Tuesday, January 16, 2007

January 2007

UPDATED 9/9/07

Z

The Legal Monthly

Vol. 2 No. 1 Read Z the Blog at http://zlegaltimes.blogspot.com/ January 2007

The Uniquely Gregarious Source Of Legal News And “Divers” Contrary Information

Saddam Hussein, “The Butcher of Baghdad,” was executed just before dawn 12/30/06 local, at 10 pm EST (that is 12/29 EST). We can depose a foreign tyrant but cannot keep him from being executed. So sadly so much power is so wasted. I have no doubt that no-one ever deserved to be executed more. However, to my mind, life without parole is the much greater deterrent, is the greater punishment, and teaches the greater moral lesson.

President Ford's state funeral began with much fanfare. America buries a great President. Ford taped an interview that was only to be released upon his death in which he described how big a mistake he thought it was to precipitously invade Iraq (paraphrasing): we must not use force unnecessarily, even to further spread democracy, unless our own national interests are clearly hinging on the immediate use of that force. Monday, January 2 was designated a national day of mourning.

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Contents

I Death Penalty

II A Spectrum of Abstraction (On the Unconstitutionality of the AEDPA)

III SCOTUS: Cary v Musladin (more on standards comp- aring Irons, and Davis, in A Spectrum of Abstraction)

Sentencing Developments in Cunningham, Rita, Claiborne on the horizon.

IV Practice Corner: Burton is decided (549 U.S. ___ Jan.9)

V In the Ivory Towers: Sarat on Clemency

VI Letters

Especially in Texas: Cert granted in Brewer, No. 05-70056 (5th. Cir. 12/29/2006) (COA issues, IAC); Hot Topic: “deference” in the 5th Circuit, a la Irons, Davis, Frantz v. Hazey, No. 05-16024 (9th Cir. 1/5/2007), Varner v. Thomas (SCt. pet for cert filed-3d Circuit) .

-Atty Norm Sirak's new December Progress Report mentions the Irons case featured in the current issue in A Spectrum of Abstraction. I did not get to a few things in this issue such as parole in Texas. I will devote the next issue to developments from Austin, (the State House) and TDCJ/Parole issues.

A great empire, like a great cake, is most easily diminished at the edges. Benjamin Franklin


New Years Eve Stuff: Went dancing for the last time in 2006

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I. Death Penalty

Judges in California and Maryland and the governor of Florida shut down any pending executions in those states--all because of rapidly growing doubts about the humanity and constitutionality of lethal injection. In less than a week, 1,052 death-row inmates were thrust at least temporarily beyond reach of the needle. *** For the last decade, the issue that has driven the death penalty debate--galvani-zing the attention of courts and press alike--has been innocence: a capital representation system so criminally negligent that 123 wrongfully convicted death-row inmates have been released, and public confidence in death sentences eroded.

Yet innocence cases, in their own way, have evaded a fundamental question: What about the grievously guilty? What about what one pro-death-penalty legal scholar calls "the worst of the worst"? Are executions of the truly guilty consistent with America's evolving constitutional standards, with national ideals and worldwide human rights norms? The Nation (Bruce Shapiro - December 24, 2006).

Executions in ten states are effectively on hold as aspects of their capital punishment laws are examined. Two states, Illinois and New Jersey, have a formal moratorium while the viability of the death penalty is considered. In eight other states, almost all executions are being stayed as the states grapple with the lethal injection issue: Arkansas, California, Delaware, Florida, Maryland, Missouri, Ohio, and South Dakota. In addition, New York's death penalty law was declared unconstitutional in 2004 and New Hampshire has no one on death row, making executions unlikely in those places, as well.
Seventy-two percent of the states in the U.S. had no executions in 2006. Only 14 of the 38 states with the death penalty carried out any executions, and only 6 states conducted more than 1 execution this year. The number of executions in 2006 was 12% less than in 2005 and 46% less than in 1999. Preliminary indications are that the number of death sentences in 2006 will be the lowest since the death penalty was reinstated 30 years ago. Source: Death Penalty Information Center.

Some have been calling 2006 the “Year of the Needle” though it may well be remembered as the year the Texas death penalty was saved. The Texas Court of Criminal Appeals estab-lished new rules for appointed habeas attorneys in death row cases. So there have been some stunning developments out of the Lone Star state - standards for post-conviction counsel, the first full year of LWOP (and just 14 new death sentences), the reexamination of Penry in Nelson v. Quarterman, & finally the rough making of the the right to meaningful representation in postconviction found in Ex Parte Juan Jose Reynoso (unpublished CCA opinion, Writ 66,260-01 on application in cause 941651-A, 263rd judicial district court, Harris County, 20 December 2006).

This is a post conviction application for writ of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Pro-cedure article 11.071. On May 12, 2004, a jury convicted applicant of the offense of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure article 37.071, and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Reynoso v. State, No. AP-74,952 (Tex. Crim. App. Dec. 14, 2005)(not designated for publication).

Counsel presents one allegation in applicant's habeas application in which he challenges the validity of applicant's conviction and resulting sentence. Although the trial court did not hold an evident-iary hearing, the judge entered findings of fact and conclusions of law and recommended that relief be denied. However, before this Court ruled on applicant's habeas application, it received a docu-ment from applicant entitled, "Pro Se Application for Appointment of New Counsel and Time to File Amended Application for Post-Conviction Writ of Habeas Corpus." In the document, applicant asserts that he has been deprived of his right to counsel under Article 11.071 and denied meaningful access to state and federal court review due to his current counsel's conduct (or lack thereof). Specifically, applicant complains that currently appointed counsel:

1. Never visited or wrote to applicant and never provided him with copies of pleadings or other documents so that he could assist in his defense;

2. Refused to take calls from applicant's family regarding the status of the case;

3. Complained to Mandy Welch with the Texas Defender Service about applicant's family contacting him about the case;

4. Told Welch that he had filed a "skeletal writ" in the case "because he was ordered to do so by the court[,]" which writ failed to raise any cognizable claims and, therefore, does not "constitute reason-able performance by competent counsel" and does constitute an abdication of responsibility as applicant's counsel;

5. Acknowledged that he had done nothing else in the case; and

6. Specifically, told Welch that he "does not consider himself to be representing Applicant."

We remand the case to the trial court to investigate and evaluate the accuracy of the assertions set out above. In accomplishing this, the court may call witnesses, order affidavits, hold a hearing, or obtain evidence in any other manner it deems appropriate.

When the trial court completes its evaluation, it shall issue written findings of fact and conclusions of law regarding the assertions, and it shall make a recommendation to this Court regarding what action should be taken on applicant's application for new counsel. The record developed, along with the findings, conclusions, and recommendation, shall be returned to this Court within 45 days after the date of this order.”

(Source: Karl Keys, Capital Defense Weekly weblog)

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II. A Spectrum of Abstraction:

Does the Anti-Terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. 2254(d), Unconstitutionally Limit Judicial Independence by Abridging the Judicial Power Under Article III of the U.S. Constitution (to Decide Whether the Law is “clearly established”) and, Does it Unconstitutionally Suspend the Writ in Violation of Article I Section 9?


Readers should keep in mind that this note was written in the same year as the Military Commissions Act of 2006 (MCA) in which Congress abrogated the writ of Habeas Corpus in its entirety for aliens, and also at a time when certain “secret” laws or rules regarding the Transportation Security Admin-istration are being withheld from the public (classified), and yet the public is charged with obedience to said terms or provisions.


The judges of the United States Court of Appeals for the Ninth Circuit have asked for a briefing regarding “whether, under the sep-aration of powers doctrine or for any other reason involving the constitutionality of 28 U.S.C. § 2254(d)(1), this court should decline to apply the AEDPA standards in this case.” This question has arisen in the case of Irons v. Carey, 408 F.3d 1165 (9th Cir. 2005) (before Reinhardt, Noonan, and Fernandez—Fernandez did not join the Order). The case has not yet been decided as of today (but briefs have been filed).


In December of that same year (2005) Judge Merritt of the Sixth Circuit Court of Appeals wrote the following in a resounding dissent: “The state court's decision in the instant case neither identified nor applied the governing legal principle of Washington v. Texas that a state may not arbitrarily deny a defendant the right to call a witness whose testimony is relevant and material to the defense. With such an oversight, it is not difficult to con-clude that the state court's determination that "the trial court did not err in refusing to compel Jordan to testify" was contrary to the clearly established mandate of Washington v. Texas.” Davis v. Straub, 430 F.3d 281 (6th Cir.-argued March 17, 2005).


Michigan is not exactly the deep South, but the petitioner was convicted of killing a woman and two children, an event/act/crime that rarely evokes much sympathy among even the least hardened, most liberal, or com-passionate. Elaborating on the constitutional points of law nonetheless, Judge Merritt was concerned enough to write,


It seems to me that the Court's reading of AEDPA both unconstitutionally refuses to exercise the "judicial power" required under Article III in a case "arising under this constitution" and "suspends" the writ of habeas corpus in violation of Article I, Section 9. The result — life imprisonment for a probably innocent accused — so undermines both the "the judicial power" and the great writ that it leaves the federal courts without the authority to correct constitutional errors that lead to serious injustice.

430 F.3d at 295-96.

Also important for Judge Merritt was the matter of “deference” to lower court deci-sions (deference happens to be a matter of considerable controversy at the moment):


Using § 2254(d)(1) as a crutch, the majority simply defers to the state court's decision in which the state court neither identifies nor applies the relevant governing legal principles under either the Compulsory Process Clause or the Self-Incrimination Clause.

A Spectrum of Abstraction


The anatomy or architecture from which the notion that AEDPA may be unconstitutional arises can be found in the opening paragraph of Judge Merritt's thoughtful dissent. It actually goes back further, but a good intro-duction might begin in the Supreme Court of the United States with Williams v. Taylor, 529 U.S. 362, at 412, 120 S.Ct. 1495 (2000) ('With the caveat that the source of clearly established law is Supreme Court jurispru-dence, "whatever would qualify as an old rule under our Teague jurisprudence will constitute `clearly established Federal law, as determined by the Supreme Court of the United States' under § 2254(d)(1).")'.


To Judge Merritt‘s way of thinking, Williams directly or indirectly supports the assertion that the Supreme Court adopted the “spec-trum of abstraction of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), to determine whether a particular legal principle was clearly established at the relevant time” (emphasis mine throughout).


It will be necessary to get into the reasons why this is important in short order (basic-ally, a clearly established principle of law is required in order to rule in petitioner's favor (grant the Writ) on the relevant issue under “new” AEDPA standards, (adopted in 1996) which revised/changed slightly the “old” review standards to include certain language to the effect that relief will not be granted unless ... unreasonable ... under clearly established law...”.


First, however, it will be interesting if not essential to explore, explain, and describe Judge Merritt’s phrase, “spectrum of abstrac-tion” up close, if not in full HD (if that could be possible).

At one end of the spectrum lie legal principles with such a high level of generality, like the Eight Amendment principle of reliability in sentencing, whose application does not necessarily lead to a "predictable development" in the relevant law and therefore can not be considered clearly established. See Sawyer v. Smith, 497 U.S. 227, 236, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990) [emph added]. On the other end are narrowly drawn bright-line rules with little application beyond factually indistinguishable situations. In the middle of the spectrum lie those general principles of law crafted by the Supreme Court to constitute clearly established law in a wide range of factual situations. It was the middle of the spectrum that Justice Kennedy described while concurring in Wright v. West, 505 U.S. 277, 308-09, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992):

At 292.


Teague made things interesting because it reinforces Justice Harlan’s general rule that new rules of criminal procedure should not take retroactive application, with a few exceptions (Justice Harlan's view that new constitutional rules of criminal procedure generally should not be applied retroactively to cases on collateral review is the appro-priate approach. Unless they fall within one of Justice Harlan's suggested exceptions to this general rule—that a new rule should be applied retroactively (1) if it places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1160, 1180, 28 L.Ed.2d 404, or (2) if it requires the observance of "those procedures that . . . are 'implicit in the concept of ordered liberty,' " id., at 693, 91 S.Ct., at 1180—such new rules will not be applicable to those cases that have become final before the new rules were announced. Pp. 305-310.). Teague v. Lane, 489 U.S. 288, 290, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).


Is the Law Ever “Clearly Established”?


People, and scholars, should soon begin to take notice of what Judge Merritt rightly points out, that the special “clearly esta-blished” command of the AEDPA actually goes to the heart of a series of questions that are of fundamental importance:


1. How do lower courts (and the public, to whom the law is held to account, as well as their lawyers) determine whether the law of the case is clearly established?

2. How can we tell whether the lower courts properly understood, recited and applied the clearly established law? (Judge Merritt's took serious offense at the fact that the majority failed to apply the correct, applicable law).

3. And ultimately, how can we know that a decision of a State or lower federal court was correct, that is to say reasonable (or not) in applying the law to the unique facts?


Readers must keep in mind that it will be extremely rare in any area of the law that two cases will ever present completely identical sets of facts. Should that happen to occur it is very easy to determine the outcome only because a squarely identical matter has already been decided. Deciding what law is applicable involves rendering a decision also as to the application of that law (how it should be applied).


The Supreme Court has provided guidance in this area. The facts need not be identical in reaching the conclusion that the law was clearly established. Further complicating matters, both Congress (in the AEDPA) and the Court have suggested that a case should be “indistinguishable” but clearly this is not the same as identical. The Fifth Circuit Court of Appeals recently recited the standards for granting the Writ as follows:


Under AEDPA, a federal court may not grant a writ of habeas corpus “with re-spect to any claim that was adjudicated on the merits in State court proceedings” un-less the petitioner shows that the state court’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or that the state court’s adjudi-cation of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 402-13 (2000). A state court’s decision is “contrary to” clearly established federal law if (1) the state court “applies a rule that contradicts the governing law” announced in Supreme Court cases, or (2) the state court decides a case differently than the Supreme Court did on a set of materially indistinguishable facts. Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (internal quotation marks omitted).


A writ of habeas corpus may also issue if the state court’s adjudication of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Under AEDPA, a state court’s factual findings are “presumed to be correct” unless the habeas petitioner rebuts the presumption through “clear and convincing evidence.” Id. § 2254(e)(1); Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000).


We review the district court’s conclusions of law regarding the state court’s application of federal law de novo, and we review the district court’s findings of fact, if any, for clear error. Collier v. Cockrell, 300 F.3d 577, 582 (5th Cir. 2002).


Nelson v. Quarterman, at page 6-7, No. 02-11096 (5th Cir. December 11, 2006) (empha-sis is mine). The language presenting dif-ficulty is “as determined by the Supreme Court”, 28 U.S.C. § 2254(d)(1). But what does Nelson offer to teach about all this? First, there was a close dissent (9-6, one con-curring opinion by Judge Dennis) illustrating that judges on the same court can have dif-ficulty in deciding whether the law is clearly established. (One would think it is hopeless, then, for lawyers and lay persons to embark on this determination and reach the correct conclusion). It should not be surprising then, that different courts will also sometimes di-sagree (as to whether the law is clearly esta-blished in a particular case,) again, because the facts are almost never perfectly identical in two or more given cases.


There is, apparently, some leeway and room for interpretation, slippage or sloppiness, in reaching the determination whether the law has been clearly established. The caveat re-specting facts is necessary because when the Court decides a case it does so within its given (peculiar) facts. If another case were to come along in which the slightest deviation

regarding the totality of the circumstances was observed, any inconsistency could pos-sibly make enough of a difference and, to that extent it would be inappropriate to apply the law of the previously decided case. In this event it would have to be said that the law was not clearly established. Alternatively one could suggest that the ruling was simply a narrow one. But this view is not truly so simple but is actually a fairly sophisticated conclusion reached upon analysis and inter-pretation. Narrowness and broadness are open to interpretation and therein lies the operation of the “spectrum of abstraction.”


We learn from this peculiarity then, that the law is very rarely “clearly established” be-cause the facts are so rarely identical. All is not lost because the law operates also by vir-tue of principles that can be broadly appli-cable in similar situations, if the situations are similar enough. There is a trick to making that determination.


Here, we might take instruction from Judge Merritt, again dissenting in Davis v. Straub, 430 F.3d 281:


The majority defers by concluding that there is no Supreme Court case with indistinguishable facts. As explained above, this is not the correct interpretation of § 2254(d)(1). Such an interpretation would withdraw from the federal courts, including the Supreme Court, the judicial power to interpret independently the Constitution in most cases and would make the state court's decision the rule we must follow. Such an application of the federal judicial power established in Article III would render § 2254(d)(1) unconstitutional, as Justice Stevens suggests and Klein holds.

And further:


Congress may not say to the federal courts "clearly established law" means a case in the Supreme Court directly in point on the facts, just exactly like the case you have before you. It may, however, say, as the Supreme Court has already said Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and its progeny, you should follow constitutional language and the principles and standards established by the Supreme Court and in existence at the time the state court completed its case. In the present case, my colleagues have said rather, there is no case in the Supreme Court just like the present case — no case directly in point on the facts — and hence the habeas petition must be dismissed. They say that Supreme Court precedent must be defined in its narrowest sense. Such a reading of § 2254(d)(1) renders it unconstitutional by preventing our Court from giving our independent judgment on the legal effect of the evidence before us and by leaving us "no adjudicatory function to perform."

Id., (emphasis mine throughout).


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III. Carey v. Musladin

Justice Thomas:

This Court has recognized that certain courtroom practices are so inherently prejudicial that they deprive the defendant of a fair trial. Estelle v. Williams, 425 U. S. 501, 503-506 (1976); Holbrook v. Flynn, 475 U. S. 560, 568 (1986). In this case, a state court held that buttons displaying the victim’s image worn by the victim’s family during respondent’s trial did not deny respondent his right to a fair trial. We must decide whether that holding was contrary to or an unreasonable application of clearly established federal law, as determined by this Court. 28 U. S. C. §2254(d)(1). We hold that it was not.
***Given the lack of holdings from this Court regarding the potentially prejudicial effect of spectators’ courtroom conduct of the kind involved here, it cannot be said that the state court "unreasonabl[y] appli[ed] clearly established Federal law." §2254(d)(1). No holding of this Court required the California Court of Appeal to apply the test of Williams and Flynn to the spectators’ conduct here. Therefore, the state court’s decision was not contrary to or an unreasonable application of clearly established federal law.

SCOTUS could simply decline to make “clearly established law,” accomplishing the aim of making it impossible for lower courts to grant relief under the AEDPA standard. Indeed, Justice Thomas's opinion clearly reflects a reluctance to provide much, if any, guid-ance as to what the substantive law is. He has simply found no clearly established law on the issue and that is the end of the matter for him. Too bad that all SCOTUS cases are not so easy to resolve, and that two of the often "liberals," Justices Ginsberg and Breyer, joined in this swat against justice and stare decisis. Alternatively, all cases might in fact be so easy so long as the Court chooses to extend the notion of “established law” narrowly, even when the facts are very nearly, arguably materially, identical, because no two cases are ever perfectly alike.
If the justices do not wish to discuss the substance of the law, and parsimoniously determine what is and was, and what could or should be, then why grant cert at all? The answer seems in this case to be only to reverse the Ninth Circuit. If so, then how has this case advanced the purported goals of the Court's statutory review powers?
The good thing might be that the case leaves open the door just a skosh for a similar claim in which better facts might be found. But what better facts could there be involving possible coercion, or intimidation, or impermissible influence in the courtroom? It would seem that there MIGHT be a matter of degree in question, but when it comes to coercion or intimidation it is hard to draw the line be-tween how much is too much. The analogy is this: how much pain is too much? Just cut off the pinkie, maybe...or just the tip of the pinkie finger, that won't hurt quite as much.
The real moral perhaps, is that you can not shoot and kill some-body and expect to get habeas relief afterwards. Here is page 1, section I, para. 1 of the opinion: On May 13, 1994, respondent Mathew Musladin shot and killed Tom Studer outside the home of Musladin’s estranged wife, Pamela. Game, set, match, checkmate, strike three, game over. Simple as that. But not good news for the law. Because the point of the law is to make darn sure that you did the killing (with requisite intent), not that there was one.

Disposition Below: Distinctions Without Differences

The Court of Appeals had held that the state court’s application of a test for inherent prejudice that differed from the one stated in Williams and Flynn “was contrary to clearly established federal law and constituted an unreasonable application of that law,” 427 F. 3d, at 659–660, and denied rehearing en banc. 427 F. 3d 647 (2005), maintaining that Williams and Flynn clearly established a rule of federal law applicable to Musladin’s case. Musladin v. Lamarque, 427 F. 3d 653, 656–658 (2005). Specifically, the Court of Appeals cited its own precedent in support of its conclusion that Williams and Flynn clearly established the test for inherent prejudice appli-cable to spectators’ courtroom conduct. 427 F. 3d, at 657–658 (cit-ing Norris v. Risley, 918 F. 2d 828 (CA9 1990)).

The test in Flynn was “whether the presence of the troopers was not so inherently prejudicial that it denied the defendant a fair trial. Id., at 571. In reaching that holding, the Court stated that “the question must be . . . whether ‘an unacceptable risk is presented of impermissible factors coming into play.’” Id., at 570 (quoting Williams, supra, at 505).”

Justice Thomas distinguished these cases saying Williams and Flynn dealt with “government-sponsored practices” (in Williams, the State compelled the defendant to stand trial in prison clothes, and in Flynn, the State seated the troopers immediately behind the defendant). 'Moreover, in both cases, this Court noted that some practices are so inherently prejudicial that they must be justified by an “essential state” policy or interest. Williams, supra, at 505 (con-cluding that the practice “further[ed] no essential state policy”); Flynn, supra, at 568–569 (holding that the practice was not of the sort that had to be justified by an “essential state interest”).' Con-trasting the notion of these so-called “state-sponsored courtroom practices” in the prior cases Thomas writes, pulling the rabbit out of the hat, 'the effect on a defendant’s fair-trial rights of “the spectator conduct” to which Musladin objects is an open question in our jurisprudence.'

But this language belies a difference insofar as the possible effect on the jurors in the case was concerned, regardless of the source. Effect on a juror and a panel of jurors is the nub, which was reite-rated by Justice Thomas as 'whether “an unacceptable risk is pre-sented of impermissible factors coming into play.”' Hence it would seem that Thomas has articulated a distinction without a difference. Presumably if the influence came about as a sign from heaven, an “act of god,” a Greek oracle or some similar omen that would render the influence “benign”; if, in other words the nature of the source of the influence is important, apart from the influence itself, then and only then this decision is “correct.” But which is the truly correct view and how do we know it when we see it?

Why Is Private Conduct Different in the Courtroom?

The trial judge is the master of his case. Any and all conduct inside the courtroom is his primary concern and can be so influential that the outcome of a case before the jury in that room could be affected.

But Check out these interesting perspectives from Prof. Amar (Hastings College of Law):

In other words, because (otherwise) reasonable jurists seemed to disagree as to whether there is a constitutional violation at all here, Musladin's Sixth Amendment claim in the state courts was a ques-tion on which reasonable people can disagree, and thus one not amenable to habeas relief.” I say this sets the standard far too low. Even when the law is clearly established reasonable jurists/people can still disagree.

And this:

In other words, in deciding whether the state courts fairly applied past Supreme Court precedent, we should try to imagine that we ourselves had written the earlier opinions, and ask what consistency and coherence, from that point of view, require. This does not, as Justice Kennedy rightly explained, mean that courts have to find in earlier Supreme Court precedent "some nearly identical factual pat-tern" before granting habeas relief in a current situation. What it does mean is that we should, in respecting past Supreme Court pre-cedents, act as someone who agreed with them, as written, would act in trying to preserve them.”

So have fun reviewing Flynn and Williams.

Brain Food: Was the case preordained to come out this way? Would one, two or even three more “liberals” on the Court have made any difference? What tipped the scales? Does the quality of lawyering make a difference?

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IV. Practice Pointers

1. To state a claim in federal court under §2254 (or §2241) you must state a federal claim. A federal claim is one that arises under the Constitution and/or laws of the United States. This contrasts with so-called “state” claims that are grounded in state statutes.

2. The claim must be exhausted in state court assuming you are proceeding under §2254 as a state prisoner.

3. All time limitations and filing “requirements” must be strictly observed, with few exceptions, for a claim to be “properly filed.” Artuz v. Bennett, 531 U.S. 4 (2000).

4. Even if the claim is subject to “procedural default” it is possible to show “cause” and./or “prejudice” and obtain review on the merits.

5. The worst thing that can happen is to have your claim summarily dismissed. This will happen if your federal claim was not recognizable in the State habeas filing. See Dye v. Hofbauer, (2005).

6. The 2004-05 Supreme Court term yielded several “housekeeping” decisions: Rhines, Pace, Medellin, Mayles, Crosby. The question of what to do with a “mixed petition” has been settled, Pliler, Rhines, Bell. Here is part of the Court's opinion from the just-decided decision in Burton 459 U.S. ___ (2007) in which cert was granted to test the retroactive application of Blakely (and determine whether it stated a new rule). “The plurality opinion in Rose v. Lundy (1982), stated that district courts should dismiss “mixed petitions“ --those with exhausted and unexhausted claims--and that petitioners with such petitions have two options. They may withdraw a mixed petition, exhaust the remaining claims, and return to district court with a fully exhausted petition. We have held that in such circumstances the later filed petition would not be “second or successive.” (cites omitted). The “new rule” question awaits for another day.

7. Another killer question remains untested: whether your petitioner's actual innocence provides sufficient, stand-alone grounds for federal habeas corpus. And this is where the maze (brick wall?) of the AEDPA standard kicks in. Will there ever be a case in which the evidence of actual innocence was so overwhelming that the Court would have to agree that the law was clearly established enough to apply a pre-existing rule and grant relief? But what rule would that be? Any of the substantive rights might do the trick, if/when applicable, e.g., Strickland right to counsel, to examine witnesses, to fair trial, to evidence beyond a reasonable doubt. In Carey v. Musladin, the Court held that the conduct of spectators in the courtroom was materially different from previous cases involving the conduct of “the state” in the courtroom, Estelle v. Williams, 425 U. S. 501, 503-506 (1976); Holbrook v. Flynn, 475 U. S. 560, 568 (1986). [Court made a private/public distinction. But “no matter who has dressed the defendant in prison clothes, if the judge compels him to face trial without changing, the image for the jury is equally destructive of objectivity,” (Sherry Colb/Findlaw)]

V. From the Ivory Towers: Notes on Miscarriages” (from an essay by Prof. Austin Sarat, Amherst College). Court decisions dealing with procedural default, exhaustion, and abuse of the writ through the filing of successive habeas petitions, have made it increasingly difficult for federal courts to reach the merits of a defendant's habeas claims. More than a decade ago, in the most significant of these cutbacks, the Supreme Court declared that defendants must generally base their habeas petitions on asserted violations of the federal law as it existed at the time of the original state proceedings. In a follow-up case, it held that if the federal law was unclear at that time, any reasonable, "good faith" interpretation of the federal law by the state courts immunizes the conviction and sentence from later habeas attack. It then extended the same principle to the method of application of the federal law to the facts of a particular case; if the state courts' method of application of the federal law was proper in view of the precedents that existed at that time, then federal habeas relief is unavailable (even if those precedents are later overruled or changed).

VI. Letters and Comments:There are more prisoners incarcerated in Texas prisons alone than there are troops in Iraq. There are 150,000 troops in Iraq. Texas has 151,741 inmates (according to CURE). That is1,741 more individuals locked up in Texas than are conducting combat operations in a nation we have a responsibility to assist. Regardless of your views on whether we should be in Iraq, if you think about it, both of those numbers are staggering. Too many in Texas, too few in Iraq. The fee for filing a civil case (including Prisoner Complaint 42 U.S.C. 1983) increased to $350.00, and appeals to the Fifth Circuit rose to $455.00 (per “Deficit Reduction Act of 2005”! Is Congress balancing the budget on the backs of prisoners?). The Habeas by a State Prisoner, 28 U.S.C. §2254, (and §2241) will remain $5.00. Schmitty aka Bird Brain

Z: I certainly have benefited from your recent newsletters. Thank you. (Thank you!)

Z: I have enjoyed receiving them, for a long while they were the only mail I was receiving until my sister wrote me for Christmas. I have been sharing your letters with others, one who claims he will be writing. I also talk with two other guys who receive the newsletter and they seem to enjoy hearing from you also. Keep “em” coming. It will pay off in the long run. Anon.

Z: This is where I am in my dilemma. I am a drinker and because I could not control my drinking when I was young I am here in prison for the rest of my life...I am a victim for no other reason than I have a record and ...they said in court who are you going to believe, this man that's been to prison four times already and been in riots and fights or this child? Also, the jurors thought I was arrogant! What's funny is even the D.A. was surprised he got a verdict...anyway, you can understand how one can be fucked over by the system for no other reason than he has been a part of the system, and that makes him guilty of anything he goes to trial for. I am trying to learn the law but just reading law books does not teach you the law as you know, and listening to so-called lawyers in prison (writ writers) doesn't teach you the law as most are out for their best interest and that's making a dollar off you. Anon.

Z Responds: I wish it were otherwise but I can't be your lawyer. Pls use the library—help will be there for you when you need it. I appreciate the stamps, will keep sending the letter. Don't give up. The guys who read Z's letter are all okay and won't rip you off!

Z: Greetings, in the unbalanced weight of Justice! I completed the Blackstone paralegal course in July (2006). I have been working on legal matters since 2003 when I realized I was a victim of the justice system. It prompted me into helping others with their cases. One day I plan to be part of a real Innocence Foundation. There are too many innocent victims in the system to sit by and be quiet about. An.

Z Responds: Keep up the good work! Come and join me. I can't be having all the fun.

Z: Still counting the days until my release in 17 months. Lit Adams, C.C.D.D. (See ya soon!).

Z: Please issue a call for amicus briefs. My case is similar to Gertsen v Senkowski, 299 F.Supp.2d 84, aff'd 426 F.3d 588. Anon.

Z: Check out Spisek v. Mitchell, 465 F.3d 684, 706 (6th Cir. 2006). (I will!)

A reader who must remain anonymous (for now at least) has incorporated elements of the argument challenging the facial constitutionality of AEDPA in his current federal writ. The rules require notice to the U.S. Attorney in such cases.

*** Your comments are important to me, are encouraged, and will be published in my discretion. Keep them coming! I welcome any and all special interest “scoops” and stories--confidentiality is assured. My pub is not “legal advice” --it is strictly informative and, hopefully, entertaining. The Innocence Project continues actively seeking funding and partner-ships, volunteers, and individuals to serve on the Board of Directors -- IRS 501(c)(3) and (4) tax exempt registration are imminently in progress. Please send your contribution today.

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