Habeas Corpus Procedure In Capital Representation: Recent Developments In SCOTUS Richard Levitt Levitt & Kaizer 40 Fulton Street, 23rd Floor New York, N.Y. 10038 (212) 480-4000 www.levittandkaizer.com

We will discuss: •

the requirements for a successful habeas

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the strategies to overcome habeas roadblocks

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threshold matters in capital habeas proceedings, e.g., the right to counsel

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the historical role of actual innocence in habeas proceedings

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key provisions of the AEDPA

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the retroactive application of new law under the AEDPA

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the “cause and prejudice” exception to procedural default

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overcoming the presumption of correctness of state fact-finding

Number Of Executions

Federal Executions 1964-Present

Procedural Hurdles to § 2254 Relief •

Are you alleging that the petitioner is held in violation of the Constitution or laws or treaties of the United States? (§ 2254(a))

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Is the petition timely? (§ 2244(d)(1))

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Is petition a second or other successive petition? (§ 2241(a))

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Were state court remedies exhausted? (§ 2254(b)(1))

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Does state court adjudication rest on an adequate and independent state law ground, i.e. one “firmly established and regularly followed”? (Coleman v. Thompson, 501 U.S. 722 (1991))

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Did state court’s adjudication result in a decision that was •

contrary to, or involved an unreasonable application of, established S.C. law or was

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based on an unreasonable determination of the facts? (§ 2254(d))

AEDPA Avoidance Maneuvers •

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Avoid one-year time limit on initial petition • equitable estoppel • actual innocence Avoid successive petition prohibition • new rule of constitutional law, made retroactive by SCOTUS, or • factual predicate could not have been discovered through due diligence and • clear and convincing evidence of actual innocence

AEDPA Avoidance Maneuvers, Cont’d •

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Avoid exhaustion requirement • show absence of available State corrective process • circumstances exist that render such process ineffective Avoid procedural default/“adequate and independent” state law ground for denial (e.g., contemporaneous objection rule) • cause and prejudice • the “adequate” and “independent” state law ground not regularly followed • no counsel or counsel ineffective at initial-review collateral proceeding • actual innocence

Avoiding The AEDPA Through Direct Review Of State Court Proceedings •

Wearry v. Cain, 136 S.Ct. 1002 (3.7.2016) (p.c.) Judge Alito in dissent: “One consequence of waiting until the claim was raised in a federal habeas proceeding is that our review would then be governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, relief could be granted only if it could be said that the state court's rejection of the claim represented an “unreasonable application” of Brady. 28 U.S.C. § 2254(d)(1). By intervening now before AEDPA comes into play, the Court avoids the application of that standard and is able to exercise plenary review”

Foster v. Chatman, 136 S.Ct. 1737 (5.23.2016) (Roberts) Batson Challenge

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Georgia state habeas court said consideration of Batson issue barred by res judicata but said it would “mak[e] findings of fact and conclusions of law” on that claim and, after doing so, found it to be “without merit,” because Petitioner had “fail[ed] to demonstrate purposeful discrimination”

State repeated, on cert, that habeas was denied on independent and adequate ground of res judicata

Supreme Court: When application of a state law bar “depends on a federal constitutional ruling, the state-law prong of the court's holding is not independent of federal law, and our jurisdiction is not precluded”

Threshold Matters: Generally No Right To Counsel In Non-Death Habeas Proceedings

“[T]he right to appointed counsel extends to the first appeal of right, and no further”




Pennsylvania v. Finley, 481 U.S. 551, 555 (1987)

Threshold Matters: Right To Counsel In Capital Habeas: 18 U.S.C. § 3599 (2) In any post conviction proceeding under section 2254 or 2255 of title 28, United States Code, seeking to vacate or set aside a death sentence, any defendant who is or becomes financially unable to obtain adequate representation or investigative, expert, or other reasonably necessary services shall be entitled to the appointment of one or more attorneys and the furnishing of such other services in accordance with subsections (b) through (f)

Right To Substitute Counsel To Argue Equitable Tolling Based On Ineffectiveness
 Christeson v. Roper, 135 S. Ct. 891 (2015) (p.c.) • Missouri death-sentenced petitioner’s first federal habeas dismissed as untimely because appointed attorneys missed deadline • Petitioner requested non-conflicted substitute counsel to argue equitable tolling based on counsels’ abandonment • District court denied request on four grounds, including, its belief that granting the motion would set “an untenable precedent” by allowing outside attorneys to seek “abusive” delays in capital cases. • Eighth Circuit summarily affirmed • Result?

Christeson v. Roper, Cont’d “The court's principal error was its failure to acknowledge Horwitz and Butts' conflict of interest. Tolling based on counsel's failure to satisfy AEDPA's statute of limitations is available only for “serious instances of attorney misconduct.” Advancing such a claim would have required Horwitz and Butts to denigrate their own performance. Counsel cannot reasonably be expected to make such an argument, which threatens their professional reputation and livelihood.” 
 Christeson v. Roper, 135 S. Ct. 891, 894 (2015)

Threshold Matters: Is There A Right To Competence During Habeas Proceedings? Ryan v. Gonzales, 133 S.Ct. 696 (2013) (Thomas) •

Death row petitioners in two separate habeas proceedings (in Arizona and Ohio) sought and obtained stays of their habeas petitions insofar as Petitioners’ participation required, upon determinations of incompetence, finding, inter alia, a right to competence during such proceedings inherent in the right to counsel in capital habeas proceedings

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In each case, state appealed

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Result?

Ryan v. Gonzales, Cont’d No right to a stay of habeas proceedings during period of incompetence (and here, for most part, Petitioners’ participation unnecessary), however: “If a district court concludes that the petitioner's claim could substantially benefit from the petitioner's assistance, the district court should take into account the likelihood that the petitioner will regain competence in the foreseeable future. Where there is no reasonable hope of competence, a stay is inappropriate and merely frustrates the State's attempts to defend its presumptively valid judgment” 
 Ryan v. Gonzales, 133 S. Ct. 696, 709 (2013)

The Right To An Impartial Judge

Threshold Matters: The Right To An Impartial Judge Williams v. Pennsylvania, 2016 WL 3189529 (6.9.2016) (Kennedy) •

Then- Philadelphia DA Ronald Castille approved trial prosecutor’s request to seek death penalty and Williams was sentenced to death

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Years later Williams brought and won successive petition based on newly discovered Brady violations by trial DA, and stay of execution was granted

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Castille, meanwhile, had become PA S.C. chief justice and, over Williams’ recusal request, vacated stay then joined majority opinion reinstating death sentence

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Got a problem with that?

Williams v. Pennsylvania, Cont’d “When a judge has served as an advocate for the State in the very case the court is now asked to adjudicate, a serious question arises as to whether the judge, even with the most diligent effort, could set aside any personal interest in the outcome. There is, furthermore, a risk that the judge ‘would be so psychologically wedded’ to his or her previous position as a prosecutor that the judge ‘would consciously or unconsciously avoid the appearance of having erred or changed position.’” 
 Williams v. Pennsylvania, 136 S. Ct. at 1906

Avoiding The Limitations Of The AEDPA: The Role Of Actual Innocence In Habeas Proceedings “Last year, in 2014, six death row inmates were exonerated based on actual innocence. All had been imprisoned for more than 30 years (and one for almost 40 years) at the time of their exonerations. National Registry of Exonerations, Exonerations in 2014, p. 2 (2015)” 
 Glossip v. Gross, 135 S. Ct. 2726, 2757 (2015) (§ 1983 action challenging 3-drug method of execution) (Breyer, dissenting)

Exonerations

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Since 1973, defendants were convicted, sentenced to death and subsequently either: a. acquitted of all charges related to the crime that placed them on death row, or b. Had all charges related to the crime that placed them on death row dismissed by the prosecution, or c. Been granted a complete pardon based on evidence of innocence.

Exonerations

156

Since 1973, defendants were convicted, sentenced to death and subsequently either: a. acquitted of all charges related to the crime that placed them on death row, or b. Had all charges related to the crime that placed them on death row dismissed by the prosecution, or c. Been granted a complete pardon based on evidence of innocence.

Death Row Exonerations By State

The Role Of Actual Innocence In Habeas Proceedings ????? “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent. Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged ‘actual innocence’ is constitutionally cognizable” In re Davis, 557 U.S. 952 (2009) (Scalia, dissenting)

New York State Law

“[A]s a matter of first impression at the appellate level, defendant's freestanding claim of actual innocence may be addressed via motion to vacate judgment of conviction”

People v. Hamilton, 115 A.D.3d 12, 979 N.Y.S.2d 97 (2d Dept. 2014)

Actual Innocence — Historical Perspective Sanders v. United States, 373 U.S. 1 (1963) (Brennan) A. SUCCESSIVE MOTIONS ON GROUNDS PREVIOUSLY HEARD AND DETERMINED “Controlling weight may be given to denial of a prior application for federal habeas corpus or s 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application”

B. THE SUCCESSIVE APPLICATION CLAIMED TO BE AN ABUSE OF REMEDY

“No matter how many prior applications for federal collateral relief a prisoner has made, the principle elaborated in Subpart A, supra, cannot apply if a different ground is presented by the new application. So too, it cannot apply if the same ground was earlier presented but not adjudicated on the merits. In either case, full consideration of the merits of the new application can be avoided only if there has been an abuse of the writ or motion remedy; and this the Government has the burden of pleading

“Controlling weight may be given to denial of a prior application for federal habeas corpus or s 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application”

Actual Innocence — Historical Perspective Sanders v. United States, 373 U.S. 1 (1963) (Brennan) A. SUCCESSIVE MOTIONS ON GROUNDS PREVIOUSLY HEARD AND DETERMINED “Controlling weight may be given to denial of a prior application for federal habeas corpus or s 2255 relief only if (1) the same ground presented in the subsequent application was determined adversely to the applicant on the prior application, (2) the prior determination was on the merits, and (3) the ends of justice would not be served by reaching the merits of the subsequent application”

B. THE SUCCESSIVE APPLICATION CLAIMED TO BE AN ABUSE OF REMEDY

“No matter how many prior applications for federal collateral relief a prisoner has made, the principle elaborated in Subpart A, supra, cannot apply if a different ground is presented by the new application. So too, it cannot apply if the same ground was earlier presented but not adjudicated on the merits. In either case, full consideration of the merits of the new application can be avoided only if there has been an abuse of the writ or motion remedy; and this the Government has the burden of pleading

“No matter how many prior applications for federal collateral relief a prisoner has made, the principle elaborated in Subpart A, supra, cannot apply if a different ground is presented by the new application. So too, it cannot apply if the same ground was earlier presented but not adjudicated on the merits. In either case, full consideration of the merits of the new application can be avoided only if there has been an abuse of the writ or motion remedy; and this the Government has the burden of pleading

Actual Innocence, Cont’d Successive Petitions: Kuhlmann v. Wilson, 477 U.S. 436, 454 (1986) (Powell) “In the light of the historic purpose of habeas corpus and the interests implicated by successive petitions for federal habeas relief from a state conviction, we conclude that the ‘ends of justice’ require federal courts to entertain such petitions only where the prisoner supplements his constitutional claim with a colorable showing of factual innocence” Procedural Defaults: Murray v. Carrier, 477 U.S. 478, 496 (1986) (O’Connor) “[W]e think that in an extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent, a federal habeas court may grant the writ even in the absence of a showing of cause for the procedural default” Standard of Proof: Sawyer v. Whitley, 505 U.S. 333 (1992) (Rehnquist)

In order to demonstrate actual innocence to permit court to consider merits of successive, abusive, or defaulted federal habeas claims that fail cause and prejudice requirement, petitioner must show by clear and convincing evidence that but for constitutional error, no reasonable juror would have found petitioner eligible for death penalty under applicable state law

Departing from the “more likely than not” standard

Sawyer v. Whitley, Cont’d Justice BLACKMUN, concurring in the judgment: …I believe that the Court today adopts an unduly cramped view of “actual innocence.” I write separately not to discuss the specifics of the Court's standard, but instead to reemphasize my opposition to an implicit premise underlying the Court's decision: that the only “fundamental miscarriage of justice” in a capital proceeding that warrants redress is one where the petitioner can make out a claim of “actual innocence.” I also write separately to express my ever-growing skepticism that, with each new decision from this Court constricting the ability of the federal courts to remedy constitutional errors, the death penalty really can be imposed fairly and in accordance with the requirements of the Eighth Amendment

Enter The AEDPA (1996): Second Or Successive Petitions (28 U.S.C. § 2244 (b)(2)) (b) (2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--
 
 (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or 
 (B) (i) the factual predicate have been discovered the exercise of due

for the claim could not previously through diligence; and


 (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense

Enter The AEDPA: State Court Fact-finding (28 USC § 2254(e)(1),(2)) (e)(1) [In a 2254 proceeding], a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence
 
 (2) If the applicant has failed to develop the factual basis of a claim in State court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that--
 
 (A) the claim relies on— 
 (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
 
 (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and 
 (B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense

Effect of AEDPA On Actual Innocence As Gateway For Successive Petitions •

Pre-AEDPA: absent “cause and prejudice,” only need show that “a fundamental miscarriage of justice would result from a failure to entertain the claim.” McCleskey v. Zant, 499 U.S. 467, 495 (1991)

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Post-AEDPA: § 2244(b)(2)(B) (“Finality of Determinations”) limits the exception to successive petition prohibition to cases in which “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence,” and the petitioner can establish that no reasonable factfinder “would have found [her] guilty of the underlying offense” by “clear and convincing evidence”

Effect of AEDPA On Actual Innocence As Gateway For Fact-Finding Hearings •

Pre-AEDPA: “A habeas petitioner's failure to develop a claim in state-court proceedings will be excused and a hearing mandated if he can show that a fundamental miscarriage of justice would result from failure to hold a federal evidentiary hearing.” Keeney v. Tamao-Reyes, 504 U.S. 1, 12 (1992)

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Post-AEDPA: petitioner seeking an evidentiary hearing must show the facts could not have been previously discovered through the exercise of due diligence and, in addition, establish her actual innocence by clear and convincing evidence (28 USC § 2254(e)(2))

Effect OF AEDPA On Actual Innocence As Gateway For “Late” Petition • “In a case not governed by [the AEDPA], i.e., a first petition for federal habeas relief, the miscarriage of justice exception survived AEDPA's passage intact and unrestricted.” (But diligence still relevant to evaluating the reliability of a petitioner’s proof of innocence) McQuiggin v. Perkins, 133 S. Ct. 1924, 1933-34, (2013) (Ginsberg) • So… plea of actual innocence can overcome habeas statute of limitations • Note that McQuiggin uses “more likely than not” standard rather than “clear and convincing” standard

Avoidance Of Successive Petition Prohibition: New Rule Of Constitutional Law Made Retroactive To Cases On Collateral Review •

General rule: Teague v. Lane, 489 U.S. 288 (1989): New constitutional rules of criminal procedure generally do not apply retroactively to cases on collateral review unless “watershed” rule, but new substantive rules do apply retroactively

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E.g., Welch v. United States, 136 S.Ct. 1257 (April 18, 2016) (3/30/2016)(Kennedy), holding Johnson v. United States, 576 U.S. ––––, 135 S.Ct. 2551 (6/26/2015) (Scalia) (definition of prior “violent felony” in the residual clause of the ACCA unconstitutionally vague) to be a substantive rule and retroactive on collateral review

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What is the time limit for filing a successive 2255 petition in light of new S.C. law? Dodd v. United States, 545 U.S. 353 (2005) (O’Connor)

“Initial-Review” State Collateral Proceedings •

Martinez v. Ryan, 132 S.Ct. 1309, 1320 (2012) (Kennedy) •

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“a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the [State's] initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective”

Trevino v. Thaler, 133 S.Ct. 1911 (2013) (Breyer) •

Martinez exception applies where, by reason of design or operation, state’s procedural framework denies a meaningful opportunity to raise IAC claim on direct appeal

Avoidance Of State Court Fact-Findings: Unreasonable Findings of Fact In Denial Of Atkins Motion: Brumfield v. Cain,135 S.Ct. 2269 (June 18, 2015) (Sotomayor)

• State trial court's findings that Brumfield’s IQ score was inconsistent with a diagnosis of intellectual disability and that he presented no evidence of adaptive impairment, were unreasonable under §2254(d)(2)

• Because the state trial court made no finding that Broomfield had failed to produce evidence suggesting he could meet the "manifestations . . . in the developmental stage" requirement for intellectual disability, there was no determination on that point to which a federal court must defer in assessing whether Petitioner satisfied §2254(d)

Must Inmate File Cross-Appeal Where District Court Grants Relief On Only Two Of Three Theories And State Appeals? Jennings v. Stephens, 135 S.Ct. 793 (1.14.2015) (Scalia)

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Petitioner granted habeas relief on his two Wiggins theories (failure to investigate/present mitigation during penalty phase), but not on his Spisak theory (ineffectiveness during closing argument of penalty phase)

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State appealed; Petitioner did not cross-appeal

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Fifth Circuit reversed habeas grant, declining to reach Spisak argument absent cross-appeal

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Should Fifth Circuit have considered Spisak argument?

Jennings v. Stephens, Cont’d

Held: No cross-appeal necessary because petitioner was not attempting to enlarge his rights or restrict the state’s rights under the district court’s judgment but rather was seeking only to uphold lower court’s judgment

Average Time Between Sentencing And Execution (Months)