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Post Conviction Update
by Walter M. Reaves, Jr.
This column will address recent decisions which have some impact on post-conviction procedure. The summary is by no means exhaustive, and contains only those decisions which may have some potential impact on defendants pursuing to post-conviction claims. For the most part, the decisions are from the federal courts. In some cases, exceptionally significant state court decisions will by summarized.
Limits on Pro se Representation
The Supreme Court recently decided an important case which will be of interest to most inmates. Most everyone has assumed that a defendant has the right to represent themselves on appeal, just as they do at trial. The right to pro se representation at trial was recognized in Faretta v. California 422 U.S. 806, 95 S.Ct. 2525 (1975) the failure to comply with a timely request before trial generally constitutes structural type error, which will warrant relief. Addressing the same issue in the context of a direct appeal, the Court in Martinez v. State, No. 98-7809, U.S. , 120 S.Ct. 684 (1/12/00), held a defendant does not have the right to represent themselves. Therefore, defendant's can be forced to proceed with appointed counsel.
Habeas Corpus
The Ninth circuit recently addressed what rights can be raised by federal prisoners in a habeas corpus petition in United States v. Valdez, 195 F.3d 544 (9th Cir. 1999). The court addressed the one-year limitation which starts when the right asserted is initially recognized by the Supreme Court. The court held the right in question need not be a constitutional one, which benefitted the defendant in this case because he was relying on the holding in Bailey v. United States. The court also held that if the Supreme Court subsequently declares a right retroactive, the date of that decision is the controlling one.
Another significant decision is Johnson v. United States, 196 F.3d 802 (7th Cir. 1999). The question there was whether an amendment to a timely filed writ was a successive writ. The court held a defendant should be allowed one full opportunity to seek review. Therefore, the defendant should be allowed to amend a petition any time before a decision is rendered. Such amendments should be allowed even if a response has been filed.
The second circuit considered the issue of timely filing in Bennet v. Artuz, 199 F. 3d 116 (2nd Cir. 1999). The issue before the court was whether a state court application that was procedurally barred tolled the limitations period. The court held a state court petition is properly filed when it is submitted in accordance with general procedural requirements. Thus, limitations is tolled from the time the petition is filed, until finally disposed, even if subsequently dismissed on procedural grounds. The Fifth Circuit reached the same result in Villegas v. Johnson, 184 F.3d 467 (5th Cir. 1999). There, the Court held a state petition was "properly filed" even though it was subsequently dismissed on procedural grounds. Reaching the opposite result is the Ninth Circuit, in Dictado v. Ducharme, 189 F.3d 889 (9th Cir. 1999)
In another significant decision on tolling, the Fifth Circuit held in Ott v. Johnson, 192 F.3d 510 (5th Cir. 1999) that limitations is not tolled during the time a state defendant could have sought Supreme Court review, where such review is not actually sought. Thus, if a petition for writ of certiorari is not filed, the limitation period will run from the Court of Appeals judgment.
Habeas relief was granted in Dubria v. Smith, 197 F.3d 390 (9th Cir. 1999). The trial court refused to redact information in a pre-arrest interview concerning the officer's opinion of the defendant's guilt. During the interview the officer repeatedly stated that he had no doubt about the defendant's guilt, and that no one would believe the defendant's story. During final argument, the prosecutor argued without objection that the defendant was a liar, was garbage, and suggested there was evidence which would support his guilt. Considering both those errors together, the Court concluded the defendant did not receive a fair trail.
Habeas relief was also granted in Spicer v. Roxbury Correctional Institute, 194 F.3d 547 (4th Cir. 1999). An eyewitness who testified in exchange for leniency had initially told his attorney that he did not see anything. That fact was not disclosed to the defense, which the Court found was a Brady violation. The Court also found the State Court decision was contrary to, or involved an unreasonable application of clearly established federal law, and granted relief. The reason for that decision is probably because the State Court indicated that relief could be granted only if the undisclosed material was exculpatory, and not merely impeachment material.
Another successful habeas case is Newman v. Hopkins, 192 F.3d 1132 (8th Cir. 1999). The victim of a sexual assault testified her attacker spoke with a Hispanic accent. The defendant attempted to introduce a voice exemplar to prove he had no accent, but the trial court would not let him do so unless he submitted to cross-examination. The Court found that was error, and also found it was an unreasonable application of federal law. The Court then went on to apply a harmless error analysis since that had not been done by the State Courts, and granted relief. (Note: most circuits do not apply the Chapman harmless error analysis, but instead use the more stringent test set forth in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710 (1999). The Sixth Circuit recently reaffirmed that approach in Gilliam v. Mitchell, 179 F.3d 990 (6th Cir. 1999).)
The Eighth Circuit adopted a somewhat expansive standard of review under the A.E.D.P.A. in Long v. Humphrey, 184 F.3d 758 (8th Cir. 1999). In construing the unreasonable application prong of the statute, the court held that relief can be granted if the state court decision "evaluated objectively and on the merits, resulted in an outcome that cannot be reasonably justified under existing Supreme Court precedent." This standard is different from many circuits, such as the Fifth Circuit, which apply a more subjective test. Under the test in the Eighth Circuit, the decision will be evaluated on the merits, and if it does not appear to be reasonable, then relief can be granted. This issue is currently before the Supreme Court, and a decision should be coming down this year.
The defendant in Smalls v. Batista, 191 F.3d 272 (2nd Cir. 1999) was able to obtain relief in a habeas action because of an erroneous jury instruction. The court submitted an Allen charge to a deadlocked jury. The charge was defective because it failed to emphasis the necessity of remaining firm in each jurors own beliefs. The court held the instruction was both contrary to and an unreasonable application of clearly established federal law, and granted relief.
Search and Seizure
The Supreme Court recently reaffirmed that there is no crime scene exception to the warrant requirement. In Flippo v. West Virginia, ---- U.S. ---- , 120 S.Ct. 7 (1999), the police were called to the scene of a domestic disturbance. They found the defendant's wife dead and commenced to conduct an exhaustive search of the property. The court held that while police may search for other victims, or the killer, they cannot conduct a general search without warrant.
United States v. Pruitt, 192 F.3d 132 (11th Cir. 1999). Questioning a driver stopped for speeding about matters unrelated to the stop may violate the fourth amendment. Here, the officer asked the defendant about the purpose of his trip, his occupation, and how much he paid he paid for his van. He also asked if there drugs or anything illegal in the van. The officer finally asked for and received consent to search. Court holds the lengthy detention, in the absence of reasonable suspicion, was improper. Court also expressed concern that the defendants were detained solely because they were Hispanic, and the van had out-of-state tags.
Sentencing
Addressing departures, the court in United States v. Coleman, 188 F.3d 354 (6th Cir. 1999), held that any factor not specifically forbidden by the guidelines can be the basis for a departure. The court further held that a sentencing court may aggregate departure factors that standing alone may not be sufficient to support the departure. Here, selective prosecution was a permissible factor to consider.
The defendant's sentence in United States v. Crawford, 169 F.3d 590 (9th Cir. 1999), was enhanced based on his distribution of drugs within 1000 feet of a school. The defendant was originally charged with distributing drugs in a protected location, but plead guilty to a different distribution charge which was not in a protected location. The enhancement was based on relevant conduct. The court hold that relevant conduct has no role in choosing the applicable offense guidelines section, and therefore, the enhancement was not proper.
The Sixth Circuit recently addressed the ability to impose a more severe sentence on a defendant following a successful appeal. In United States v. Jackson, 181 F.3d 740 (6th Cir. 1999) the judge relied on a revised pre-sentence report, which included a prior conviction that the original report had overlooked. Under North Carolina v. Pierce, there is a presumption of vindictiveness when a harsher sentence is imposed, which can be rebutted in some cases. The court held that the presumption was not rebutted in this case, even though the court thoroughly articulated its reasons for imposing a more severe sentence. The factors on which the sentence was based existed at the time the original sentence was imposed, and the court failed to set forth any conduct or factor which came to the court's attention after the first sentence was imposed.
Unjustified departures - United States v. McMutuary, 200 F.3d 499 (7th Cir. 1999). The Court departed below the statutory minimum on a co-defendant without a government motion. As a result, the co-defendant received home detention, while the other defendants faced sentences ranging from 135 to 198 months. Court holds unjustified departure on a co-defendant may be basis for departure sentence on other defendants. This is different from the case where departure for the co-defendant is justified, which cannot be basis for departure.
Sentencing - aiding and abetting - United States v. Hendrick, 177 F.3d 547 (6th Cir. 1999). Defendant was convicted of aiding and abetting the possession of a firearm by a felon. The principal's offense level was 24, based on 2 convictions for controlled substance offenses or crimes of violence. The Court assessed the same offense level to the defendant, even though he did not have two such convictions. Court holds the offense level must be based on the defendant's own criminal record.
In United States v. Dale, 178 F.3d 429 (6th Cir. 1999), the defendant was charged with conspiracy to distribute both crack cocaine and marijuana. The jury returned a general verdict finding the defendant guilty. Court holds that where general verdict is returned, court should sentence the defendant for the offense carrying the shorter sentence.
Miscellaneous
An extremely significant decision is Dodd v. State, 2000 WL 12030, 2000 OK CR 2 (Okla. Crim. App. Jan. 06, 2000)(No. F-97-26). There, the court addressed the common practice of using jailhouse informers. The court noted inherent unreliability of such witnesses, and held a court should be "exceedingly leery" of such witnesses, especially where there is an indication that they may have received some benefit in return for their testimony. The court established a procedure whereby a defendant must be given notice before trial of such testimony, as well as information concerning benefits the informant may have received, and information which could be used to impeach them. The court also required a reliability hearing.
Brady violations - Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936 (1999). A capital defendant failed to obtain relief based on a significant Brady violation because he could not meet the high standard of harm to establish such violations. The state failed to disclose information which cast doubt on the strength of a eyewitness' testimony. The court had no problem in finding the undisclosed evidence was "material." However, the defendant could not go farther and establish a "reasonable probability" that the outcome might have been different. That test requires more than showing that the evidence "might have" changed the outcome. In a favorable portion of the opinion, the Court did note that the test is not whether the evidence is sufficient to sustain the verdict after discounting the inculpatory evidence in light of the undisclosed evidence. In a threshold issue, the Court held the defendant did not default this claim by failing to bring it earlier. There was cause for not asserting the claim earlier because the documents had been suppressed, despite the prosecution's open file policy. Counsel are not required to advance claims for which they have no evidentiary support, and which based only on speculation. The fact that they knew the witness had been interviewed several times did not mean they knew there were notes of those interviews.
In Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887 (1999), the Court considered the admissibility of co-defendant's confession which placed much of the blame on the defendant. A four judge plurality held the statements were not within a firmly rooted exception to the hearsay rule, and were not sufficiently reliable to be admissible. Even though a determination of trustworthiness is fact intensive, the Court did not consider itself bound by the lower court decision. The other judges left open the possibility that in some situations an accomplice's statements implicating a defendant may be admissible.
[This summary has been prepared by Walter M. Reaves, Jr., who is a licensed attorney in the State of Texas. Mr. Reaves is Board Certified in Criminal Law by the Texas Board of Legal Specialization, and is in private practice concentrating on post-conviction litigation. He also is an adjunct professor at Baylor Law School, teaching post-conviction procedure. Mr. Reaves's can be reached at P.O. Box 55, West, Texas 76691. He also maintains a web site with information on post-conviction procedure, which can be found at www.postconviction.com.]
This column will address recent decisions which have some impact on post-conviction procedure. The summary is by no means exhaustive, and contains only those decisions which may have some potential impact on defendants pursuing to post-conviction claims. For the most part, the decisions are from the federal courts. In some cases, exceptionally significant state court decisions will by summarized.
Limits on Pro se Representation
The Supreme Court recently decided an important case which will be of interest to most inmates. Most everyone has assumed that a defendant has the right to represent themselves on appeal, just as they do at trial. The right to pro se representation at trial was recognized in Faretta v. California 422 U.S. 806, 95 S.Ct. 2525 (1975) the failure to comply with a timely request before trial generally constitutes structural type error, which will warrant relief. Addressing the same issue in the context of a direct appeal, the Court in Martinez v. State, No. 98-7809, U.S. , 120 S.Ct. 684 (1/12/00), held a defendant does not have the right to represent themselves. Therefore, defendant's can be forced to proceed with appointed counsel.
Habeas Corpus
The Ninth circuit recently addressed what rights can be raised by federal prisoners in a habeas corpus petition in United States v. Valdez, 195 F.3d 544 (9th Cir. 1999). The court addressed the one-year limitation which starts when the right asserted is initially recognized by the Supreme Court. The court held the right in question need not be a constitutional one, which benefitted the defendant in this case because he was relying on the holding in Bailey v. United States. The court also held that if the Supreme Court subsequently declares a right retroactive, the date of that decision is the controlling one.
Another significant decision is Johnson v. United States, 196 F.3d 802 (7th Cir. 1999). The question there was whether an amendment to a timely filed writ was a successive writ. The court held a defendant should be allowed one full opportunity to seek review. Therefore, the defendant should be allowed to amend a petition any time before a decision is rendered. Such amendments should be allowed even if a response has been filed.
The second circuit considered the issue of timely filing in Bennet v. Artuz, 199 F. 3d 116 (2nd Cir. 1999). The issue before the court was whether a state court application that was procedurally barred tolled the limitations period. The court held a state court petition is properly filed when it is submitted in accordance with general procedural requirements. Thus, limitations is tolled from the time the petition is filed, until finally disposed, even if subsequently dismissed on procedural grounds. The Fifth Circuit reached the same result in Villegas v. Johnson, 184 F.3d 467 (5th Cir. 1999). There, the Court held a state petition was "properly filed" even though it was subsequently dismissed on procedural grounds. Reaching the opposite result is the Ninth Circuit, in Dictado v. Ducharme, 189 F.3d 889 (9th Cir. 1999)
In another significant decision on tolling, the Fifth Circuit held in Ott v. Johnson, 192 F.3d 510 (5th Cir. 1999) that limitations is not tolled during the time a state defendant could have sought Supreme Court review, where such review is not actually sought. Thus, if a petition for writ of certiorari is not filed, the limitation period will run from the Court of Appeals judgment.
Habeas relief was granted in Dubria v. Smith, 197 F.3d 390 (9th Cir. 1999). The trial court refused to redact information in a pre-arrest interview concerning the officer's opinion of the defendant's guilt. During the interview the officer repeatedly stated that he had no doubt about the defendant's guilt, and that no one would believe the defendant's story. During final argument, the prosecutor argued without objection that the defendant was a liar, was garbage, and suggested there was evidence which would support his guilt. Considering both those errors together, the Court concluded the defendant did not receive a fair trail.
Habeas relief was also granted in Spicer v. Roxbury Correctional Institute, 194 F.3d 547 (4th Cir. 1999). An eyewitness who testified in exchange for leniency had initially told his attorney that he did not see anything. That fact was not disclosed to the defense, which the Court found was a Brady violation. The Court also found the State Court decision was contrary to, or involved an unreasonable application of clearly established federal law, and granted relief. The reason for that decision is probably because the State Court indicated that relief could be granted only if the undisclosed material was exculpatory, and not merely impeachment material.
Another successful habeas case is Newman v. Hopkins, 192 F.3d 1132 (8th Cir. 1999). The victim of a sexual assault testified her attacker spoke with a Hispanic accent. The defendant attempted to introduce a voice exemplar to prove he had no accent, but the trial court would not let him do so unless he submitted to cross-examination. The Court found that was error, and also found it was an unreasonable application of federal law. The Court then went on to apply a harmless error analysis since that had not been done by the State Courts, and granted relief. (Note: most circuits do not apply the Chapman harmless error analysis, but instead use the more stringent test set forth in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710 (1999). The Sixth Circuit recently reaffirmed that approach in Gilliam v. Mitchell, 179 F.3d 990 (6th Cir. 1999).)
The Eighth Circuit adopted a somewhat expansive standard of review under the A.E.D.P.A. in Long v. Humphrey, 184 F.3d 758 (8th Cir. 1999). In construing the unreasonable application prong of the statute, the court held that relief can be granted if the state court decision "evaluated objectively and on the merits, resulted in an outcome that cannot be reasonably justified under existing Supreme Court precedent." This standard is different from many circuits, such as the Fifth Circuit, which apply a more subjective test. Under the test in the Eighth Circuit, the decision will be evaluated on the merits, and if it does not appear to be reasonable, then relief can be granted. This issue is currently before the Supreme Court, and a decision should be coming down this year.
The defendant in Smalls v. Batista, 191 F.3d 272 (2nd Cir. 1999) was able to obtain relief in a habeas action because of an erroneous jury instruction. The court submitted an Allen charge to a deadlocked jury. The charge was defective because it failed to emphasis the necessity of remaining firm in each jurors own beliefs. The court held the instruction was both contrary to and an unreasonable application of clearly established federal law, and granted relief.
Search and Seizure
The Supreme Court recently reaffirmed that there is no crime scene exception to the warrant requirement. In Flippo v. West Virginia, ---- U.S. ---- , 120 S.Ct. 7 (1999), the police were called to the scene of a domestic disturbance. They found the defendant's wife dead and commenced to conduct an exhaustive search of the property. The court held that while police may search for other victims, or the killer, they cannot conduct a general search without warrant.
United States v. Pruitt, 192 F.3d 132 (11th Cir. 1999). Questioning a driver stopped for speeding about matters unrelated to the stop may violate the fourth amendment. Here, the officer asked the defendant about the purpose of his trip, his occupation, and how much he paid he paid for his van. He also asked if there drugs or anything illegal in the van. The officer finally asked for and received consent to search. Court holds the lengthy detention, in the absence of reasonable suspicion, was improper. Court also expressed concern that the defendants were detained solely because they were Hispanic, and the van had out-of-state tags.
Sentencing
Addressing departures, the court in United States v. Coleman, 188 F.3d 354 (6th Cir. 1999), held that any factor not specifically forbidden by the guidelines can be the basis for a departure. The court further held that a sentencing court may aggregate departure factors that standing alone may not be sufficient to support the departure. Here, selective prosecution was a permissible factor to consider.
The defendant's sentence in United States v. Crawford, 169 F.3d 590 (9th Cir. 1999), was enhanced based on his distribution of drugs within 1000 feet of a school. The defendant was originally charged with distributing drugs in a protected location, but plead guilty to a different distribution charge which was not in a protected location. The enhancement was based on relevant conduct. The court hold that relevant conduct has no role in choosing the applicable offense guidelines section, and therefore, the enhancement was not proper.
The Sixth Circuit recently addressed the ability to impose a more severe sentence on a defendant following a successful appeal. In United States v. Jackson, 181 F.3d 740 (6th Cir. 1999) the judge relied on a revised pre-sentence report, which included a prior conviction that the original report had overlooked. Under North Carolina v. Pierce, there is a presumption of vindictiveness when a harsher sentence is imposed, which can be rebutted in some cases. The court held that the presumption was not rebutted in this case, even though the court thoroughly articulated its reasons for imposing a more severe sentence. The factors on which the sentence was based existed at the time the original sentence was imposed, and the court failed to set forth any conduct or factor which came to the court's attention after the first sentence was imposed.
Unjustified departures - United States v. McMutuary, 200 F.3d 499 (7th Cir. 1999). The Court departed below the statutory minimum on a co-defendant without a government motion. As a result, the co-defendant received home detention, while the other defendants faced sentences ranging from 135 to 198 months. Court holds unjustified departure on a co-defendant may be basis for departure sentence on other defendants. This is different from the case where departure for the co-defendant is justified, which cannot be basis for departure.
Sentencing - aiding and abetting - United States v. Hendrick, 177 F.3d 547 (6th Cir. 1999). Defendant was convicted of aiding and abetting the possession of a firearm by a felon. The principal's offense level was 24, based on 2 convictions for controlled substance offenses or crimes of violence. The Court assessed the same offense level to the defendant, even though he did not have two such convictions. Court holds the offense level must be based on the defendant's own criminal record.
In United States v. Dale, 178 F.3d 429 (6th Cir. 1999), the defendant was charged with conspiracy to distribute both crack cocaine and marijuana. The jury returned a general verdict finding the defendant guilty. Court holds that where general verdict is returned, court should sentence the defendant for the offense carrying the shorter sentence.
Miscellaneous
An extremely significant decision is Dodd v. State, 2000 WL 12030, 2000 OK CR 2 (Okla. Crim. App. Jan. 06, 2000)(No. F-97-26). There, the court addressed the common practice of using jailhouse informers. The court noted inherent unreliability of such witnesses, and held a court should be "exceedingly leery" of such witnesses, especially where there is an indication that they may have received some benefit in return for their testimony. The court established a procedure whereby a defendant must be given notice before trial of such testimony, as well as information concerning benefits the informant may have received, and information which could be used to impeach them. The court also required a reliability hearing.
Brady violations - Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936 (1999). A capital defendant failed to obtain relief based on a significant Brady violation because he could not meet the high standard of harm to establish such violations. The state failed to disclose information which cast doubt on the strength of a eyewitness' testimony. The court had no problem in finding the undisclosed evidence was "material." However, the defendant could not go farther and establish a "reasonable probability" that the outcome might have been different. That test requires more than showing that the evidence "might have" changed the outcome. In a favorable portion of the opinion, the Court did note that the test is not whether the evidence is sufficient to sustain the verdict after discounting the inculpatory evidence in light of the undisclosed evidence. In a threshold issue, the Court held the defendant did not default this claim by failing to bring it earlier. There was cause for not asserting the claim earlier because the documents had been suppressed, despite the prosecution's open file policy. Counsel are not required to advance claims for which they have no evidentiary support, and which based only on speculation. The fact that they knew the witness had been interviewed several times did not mean they knew there were notes of those interviews.
In Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887 (1999), the Court considered the admissibility of co-defendant's confession which placed much of the blame on the defendant. A four judge plurality held the statements were not within a firmly rooted exception to the hearsay rule, and were not sufficiently reliable to be admissible. Even though a determination of trustworthiness is fact intensive, the Court did not consider itself bound by the lower court decision. The other judges left open the possibility that in some situations an accomplice's statements implicating a defendant may be admissible.
[This summary has been prepared by Walter M. Reaves, Jr., who is a licensed attorney in the State of Texas. Mr. Reaves is Board Certified in Criminal Law by the Texas Board of Legal Specialization, and is in private practice concentrating on post-conviction litigation. He also is an adjunct professor at Baylor Law School, teaching post-conviction procedure. Mr. Reaves's can be reached at P.O. Box 55, West, Texas 76691. He also maintains a web site with information on post-conviction procedure, which can be found at www.postconviction.com.]
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