Appellate Law & Practice

CA1: the First says that 28 U.S.C. § 2254(d) is constitutional, because it isn’t a rule of decision

Evans v. Thompson,  No. 07-1014.  The First Circuit takes a position on AEDPA: That it is constitutional in terms of the ways it limits a District Court’s ability to interpret the constitution.  I can’t say I am surprised.

I am a little bemused at the logic it relies on: because “lower” Federal Court (i.e. not the Supreme Court) are created as per Congress then Congress can restrict the jurisdiction of said courts.  There might be ways to save AEDPA, but this isn’t one of them.  Restricting the grounds upon which habeas can be granted is a rule of decision, not a restriction upon the power of courts.  If, for example, Congress divided up Massachusetts into two federal judicial districts, then, one could argue that the Eastern District of Massachusetts wouldn’t have jurisdiction over a convict in the western part of the state.  Okay, the First screwed this up.  But, despite this pathetic analysis, the First does admit some things: that the gap between “erroneous” and “unreasonable” is “narrow.”  It seems to enumerate the areas that fall into this gap.

CA1: Hatian not oppressed

Domercant v. Mukasey, No. 07-1726 (unpublished) denies a petition for review of a Hatian’s petition for asylum.  He didn’t seem too political.  The IJ found him not to be credible.

CA1: An actual opinion describing appellate procedure on a habeas grant

Foxworth v. Maloney, 06-2379.  When I started reading this, I knew it had to be good.  Selya appears to be using big words to grant some kind of habeas relief.  He points out that “The king of habeas remedies is an order for unconditional release with prejudice to reprosecution.”  I wonder what the jester of habeas relief is?  Anyway, it seems that Selya actually seems to be taking this seriously (perhaps because he feels like giving people in jail anything requires more caution than keeping them in jail).  So, let’s get out our Selya-to-English dictionaries and see what he has to say.  (Actually, it turns out that it is fairly well-written, since he is writing for the government attorneys and judges that might actually need to follow his opinions, rather than condemned prisoners who don't matter, anyway.)

First, the District Court granted the petitioner a conditional writ of habeas corpus (i.e. that he be released if not recharged) on the basis of a Bruton error within sixty days.  The District Court did not address the other claims (without saying why it was unnecessary to resolve them).  Then the state (or “Commonwealth”) as they say in the “Bay State” filed a notice of appeal.  The District Court stayed its order.  The petitioner said “Ah ha – the First Circuit has no jurisdiction because the District Court only resolved some of my claims.”  He then said “Nevermind.”  But, the First says that it needs to resolve whether it really has jurisdiction, anyway.  It says, that because the District Court considered its work done, there was a final judgment, and there is no need to consider whether FRCP 54 applies in the habeas context.  (Though a footnote does collect cases on the issue from other circuits.)

CA1: broken promise not prejudicial

Sleeper v. Spencer, No. 06-2477 affirms the denial of a habeas petition.  “The sole ground certified for appeal is Sleeper’s claim that he received ineffective assistance of counsel because his attorney promised in his opening statement to present an insanity defense even though he knew or should have known that the court would not allow the jury to consider the defense.”  The state courts concluded that this was a misstatement, rather than a broken promise, and the state courts concluded that there was no prejudice.  Under AEDPA, The First stops the analysis there without stating whether that means that performance was deficient. 

CA1: all sorts of stuff about habeas.

Teti v. Dennehy, No. 06-2371. Update: I reworked this post.  So you are therefore required to read it again. 

This case is a AEDPA habeas case, which, like most of them, end up hurting the petitioner and justice.  It comes to the First on a certificate of appealability.  Setting the stage, the defendant’s lawyer may have had a conflict, as he represented an informant-witness.  At one point the state trial judge agreed that there was a conflict, but she later changed her mind.

The First Circuit spells out the law regarding how conflicts don’t have to be prejudicial to render assistance ineffective, but it also notes that Massachusetts law is more favorable to defendants on this issue.  The first finds that 28 U.S.C. § 2254(d) applies to the ineffective assistance claim, because it was “adjudicated on the merits” and concludes that the deferential standard applies, to the Massachusetts Appellate Court’s findings on the merits regarding ineffective assistance.

Keeping reading.  Or sign out to go to the bathroom.

CA1: what isn’t actual innocence

Walker v. Russo, No. 07-1650.  This is a habeas appeal.  “The only question at trial [at state court] was whether the defendant was guilty of first degree murder or a lesser offense; that depended on whether the murder was premeditated.”  The only issue in this appeal of a habeas denial is an ineffective assistance argument regarding whether his lawyer failed to elicit certain fact testimony, and that he is actually innocent.  (And therefore can be excused from the cause and prejudice procedural default exception.)  The First concludes that his theory, “If this evidence were added into the mix, Walker's theory goes, a jury would have acquitted because if Walker was leaving the premises he could not have planned to stab Davis and so the murder was not premeditated.” is too much of a leap to make the “actual innocence” standard.

So, ironically, he can’t demonstrate “actual innocence” and it doesn’t’ matter whether he is “actually guilty.”  The First says it isn’t discussing House v. Bell, 126 S. Ct. 2064 (2006).

CA1: still no prejudice when lacking an expert (and standard of review on habeas remands)

Dugas v. Coplan,  No. 06-2358.  This habeas case was first before the First in Dugas v. Coplan, 428 F.3d 317, 333, 341-42 (1st Cir. 2005) (our coverage here).  The First remanded for a hearing on whether the defendant had established that counsel’s deficiency’s prejudiced him.  I remember that the dissent in the original opinion was embarrassing to all Americans, as it essentially said that because there are “limited” public funds for experts, trial judges should be careful in disbursing them.  (Of course, the money for the government’s experts seems to be considerably larger.)  Anyway, after a hearing the District Court judge held that there was no prejudice.  The First points out that the standard of review of new-fact-finding and “our review is comparable to the review that would apply if we were considering a direct criminal appeal or a § 2255 petition after a federal criminal conviction.”  The First looks at the record and concludes that the government’s case wouldn’t have been undermined that much, and takes a few digs at counsel for being deficient. 

CA1: difficult issue about review of change of pleas

Desrosier v. Bissonette, 06-2490 (9/14/07)  is a habeas appeal based on whether a guilty plea was really knowing and voluntary, because he wasn’t told of the elements of the offense.  The defendant, at the change of plea hearing saying he didn’t really remember what happened, but he had discussed the evidence with his lawyer.  A later state judge vacated the conviction because there was no evidence that he was really informed of the elements of first or second degree murder.  But, the state court reversed, saying that the although it would have been nice to tell a poor person the elements of a crime he was pleading guilty to, he made his plea in a knowing a voluntary manner.  Applying AEDPA, the First says that the state courts did a good enough job.  Unfortunately, the First starts to lose it a bit toward the end of an opinion when it starts analyzing the question of whether this really is a constitutional issue or a question of how the state court’s evidentiary rulings about the nature of the plea should be treated.  This is a fairly complex issue, because it may well be that the sixth amendment requires a certain standard of review of the facts surrounding a guilty plea (to tell if it was really knowing and voluntary).  Instead, the best the First can do is to say that AEDPA requires “clear and convincing” evidence and to say that Federal Courts won’t second-guess the state courts on this issue.  Perhaps this is the law, but their analysis indicates that they are not taking the issue seriously.

CA1: habeas petition tossed

Quinones-Torres v. US, No. 06-1148 (unpublished) dismisses a pro se habeas petition, which argued that the petitioner was ineffectively assisted by counsel at various stages of the proceeding (which lead to a guilty plea).  The First rejects it, by showing, point by point, how the facts and law were not what he said they were, and he never really opposed any of the factual findings that the sentencing court relied on.

CA9: tranfer order reversed on "clearly erroneous" findings -- and AEDPA is okay

Ninth Circuit Blog provides a link to US v. Juvenile Male, No. 06-30587 (7-5-07), which reverses for “clearly erroneous” factual determinations by a District Court judge.  Everyone should read this, as it is a nice guide to getting District Court judges reversed.
The District Court did a number of strange things:

• It stuck to its original method of assuming that a juvenile is guilty for purposes of making a transfer determination, despite an earlier remand saying that it didn't have to – this time it "‘readopted and restated' its original findings of fact" saying that it was, in its discretion making that assumption.
• It found that the defendant had suffered from "no domestic violence" when the record said that he had.  It also left out a lot of things such as "episodes of violence the defendant experienced or witnessed as a child—which included the shooting of his  grandfather in the throat, the shooting of his uncle with a gunshot, and the shooting death of his cousin."
• Further straying from the record, the District Court concluded that the defendant's "social background in many ways [wa]s not markedly different from that of hundreds of other  youngsters who grow up on Montana's Native American reservations, and who never resort to violent and destructive behavior of the sort disclosed by the record in this case.'" This is funny, because the court mentions the record, but none of these things about "social background" appear in the record.
• The District Court also took judicial notice of the BOP's local facilities.  But, the defendant didn't raise that argument.

Also, in the Ninth Circuit, O’Scannlain writes in Crater v. Galaza, that AEDPA is completely unconstitutional.  He drops a footnote about the suspension clause, but since he isn’t taking the issue seriously, it isn’t worth taking what he writes seriously.

This case is somewhat interesting, because it took California more than one try to convict the guy, and a magistrate said the writ should be granted.  He just cities to the Fourth Circuit, and says, well, Congress can change the standards by which habeas relief is granted.  So, this means that Congress can tell Federal Courts not to grant relief based on unconstitutional confinement.  He writes:

We are not persuaded that AEDPA has this effect. Section 2254(d)(1) does not instruct courts to discern or to deny a constitutional violation. Instead, it simply sets additional standards for granting relief in cases where a petitioner has already received an adjudication of his federal claims by another court of competent jurisdiction.

Anyway, it isn’t as if this is any surprise.  The question is how it will fare above or en banc.