Criminal Appeal

"[A] subject that challenges the most capable lawyers and judges."

Judge Kleinfeld's dissent discussed in the previous post has language helpful for petitioner's applying for discretionary appointment of counsel in federal habeas proceedings. In Judge Kleinfeld's view, the real problem in the case wasn't the unavailability of Spanish law books or Spanish-speaking prison law librarians, but it was the unavailability of counsel in this terribly complex area of law:

There is a real problem, and also a fake one, underlying this case. The real problem is that because inmates are not entitled to appointed counsel for habeas petitions, [footnote omitted] they have little hope of understanding the myriad subtleties and intricacies of habeas law. It is a subject that challenges the most capable lawyers and judges. The fake problem is the lack of a Spanish-language library in Solano State Prison, where Mendoza has been.

Mendoza v. Carey, --- F.3d ---, slip op. at 17 (9th Cir., filed 6/7/06) (Kleinfeld, dissenting).

Attorneys assisting their clients with preparing motions to appoint counsel in habeas cases might quote from Judge Kleinfeld's dissent, in order to remind the court of how complex this area of law is.

Equitable Tolling

On Wednesday (6/7), a Ninth Circuit panel issued a 2-1 opinion holding that a pro se state habeas petitioner was entitled to an evidentiary hearing on equitable tolling of the federal habeas statute of limitations based on his factual allegations that the prison law library failed to povide Spanish-langauge books or Spanish-speaking clerks/librarians. Mendoza v. Carey (9th Cir., filed 6/7/06). The majority (Tashima (author) and Fisher) limited its holding to situations where the petitioner had been diligant and where translation assistance---even from other inmates, which should be rare---was unavailable:

a non-English-speaking petitioner seeking equitable tolling must, at a minimum, demonstrate that during the running of the AEDPA time limitation, he was unable, despite diligent efforts, to procure either legal materials in his own language or translation assistance from an inmate, library personnel, or other source.

The holding could raise concerns about over-burdening prison law libraries with the duty to provide foreign-language materials or translators in many languages. But the majority pretty clearly backed off from adopting a per se rule requiring Spanish-language books in prison law libraries, noting the availability of translators not provided by the states. See slip op. at 9, n.5.

Judge Kleinfeld dissented on the basis that the petitioner had not established that he was literate in Spanish, there was no evidence that the necessary materials were available in Spanish, and there was no evidence that bilingual inmates who could have helped him were unavailable before the limitations period ran.

Cert. Grant on Blakely Retroactivity

The Supreme Court granted cert. today in Burton v. Waddington, no. 05-9222, to resolve whether Blakely announced a new rule and whether it applies retroactively to cases not final on appeal when Blakely was decided.

Burton is a habeas case from the Ninth Circuit in which the petitioner is a state of Washington prisoner. In an unpublished opinion, the Ninth Circuit agreed with the state that Blakely announced a new rule that did not apply retroactively. The Ninth Circuit limited its analysis to applyling Apprendi alone.

There's an argument to made that Blakely did not announce a new rule. As I explained in post late last year:

Blakely and Booker did not announce new rules; both were matter-of-fact applications of Apprendi and the rule applied in those three cases applies to any cases which were not final on direct review when Apprendi was decided. Justice O'Connor, in her Blakely dissent, recognized that Blakely might not have announced a new rule:

Every sentence imposed under such guidelines in cases currently pending  on direct appeal is in jeopardy.  And, despite the fact that we hold in Schriro v. Summerlin, post, p. ___, that Ring  (and a fortiori Apprendi) does not apply retroactively on habeas review, all criminal sentences imposed under the federal and state guidelines since Apprendi was decided in 2000 arguably remain open to collateral attack. See Teague v. Lane, 489 U.S. 288, 301 (1989) (plurality opinion) (“[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s  conviction became final”).