Friday, January 30, 2009
Factual Development Ordered on Habeas Lethal Injection Claim
Today the Sixth Circuit issued an order remanding a case to the district court for factual development and limited discovery on the petitoner's lethal injection claim, which was certified for appeal by the Circuit on July 23, 2008. This is going to be an important case as it is the first to be granted discovery to explore the lethal injection issue in the habeas context. The case is Jones v. Bradshaw, 07-3776. Mr. Jones is represented by the Northern District CHU and Spiros Cocoves. Stay tuned for developments in this important litigation.
Victim's Family Urges Clemency for Jeffrey Hill
Yesterday, a victim's surviving family submitted testimony before the parole board in favor of clemency for Jeffrey Hill. Hill was convicted in 1992 on charges of aggravated murder, aggravated robbery, aggravated burglary and aggravated theft for killing his mother in a cocaine-induced frenzy. The board will announce its recommendation on February 6. Hill's execution is scheduled for March 3, 2009. Click here to view press coverage.
Circuit Upholds the Grant of Writ on Brady Claim
Today in Harris v. Lafler, 05-2104/2159, a non-capital habeas case, the Sixth Circuit panel (Rogers, Sutton, McKeague) affirmed the district court's grant of the writ on petitioner's Brady violation claim. Harris was convicted of second degree murder, among other charges, for shooting a fellow he had had a bar fight with from a moving vehicle on I-96. The Brady claim involved information that came to light after the trial showing that police had made several promises of leniency to the only witness linking Harris to the shooting.
Procedurally, Harris's petition contained three unexhausted claims out of thirteen. In ruling on the petition, the district court went straight to the merits and didn't address the state's argument that the court couldn't hear any of the claims until they were all exhausted. Ordinarily this would result in the Circuit vacating and remanding to do one of four things: 1) dismiss the entire petition; 2) stay and abey to permit the petitioner to present the unexhausted claims in state court; 3) permit the petitioner to dismiss the unexhausted claims and proceed; or 4) ignore the exhaustion requirement and deny the petition on the merits. In this case however, Harris had agreed in his brief to dismiss the unexhausted claims and the state had not insisted on a remand. The court reasoned that since the exhaustion requirement does not define subject matter jurisdiction it may be waived by the state. The court further reasoned that a speedy resolution to Harris's claims was in the best interest of both parties. Noting that the witness's testimony was the only piece of evidence against Harris, the court acknowledged that the state's promises to the witness gave him every incentive to lie in his testimony, and the suppression of the Brady material thus undermined confidence in the verdict.
Procedurally, Harris's petition contained three unexhausted claims out of thirteen. In ruling on the petition, the district court went straight to the merits and didn't address the state's argument that the court couldn't hear any of the claims until they were all exhausted. Ordinarily this would result in the Circuit vacating and remanding to do one of four things: 1) dismiss the entire petition; 2) stay and abey to permit the petitioner to present the unexhausted claims in state court; 3) permit the petitioner to dismiss the unexhausted claims and proceed; or 4) ignore the exhaustion requirement and deny the petition on the merits. In this case however, Harris had agreed in his brief to dismiss the unexhausted claims and the state had not insisted on a remand. The court reasoned that since the exhaustion requirement does not define subject matter jurisdiction it may be waived by the state. The court further reasoned that a speedy resolution to Harris's claims was in the best interest of both parties. Noting that the witness's testimony was the only piece of evidence against Harris, the court acknowledged that the state's promises to the witness gave him every incentive to lie in his testimony, and the suppression of the Brady material thus undermined confidence in the verdict.
Friday, January 16, 2009
SCOTUS Grants Cert in Bies
Today, SCOTUS granted cert from the Sixth Circuit's decision in Bies v. Bobby, 06-3471. The main question presented by the government was whether double jeopardy applies to a state post conviction hearing on the defendant's mental retardation where the defendant has already been found mentally retarded in state court. Michael Bies had presented evidence of his mental retardation in mitigation, argued it on appeal, and was found to be mentally retarded in the court of appeals. When the Supreme Court's Atkins decision was announced, he filed a successor postconviction action claiming he was ineligible for execution and that the state was estopped from contesting his claim in so much as it had already conceded that he was mentally retarded in the earlier proceedings. Information on the Supreme Court litigation is available here.
Wednesday, January 14, 2009
SCOTUS Opinion on Statute of Limitations Under AEDPA.
In Jimenez v. Quarterman, 07-6984, the Supreme Court of the United States interpreted the AEDPA statute of limitations provision under 28 U.S.C. 2244(d)(1) which provides that the one year limitation period runs "from the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." In this case, Jimenez's conviction became final on October 11, 1996, but a state appellate court determined on post conviction that he had been denied his right to appeal, so he was granted the right to file an out of time appeal. The appeal was denied and his time for seeking cert expired on January 6, 2004. Jimenez filed a second state post conviction application on December 6, 2004, which was denied on June 29, 2005. His federal habeas petition was filed on July 19, 2005. The district court dismissed his petition as time barred. Jimenez argued that the time for filing his petition did not begin to run until the expiration of the time for seeking cert on his delayed appeal - January 6, 2004.
The Court unanimously agreed. Justice Thomas wrote the opinion, holding that once a state court grants a defendant the right to a delayed appeal during state collateral review but before federal habeas, the original conviction is no longer final and the state court has essentially restored the pendency of the direct appeal. Therefore, Jimenez's conviction did not become final for purposes of 2244(d)(1) until January 6, 2004, when time for seeking cert on the appeal had expired. Based on the plain language of the statute, direct review cannot conclude until the availability of direct appeal to the state court is exhausted. Until that time there is no presumption of finality and legality tied to the conviction and sentence. While the state argued its reading of the statute was in keeping with Congress's desire as expressed in AEDPA to advance the finality of convictions and put review on a tight timeline, the Court's final word was that the statute means what it says.
The Court unanimously agreed. Justice Thomas wrote the opinion, holding that once a state court grants a defendant the right to a delayed appeal during state collateral review but before federal habeas, the original conviction is no longer final and the state court has essentially restored the pendency of the direct appeal. Therefore, Jimenez's conviction did not become final for purposes of 2244(d)(1) until January 6, 2004, when time for seeking cert on the appeal had expired. Based on the plain language of the statute, direct review cannot conclude until the availability of direct appeal to the state court is exhausted. Until that time there is no presumption of finality and legality tied to the conviction and sentence. While the state argued its reading of the statute was in keeping with Congress's desire as expressed in AEDPA to advance the finality of convictions and put review on a tight timeline, the Court's final word was that the statute means what it says.
Tuesday, January 13, 2009
Oral Argument Transcript in Harbison v. Bell
SCOTUS heard oral argument yesterday in the case of Harbison v. Bell, 07-8521. This case, on cert from the Sixth Circuit, presented the question of whether federally appointed attorneys may represent a client in subsequent clemency proceedings in state court. Needless to say, this case will have great impact on our work.
Sixth Circuit Refuses to Permit Petitioner to Proceed on a Successor Habeas Petition Under 28 U.S.C. 2244
The Sixth Circuit issued an order today denying Kevin Keith's motion to file a second habeas petition. In Keith v. Bobby, 08-3908, a divided panel took very different views of the evidence that had been presented at trial and whether new evidence discovered by Keith met the standard for permitting a successor petition.
Keith, an alleged drug dealer, was convicted in 1994 for killing two women and a child in retaliation against a suspected informant Keith believed was responsible for a raid. Keith based his motion on Brady material that was discovered subsequent to the affirmance of the denial of his first petition. In ruling on his motion, the majority (Boggs, Gibbons) found that the new evidence was insufficient to make it past AEDPA's presumption against repeat federal litigation of state court convictions. Specifically, there were two new pieces of evidence upon which Keith based his motion. First, a pharmacy board investigation had revealed that another individual had threatened to "cripple" the same informant for his participation in the raid. The second piece of information undermines testimony elicited at trial. A police detective testified that a hospital nurse had alerted the police that a fourth surviving shooting victim had identified Keith as his assailant shortly after regaining consciousness at the hospital. However, the detective was mistaken about the nurse's name in his testimony and the defense was never able to find her. When they did discover her name and track her down, she denied ever hearing the victim identify Keith as the shooter. While the victim subsequently identified Keith, the defense had argued that his identification was unduly influenced by the police.
The majority found that this new evidence did not even meet the "lenient" prima facie standard for a successor petition. According to the majority, the new evidence did not contradict any of the evidence used to directly prove Keith's guilt. The court stated that is was a "stretch" to say that the fact that another person had a motive, and that an eyewitness identification occurred after police contact and not independent of it, would constitute clear and convincing evidence that no reasonable fact finder would have returned a guilty verdict in light of all the other evidence against Keith. Besides the identification, that evidence included: a partial imprint of the license number of the getaway car after it crashed in a snow bank; eyewitness identification of Keith as the man driving the getaway car; a spent cartridge casing matching the ones from the scene that was found where Keith picked up his girlfriend.
The dissent (Clay) looked at the evidence quite differently. According to Judge Clay, the eyewitness identifications were not strong, and the Brady material would have significantly weakened the state's case. The evidence from the pharmacy board investigation included several additional statements by Melton that would have implicated him in the murders, as well as Melton's habit of wearing a mask like the one described by the witnesses to the murder. In light of the evidence as a whole, this would have bolstered evidence that a car registered to Melton had a license number with the same three digits that were obtained from the imprint in the snow bank, and his vehicle matched a witness's description of the getaway car, as well as other testimony that implicated Melton. The new evidence regarding the shooting victim's hospital identification would have removed the corroboration of otherwise weak testimony. The defense presented evidence that this witness had told several people, including a police officer, that he did not know who shot him and that the shooter was wearing a mask. The dissent reiterated the fact that the court was not being asked to rule on the merits of the petition, but rather whether Keith had presented sufficient allegations with some documentation to warrant further consideration by the district court. Looking at the new evidence in light of all the evidence presented at trial and the weaknesses in the state's case showed that Keith could convince a reasonable fact finder that he was not guilty of the murders.
Keith, an alleged drug dealer, was convicted in 1994 for killing two women and a child in retaliation against a suspected informant Keith believed was responsible for a raid. Keith based his motion on Brady material that was discovered subsequent to the affirmance of the denial of his first petition. In ruling on his motion, the majority (Boggs, Gibbons) found that the new evidence was insufficient to make it past AEDPA's presumption against repeat federal litigation of state court convictions. Specifically, there were two new pieces of evidence upon which Keith based his motion. First, a pharmacy board investigation had revealed that another individual had threatened to "cripple" the same informant for his participation in the raid. The second piece of information undermines testimony elicited at trial. A police detective testified that a hospital nurse had alerted the police that a fourth surviving shooting victim had identified Keith as his assailant shortly after regaining consciousness at the hospital. However, the detective was mistaken about the nurse's name in his testimony and the defense was never able to find her. When they did discover her name and track her down, she denied ever hearing the victim identify Keith as the shooter. While the victim subsequently identified Keith, the defense had argued that his identification was unduly influenced by the police.
The majority found that this new evidence did not even meet the "lenient" prima facie standard for a successor petition. According to the majority, the new evidence did not contradict any of the evidence used to directly prove Keith's guilt. The court stated that is was a "stretch" to say that the fact that another person had a motive, and that an eyewitness identification occurred after police contact and not independent of it, would constitute clear and convincing evidence that no reasonable fact finder would have returned a guilty verdict in light of all the other evidence against Keith. Besides the identification, that evidence included: a partial imprint of the license number of the getaway car after it crashed in a snow bank; eyewitness identification of Keith as the man driving the getaway car; a spent cartridge casing matching the ones from the scene that was found where Keith picked up his girlfriend.
The dissent (Clay) looked at the evidence quite differently. According to Judge Clay, the eyewitness identifications were not strong, and the Brady material would have significantly weakened the state's case. The evidence from the pharmacy board investigation included several additional statements by Melton that would have implicated him in the murders, as well as Melton's habit of wearing a mask like the one described by the witnesses to the murder. In light of the evidence as a whole, this would have bolstered evidence that a car registered to Melton had a license number with the same three digits that were obtained from the imprint in the snow bank, and his vehicle matched a witness's description of the getaway car, as well as other testimony that implicated Melton. The new evidence regarding the shooting victim's hospital identification would have removed the corroboration of otherwise weak testimony. The defense presented evidence that this witness had told several people, including a police officer, that he did not know who shot him and that the shooter was wearing a mask. The dissent reiterated the fact that the court was not being asked to rule on the merits of the petition, but rather whether Keith had presented sufficient allegations with some documentation to warrant further consideration by the district court. Looking at the new evidence in light of all the evidence presented at trial and the weaknesses in the state's case showed that Keith could convince a reasonable fact finder that he was not guilty of the murders.
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