Criminal Appeal

SCOTUS: Per Curiam Reversal of Sixth Circuit in Federal Habeas Case. Dye v. Hofbauer, no. 04-8384 (Oct. 11, 2005).

In a unanimous opinion, the full court (yes, Justice Roberts participated) summarily reversed the Sixth Circuit, finding both grounds used to deny habeas relief were wrong. No new law here, just a poor reading of the record by the Sixth Circuit.

Lesson One (for courts): read the record. First, the Sixth Circuit concluded that because the state appellate briefs were not in the record, it could only look to the state court of appeal opinion to determine whether the claim was exhausted. Problem with that approach, however, was that the state court brief actually was in the state court record. That brief, moreover, adequately exhausted the federal due process basis of the prosecutorial misconduct claim by mentioning "due process" in an argument heading, citing the 5th & 14th Amendments in the text, and citing federal cases. More than adequate.

Lesson Two (for petitioners): it's o.k. to incorporate an attached brief by reference. The Sixth Circuit's second mistake was its conclusion that the prosecutorial misconduct claim was "too vague and general in form." The petition made "repeated references to an appended supporting brief, which presented Dye's federal claim with more than sufficient particularity." This is reassuring for state court practitioners who, when the direct appeals end, recommend that their clients use the pro per federal habeas form and that the client describe the claims as best they can in the form petition, but also to refer, in the form, to an attached brief, perhaps even the state court appellate brief/petition (assuming the state court brief adequately presented the federal claim). Ideally, an argument should be adapted to federal court, addressing the AEDPA standards, Brecht, etc. But it simply is not possible for state court counsel to follow all cases to federal court.

Warning: Summary of Opinion from June (I'm still catching up on a few 9th Circuit Opinions I missed due to vacation.)
District Court Erred In Finding Habeas Claim Procedurally Defaulted. Lounsbury v. Thompson, no. 03-35863 (9th Cir. June 29, 2004)

Substantive competency claim was sufficiently encompassed within procedural comptency claim presented in petition for discretionary review presented to Oregon Supreme Court:

we hold that Lounsbury adequately exhausted his substantive competency claim where (1) that claim was closely related to, and concerned the very same trial court legal ruling as, the claim that was concededly adequately raised; (2) the Oregon Supreme Court, under its own rules, could have reached the substantive competency issue had review been granted because it was squarely raised in the Court of Appeals brief; (3) the text of the petition includes the substantive claim; and (4) had the Oregon Supreme Court accepted review even over the procedural issue only, it could have discussed the strength of the substantive competency claim in the course of conducting a harmless error analysis for the procedural competency claim.

Panel: Goodwin (author), Hug, Berzon

Supreme Court to Review Stay and Abeyance Procedure for Mixed Petititons. Having skirted this issue last week in Pliler v. Ford, no. 03-221, the Court will be deciding it next term in Rhines v. Weber, no. 03-9046

Pliler v. Ford, no. 03-221, decided: Warnings Not Required.

Justice Thomas, joined by Rehnquist, O'Connor, Scalia, and Kennedy, wrote a majority opinion reversing the Ninth Circuit on the ground that the district court is not required to give the detailed warnings the Ninth Circuit held are to be given to a pro se habeas petitioner who has filed a mixed petition. Justice O'Connor wrote a separate concurring opinion, noting, like the majority, that the propriety of the stay-and-abeyance procedure was not before the court and that, in any event, that procedure is not idiosyncratic, as Justice Breyer called it.

Justice Thomas wrote that when confronted with a pro se litigant who has filed a mixed petition, the district court is not required to warn the petitioner (1) that the court would not be able to consider a motion to stay the mixed petition unless the petitioner dismissed the unexhausted claims, and (2) that the prisoner would be time-barred upon return from state court if he opted to dismiss the entire petition without prejudice. The majority viewed such warnings as too much help:

Without addressing the propriety of this stay-and-abeyance procedure, we hold that federal district judges are not required to give pro se litigants these two warnings. District judges have no obligation to act as counsel or paralegal to pro se litigants.

The court went so far as to say that such warnings "would undermine district judges' role as impartial decisionmakers." The court also found the proposed to be themselves potentially misleading. First, because it may not be in a petitioner's best interest to stay the exhausted claims when the unexhausted claims are particularly weak. Second, district judges might error in the "the potentially burdensome, time-consuming, and fact-intensive task" of determining whether the statute of limitations has, or is about to, run.

Justice Ginsburg dissented on the ground that the majority failed to address the ripe question regarding the stay-and-abeyance procedure:

The Court today does not "addres[s] the propriety of this stay-and-abeyance procedure." Ante, at 5. But that unaddressed issue seems to me pivotal. If the stay and abeyance procedure was a choice respondent could have made, then the Magistrate Judge erred in failing to inform respondent of that option. While I do not suggest that clear statement of the options available to respondent must be augmented by "advisements," ante, at 8, I would not defer, as the Court does, the question at the core of this case

Justice Ginsburg, in a foonote, also noted that, in light of the AEDPA statute of limitations, it might be time to reexamine the propriety of the option of dismissing mixed petitions.

Justice Breyer joined Justice Ginsburg's opinion, and wrote a separate dissent passionately defending the stay-and-abeyance procedure and stating that the district court should have advised the petitioner of that option.

Justice Stevens, joined by Justice Souter, wrote a very brief separate opinion fully joining the reasoning of the dissents, but also concurring with the judgment because "I am persuaded that the judgment entered by the Court---remanding to the Ninth Circuit to determine the propriety of equitable tolling---is both consistent with those views and correct. I therefore concur in that judgment.

It strikes me that none of the Justices thought the detailed advisements suggested by the Ninth Circuit were required, but four of the justices were clearly troubled by the failure of the district court to advise the petitioner of the stay and abeyance procedure.

Mixed Petition: "Abuse of Discretion Not to Grant [Petitioner]'s Motion to Utilize the Withdrawal and Abeyance Procedure." Olvera v. Giurbino, no. 02-56134 (9th Cir., June 8, 2004).

Baldwin Applied: Due Process Claim Not Exhausted (9th Cir. 2-1). Castillo v. McFadden, no. 03-15715 (9th Cir. June 1, 2004).

Majority: Rymer and Bybee (author). The majority held that the petitioner failed to exhaust state remedies because he did not fairly present his federal due process claim to the state supreme court. The Court first looked to the petitioner's state appellate briefs. (“[C]laims of Arizona state prisoners are exhausted for purposes of federal habeas once the Arizona Court of Appeals has ruled on them.” Swoopes v. Sublett, 196 F.3d 1008, 1010 (9th Cir. 1999).) His questions presented and argument headings identifing a "fundamental" and "highly prejudicial" error did not constitute preservation of a federal due process claim. The general reference to the denial of a "fair trial" in the argument section of the brief and the last sentence of the brief--“[t]he gross violations of Appellant’s Fifth, Sixth, and Fourteenth Amendment rights requires [sic] that his convictions and sentences be reversed and that he be granted a new trial consistent with due process of law”---likewise inadequately preserved the due process claim. And the U.S. Supreme Court decision in Baldwin v. Reese, 124 S. Ct. 1347, 1351 (2004) forecloses looking through to the state trial court pleadings and briefs: "the Arizona Court of Appeals was not required to review the parties’ trial court pleadings to see if it could discover for itself a federal, constitutional issue. To exhaust his claim, Castillo must have presented his federal, constitutional issue before the Arizona Court of Appeals within the four corners of his appellate briefing."

Dissent: Hawkins. Judge Hawkins found the issue adequately preserved:

In Castillo’s state appellate court briefs, [footnote omitted] he argued that he was denied a fair trial in violation of the United States Constitution. Also in that section, he cited three federal cases.4 And in his conclusion, he argued that his Fourteenth Amendment right was violated and that he should be granted a new trial consistent with due process of law. Taken together, these three references should have been enough to alert the state court as to the nature and basis of Castillo’s constitutional claims.

Not only did Judge Hawkins find the claim preserved, he also it found it meritorious, requiring granting of the writ under AEDPA.

Mixed Petitions. The transcript of the oral argument in Pliler v. Ford, no. 03-221, is now available. We'll have to wait for a decision, which will come before the end of June. I was glad to see there was some discussion about the possibility of directing district courts to stay all mixed petitions without dismissing the unexhausted claims. It was difficult, however, to know how much support there was for any one position; supreme court transcripts do not identify justices by name.

The opinion should be a fascinating read for those who enjoy the intersection of exhaustion, the mixed petition doctrine, the AEDPA statute of limitations, the relation back doctrine, and rule-bending-for-pro-pers-jurisprudence. This one may not make the evening news.

U.S. Supreme Court: In Determining Whether Federal Habeas Claim Was Exhausted in State High Court, Federal Habeas Court Can't Look Past State High Court Petition or Brief to Lower State Court Opinion to Find Federal Nature of IAC Claim; Door Still Open to Showing State Law Claim Is Decided Under Standards Identical to Federal Constitutional Standards. According to the 8-1 majority opinion authored by Justice Breyer in Baldwin v. Reese, no. 02-964, after the lower Oregon courts denied him post-conviction collateral relief, "Reese filed a petition for discretionary review in the Oregon Supreme Court. The petition made several different legal claims. In relevant part, the petition asserted that Reese had received 'ineffective assistance of both trial court and appellate court counsel.' ... The petition added that 'his imprisonment is in violation of [Oregon state law].' Id., at 48. It said that his trial counsel's conduct violated several provisions of the Federal Constitution. Ibid. But it did not say that his separate appellate 'ineffective assistance' claim violated federal law."

Assuming that the petition to the Oregon Supreme Court did not itself fairly present the federal claim of ineffective assistance of appellate counsel, the eight-justice majority concluded that the fact that a lower state court opinion might have alerted the state high court to the federal nature of the claim does not make the claim fairly presented to the state high court. The Court reasoned that it is not always necessary for a reviewing court to read the lower court opinion and that it is not much of a burden to require a petitioner to cite federal law in the petition or brief filed in the state high court.

The majority refused to reach the merits of Reese's alternative argument that the claim actually was fairly presented to the Oregon Supreme Court. As to Reese's assertion that "ineffective" is a term of art in Oregon which refers to federal law (state law claims use the term "inadequate counsel"), the majority cited an Oregon case to the contrary. And the Court, noting that the argument had not been made in the Ninth Circuit, refused to address Reese's assertion that Oregon courts decide both state and federal law claims of IAC under the identical federal standard.

Justice Stevens dissented, stating that he would reach the merits of the just-described argument and that he would find the standards sufficiently identical that Reese had exhausted his federal claim of IAC of appellate counsel.