Tara Time: Select New Developments in Habeas Corpus

Spotlight Development:

Good Facts, Bad Facts, No facts - what to do? Independent Review

No Facts: When No means Yes...

Not so long ago, in a bleak turn of events for habeas petitioners, the U.S. Supreme Court held that where a state court's decision on a claim is “unaccompanied by an explanation” of its reasoning, the AEDPA requires the Court to perform an “independent review of the record” to determine “whether the state court's decision was objectively unreasonable.” Harrington v. Richter, 562 U.S. 86, 98 (2011). This means that in absence of any reasoned decision from the state court (e.g., a “post-card” denial on state habeas), federal habeas courts must independently review the state court record and “determine what arguments or theories could have supported[] the state court's decision” and then determine whether application of those hypothetical theories would have been reasonable. In other words, in absence of a state court’s reasons for denying relief, the federal court can come up with its own reasons as long as they can be reasonably supported by the state court record. Id. at 102. Unfortunately, this standard of review has made it incredibly difficult for habeas petitioners to show that there was no possible reasonable basis for the state court to have denied their claim(s). Espinoza v. Spearman, 661 Fed.Appx. 910, 912 (9th Cir. 2016) (prisoner “still bears the burden of showing there was no reasonable basis for the state court to deny relief” on independent review).

Bad Facts: Why you got to be so mean...

What about when there is a reasoned decision from the state court (e.g., written opinion affirming conviction on direct appeal or written order stating reasons for denial of a state habeas, etc.)? In those cases, federal habeas courts are tasked with reviewing the reasonableness of the state court’s “last reasoned decision” while giving the facts stated therein a “presumption of correctness”. Murray v. Schriro, 746 F.3d 418, 441 (9th Cir. 2014); Taylor v. Maddox, 366 F.3d 992, 999-1000 (9th Cir. 2014). Unfortunately, usually these facts are “bad”, in that they were used to justify the state court’s denial of your claim(s) for relief.  The U.S. Supreme Court has not defined what the federal courts must review in order to determine the reasonableness of a “reasoned” state court decision. In other words, can they solely rely on the facts as stated by the state court in denying your claim(s)?

Good Facts:  When you don’t “gotta have faith”...

In Nasby v. McDaniel, 853 43d 1049, 1053 (9th Cir. 2017), the 9th Circuit confirms the answer is “no” relying on “a long line of our cases requiring federal habeas courts to examine independently the basis for the state court's decision, rather than to accept the state court's determination of the facts on faith.” At least six circuits have found that the AEDPA requires the last reasoned state court decision to be evaluated based on an independent review of the relevant record. In other words, the courts must review more than just the facts as stated in the state court decision, they must also review the portions of the state court record relevant to the state court’s decision. Id. at 1055. In essence the court must conclude that the state court’s summary of the facts is supported by the record before it is entitled to the presumption of correctness. see Taylor v. Maddox, 366 F.3d at 999-1000.

Moreover, if the relevant portions of the state record (e.g., trial transcripts, evidentiary hearing transcripts, etc.) are missing from the federal record, the court must require the State to submit them for independent review by the court. “Regardless of what documents [petitioner or the government] originally submit, it is the district court's independent obligation to obtain the relevant portions of the record.” This is because “[m]eaningful collateral review of the state court’s adjudication of the petitioner’s claims require[s] an independent assessment of the basis for the state court’s decision.” Nasby v. McDaniel, 853 43d 1049, 1053 (9th Cir. 2017). In essence, the “basis” for the state court’s decision is the evidence below, not just the state court’s recitation of facts. Finally, if the relevant portions of the state court record are unavailable, the federal court must develop its own factual record by conducting an evidentiary hearing of its own. Id. at 1054;  Jones v. Wood, 114 F.3d 1002 (9th Cir. 1997).     

Practice Note: What does it all mean...

When preparing your Reply (aka Traverse) after reviewing the government’s Answer to your Petition, cite all contrary (“good”) facts supporting your position from the state court record so the federal court is obligated to obtain and review those portions of the record in determining both the correctness of the state court’s facts and the reasonableness of the state court’s decision. Pay close attention to the Notice of Lodged Documents to see what has not been provided to the Court from the state court record and argue in your Reply that those items must be obtained and reviewed for a meaningful determination of your claim(s). When preparing Objections to the Magistrate’s Report, point out anything in the state court record you feel was not obtained or reviewed by the Magistrate in making the decision on your claims.      

Other Developments:

Pre-Plea IAC; Stay & Abey of Mixed Petitions; Trial Counsel’s Duty to Investigate; De Novo review; Confrontation Clause; Miller error.

1. Pre-plea ineffective assistance of counsel claims are cognizable on federal habeas corpus. Although freestanding constitutional claims are unavailable to habeas petitioners who plead guilty, claims of pre-plea ineffective assistance of counsel are cognizable on federal habeas review when the action or inaction of counsel prevents a petitioner from making an informed choice whether to plead. Mahrt v. Beard, 849 F.3d 1164, 1170 (9th Cir. 2017).

2. Petitioner entitled to a stay of his mixed petition to pursue his unexhausted IAC claim in state court. Fact that petitioner was pro se during state court post-conviction proceedings (e.g., state habeas), constituted good cause for failing to exhaust his ineffective assistance of trial counsel claims, as required for stay and abeyance of his mixed habeas petition where at least one of petitioner's ineffective assistance of trial counsel claims was not plainly meritless as required for stay and abeyance of his mixed habeas petition. Dixon v. Baker, 847 F.3d 714 (2017).

3. Trial Counsel’s Failure to Investigate Can Not be Excused as “Strategy”. Clearly established federal law (Strickland) provides that trial counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Counsel’s choice not to investigate cannot be a sound “tactical decision” unless it is based on a reasonable decision that renders the investigation of specific evidence unnecessary.  For example, where mens rea is a critical issue at trial, counsel’s decision not to investigate psychological evidence or pursue a psychological evaluation because of a fear that the results of such an expert evaluation might undermine trial strategy constitutes deficient performance. This is so because “counsel’s investigation must determine trial strategy, not the other way around, and counsel may not justify a failure to investigate by invoking strategy.  Weeden v. Johnson, 854 F.3d 1063 (9th Cir. 2017).

4. De Novo Review of Prejudice Where State Court Does Not Address Prejudice Below. Where a state court denied an IAC claim by finding no deficient performance and did make a finding on the prejudice prong of Strickland, the federal court will determine de novo whether there is a “reasonable probability” that the jury would have reached a different result if adequate representation had been afforded. Weeden v. Johnson, 854 F.3d 1063 (9th Cir. 2017).

5. AEDPA deference does not apply where the state court applies the wrong legal standard. Where a state court on habeas speculated that the jury “might have” reached the same result (i.e., conviction) had counsel performed competently, the federal court would not apply the AEDPA deference to the state court’s decision because the state court applied the wrong standard.  The correct standard for whether counsel’s deficient performance justifies habeas relief is whether there is “reasonable probability” that the jury would have reached a different result if adequate representation had been afforded. Weeden v. Johnson, 854 F.3d 1063 (9th Cir. 2017); see also Frantz v. Hazey, 533 F.3d 724, 734 (9th Cir. 2008) [a state court’s application of the preponderance of the evidence standard rather than the “reasonable probability” standard is contrary to the clearly established federal law enunciated in Strickland].

6. The 6th Amendment Confrontation Clause trumps the California Evidence Code. A California Court of Appeal decision that the Confrontation Clause was not violated because the trial court did not abuse its discretion in excluding evidence under the California Evidence Code was contrary to clearly established federal law. Although the U.S. Supreme Court has held that compliance with state law rules of evidence generally does not offend the Confrontation Clause, it has not held that compliance with state law rules of evidence necessarily means that the constitutional right to Confrontation has been satisfied. Even when a state evidence rule permits the exclusion of evidence, a court conducting a Confrontation Clause analysis must go further and determine that the restriction on the defendant’s right to confront the witness is not “arbitrary or disproportionate” to the purposes the state evidence rule was designed to serve.  If the state court conflates the state law evidence question with the Confrontation Clause question, it’s decision is contrary to clearly established supreme court authority because it has applied the wrong legal rule or framework. Gardner v. Holland, 218 F.Supp.3d 1048 (2016).

7. Miller error can be pursued via state petition for writ of habeas corpus. Miller v. Alabama, 567 U.S. ___, (2012) held that an LWOP sentence for a juvenile offender violates the 8th Amendment where the trial court fails to consider the “distinct attributes of youth” in determining sentence. Because the availability of recall and resentencing pursuant to Penal Code section 1170(d)(2) does not provide an adequate remedy at law for all Miller errors, habeas corpus relief is available.  In re Kirchner, 2 Cal.5th 1040 (2017).

Major Habeas Issues: SCOTUS Review 2016-17

Major Habeas Issues: SCOTUS Review 2016-17

Staring Down The Two-headed Monster (Part Two): Richter - Pinholster

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