Z

The Legal Monthly

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

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

Contents

I. Capital Punishment: Cruel and Unusual

II. Clashing Perspectives On Habeas Corpus in the “War on Terror”--The Constitution versus the Statute

III. Consequences for Habeas of Wharton v Bockting? Teague, AEDPA, and Deference: Snips from Supreme Court oral argument and defendant's brief

IV. The Jones v Bock, Williams v Overton cases: Philosophy and Legal Reasoning in the Supreme Court

A. SCT Moving Right of Center?

B. The Onion's Take

C. Claiborne, Booker and Federal Sentencing--Senators' Brief

D. Adversarial or Inquisitorial? European or American? Boyd, Faulks, Trial Penalties (and federal sentencing)

I brought over a defendant this week who had notified the Court that he was having a problem with his lawyer. When I asked him why he was upset with his lawyer the defendant stood and said, "Judge, he's not lying for me.. he's lying to me." Judge Susan Criss, As the Island Floats (blog) via Grits for Breakfast (Scot Henson's Texas blog--“looks at the Texas criminal justice system and related topics, with a little politics and whatever else suits the author's fancy thrown in for good measure. All opinions are my own. The facts belong to everybody”)

Judge Susan Criss is the judge of the 212th District Court in Galveston, Texas. Judge Criss writes about justice and life on an island off of the Texas Gulf Coast. She presides over a court that handles criminal and civil cases. Judge Criss serves as Chairman of the Gulf Coast MHMR Task Force for Jail Diversion for the Mentally Ill. For more information about her see www.judgecriss.com and www.co.galveston.tx.us/judgecriss.

I. "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual."

Justice Potter Stewart, Furman v. Georgia (1972). It really is morbid not just because morally questionable but also because that bad bankroll represents a huge and wacky enchilada of opportunity costs diverted from fighting injustices on many other fronts including wrongful convictions, education, probation, treatment and parole, DNA analysis and, of course, Non-Death Penalty Habeas Corpus. Prof. Berman notes excessive numbers of capital cases on the Supreme Court's ever shrinking docket. ACS Blog's Martin Magnusson has this piece, "The Dominance of the Death Penalty on the Decreasing Supreme Court Docket” echoing concerns about a SCOTUS docket "filled with criminal cases that have no impact on the vast majority of American inmates."

Doug continues: “Relatedly, [a Washington Post article] discusses comments by Chief Justice John Roberts about the court's shrinking docket. I found this quote especially notable: 'I regarded this as a matter of great concern when I was a practicing lawyer, somewhat less significant when I became a Court of Appeals judge,' Roberts said. And now that he has seen it from the high court's viewpoint, he says that at times, there just are not that many cases that merit the court's review. I guess this means that CJ Roberts and the other Justices will understand why, because I am a practicing lawyer particularly in the arena of non-capital sentencing jurisprudence, I am always eagerly rooting for SCOTUS to take more non-capital sentencing cases.” (emphasis mine). Also, review Coker v. Georgia, 433 U.S. 584 (1977) (the Supreme Court held that the Eighth Amendment categorically prohibits the death penalty for the crime of rape of an adult woman) and the syllabus:

While serving various sentences for murder, rape, kidnaping, and aggravated assault, petitioner escaped from a Georgia prison and, in the course of committing an armed robbery and other offenses, raped an adult woman. He was convicted of rape, armed robbery, and the other offenses and sentenced to death on the rape charge, when the jury found two of the aggravating circumstances present for imposing such a sentence, viz., that the rape was committed (1) by a person with prior capital-felony convictions and (2) in the course of committing another capital felony, armed robbery. The Georgia Supreme Court affirmed both the conviction and sentence. Held: The judgment upholding the death sentence is reversed and the case is remanded.

Capital punishment for sex offenses is not just of historical interest. A number of states (mostly southern states) have enacted or are actively debating making some child rape offenses death-eligible. In August 2003 Patrick O. Kennedy was sentenced to Louisiana's death-row for the rape of an eight-year-old child. Litigation over the death penalty for child rape seems like a certainty over the next decade. (Prof. Berman's SL&P). Before Furman, “as a practical matter, the death penalty had nearly withered away for crimes other than murder and rape. From 1930 to 1967, over 3,300 persons were executed for homicide, 455 for rape, and only 70 (or less than 2% of the total) for all other non-homicidal offenses, including robbery, burglary, attempted murder, kidnaping, assault by a life-term prisoner, carnal knowledge, espionage, assault with intent to rape and accessory to murder. In this era, executions for rape were carried out exclusively in the Southern states (including the border states of Oklahoma, Missouri and Delaware), and they were carried out predominately on black men convicted of raping white women. Of the 455 rapists executed, 405 (89%) were black. Prof Marvin Wolfgang's research on the death penalty for rape, reported as "Racial Discrimination in the Death Sentence for Rape" in William Bowers's Executions in America (1974), showed that over one-third of black defendants convicted of raping white victims received death sentences; in all other racial combinations of victim and defendant, only 2% received death sentences. Struck by Lightning: Louisiana's Electrocutions for Rape in the Forties and Fifties by Burk Foster (September 1996). (Appeared in Lane Nelson and Burk Foster, Death Watch: A Death Penalty Anthology, Upper Saddle River, NJ: Prentice Hall, 2001, pp. 188-207. Originally appeared in The Angolite, September/October 1996, pp. 36-47.) which brings us to,

II. Clashing Perspectives On Habeas Corpus in the “War on Terror”--The Constitution versus the Statute: The Constitution and a law that spells out the reach of habeas corpus sparked an exchange between Attorney General Alberto R. Gonza-les and the senators. Although everyone -- including, apparently, the attorney general -- agrees that the Constitution protects a right to habeas corpus, there is considerable debate over the reach of that right. That is the focus of a bill before Congress as well as cases involving "enemy combatants" headed to the Supreme Court. Many senators, including Judiciary Committee Chairman Patrick Leahy, D-Vt., and its ranking Republican, Arlen Specter, R-Pa., believe the right to habeas corpus should apply broadly and include alleged foreign terrorists held at Guantanamo Bay. But they lost last year when the issue came before Congress. In a 51-48 vote, the Senate joined the House in affirming the Bush administration's view that habeas corpus should not cover "aliens" held as terrorists or "enemy combatants."

The Military Commissions Act overturned a Supreme Court ruling extending habeas corpus rights to the Gitmo detainees. But the justices said they were ruling only on the statutory law, not on the Constitution. In 1789, two years after the Constitution was written, the first Congress adopted a law saying that judges may hear writs of habeas corpus. The law was later expanded to say "any person" who is deprived of liberty by the government may file a petition. Speaking for a 6-3 majority, Justice John Paul Stevens interpreted "any person" to mean that the men held at Guantanamo Bay had a right to appeal their detention in court. Now that Congress has overridden the court's view, the next round of litigation in the "war on terror" is focusing on the right to habeas corpus in the Constitution. Three years ago, in the case of Hamdi vs. Rumsfeld, the Supreme Court ruled that "the writ of habeas corpus remains available to every individual detained within the United States." But the constitutional rule is less clear for the detainees at Guantanamo Bay, since they are not within the territory of this country. When Gonzales went before the Judiciary Committee on Jan. 18, his written testimony objected to the bill sponsored by Senators Leahy and Specter that would restore habeas rights to "aliens." The new law "prevents terrorists captured on the battle-field from continuing to fight us in our courts," his statement said. That set the stage for a perplexing exchange between Specter and Gonzales. The senator incorrectly said the Supreme Court had already ruled the Constitution protects the habeas rights of detainees at Guantanamo.
Gonzales responded by suggesting the Constitution does not protect habeas corpus at all. "The fact that the Constitution — again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away," he said. Boy, talk about offering a mile and taking an inch...
"Now, wait a minute," Specter interrupted. "The Constitution says you can't take it away except in case of rebellion or invasion. Doesn't that mean you have the right of habeas corpus?"
Gonzales refused to concede the point. "I meant by that comment the Constitution doesn't say every individual in the United States, or every citizen, is hereby granted or assured the right to habeas." Literally? Okay, so it also happens not to say that I am entitled to breathe a habitable mix of oxygen and nitrogen, either. Alas, oh well...expect more seeohtwo in your mixture very soon if you are lucky, and monoxide if you're not.
Later in the same hearing, the attorney general softened his tone. "I believe that the right of habeas is something that's very, very important, one of our most cherished rights," he said. Gee, somebody he knows must have just been arrested... Most constitutional scholars and legal experts reject Gonzales' view that the Constitution does not include an "express grant" of a right to habeas corpus.
"He is completely wrong on the history," said Eric Freedman, a Hofstra law professor and expert on habeas corpus. Added Pepperdine Law Professor Douglas W. Kmiec, "The historical consensus among scholars is contrary" to the attorney general's statement. At the Justice Department last week, two lawyers delicately tried to explain what the attorney general meant. "This didn't come out as cleanly and crisply as we might have hoped," said one, who spoke on the condition that he not be identified. "The question is not whether Americans have a right to habeas corpus. That is undisputed. What's at issue is the scope of the right."

Precisely. The poem about the cake comes to mind . Little by little, bit by bit, crumb by crumb, the whole cake was gone. David G. Savage, Los Angeles Times, for the factual reporting. The opinion is wholly “my bad.” That's a “Rosy Original” if I ever heard one. Anybody know if she kicked Donald's ass yet? Because if anybody can it's her.

Relatedly (stole this good non-word from Prof. Berman) how does the Spectrum of Abstraction, “Alice in Wonderland” stuff from last time tie together? The scope of habeas is surely related to its application, like stink on shit. Gutting habeas by shrinking the standard of review (AEDPA) into the size of a pinhead is a lot like shaving the “scope” which is nothing like “saving face.” Of course there's Congress, and there's the Constitution. Who wins? Tune in, read on, turn into a “court watcher” and see for yourself! “Major” Mori (“Z”) Goodbar will always be here to spoon-feed this stuff to you, you know...what I mean, jelly bean?

III. Consequences for Habeas of Wharton v Bockting? This sort of slipped under the radar – the issues are whether Crawford, 541 US 36 (2004)will be applied retroactively and if so whether such retroactive application is allowed in a federal habeas case. You would think not, off the cuff, because of the (unconstitutionally) restrictive requirement of AEDPA that the law be “clearly established as determined by the Supreme Court” and also because Teague might apply (whether the rule is “new” -- “waterhed rule” matters). Think again. This has everything and more you wanted to know about “deference,” “new” rules, and “clearly established law” in the Teague “retroactivity” (radioactivity?) context. Here is a summary of Bockting's argument snipped from his lawyer's merits brief:

AEDPA The deference provision of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d)(1) does not preclude granting relief on a claim based on a new rule which this Court applies retroactively. Nothing in the text of § 2254 bars granting relief on such a claim. Lack of any clear and specific language in the statute prevents this Court from concluding that Congress intended to eliminate the pre-existing habeas jurisdiction of the federal courts to grant relief on such claims. The text of § 2254(d)(1), which refers to “clearly established Federal law,” must be read in conjunction with the explicit retroactivity provision that Congress included in AEDPA. Once this Court applies a new rule retroactively, that new rule takes the place of the former rule, and thus becomes nunc pro tunc, the “clearly established” rule to which section § 2254(d)(1) refers. That is the only con-struction of the statute that follows the technical and common sense meaning of “retroactive,” and that harmonizes the deference provision of § 2254(d)(1) with the retroactivity provisions in the statute, and thus gives effect to all of its provisions.

(heading omitted) The conviction in Mr. Bockting’s case became final in 1993. Accordingly, the Court must determine: 1) whether “the Constitution, as interpreted by precedent then existing, compels the rule”–whether the rule is actually “new;” 2) if the rule is new, whether it is nevertheless retroactive because it falls under one of two exceptions to nonretroactivity. Beard v. Banks, 542 U.S. 406, 411 (2004).

Source: Respondent's Brief pp 12-13.

Here are snips from the oral argument before the Supreme Court of Attorney General (Chanos):

Teague held that new rules of criminal procedure generally should not apply to cases on collateral review unless they fall within one of two narrow exceptions. The second exception, at issue here, is for those new watershed rules of criminal procedure without which the likelihood of an accurate conviction is seriously diminished, rules that alter our understanding of the bedrock procedural elements essential to a fair proceeding. Crawford is not a watershed rule of criminal procedure. (oral argument transcript, at 3)

***Crawford is not watershed because it is not a rule without which the likelihood of an accurate conviction is seriously diminished and it is not a rule which altered our understanding of the bedrock procedural elements essential to a fair proceeding(id., at 4, is this against the grain?)

Bockting filed for habeas corpus relief in federal court and lost at the district court level. During his appeal to the 9th Circuit, the Sup-reme Court decided Crawford which established a sixth amendment right to cross-examine in such situations. The 9th Circuit held that Crawford applied retroactively to Bockting's case (because convic-tion became final prior to Crawford) and held that he was entitled to habeas relief. It might mean that Justice Scalia is willing to make Confrontation Clause law retroactive in Whorton v. Bockting. (He wrote the Court's opinion in Crawford v. Washington but was part of a 5-4 majority deciding against "retroactivity" in Schriro v. Sum-merlin). Responding to a statement by Justice Ginsberg that “this Term might be very revealing” one commentator writing at the Volokh Conspiracy (Jan. 29) has this: “For criminal law practitioners, that would be more than "revealing." "Frightening" better describes its effect on prosecutors, while "Full Employment" describes its effect on the criminal defense bar.

Oral argument: 11/01/2006; The Solicitor General of the United States participated in this oral argument.

IV. Jones v Bock, Williams v Overton, (549 U.S. ___, Jan.22, 2007)(consolidated PLRA /1983 cases from the 6th Circuit). Here are important prisoners' rights decisions that, with Cunningham, can be tallied in the Wins column in favor of prisoners' rights, going against the grain of the "tuff on offenders" trend. One supposes that either of these could easily have gone the other way. The opinion was unanimous, however, so maybe I spoke too soon and was overly cynical about the Court's inclination to be politicized and results-oriented.

But you might ask how the Sixth Circuit could be so wrong on this? Lawyers in the Fifth Circuit also try to get the courts to ignore Leatherman and the simplified pleading rule in §1983 cases as well. My hunch is they do so to carry out what they think is the mandate from congress under PLRA to make it harder to sue, placing that above the other very legit objective expressed below, which is to raise the quality of the claims. Here is the Court (some cites omitted):

Our legal system, however, remains committed to guaranteeing that prisoner claims of illegal conduct by their custodians are fairly handled according to law. The challenge lies in ensuring that the flood of nonmeritorious claims does

not submerge and effectively preclude consideration of the

allegations with merit. Congress addressed that challenge in the PLRA. What this country needs, Congress decided, is fewer and better prisoner suits. See Porter v. Nussle, 534 U. S. 516, 524 (2002) (PLRA intended to “reduce the quantity and improve the quality of prisoner suits”).

As Prof. Berman suggests, maybe prison and criminal justice reform is morphing into the leading edge of civil rights issues of our time. I just hope, as I try to stay current on developments in criminal procedure and the sex offender registration and residency/activity restriction arena, that reform does not mean a continuation of the trend toward indifference and ignorant (stupidity is perhaps not too strong a word here) witch-hunting that we have seen in the past.

Here is the Court's (Roberts, CJ) reasoning:

The minority rule, adopted by the Sixth Circuit, places the burden of pleading exhaustion in a case covered by the PLRA on the prisoner; most courts view failure to exhaust as an affirmative defense. See n. 2, supra. We think petitioners, and the majority of courts to consider the question, have the better of the argument. Federal Rule of Civil Procedure 8(a) requires simply a “short and plain statement of the claim” in a complaint, while Rule 8(c) identifies a nonexhaustive list of affirmative defenses that must be pleaded in response. The PLRA itself is not a source of a prisoner's claim; claims covered by the PLRA are typically brought under 42 U. S. C.

§1983, which does not require exhaustion at all.

Petitioners assert that courts typically regard exhaustion as an affirmative defense in other contexts, see Brief for Petitioners 34-36, and nn. 12-13 (citing cases), and respondents do not seriously dispute the general proposition. We have referred to exhaustion in these terms, see, e.g., Wright v. Universal Maritime Service Corp., 525 U. S. 70, 75 (1998) (referring to “failure to exhaust” as an “affirmative defens[e]”), including in the similar statutory scheme governing habeas corpus, Day v. McDonough, 547 U. S. ___, ___ (2006) (slip op., at 8) (referring to exhaustion as a “defense”). The PLRA dealt extensively with the subject of exhaustion, see 42 U. S. C. §§1997e(a), (c)(2), but is silent on the issue whether exhaustion must be pleaded by the plaintiff or is an affirmative defense. This is strong evidence

that the usual practice should be followed, and the usual practice under the Federal Rules is to regard exhaustion as an affirmative defense.

In a series of recent cases, we have explained that courts should generally not depart from the usual practice under the Federal Rules on the basis of perceived policy concerns. Thus, in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U. S. 163 (1993), we unanimously reversed the court of appeals for imposing a heightened pleading standard in §1983 suits against municipalities. We explained that “[p]erhaps if [the] Rules . . . were rewritten today, claims against municipalities under §1983 might be subjected to the added specificity requirement . . . . But that is a result which must be obtained by the process of amending the Federal Rules, and not by judicial interpretation.” Id., at 168 (isn't it interesting for the CJ to suggest how “they” should do it).

In Swierkiewicz v. Sorema N. A., 534 U. S. 506 (2002), we unanimously reversed the court of appeals for requiring employment discrimination plaintiffs to specifically allege the elements of a prima facie case of discrimination. We explained that “the Federal Rules do not contain a heightened pleading standard for employment discrimination suits,” and a “requirement of greater specificity for particular claims” must be obtained by amending the Federal Rules. And just last Term, in Hill v. McDonough, 547 U. S. ___ (2006), we unanimously rejected a proposal that §1983 suits challenging a method of execution must identify an acceptable alter-native: “Specific pleading requirements are mandated by the Federal Rules of Civil Procedure, and not, as a general rule, through case-by-case determinations of the federal courts.” (opinion at 11-12)(some citations omitted)

***As noted, that is not to say that failure to

exhaust cannot be a basis for dismissal for failure to state

a claim. It is to say that there is no basis for concluding

that Congress implicitly meant to transform exhaustion

from an affirmative defense to a pleading requirement by

the curiously indirect route of specifying that courts

should screen PLRA complaints and dismiss those that

fail to state a claim. (at 15).

There is a bit more, and I found this opinion very interesting because it referred to several cases that I referenced in briefs to the Fifth Circuit Court of Appeals in my own §1983 case.

Examine the reasoning carefully to discover the process by which

the Court decides, and in so doing learn how the law “gets made.” This is a lot like (a) “connect the dots,” (b) “what is missing from this picture?” and (c) consulting the Delphic Oracles on your magic carpet made out of Tarot cards. If you are able to follow and recreate the court's reasoning, sometimes called “rationale,” in your mind's eye and it does not have you playing “Twister”® in knots trying to understand why, (does it makes sense to you?) then the decision is probably “correct” or “right”. If not . . . oh well. But in this case it seems right. A comparative technique often heard is, the result was correct but the reason(s) were wrong. Usually the critique along those lines is because the decision was too narrow or too broad, depending on the subjective viewpoint. Justice Roberts is said to favor decisions on narrow grounds hoping to obtain “con-sensus” and avoid badly split and dissenting opinions. This has provided much “grist for the mill” in the blogosphere and the MSM for that matter. The writers covering the Supreme Court have been very busy of late, as have the justices making an unusual number of public appearances and speeches. I'll try to put some highlights together in a future issue.

A. SCT Moving Right of Center?

Gay rights, race-based decision making, abortion, religion are areas in which liberals use the constitution to protect minority rights. It's been increasingly tricky for the court's liberals to explain their philosophy in a sound bite. "Active liberty," as it turns out, requires a whole hour with Charlie Rose to unpack. Dalia Lithwick writes:

The one unifying theme in most of the judicial speeches this past year has been this one: The power belongs to the people. Whether it's Breyer urging citizens to engage in government or Scalia insisting that it's the job of the people, not the court, to modify the Constitution, the universal message of the justices is not to fear the court, but rather to become more involved in the legislative process. But that's only half the story, and the justices know it. The really tough cases are, invariably, the hardest to explain. As Justice Scalia continues to prove, the taut lines of his theory of "originalism" tend to be an easier sell than the blurriness of a "living Constitution." Which may be why some of the justices sometimes talk the loudest when they say nothing at all. (writing in Slate, Jan. 27))

B. Check the Onion's Take on SCT I could not resist adding this:

Son, could you come in here for a second? Well, I'm sorry, but that newspaper's just going to have to wait, because we really need to talk. Son, your mother and I have been worried about you. Your grades have been slipping, you've been spending less time with your friends, and you've been shutting yourself in your room for hours at a time. Now, I know it may make you feel uncomfortable to talk about it, but this Supreme Court obsession of yours has become a problem. (Dec. 8, 2006)

And for those of us who really have no life at all here's another ir-resistable take:

BAGHDAD—According to members of his squad, 22-year-old Army Pfc. Casey Schreiner, who has been stationed in Iraq's Sunni Triangle for nearly a year and a half, is nearing completion of his psychological withdrawal from the war that constantly surrounds him. "The timetable for his exit certainly isn't optimal—we still need him to stay with us," said Cpl. Chris Oswald, adding that Schreiner began pulling out mentally little by little as members of his platoon were killed by roadside bombings, sniper shootings, and various personnel carrier and helicopter crashes. "At this rate, I think he'll be completely gone by spring." U.S. and coalition commander in Iraq Lt. Gen. David Petraeus said Schreiner is just one of thousands of troops who have experienced a phased cerebral withdrawal, adding that throughout the next year an estimated 20,000 more are expected to stage a retreat from reality. (Feb. 7, 2007)

Can anybody think of more good withdrawal jokes? How about along these lines, (writing about the Maouloud Baby case decided last year by the Maryland Court of Special Appeals):

Mel Feit, executive director of the National Center for Men, a male-advocacy group based in Old Bethpage, N.Y., says biology is a factor. "At a certain point during arousal, we don't have complete control over our ability to stop," he says. "To equate that with brutal, violent rape weakens the whole concept of rape." His group has created a "consensual sex contract" to be signed before intercourse.

Victims' rights activists don't buy the loss-of-control argument. "It's insulting to men to say they can't stop," says Lisae C. Jordan, legislative counsel for the Maryland Coalition Against Sexual Assault. "Any one of us who's had a toddler walk in on them knows that that's not true. Or a teenager who's had a parent walk in--they stop pretty quickly." Still, even advocates concede it's hard to set a time frame in which sex must cease after consent is taken back. "I don't know where that bright line is," says Scott Berkowitz of the Rape Abuse and Incest National Network. "We'll leave that to juries to decide what's reasonable in each case."

(Time Magazine, Feb. 1, 2007)

Here's another vision of the Court:

Reading tea leaves is usually a fool's errand. Certainly, if I could do so I would be investing full-time in the futures market and not practicing law at all. The speculation on Justice Kennedy is interesting and likely the most accurate, particularly if he now sees himself as the Court's "Middle." I foresee a strengthening of the second amendment. More tolerance for religion and government interaction, but also a more narrow definition of what is protected free speech. The 14th amendment will probably now be properly read as opposing racial preferences rather than mandating them. A lot more attention paid to the 10th Amendment, but more decisions under the 4th, 5th, and 8th amendments that favor government rather than defendants or the public. Oh, and copies of the Bill of Rights that don't have a 9th Amendment at all (a view shared by most liberal Justices as well). Overall, we'll win some freedoms and lose some others. “Angus” on Volokh.

C. Claiborne, Booker and Federal Sentencing

In addition to the bottom-side briefs, Senators Edward Kennedy, Orrin Hatch, and Dianne Feinstein have filed a "Brief in Support of Affirmance in Claiborne v. United States." (Sentencing Law & Policy blog. Jan. 23, 2007)

D. Adversarial or Inquisitorial? European or American? Boyd, Faulks, Trial Penalties (and federal sentencing)

The incomparably prolific professor of law supreme, Doug Berman (Harvard Law, now teaching at Ohio State Univ.), confesses: “A great chat with a colleague in the economics department about Judge Posner's work in Boyd helps me see why that decision so troubles me. The reason links to my work seeking cert in US v. Faulks and my concern with huge "trial penalties" and take me back to “my long-ago insights” about what Blakely is really about: a battle between an adversarial and inquisitorial model of criminal justice. *** As I discussed [here, (sic)] way back in September 2004, in Blakely, five Justices champion an adversarial model of sentencing in which sentence-enhancing facts must be proved to a jury beyond a reasonable doubt. The Blakely dissenters, in contrast, embrace an inquisitorial model of where, in Justice Scalia's words, "a lone employee of the State" makes all critical findings and determinations. (Sentencing Law & Policy, Jan. 31, 2007)

Here is a preview of Faulks. The implications for state revocation proceedings are enormous. The United States waived response but the Court requested one filed by March 9:

In 1998, following a jury conviction, Judge Rebecca Beach Smith sentenced Celestine Faulks to the Guidelines-maximum term of 30 months in prison and five years’ supervised release. Seven

years later, as Faulks’s term of supervision was nearing completion, a federal probation officer alleged that Faulks had committed a state crime in violation of a condition of her release. Faulks denied

the allegation. At a revocation hearing under 18 U.S.C. § 3583, Judge Smith decided disputed questions of identity, actus reus, mens rea, and witness credibility using a civil standard of proof.

Judge Smith found Faulks guilty of the alleged offense and sentenced her to a three-year term of imprisonment.

This case presents two questions:

1. Whether a federal judge may, consistent with Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), impose upon a former federal offender a new three-year

term of imprisonment based solely on the judge’s disputed factual findings, by a preponderance of the evidence, that the former offender committed a state offense during her term of supervised release.

2. Whether proceedings in which federal judicial officials initiate, investigate, and adjudicate disputed allegations that a former federal offender has violated a condition of supervised release by committing a state offense violate the constitutional guarantees of the Fifth and Sixth Amendments as set forth in Apprendi, Blakely, and Mine Workers v. Bagwell, 512 U.S. 821 (1994).

VII Parole in Texas: Notes from Austin -- Justice Center staff presented a report before Texas House and Senate Criminal Justice Committee on Tuesday, January 30, 2007. The Texas Senate Criminal Justice Committee and the House Committee on Corrections held a joint hearing to review correctional policies in the state. At the invitation of Senator John Whitmire (D-Houston), Chairman of the Senate Criminal Justice Committee, and Representative Jerry Madden (R-Plano), Chairman of the House Corrections Committee, the Council of State Governments Justice Center, along with its senior research consultant Dr. Tony Fabelo, presented a report to the Committee entitled “Justice Reinvestment: A Framework to Improve Effectiveness of Justice Policies in Texas.” This report outlined two justice reinvestment scenarios: provide more tools to the Parole Board to enhance the use of parole and increase the availability of treatment services. According to the report, state policymakers could avert spending $377 million for construction of prisons for 5,000 more inmates. In addition, according to the report, projected savings from 2009-2012 is upwards of $50 million.

You save two ways by not locking people up. And yes, it is better for the quality of life overall. Educational achievement is a good predictor of who goes to prison. The plan is to target those communities in which educational achievement is demonstrably lacking, and institute a “Diversion Program” away from prison and toward achievement, citizenship, legitimate jobs, cf. drug running, snorting up, burglery, etc.

In essence, the report tells us what many of us already know. The bathtub is full and you need to get a bigger one or reduce conviction rates, the rates of incarceration per convic-tion, and find ways to increase participation in probation and alternative treatment pro-grams, as well as parole rates, for “non-violent-low-risk” offenders. The trends indicate that building prison beds only results in filling them as fast as the construction budget permits. Consequently, it is no surprise that everything else, probation, treatment, alternative to prison incarceration, and parole is neglected, and education and diversion/treatment also neglected. REMINDER TO THE LEGISLATURE: INCARCERATION IS THE MOST EXPENSIVE METHOD OF DEALING WITH CRIME. INCARCE-RATION RESULTS IN LOWER STAN-DARDS AND QUALITIES OF LIFE FOR EVERYBODY BY LOWERING THE BOTTOM rungs of society and making it more inclusive. Instead we should be trying to raise the bottom and pulling citizens out of there and into decent, and rising, standards of living.

On December 3, 2006, the Council of State Governments (CSG) board voted to transform the Eastern Regional Conference’s (CSG-ERC) criminal justice program into a national Justice Center. Founded in 1933, CSG serves the executive, judicial and legislative branch-es of state government through leadership education, research and information services.

CSG's national headquarters is in Lexington, Ky. The address is 2760 Research Park Drive, P.O. Box 11910, Lexington, Ky 40578-1910. The phone number is (859) 244-8000 and the fax number is (859) 244-8001.

I can make copies of the report available for cost plus. Sorry but as much as I would like, I cannot send everybody a free copy! Maybe they could...it is really quite a good report.

“Hat Tip”: SH at Grits for Breakfast

Circuit Blurbs

Salinas v. Gonzales, No. 05-60878 (5th. Cir. 1/23/2007) (5th. Cir., 2007)

Sonnier v. Quarterman, No. 06-70003 (5th. Cir. 1/22/2007) (5th. Cir., 2007) IAC refusal to consent to lawyers more extensive and in-depth discussions with family and acquaintances to determine the nature and extent of the mitigation evidence available is not reasonable grounds for the failure to do so.

Moody v. Quarterman, No. 02-21245 (5th. Cir. 1/17/2007) (5th. Cir., 2007) district court failed to give proper deference to the Texas Court of Criminal Appeals' findings of fact pursuant to 28 U.S.C. § 2254, the order granting petition on equal protection claim is VACATED.

Wright v. Vaughn, No. 04-3457 (3rd Cir. 12/26/2006) (3rd Cir., 2006) (IAC fail to call witness) ;

Eddleman v. McKee, No. 05-1493 (6th Cir. 12/14/2006) (6th Cir., 2006) ([P]resents the question of what type of deference we owe on collateral review to a state court's harmless-error determination. David Eddleman was convicted of second-degree murder and a firearm offense in a Michigan state court. On direct review, the Michigan Court of Appeals affirmed his conviction, concluding that the trial court erred in admitting his coerced confession but that the error was harmless. Eddleman petitioned for a writ of habeas corpus in federal court. The district court granted the writ, and warden Ken McKee appealed.

We affirm. We hold that, when a state court has found an error to be harmless, we should ask on collateral review whether the state court's harmless-error decision was contrary to, or an unreasonable application of, the clearly established federal rule that a trial error is harmless only if it is harmless beyond a reasonable doubt. Applying this standard of review to the case at hand, we hold that the Michigan Court of Appeals's harmless-error determination was an unreasonable application of the Supreme Court's decisions Chapman v. California, 386 U.S. 18 (1967), and Arizona v. Fulminante, 499 U.S. 279 (1991)).

Innocence Projects--These tend to be “black holes” but somebody could get lucky:

2. What is the procedure for having a case considered by TIN?

Due to the volume of incoming requests, TIN accepts cases by mail only. TIN does not accept cases by telephone or e-mail.

There are no exceptions to this policy. Please address all mail to:

Texas Innocence Network

University of Houston Law Center

100 Law Center

Houston, Texas 77204-6060

Please include the inmate’s name, number, address, crime convicted of, and reason(s) they are innocent of the crime. Do not

send any additional documentation. TIN will not return any documents or exhibits sent by inmates or their agents.

3. Must an inmate write the letter, or can it come from someone else?

An inmate or an inmate’s agent can initiate a request. Frequently, the agent who initiates a request is an inmate’s spouse,

parent, or child. Regardless of who initiates the request, TIN will open a file for an inmate when it receives a letter containing the required information (see FAQ #2). However, once TIN receives a request, its future communications will be directly with the inmate.

***************

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. Your subscription dues are even more important to me (just kidding! But it's true). I need $$$ in order to keep reaching out, especially to the indigent guys who really can't even afford a stamp—an if I really start to rake in the cash I can actually start doing stuff that real innocence projects do, filing motions and requests in court, and investigating cases. The Innocence Project continues actively seeking funding and partnerships, 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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Weblog, current, and back-issues of Z--The Legal Monthly at http://zlegaltimes.blogspot.com/

301-591-2490

Free to indigent prisoners (and free download) Subscriptions: Twelve dollars per year

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.

***

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 5^th 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

***

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, 263^rd 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)

***

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 (5^th 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 (5^th 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).

***

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?

***

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 (6^th 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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