Criminal Appeal

Cal. Supreme Court Overturns Death Sentence

In a rare capital habeas victory, the California Supreme Court unanimously reversed a jury's death sentence and ordered a new penalty hearing based on new evidence that a third party actually committed the murders in question. According to the Court, defense counsel provided constitutionally deficient representation by failing to investigate adequately available evidence of third party culpability. Reversal of the death sentence was required because there was a reasonable probability that the jury would not have imposed the death penalty had the evidence merely established that the defendant was a co-conspirator rather than the acutal killer. With that principle in mind, though, the Court declined to reverse the defendant's murder conviction because the evidence established that the defendant's participation in a conspiracy to commit murder rendered him liable for first degree murder irrespective of the possibility that a third party actually killed the victims.

The unanimous opinion was authored by Justice Werdegar.

In re Hardy, no. S022153 (Cal. Supreme Ct., filed 7/26/07)

Court of Appeal Deems Failure To Introduce Expert Testimony On Intimate Partner Battering IAC And Grants Habeas Relief

Fourteen years ago, a panel of the Second District Court of Appeal rejected the defendant's contention that the failure of her trial counsel to introduce expert testimony on intimate partner battering and its effects constituted ineffective assistance of counsel. Therefore, it affirmed her conviction for second degree murder of her abusive husband.

Three years later, the California Supreme Court held imperfect or unreasonable self-defense is not a defense but a lesser offense included in the crime of murder. As a result, trial courts must now instruct the jury the People have the burden of proving beyond a reasonable doubt the defendant was not acting in imperfect self-defense whenever the record contains substantial evidence from which the jury could reasonably conclude the defendant was guilty only of voluntary manslaughter.

The following year, the California Supreme Court held expert testimony concerning intimate partner battering and its effects, expressly made admissible in criminal actions by Evidence Code section 1107 as of January 1, 1992, was relevant in a murder case to the determination of both the subjective existence and objective reasonableness of a defendant’s belief in the need to defend herself or himself.

In light of these developments, defendant filed a petition for a writ of habeas corpus. The Second District Court of Appeal reconsidered its earlier ruling in her case and concluded that the failure of her trial counsel to introduce expert testimony regarding intimate partner battering and its effects (whether or not a reasonable tactical decision) substantially prejudiced her defense. The Court of Appeal agreed that there was a reasonable probability, sufficient to undermine confidence in the verdict, that the result of her trial would have been different (that is, she may have been convicted of voluntary manslaughter rather than second degree murder) had such evidence been presented. Accordingly, the Court of Appeal vacated the 1991 judgment of conviction and remanded for a new trial.

The unanimous opinion was authored by Presiding Justice Dennis M. Perluss.

In re Walker, no. B190637 (Cal.Ct.App. (2nd Dist., Div. 7) filed 2/5/07)

No Strickland at Sentencing?

In a decision issued last week, Davis v. Grigas, no. 05-15211, the Ninth Circuit held that---for purposes of federal habeas review under AEDPA---it is not clealy established by U.S. Supreme Court authority that the two-step Strickland standard for reviewing ineffective assistance of counsel applies to counsel's handling of a non-capital sentencing. This may be a surprise to many attorneys and judges who routinely apply Strickland to the sentencing context.

The petitioner had aruged that sentencing counsel was ineffective in failing to investigate and present mitigating evidence at sentencing. The Ninth Circuit, relying on its earlier decision in Cooper-Smith v. Palmateer, 397 F.3d 1236, 1242 (9th Cir.), cert. denied, 126 S. Ct. 442 (2005), concluded that no relief was available under the "contrary to" prong of AEDPA (i.e., "contrary to clearly established Federal law, as determined by the Supreme Court of the United States") because it is not clearly estabished that Strickland applies to non-capital sentencing:

However, as we have previously recognized, the Strickland Court “expressly declined to ‘consider the role of counsel in an ordinary sentencing, which . . . may require a different approach to the definition of constitutionally effective assistance.’ ” Cooper-Smith, 397 F.3d at 1244 (quoting Strickland, 466 U.S. at 686). Moreover, since Strickland, the Supreme Court has not delineated a standard which should apply to ineffective assistance of counsel claims in noncapital sentencing cases. Id. Therefore, as we said in Cooper-Smith, there is no clearly established federal law as determined by the Supreme Court in this context. Id.

We note that, even though the Strickland standard does not by necessity apply to the noncapital sentencing context, the Nevada courts were nonetheless free to adopt that standard for use in this context, as they appear to have done. Id. However, because there is no clearly established Supreme Court precedent that applies to this context, we are unable to grant Davis habeas relief on this ground.

As I understand this ruling, the Court does not disagree that it is clearly established that there is a right to counsel at criticial stages of criminal proceedings, that non-capital sentencing is a critical stage, and that the right to counsel means the right to effective assistance of counsel. What the Court views as not clearly established is whether the two-step Strickland test applies.

The opinion was authored by Judge Hall and joined by Judge Silverman. Judge Graber concurred, questioning whether Cooper-Smith, the opinion relied upon by the majority, was correctly decided.

 

Ninth Cir. to Review Relief for Plea Negotiations IAC

This week, the Ninth Circuit granted en banc review of its 2-1 decision in Riggs v. Fairman, no. 02-55185, a case concerning whether the district court erred in denying specific performance as a remedy for trial counsel's failure to effectively investigate a client's prior criminal history in a California three strikes case.

In the original three-judge decision, the majority (Judges Trott &  Rawlinson (author) held that the district court did not abuse its discretion in fashioning a remedy whereby the parties would return to their pre-error negotiating stage, rather than specific performance. Judge Bea dissented and would  have held that Riggs was entitled to specific performance of the five-year offer.

Trivia Bit #1: Last year, a different 2-1 panel (Judges Reinhardt, Thompson (dissenting) & Berzon) granted habeas relief and specific performance (dissent here) to my client Eugene Jones in a very similar case in which trial counsel's failure to investigate criminal history resulted in the ill-advised rejection of a seven-year offer and ultimate imposition of a 30-to-life sentence. After serving more than 10 years in prison, Mr. Jones was released last spring. Of course, the S.F. jail opted to release him at 11 p.m. with no money in his pocket.

Trivia Bit #2: Riggs, by the way, was the petitioner in a 1999 cert. denial from which Justices Stevens, Souter, Ginsburg and Breyer dissented. That petition raised the question of whether an indeterminate 25-to-life term for petty theft was cruel and unusual.

 

IAC on Direct Appeal (And "Fuck You, I Want to Talk to My Lawyer" is Not an Adoptive Admission).  This is something you don't see too much: earlier this month the California Court of Appeal (6th Dist.) reversed a conviction on the ground of ineffective representation. What's even more unusual, it was done on direct appeal. (People v. Lopez, no. H026476.) 

Here we will determine, among other things, that defense counsel should have objected to evidence that each of the four defense witnesses had been arrested and that three of them had committed misdemeanor batteries and that defendant’s invocation of his right to counsel, however colloquially phrased (“Fuck you. I want to talk to my lawyer”), should not have been construed as an adoptive admission.

California caselaw, like other jurisdictions, allows a court of appeal to find IAC on direct  appeal when there is no conceivable tactical reason for counsel's actions or where counsel's tactical reasons are apparent from the record. This case met that requirement: "The Attorney General suggests no tactical reason for defense counsel to withhold objection to evidence of mere arrests or misdemeanor conduct not involving moral turpitude, and we cannot imagine one."

Remand for Evidentiary Hearing on Whether Trial Counsel Was Ineffective in Letting Defendant Plea Guilty While Under Influence of Pain Killers. U.S. v. Howard, no. 02-16228 (9th Cir., Aug. 25, 2004).

Note: Judge Kleinfeld dissented on the basis that the petitioner failed to allege that but for the painkillers he would not have pleaded guilty.

Panel: D.W. Nelson, Kleinfeld (dissenting) and Fisher (author)

Death Sentence Vacated; IAC in Penalty Phase Investigation. In re Lucas, no. S050142 (Cal.SupremeCt., July 26, 2004).

Holdings: (1) Juror who had used heroin, marijuana, cocaine, LSD, and amphetamines in the past did not commit misconduct by drawing on that life experience during jury deliberations to speculate about the role defendant's drug use had in the offense. (2) Trial counsel failed to obtain and present to the penalty phase jury readily available evidence that appellant had been extremely abused as a child: "Between the ages of three and seven years, he was beaten regularly, given inadequate food, dressed in rags during Ohio winters, forced to sleep under the bed, disciplined by being burned with a cigarette and by the administration of chili peppers to his genitals, and excoriated because of the circumstances of his birth. His sister was not subject to abuse; petitioner often was fed solely on her leftovers." Counsel's omissions constituted ineffective representation and entitled the petitioner to a new penalty phase trial.

This unanimous opinion was authored by Chief Justice George. Steven L. Friedlander of Cooley Godward in San Francisco represented the petition; Deputy A.G. Mary Sanchez represented the state.

Allen v. Woodford, no. 01-99011. (9th Cir., May 6, 2004) (Captial Case; Pre-AEDPA)

Holdings: Guilt Phase. The Court rejected all of the petitioner's claims of error with respect to the guilt phase. Penalty Phase. The Court found that "Counsel’s untimely, hasty, and incomplete investigation of potential mitigation evidence for the penalty phase fell outside the 'range of reasonable professional assistance.'" But the court denied relief because any error was harmless, i.e. in the face of overwhelming aggravating evidence, the omitted mitigating evidence--that the petitioner could be pleasant--would not have made a difference.

Note: This case is unusual in its finding of no-prejudice arising from penalty-phase incompetence---particularly for a pre-AEDPA case applying de novo review of the state court decision. But the result is less surprising when an unusual fact of the case is considered: the petitioner orchestrated the killings of witnesses against him while he was serving a life term in state prison for murder: "Given the nature of Allen’s crimes, sentencing him to another life term would achieve none of the traditional purposes underlying punishment: incapacitation, deterrence, retribution, or rehabilitation." I'm not sure it makes much difference to this analysis, but I wonder whether the Court considered that when Allen committed the capital crimes he was incarcerated at Folsom State Prison. Had he been in the SHU at Pelican Bay State Prison, he might not have had the access to other inmates necessary to commit his crimes.

(In an AEDPA case, the U.S. Supreme Court summarily reversed the Ninth Circuit's finding that the California Supreme Court's finding of no-prejudice from penalty-phase incompetence was unreasonable. Woodford v. Visciotti, 537 U.S. ___ (2002).)

Panel: Susan P. Graber, Kim McLane Wardlaw (author), and Richard R. Clifton

Counsel Ineffective In Failing to File Notice of Appeal Where Appeal Was Meritorious (Is that the right standard?)
Case: In re Anthony J., no. D040331 (Cal.Ct.App. (4th Dist., Div. 1) Apr. 7, 2004)
Proceeding: Habeas petition following juvenile delinquency proceedings.

Holding: Trial counsel was incompetent in failing to file a notice of appeal and such incompetence was prejudicial because the appeal would have been meritorious in that the trial court erred in denying a motion to acquit made at the close of the prosecution's case. The evidence of receiving stolen property was insufficient because the petitioner, although he was present and road inside of it, was not in possession of the stolen vehicle:

the People's case at most demonstrated mere presence by Anthony J. in the stolen vehicle. The only evidence presented at that time was that four young men got out of a car, they ran as a patrol car drove nearby, a set of keys was found near them when they were detained, and the driver of the vehicle was identified by a witness, but Anthony J. was not. There were no facts showing that Anthony J. and the driver were friends, that they had engaged in criminal activity together in the past, that he was a passenger shortly after the vehicle was stolen, or that Anthony J. and the driver jointly used the vehicle to commit crimes. Thus, the People's evidence did not demonstrate beyond a reasonable doubt that Anthony J. had possession of the vehicle, either actual or constructive.

Authoring Judge: Gilbert Nares

Note: The result seems right, but I would have gotten there a different way. I disagree with the suggestion that "The question presented is whether that error was prejudicial; that is, is it more probable than not that if an appeal had been filed, we would have reversed the judgment." (Emphasis added.) Once the court determined that counsel should have filed the notice of appeal, the defendant need show no more to establish ineffectiveness. Where counsel fails to file a notice of appeal, the defendant is not required to show that he or she would have prevailed on appeal. Rather, he or she only need show that he or she requested the filing of the noa or would have appealed had counsel give the proper advice and/or instructions. See Roe v. Flores-Ortega, 528 U.S. 470, 486 (2000). The opinion does not reflect whether the minor had requested that the attorney file a notice of appeal. It only shows that it was undisputed that counsel erred in failing to file it. That should have been enough for the court to find ineffective representation, thus entitling the minor to a direct appeal. As a practical matter, it makes little difference in this case because the court's prejudice determination substituted for the appeal. But there might be cases where it could make a difference. Any thoughts out there?

Some unfamiliarity with IAC jurisprudence is reflected by the court's use of the term "ineffective" where "incompetent" was more appropriate. See e.g. "it is undisputed that counsel's failure to file a notice of appeal from the judgment constituted ineffective assistance of counsel. The question presented is whether that error was prejudicial." Counsel is not "ineffective," however, unless both incompetence and prejudice are shown.

Possible Ineffective Representation in Connection With Advice re Immigration Consequences of Guilty Plea (Cal.Ct.App., 6th Dist.)

The California Court of Appeal (6th Dist.), issued an order to show cause today in connection with a habeas corpus petition, finding that the defendant-petitioner had made out a prima facie case of ineffective representation by trial counsel in connection with the advice given the defendant relating to the immigration consequences of his guilty plea to possession of marijuana for sale. Click here to read the opinion in People v. Bautista, no. H024442, authored by Justice Eugene M. Premo.