Today the Sixth Circuit released its decision in a non-capital habeas case, Brown v. Smith, Case No. 06-2295, granting petitioner's writ. Chief Judge Boggs, joined by Judge Moore, wrote the opinion while Judge Clay filed a separate concurrence also joined by Moore. The petitioner, who was convicted of sexually molesting his teenage daughter, claimed that counsel had been ineffective in failing to investigate and obtain the daughter's counseling records, which contained substantial material for impeachment. The court agreed, finding that because the prosecution's entire case hinged on the daughter's testimony, it was constitutionally deficient for counsel not to seek in camera review of the records. Further, because the records would have provided several points of impeachment of the daughter's testimony, the evidence was not cumulative, and since there was relatively little evidence to support the conviction in the first place, the court found the petitioner was prejudiced by counsel's failure.
Particularly interesting in this case is the treatment by both Boggs and Clay of the standard of review under AEDPA. The court declined to apply the deferential standard of review because the counseling notes were not on the record before the state court, which explicitly stated that its review was limited to mistakes apparent on the record. Boggs analogized petitioner's IAC claim to Brady claims in which the Brady material was discovered only during federal habeas proceedings, and therefore AEDPA deference would not apply to an earlier state court determination regarding different exculpatory material. Presupposing that the threshold standard is met, that 1) petitioner is not at fault for failing to develop the evidence in state court and; 2) if petitioner is at fault, the 2254(e)(2) exceptions apply, the same principles applied to new Brady claims would apply generally to any new claim involving new evidence. Judge Clay's concurrence emphasized that this ruling was an "important and natural progression in the circuit's jurisprudence on this issue," in that this standard of review is no longer limited to Brady claims. In expanding the application of Joseph v. Coyle, 469 F.3d 441 (6th Cir. 1006), Clay explained there can be no adjudication on the merits where the petitioner was unable to put critical evidence before the state court, regardless of whether the court has purported to resolve that particular claim, and the federal court must determine whether that claim was properly addressed.
Wednesday, December 31, 2008
Friday, December 19, 2008
IAC Loss in 2-1 decision
On Thursday, the Sixth Circuit issued its opinion in West v. Bell, 05-5132/6219, denying reflief on grounds of ineffective assistance of counsel at the sentencing phase, exclusion of evidence, and prosecutorial misconduct. The most compelling argument was on West's IAC claim, which was based on counsel's failure to investigate mitigation. West, along with a 17 year old co-defendant, was charged with rape and double murder based on the stabbing of a fifteen year old girl and her mother. Both women were stabbed multiple times. West's defense was that he did not participate in the killings, and at sentencing he presented evidence that he was a good husband and father and had no background of being in trouble. Both defenses were unsuccessful.
The majority (Boggs, Norris)rejected West's argument that he had received ineffective assistance of counsel from his trial attorneys becase they had failed to investigate or present evidence of abuse. West's sister had testified that West was beaten and abused as a child, although he denied thr abuse, and a professional standards expert testified that the fact that West had been born in a mental institution and could not remember the first ten years of his life should have been "red flags" for the attorneys to further investigate his background. The majority found that, although the state court used the incorrect standard for proving prejudice under Strickland (prepoderance of the evidence rather than reasonable probability), counsel's alleged errors were contested, and even if counsel had presented significant evidence of abuse the strategy might have back fired, the jury could have found West to be loathsome and would have "sentenced him to death with greater zeal."
In a well reasoned dissent, Judge Moore found that under the Strickland standard as interpreted in Wiggins and Rompilla, West had met the burden of proof for his IAC claim. Judge Moore noted that under Rompilla, the court had an obligation not only to consider the quantum of evidence already discovered by counsel, but also whether the known evidence would lead counsel to further investigation. The evidence produced in post conviction met this standard. The dissent agreed that it was extremely likely that at least one juror would have determined that the history of abuse and psychological issues would have provided a context for his explanation of his actions on that day. His insistance that he was not abused did not aleviate counsel's burden to investigate in light of the significant evidence to the contrary. As far as the prejudice prong, the dissent argued that the majority's finding that the jury might have gone either way with the new evidence was the wrong legal standard. Rather, Rompilla specifically held that the question was whether the affect of the new evidence undermined the confidence in the jury's verdict.
The majority (Boggs, Norris)rejected West's argument that he had received ineffective assistance of counsel from his trial attorneys becase they had failed to investigate or present evidence of abuse. West's sister had testified that West was beaten and abused as a child, although he denied thr abuse, and a professional standards expert testified that the fact that West had been born in a mental institution and could not remember the first ten years of his life should have been "red flags" for the attorneys to further investigate his background. The majority found that, although the state court used the incorrect standard for proving prejudice under Strickland (prepoderance of the evidence rather than reasonable probability), counsel's alleged errors were contested, and even if counsel had presented significant evidence of abuse the strategy might have back fired, the jury could have found West to be loathsome and would have "sentenced him to death with greater zeal."
In a well reasoned dissent, Judge Moore found that under the Strickland standard as interpreted in Wiggins and Rompilla, West had met the burden of proof for his IAC claim. Judge Moore noted that under Rompilla, the court had an obligation not only to consider the quantum of evidence already discovered by counsel, but also whether the known evidence would lead counsel to further investigation. The evidence produced in post conviction met this standard. The dissent agreed that it was extremely likely that at least one juror would have determined that the history of abuse and psychological issues would have provided a context for his explanation of his actions on that day. His insistance that he was not abused did not aleviate counsel's burden to investigate in light of the significant evidence to the contrary. As far as the prejudice prong, the dissent argued that the majority's finding that the jury might have gone either way with the new evidence was the wrong legal standard. Rather, Rompilla specifically held that the question was whether the affect of the new evidence undermined the confidence in the jury's verdict.
Wednesday, December 17, 2008
Jells Stands in the Sixth Circuit
On Tuesday December 16th, the Circuit denied en banc and rehearing in Jells v. Mitchell. This is a case right out of our own Northern District CHU. In this case, the Circuit granted relief on Jells' claims of both ineffective assistance of counsel and Brady. The court found counsel to be ineffective for failing to prepare for the mitigation phase of Jells' trial and for failing to use a mitigation expert to gather information regarding his background. In addition, the court held that the State had witheld several witness statements that contradicted its theory that the murder was a random kidnapping for sex, and instead showed that Jells and the victim knew each other, and that she had voluntarily gotten into the van and travelled around with him. The assistant county prosecutor who tried the case: Carmen Marino. See also, Joe D'ambrosio; Robert Brown; Rasheem Matthews; Gregory Lott.
Monday, December 15, 2008
Opt-in provisions are finalized
The Justice Department has issued the final version of its controversial AEDPA opt-in/fast track regulations. These will go into effect on January 10, 2009, at which time states may ask the DOJ for certification under the new rules. However, since the new administration will be left with the task of administering the regs, it is unclear how the certification process will be handled, or whether (hopefully) the regs will be revisited altogether. We will keep you posted as we learn more, and hope that you will do the same.
Wednesday, December 10, 2008
Oral argument in Cone v. Bell
Here's a link for a transcript of the oral argument in Cone v. Bell, 07-1114, before the SCOTUS on Tuesday, December 9, 2008. In his cert petition, Cone presented two questions relative to his Brady claim: (1) whether a federal habeas claim is “procedurally defaulted” because it has been presented twice to the state courts; and (2) whether a federal habeas court is powerless to recognize that a state court erred in holding that state law precludes reviewing a claim.
Tuesday, December 9, 2008
Sixth Circuit Loss on Brady and Ineffective Assistance of Counsel at Sentencing Phase
In Owens v. Guida, Case No. 05-6105, the panel majority (Boggs, Siler) denied habeas relief on the petitioner’s Sixth Amendment ineffective assistance of counsel claim, as well as Brady and Lockett claims. Owens was convicted of aggravated murder and sentenced to death for hiring a hit man to kill her husband. She had what her counsel originally believed to be a meritorious spousal abuse defense as her husband was sexually and emotionally cruel and demeaning towards her and had repeated extramarital affairs. However, this information was never brought out at trial.
In habeas, the substance of her Brady claim was that the state had failed to turn over love letters between her husband and his lover. These letters had been in the possession of a police officer, who was told by a city attorney that they were not relevant to the case and they were returned to the dead man’s lover. This information was specifically requested in discovery. While the majority found that the prosecutor did indeed fail to disclose the favorable evidence, there was no Brady violation because Owens suffered no prejudice. The majority held that she knew about the affair, so she could have found a different avenue to present the evidence, at minimum by subpoenaing the lover to testify. The majority stated that Brady does not apply where information is available from another source.
Owens raised two principal arguments that were certified for appeal regarding her ineffective assistance of counsel claim. She claimed that counsel was ineffective for failing to investigate her background. The majority held that Owens had sabotaged her own defense by refusing to testify; by refusing to cooperate in an independent mental health evaluation; and by refusing to let her attorneys talk to her family (although counsel did remember that she might have wanted him to speak with her grandfather or mother or father). The court determined that counsel did not conclude that no mitigation existed, but rather realized that there would be no way to present the evidence due to Owens’ conduct and instructions.
Owens also claimed that counsel was ineffective for failing to overcome the state’s hearsay objection to a psychiatrist who had seen her once a few years before. The state objected when counsel asked the doctor to discuss Owens family, counsel withdrew the question and never really elicited any meaningful testimony because of the hearsay issue. Come to find out, Tennessee has a statute that permits such testimony at sentencing in a capital case regardless of admissibility. The majority reasoned that although this may look deficient, it may have been strategic as counsel might not have wanted to run the risk of eliciting bad testimony from the doctor, both on direct and cross-examination. According to the majority, the doctor’s vague answer that Owens had a "severe problem," without any explanation, thus allowed the jury to make a favorable inference.
Finally, the majority rejected Owens claim that her Eighth and Fourteenth Amendment rights were violated when she was precluded from presenting testimony that she had been willing to accept the state’s offer of a life sentence in exchange for a guilty plea. The deal did not come to pass because it was a package that required the hit man to accept the same offer and he was not willing to do so. The majority held that this was not relevant "to any aspect of the defendant’s character or record or any circumstances of the offense" under Lockett, and the court therefore had discretion to refuse to admit it. Owens asserted that this was evidence of "acceptance of responsibility," but the majority noted that every court to be presented with that argument had rejected it.
The dissent (Merritt), on the other hand, offered to "straighten out the case for the reader by introducing the actual facts and the correct legal principles to be applied." Merritt stated that this was "not a close case." Regarding the Brady issue, the dissent stated that prior to trial, the Petitioner had specifically asked for all information regarding her husband’s numerous girlfriends and his odd sexual proclivities because that behavior had contributed to her state of mind and mental condition. Merritt found the prosecutor’s failure to turn over the material, as well as his artful description of the scope of the material provided to be typical of the Memphis district attorney’s office at that point in time. Merritt compared the majority’s reasoning that the petitioner was not prejudiced by the failure to disclose comparable to telling Brady that because he knew he had not killed the victim, he was not entitled to the exculpatory material because he could have taken the stand and so testified. In light of the fact that the state’s theory of the case was that Owens had killed her husband to get insurance money, the jury never had the chance to hear this evidence which made her less culpable.
In analyzing the ineffective assistance of counsel claim, the dissent quoted extensively from the ABA’s Guidelines on investigation, and noted counsel’s duty to investigate regardless of the expressed desire of the client. Counsel had originally told the court that Owens had a meritorious spousal abuse defense, but they completely abandoned it in the course of the litigation, leaving the jury to think she had only done it for the insurance money. Further, the dissent found that the majority’s singular reliance on Schirro v. Landirgan, 127 S.Ct. 1933 (2007) was misplaced because in that case, the petitioner specifically told counsel that he did not want them to present mitigation, where as here, as in both Wiggins and Rompilla, the petitioner had merely refused to assist counsel. The compelling body of mitigating evidence that could have been presented coupled with counsel’s scant time sheets, the fact that each thought the other was responsible for mitigation, and counsel’s failure to realize that under Tennessee law a psychologist is permitted to present hearsay evidence in capital mitigation led the dissent to find that if counsel’s actions did not demonstrate ineffective assistance of counsel in a capital case, "there is no such thing as ineffective assistance of counsel."
Regarding the Lockett issue, Merritt found that the state had argued that Owens deserved the death penalty because she did not acknowledge responsibility for her actions, and she was therefore entitled to present evidence that this was untrue.
In habeas, the substance of her Brady claim was that the state had failed to turn over love letters between her husband and his lover. These letters had been in the possession of a police officer, who was told by a city attorney that they were not relevant to the case and they were returned to the dead man’s lover. This information was specifically requested in discovery. While the majority found that the prosecutor did indeed fail to disclose the favorable evidence, there was no Brady violation because Owens suffered no prejudice. The majority held that she knew about the affair, so she could have found a different avenue to present the evidence, at minimum by subpoenaing the lover to testify. The majority stated that Brady does not apply where information is available from another source.
Owens raised two principal arguments that were certified for appeal regarding her ineffective assistance of counsel claim. She claimed that counsel was ineffective for failing to investigate her background. The majority held that Owens had sabotaged her own defense by refusing to testify; by refusing to cooperate in an independent mental health evaluation; and by refusing to let her attorneys talk to her family (although counsel did remember that she might have wanted him to speak with her grandfather or mother or father). The court determined that counsel did not conclude that no mitigation existed, but rather realized that there would be no way to present the evidence due to Owens’ conduct and instructions.
Owens also claimed that counsel was ineffective for failing to overcome the state’s hearsay objection to a psychiatrist who had seen her once a few years before. The state objected when counsel asked the doctor to discuss Owens family, counsel withdrew the question and never really elicited any meaningful testimony because of the hearsay issue. Come to find out, Tennessee has a statute that permits such testimony at sentencing in a capital case regardless of admissibility. The majority reasoned that although this may look deficient, it may have been strategic as counsel might not have wanted to run the risk of eliciting bad testimony from the doctor, both on direct and cross-examination. According to the majority, the doctor’s vague answer that Owens had a "severe problem," without any explanation, thus allowed the jury to make a favorable inference.
Finally, the majority rejected Owens claim that her Eighth and Fourteenth Amendment rights were violated when she was precluded from presenting testimony that she had been willing to accept the state’s offer of a life sentence in exchange for a guilty plea. The deal did not come to pass because it was a package that required the hit man to accept the same offer and he was not willing to do so. The majority held that this was not relevant "to any aspect of the defendant’s character or record or any circumstances of the offense" under Lockett, and the court therefore had discretion to refuse to admit it. Owens asserted that this was evidence of "acceptance of responsibility," but the majority noted that every court to be presented with that argument had rejected it.
The dissent (Merritt), on the other hand, offered to "straighten out the case for the reader by introducing the actual facts and the correct legal principles to be applied." Merritt stated that this was "not a close case." Regarding the Brady issue, the dissent stated that prior to trial, the Petitioner had specifically asked for all information regarding her husband’s numerous girlfriends and his odd sexual proclivities because that behavior had contributed to her state of mind and mental condition. Merritt found the prosecutor’s failure to turn over the material, as well as his artful description of the scope of the material provided to be typical of the Memphis district attorney’s office at that point in time. Merritt compared the majority’s reasoning that the petitioner was not prejudiced by the failure to disclose comparable to telling Brady that because he knew he had not killed the victim, he was not entitled to the exculpatory material because he could have taken the stand and so testified. In light of the fact that the state’s theory of the case was that Owens had killed her husband to get insurance money, the jury never had the chance to hear this evidence which made her less culpable.
In analyzing the ineffective assistance of counsel claim, the dissent quoted extensively from the ABA’s Guidelines on investigation, and noted counsel’s duty to investigate regardless of the expressed desire of the client. Counsel had originally told the court that Owens had a meritorious spousal abuse defense, but they completely abandoned it in the course of the litigation, leaving the jury to think she had only done it for the insurance money. Further, the dissent found that the majority’s singular reliance on Schirro v. Landirgan, 127 S.Ct. 1933 (2007) was misplaced because in that case, the petitioner specifically told counsel that he did not want them to present mitigation, where as here, as in both Wiggins and Rompilla, the petitioner had merely refused to assist counsel. The compelling body of mitigating evidence that could have been presented coupled with counsel’s scant time sheets, the fact that each thought the other was responsible for mitigation, and counsel’s failure to realize that under Tennessee law a psychologist is permitted to present hearsay evidence in capital mitigation led the dissent to find that if counsel’s actions did not demonstrate ineffective assistance of counsel in a capital case, "there is no such thing as ineffective assistance of counsel."
Regarding the Lockett issue, Merritt found that the state had argued that Owens deserved the death penalty because she did not acknowledge responsibility for her actions, and she was therefore entitled to present evidence that this was untrue.
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