Criminal Appeal

Silent Order = Timely Petition

In Evans v. Chavis, no. 04-721, the Supreme Court held that a California inmate's state habeas petition filed in the California Supreme Court was untimely. As a result, the defendant was not entitled to statutory tolling of the AEDPA statute of limitations for the period between the time the previous such petition filed in the state court of appeal was denied and the filing of the petition in the state supreme court. This holding rendered the petitioner's federal habeas petition untimely.

A troubling aspect of the Court's opinion is that it turns on its head the usual presumption that a silent order by the state court is a denial on the merits.  As stated in the opinion, "On April 29, 1998, the California Supreme Court denied the petition in an order stating simply, “Petition for writ of habeas corpus [i.e., review in the California Supreme Court] is DENIED.” (The court's bracketed phrase reveals an unfamiliarity with California procedure. State habeas petitions filed in the state supreme court, even if they follow similar petitions filed in a lower court, are not petitions for "review"; they are original proceedings.) The Court noted that in Carey v. Saffold, 536 U. S. 214 (2002) it had stated that "a California Supreme Court order denying a petition 'on the merits' does not automatically indicate that the petition was timely filed."  Thus, writes Justice Breyer, the silent order Chavis received from the state high court could not be presumed a denial on the merits:

If the appearance of the words “on the merits” does not automatically warrant a holding that the filing was timely, the absence of those words could not automatically warrant a holding that the filing was timely. After all, the fact that the California Supreme Court did not include the words “on the merits” in its order denying Chavis relief makes it less likely, not more likely, that the California Supreme Court believed that Chavis’ 3-year delay was reasonable.

From this analysis I confidently conclude that the parties did not bring to the Court's attention the California Supreme Court's minutes of April 29, 1998, which clearly show that when a denial is not on the merits the California Supreme Court knows how to say so. Chavis's petition is listed without a reason stated or case citation. But many habeas petitions on the list were denied with citation. Scrolling through the list, citations to cases establishing habeas procedural bars are common. The main ones used (with my explanation in brackets) are: "In re Swain (1949) 34 Cal.2d 300, 304" [i.e. claims alleged with insufficient particularity]; "In re Waltreus (1965) 62 Cal.2d 218, 225" [i.e. claims rejected on appeal, and habeas corpus cannot serve as a second appeal]; "In re Dixon (1953) 41 Cal.2d 756, 759" [i.e. claims could have been, but were not, raised on direct appeal]; In re Clark (1993) 5 Cal.4th 750 [untimeliness].

In light of the California Supreme Court's regular use of citations to deny petitions on procedural grounds, including untimeliness, the presumption that a silent order is not a denial on the merits is unsupportable.

This is a post about DNA.

DNA tests confirm that Roger Coleman (see previous post) was the man who raped and killed his sister-in-law. "The tests show there is a one in 19 million chance that semen found on the victim's body belonged to someone else." Read the Washington Post story here.

This is a Post About Coleman

"This is a case about federalism" was the first sentence in Justice O'Conner's majority opinion in Coleman v. Thompson, 501 U.S. 722 (1991), a seminal case on federal habeas review of claims defaulted in state court. Invoking the two F's (federalism and finality) the Court held that Roger Keith Coleman would have no federal habeas corpus review of his claims of ineffective assistance of trial counsel because he had defaulted on his claims by filing his notice of appeal from the state trial court's denial of his state habeas petition one-day late. The Court held that untimeliness was an adequate and independent ground for dismissal of the state habeas appeal. The Court also held that a procedural default in state court can be excused on federal habeas review only by a showing of cause and prejudice. Because there is no constitutional right to counsel in state habeas proceedings, state habeas counsel's late filing of the notice of appeal was not sufficient cause to excuse the default. Coleman was executed in 1992.

Yesterday, Virginia Governor Mark Warner ordered DNA testing to confirm whether Coleman raped and murdered his sister-in-law in 1981. (Read the CNN story here.)

crim

Cal. 288(a) Viol. Is Crime of Violence

US v. Teeples, no. 03-30307 (9th Cir., Jan. 5, 2006): In this per curiam decision following a Booker remand from the US Supreme Court, the Ninth Circuit held that the defendant's prior convictions for lewd and lascivious acts on a minor (Cal. Pen. Code sec. 288(a)) constituted crimes of violence under U.S.S.G. § 4B1.2. The Court, however, remanded the case under Ameline for the limited purpose of reconsidering the sentence under the  discretionary guidelines (the court ordered the parties to notify the court if either wants to pursue an Ameline remand).

Cal. Supreme Court Jan. Calendar

This month, on January 10, the Cal. Supreme Court will hear argument in San Francisco. This will be Associate Justice Corrigan's first day on the bench, but much will be familiar. The courtroom will be the same one she has sat in for several years as an associate justice in the First Appellate District. Two civil cases on the calendar come from her former court (from Divisions Four and Five, so there there should be no conflict). And one of the two death penalty cases to be argued---People v. Huggins, no. S037006---comes from Alameda County where Justice Corrigan served as both a Superior court judge and a deputy district attorney. 

Carol Corrigan Confirmed to Centrist California Court

The California Commission on Judicial Appointments---Chief Justice George (a future colleague), Associate Justice Joan Dempsey Klein (2d Dist., Div. 3) (whose decisions she will review) and Attorney General Bill Lockyer (whose office appears before the supreme court than any other)---has confirmed Carol Corrigan to be the newest associate justice of the California Supreme Court.

Cal. Supreme Court Addresses CPC Requirement for PC 654 Claims

People v. Shelton, no. S124503 (Cal. Supreme Court, Jan. 5, 2006, argued Nov. 9, 2005)

The question addressed is whether a defendant required to obtain a certificate of probable cause in order to claim on appeal that the manner of calculating the maximum sentence he agreed to in a plea agreement violated Penal Code section 654.

I'll post later on the holding.

This is a follow-up of People v. Hester, no. S077187 (2000).

Update. Here's the holding:

inclusion of a sentence lid implies a mutual understanding and agreement that the trial court has authority to impose the specified maximum sentence and preserves only the defendant’s right to urge that the trial court should or must exercise its discretion in favor of a shorter term. Accordingly, a challenge to the trial court’s authority to impose the lid sentence is a challenge to the validity of the plea requiring a certificate of probable cause.

Justice Werdeger dissented, expressly a different view of a "lid":

In exchange for his agreement to plead no contest to  two of the five felony counts charged, defendant was promised a sentence  maximum, or “lid,” of three years and eight months.  As memorialized by the trial  court, the plea agreement expressly reserved defendant’s right to “argue for  something less than three years and eight months.”  Nothing in the agreement  limited the grounds upon which defendant could argue for a lesser prison sentence,  nor did the agreement include any determination that imposition of the lid  sentence (or any longer sentence) was authorized under Penal Code section 654  (section 654).  For this reason, defendant’s appeal based on section 654 is not an  attack on the validity of the plea; he therefore was not required to obtain a  certificate of probable cause to pursue it.

January 9th Cir. Motions/Screening Panel

T. Nelson, Silverman, and Wardlaw

Cal. Supreme Court to Review Restitution Based on Future Earnings of Deceased Victim

Today, the Cal. supreem Court granted review in People v. Giordano, no. S138382.

The court of appeal (4th Dist., Div. 2), in a unanimous published opinion, had affirmed an award of restitution to a surviving spouse based on future earning of the decedent.

District Court: No Habeas Relief for Blakely and Apprendi Error ... Ever

In an unpublished order filed 12/6, a N.D. Cal. Judge summarily dismissed a state-prisoner habeas petition because Apprendi and Blakely "do[] not apply retroactively on habeas review:

Petitioner contends that his sentence was based on a number of facts in aggravation which were decided by the sentencing court, rather than a jury. He contends that this violated Apprendi v. New Jersey, 530 U.S. 466, 488-90 (2000), and Blakely v. Washington, 124 S. Ct. 2531, 2537 (2004). However, both those cases announced a new constitutional rule of criminal procedure that does not apply retroactively on habeas review. United States v. Sanchez-Cervantes, 282 F.3d 664, 665 (9th Cir. 2002) (Apprendi); Schardt v. Payne, 414 F.3d 1025, 1038 (9th Cir. 2005) (Blakely). This means that petitioner’s sole argument cannot be grounds for federal habeas relief. Because of this, he [sic] case will be dismissed.

The mistake here was assuming that Blakely and Apprendi are applied retroactively whenever the claim is presented in a habeas petition. In this case, the offense, conviction and sentencing all occurred after Apprendi. And, while the sentencing was prior to Blakely, the case was still pending on direct review when Blakely was decided. New rules apply to cases still pending on direct review, i.e. there is no retroactive application when the case is not final on direct review at the time the new rule is announced.  Griffith v. Kentucky, 479 U.S. 314, 322 (1987); Schardt v. Payne, 414 F.3d 1025, 1033 (9th Cir. 2005). Summary reversal may be warranted.

No Cert. Review from State Court Cases from Guam

Santos v. Guam, no. 03-70472 (9th Cir. 1/3/06)

On October 30, 2004, Congress amended 48 U.S.C. § 1424-2, stripping the Ninth Circuit of its jurisdiction to conduct discretionary review of decisions from the high court of Guam. That amendment required dismissal of the pending appeal, despite the fact that it did not take effect until after the pending case was argued in the Ninth Circuit.

Ninth Circuit Vacates Plea Because of Inadequate Advice on Mandatory Fine

U.S. v. Adams, no. 04-30339 (9th Cir. 1/3/06)

Majority (Judges Alarcón (author) and Kozinski): "We vacate Mr. Adams’s guilty plea and conviction because we conclude that it was not knowing, voluntary and intelligent in light of the district court’s failure to inform him that he was subject to a mandatory fine under the Sentencing Guidelines." The majority emphasized that the defendant's knowledge of the maximum possible fine did not do the trick as he was not advised of the minimum mandatory fine.

Judge Kleinfeld dissented, noting that the result was contrary to that reached in nine other circuits. He found some solace in the fact that "the practical significance of the majority’s holding should gradually dissipate as pre-Booker[fn omitted] sentences complete their passage through appellate and post-conviction review." As to the merits, Judge Kleinfeld contended there was no duty to advise the defendant on the fine because the fine was not mandatory. First, the guidelines, even before Booker, were not truly mandatory because departures were possible. Second, the fines are not mandatory because they are subject to an ability-to-pay inquiry.

Third District Rejects Faretta Claims

People v. Phillips, no. C048887 (Cal.Ct.App. (3d Dist.) 1/3/06):

• although trial court initially found unequivocal request for self-representation, by end of hearing defendant had withdrawn the request and agreed it was best to proceed with current counsel;
• defendant's decision was not tainted by incorrect statement by trial judge that decision regarding self-representation would require inquiry defendant's legal knowledge; such inquiry would reveal whether the decision was made intelligently and did not indicate the court would have denied the motion on the basis of a lack of legal knowledge;