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.

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.

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.

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.

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.