the state court didn’t address whether his conviction as a principal would stand up to due process standards.  Finally, Selya says that the defendant confessed that he helped dispose of the body, and therefore, enough inferences could be drawn.

CA1: Apprendi pipeline case sees briefly sees light in IAAC context

Martinez-Medina v. US, No. 06-1594 (unpublished).  This affirms a denial of a motion to vacate a sentence under 28 U.S.C. § 2255.  The grounds asserted are whether, in an “Apprendi Pipeline” case, the defendant was given ineffective assistance of counsel when she “misconstrued” Apprendi and conceded (to the First Circuit) that he would be subject to a higher sentence.  But the First says that in the underlying case, the higher sentence would have been warranted because the indictment did state enough (i.e. that there were “multi-kilograms” of cocaine in drug conpsiracy.)  Likewise, the First says that it had found in appeals of his codefendant’s cases that a failure of the jury to find drug quantity was harmless error.  Therefore, the statutory maximum was life, and there were no real Apprendi claims.  Therefore, appellate counsel’s concession didn’t make a difference.

The First ends by saying that 28 U.S.C. § 2255 motions can’t be used to make Booker retroactive.

CA1: Rehearing denied with dissent in AEDPA “remedy” case

Evans v. Thompson, No. 07-1014 (our coverage of original case here).  Judges Torruella and Lipez begin by cataloguing other dissents from denials of petitions rehearings in banc in other circuits regarding the scope of review in habeas cases (you know, the whole “clearly established” thing)

They explain that:

Although Congress has the power, pursuant to the Constitution, to limit the jurisdiction of the lower federal courts, its authority is not plenary. Even as Congress may confer or restrict the federal courts' jurisdiction -- its "quantitative powers" -- it may not instruct the court how to decide certain cases or how to carry out the qualitative aspects of its work.
...
To limit the traditional analytic tools available to a court strikes at the heart of its independent adjudicatory process.
...
By limiting the sources of law a federal court may rely upon in granting habeas relief to "clearly established Federal law, as determined by the Supreme Court," § 2254(1) [this might be a mistake] impinges upon a federal court's "judicial power" by "strik[ing] at the center of the judge's process of reasoning."
[and. stating the obvious]
Given the limited nature of Supreme Court review, there are constitutional principles that have been elaborated by the lower federal courts but they have not yet been adopted by clearly established Supreme Court precedent.

They then go on to mock the panel for concluding that an abridgement of “remedy” in habeas cases is really different than an abridgement of what law a judge may apply.  The judges explain that, “The writ involves a right and remedy that are inextricably linked; a prisoner files a writ when the government has incarcerated him in violation of his constitutional rights...Together, the two issues addressed in the panel opinion go to the heart of our constitutional system of government. For that reason alone, en banc review was justified “

See coverage of Irons v. Carey, 505 F.3d 846, 854 (9th Cir. 2007) here and  here.

DotD comments here.

CA6: Sixth Circuit turns habeas preclusion against the state

DotD points to a decision from the 6th Circuit which holds that if the state courts, pre-Atkin concluded that someone was retarded to be killed by the state but nevertheless could be killed by the state, post-Atkins, the state can’t relitigate the issue of just how retarded the prisoner is on habeas.