Criminal Appeal

Innocence Claim Goes En Banc

Another of Judge Reinhardt’s habeas decisions was recalled for en banc rehearing today.  (Smith v. Baldwin, 466 F.3d 805 (9th Cir. 2006).)  This one involves a case where Judge Reinhardt and Judge Hug apparently believed that the petitioner was wrongfully convicted of murder.  The precise issue is whether the court can hear petitioner’s un-exhausted and therefore procedurally defaulted constitutional claims, including ineffective assistance of counsel and prosecutorial misconduct.  Judges Reinhardt and Hug stopped short of declaring petitioner actually innocent, but they apparently believe that new evidence from a third party, who confessed to the murder, was compelling and entitled the petitioner to an exception from the procedural default rule, under Schlup v. Delo, 513 U.S. 298 (1995).  Reinhardt and Hug concluded that the underlying constitutional claims should be heard on the merits.  Judge Bybee “respectfully, but vigorously” dissented:  “I disagree with nearly every word the majority has written, including ‘and’ and ‘the.’ . . .  [I]n the thousands of habeas cases that have [bypassed the procedural default rule under] Schlup, I have been unable to locate a single case where a petitioner convicted of felony murder was able to establish actual innocence.  Not one.  And there is no basis for making this case the first. . . .  There isn't a jury in the country that wouldn't convict Smith today on a charge of felony murder.” 

Despite the high stakes and heated tempers, there’s room for compromise here.  The en banc court could remand the case for an evidentiary hearing on the veracity of the newly discovered evidence before deciding whether a sufficient showing of innocence has been established to proceed to the merits of the constitutional claims.

This is an important case on its own, but it's also yet another indication that especially in criminal matters the Ninth Circuit is swinging against the progressive wing of the court presided over by Judge Reinhardt.

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.)

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No Double Jeopardy Violation for State Prisoner; IAC Claim Defaulted. Custer v. Hill, no. 02-36038 (9th Cir., Aug. 6, 2004).

Double Jeopardy. The majority in this case held that there was no double jeopardy violation where a defendant was tried twice for "deviate sexual intercourse' with his step-son where the charges in the two cases covered different times periods (barely). The first trial, which resulted in a dismissal by the trial judge for insufficient evidence, was for an offense committed “on or about June 20, 1987." The second trial was for an offense committed “on or between November 1, 1986, and June 19, 1987.” Judge Ferguson dissented on this question.

Procedural Default. Petitioner’s petition for post-conviction relief raised the double jeopardy and IAC claims. But the appointed state court post-conviction counsel did not raise the IAC claim in the state court of appeal or state supreme court. The petitioner attempted to raise it in the state court of appeal by requesting leave to raise the claim in a pro se supplemental brief, but he failed to do the same in the state supreme court.

Panel: Alarcón, Ferguson (dissenting), and Rawlinson (author)

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

En Banc Punt. The question pending for the en banc court in Chein v. Shumsky, 01-56320, was whether California's contemporaneous objection rule was adequate and independent for purposes of a federal habeas corpus procedural bar. The answer, according to the opinion filed on June 25, was that the evidence to support the conviction was sufficient. Punt.