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Post-Conviction Update

Prepared by Walter M. Reaves, Jr.

Habeas Corpus

Addressing an issue which has not been consistently decided by the circuits, the Fifth Circuit in United States v. Thomas, 203 F.3d 350 (5th Cir. 2000), held that for purposes of limitations in a §2255 petition, the decision is final when the 90 days for filing a petition for certiorari expires, if no petition is actually filed. The Tenth Circuit reached the same decision in United States v. Willis, No. 98-3244 (2/1/00).

In United States v. Clark, 203 F.3d 358 (5th Cir. 2000), the Court addressed the question of when a federal defendant can attack a prior conviction used to enhance his sentence. The Court held that where the defendant was not in custody on the prior sentence, and had exhausted his state remedies, he could attack the convictions in a proceeding under §2255. The key to this decision is that the defendant had exhausted his remedies in State Court. Had he not done this, the issue could not have been considered. Addressing the same issue, the Seventh Circuit reached a different result. In Ryan v. United States, 214 F.3d 877 (7th Cir. 2000), the Court held a defendant who was blocked from challenging his state conviction in State Court could not challenge the conviction in a federal habeas petition. In that case, the defendant was no longer in custody on the state case, and therefore did not meet the in custody requirement. A similar issue was considered in Franklin v. Hightower, No. 98-6684 (11th Cir. 6/19/00). There, the Court held a State Court prisoner could not use §2254 to attack prior convictions used to enhance this sentence, where the challenge to the prior sentence was procedurally defaulted.

Addressing a somewhat technical argument the Court in Edwards v. Carpenter, 120 S.Ct. 1587 (2000), considered what a defendant must prove where he is relying on ineffective assistance of counsel to establish a procedural default. The issue in this case was whether ineffective assistance can be relied on where that claim was also defaulted. The Court held that ineffective assistance of counsel claims can be defaulted just as any other claim. Therefore a defendant must establish the ineffective assistance claim was exhausted before ineffective assistance can be relied on to establish cause for a procedural default. This means that where ineffective assistance is used to establish a default, the ineffective assistance claim must also be separately raised.

Another habeas decision is Slack v. McDaniel, 120 S.Ct. 1595 (2000), where the Court addressed a number of technical requirements governing certificates of appealability. The Court held a certificate can be granted where the petition was dismissed on procedural grounds, if the defendant can make a showing that the decision was wrong. The court also addressed successive petitions, in the situation where a first petition was dismissed to allow a defendant to exhaust state remedies. The Court holds that once state remedies are exhausted, another federal petition is not successive, but will be considered as a first petition. The Court also holds that the defendant is not limited to claims raised in the initial petition.

In Tran v. Lindsey, 212 F.3d 1143 (9th Cir. 2000), the Court held the "clear error" analysis provides an appropriate standard for determining whether a State Court decision represents an unreasonable application of federal law. The Court reviewed the decision in Williams v. Taylor and noted that Congress intended to take a middle ground approach to the deference given to State Court decisions. Reversal is required when the Court is left with a "definite and firm conviction" that error has been committed. In applying that test, the Court held that circuit precedent may provide authority for determining whether a State Court decision is an unreasonable application of Supreme Court law, and may also be helpful in determining what law is clearly established.

The Seventh Circuit recently addressed the calculation of time periods under the AEDPA. In United States v. Marcello, 212 F.3d 1005 (7th Cir. 2000), the Court adopted the anniversary method of calculating due dates. Thus, if a petition for certiorari was denied on December 1, 1997, the petition would be timely if it was filed on December 1, 1998.

The debate over when the statute of limitations begins to run for federal prisoners was continued in United States v. Garcia, 210 F.3d 1058 (9th Cir. 5/2/00), and United States v. Torres, 211 F.3d 836 (2000). In Torres the Court held the statute begins to run when the mandate is issued if a petition for certiorari is not filed. The Ninth Circuit adopted the more lenient rule which does not start the statute until the time for filing a petition for certiorari has expired. That decision is in line with the Tenth Circuit and the Fifth Circuit. See: United States v. Birch, 202 F. 3d 1274 (10th Cir. 2000);United States v. Gamble, 67 F.2d 155 (5th Cir. 2000).

What constitutes a second or successive petition was addressed in United States v. Orozco-Ramirez, 211 F.3d 862 (2000). The defendant's first writ alleged ineffective assistance of counsel, which denied him a direct appeal. The Court held that claims which could have been raised in that petition would be second or successive. There was nothing to prevent the defendant from raising other claims in the first writ, and therefore they would be barred. Thus, even where the main claim is the denial of an appeal, all other issues must also be raised.

Habeas relief was granted based on the improper granting of a motion for mistrial in Johnson v. Karnes, No. 98-3099 (6/12/99). The trial court had granted a motion for mistrial after defense counsel asked the complaining witness whether he was aware the defendant had been acquitted of aggravated robbery. A mistrial is appropriate only when there is a manifest necessity to do so. In reviewing the issue on habeas, the Court held that it must ensure the trial court exercised sound discretion. The trial court failed to do so here, by not seriously considering other alternatives. This case is significant because it does not defer to what is basically a mixed question of fact. Instead, the Court fully reviewed the issue, and determined the trial court decision was not correct.


The First Circuit recently addressed the question of when the inclusion of relevant conduct requires the court to impose concurrent sentences. In United States v. Caraballo, 200 F.3d 20 (1st Cir. 1999), the Court held the critical inquiry is whether the relevant conduct was fully considered. Where such conduct did not increase the defendant's sentence, it was not fully considered, and the Court was free to impose consecutive sentences.

A victory for the defense in the Supreme Court came in Castillo v. United States, 120 S.Ct. 2090 (2000). The defendants were convicted of using or carrying a firearm in relation to a crime of violence. Their sentence was based on using a machine gun during the crime, which raised the sentence to 30 years. The Court held that was an element of the offense, which should have been presented to the jury.

Ineffective Assistance

The Supreme Court recently set forth the obligations counsel has in advising his client about the right to appeal. The lawyer has a duty to consult with the defendant when there is a reasonable basis to conclude that a rational defendant would want to appeal, or the defendant had demonstrated his interest in appealing that case. Where counsel consults with his client he will be ineffective only if he fails to follow the client's instructions. To establish prejudice, the defendant must establish only that he would have appealed, and is not required to establish the merits of the appeal. Roe v. Ortega, 120 S.Ct. 1029 (2000).

Addressing an issue which has been somewhat confusing, the Court in Purdy v. United States, 208 F.3d 41 (March 27, 2000), held that a defense lawyer does not have to advise their client whether to plead guilty. The attorney discharged his burden by advising the defendant of the difficulties of establishing innocence, and making him aware of the evidence the government hand against him. The court distinguished the decision in Boria v. Keane, which had held that a lawyer must advise the defendant as to whether they should plead guilty. The Court noted that the difference in sentencing between going to trial and taking a plea was not as great in this case. The court also noted that the chances of acquittal were not as hopeless as they were there. Therefore, it is still an open question as to when a lawyer must advise a defendant on what plea to enter.

An interesting ineffective assistance case is United States v. Fernandez, No. 98 Cr. 961 (S.D.N.Y. 5/3/00). There, the court found counsel ineffective for failing to advise the defendant of the importance of cooperating. The attorney had a conflict of interest, caused by the person paying the legal bills. The question was what remedy was available. The Court ultimately concluded that the only remedy was to give the defendant the sentence he likely would have received had he cooperated. This case could be significant, because it recognizes the importance of seeking cooperation agreements in certain cases where that may be the only strategy available.

In Amiel v. United States, 209 F.3d 195 (2nd Cir. 2000), the defendant alleged her lawyer had a conflict of interest because he also represented her mother, who was paying the legal bills.< style="mso-spacerun: yes"> She alleged that she wanted to testify, but was prevented from doing so because her lawyer was concerned about the effect that would have on the mother's case. The Court held there is an actual conflict of interest if the interest of the attorney and his client diverge with respect to a material fact or legal issue. To obtain relief the defendant need only show that some plausible defense strategy or tactic was not pursued because of the conflict.

The Supreme Court dealt with the adequacy of Anders briefs in Smith v. Robbins, 120 S.Ct. 746 (1/19/00). The Court noted that states have a substantial amount of leeway in determining how counsel should handle claims which they do not believe have any merit. Under the procedure here, counsel merely filed a brief that summarized the procedural and factual history with citations to the record. Counsel then asked the court to independently examine the record to determine the existence of arguable issues. Counsel does not withdraw, nor suggest the appeal is frivolous. The Court held that procedure is a sufficient. In doing so, the Court noted the ethical obligation a lawyer has to represent his client which is often compromised when a lawyer basically argues against his client's interest. On the other hand, the procedure here places a substantial obligation on the court to independently review such cases.

Other Cases

The Second Circuit granted relief in a habeas case involving a Batson violation in Jordan v. Lefevre, 206 F.3d 196 (2nd Cir. 2000).There, the lawyer objected to the prosecution's use of peremptory challenges against three black jurors. Before allowing the lawyer to make an argument, the judge asked the prosecutor to explain the reason for his strikes. The Court then overruled the motion without seeking further input from the lawyer. The Court held the trial court did not conduct a meaningful inquiry into the issue, and granted relief.

The Fifth Circuit recently held that a trial court impermissibly participated in plea bargaining by exerting pressure on the defendant to accept a plea agreement. In doing so, the Court noted that rule 11 is not limited to situations where the trial court somehow influences the terms of a plea agreement. United States v. Rodriguez, 197 F.3d (5th Cir. 1999).

The Supreme Court struck down an Eleventh Circuit decision dealing with the retroactive application of rules governing parole applications. In Garner v. Jones, 120 S.Ct. 1362 (2000), the Eleventh Circuit held that Georgia could not retroactively apply rules which lengthened the time between parole hearings. The Supreme Court held the Eleventh Circuit did not properly analyze the issue, and reversed. In doing so, the Court reiterated that Ex post facto is limited to situations where punishment is increased.

In Smith v. Groose, 205 F.3d 1045 (8th Cir.2000), the Court held that due process was violated where the prosecutor used contradictory theories to obtain convictions against two defendants. In one case, the state argued the victim was killed by one of the defendant's partners. In another case the state argued the murder was committed by a second group. The court concluded the prosecutor improperly manipulated evidence, which rendered the defendant's trial fundamentally unfair.

One of the few claims remaining which do not require a strict harm analysis are Rule 11 violations. In United States v. Hernandez--Fraire, 208 F.3d 945 (11th Cir. 2000), the Court failed to advise the defendant of his right to the assistance of counsel, the right to confront and cross-examine witnesses, and the right against compelled self-incrimination. The Court noted that Rule 11 should be strictly followed, and refused to rely on past experience with the criminal justice system to establish the error was harmless.

Another victory for the defense in the Supreme Court came in Carmell v. Texas, 120 S.Ct. 1620 (2000). There the defendant had been convicted of sexual assault involving a child over 14. At the time the offense was committed, Texas law required corroboration for a victim that was over 14. The law was subsequently changed to delete the corroboration requirement for victims under 18. The defendant was tried after the law changed, and was convicted solely on the testimony of the victim. The Court held that application of the amended statute violated the Ex post facto clause of the Constitution, because it lowered the proof required to obtain a conviction. This is a significant decision, because the Court had previously indicated that the Ex post facto clause applied only to statutes which created offenses out of otherwise innocent conduct, or increased punishment. Thus, the concept of Ex post facto appears to have broadened.

A significant jurisdictional case is Jones vs. United States, 120 S.Ct. 1904 (2000). There, the Court held that the arson of a private residence cannot be prosecuted in federal court. There must be some active use of the property in interstate commerce, as opposed to some passive or past connection to interstate commerce. The Court holds that obtaining a mortgage, insurance, and utilities is not sufficient.

A common defense trial tactic was impacted by the decision in Ohler v. United States, 120 S.Ct. 1851 (2000). There, the defendant challenged the admissibility of his prior convictions. That challenge was unsuccessful, and the defendant then sought to minimize their impact by bringing them up on direct examination. The Court held that by doing so, the defendant waived his right to challenge the court's ruling.

Public trial -- Gonzalez v. Quinones, 211 F.3d 735 (2nd Cir. 2000). In this case, the trial was closed for a short period of time due to a misunderstanding of the security officers. The closure lasted several hours, during which testimony was offered. The Court holds that was not so trivial as to not constitute a Sixth Amendment violation. Therefore, relief would be granted unless the state can establish a justification for the closure.

The court found an unlawful delegation of authority to the probation officer in United States v. Kent, 209 F.3d 1073 (April 19, 2000). The court had ordered the defendant to participate in psychiatric counseling as directed by the probation officer. Whether such counseling was necessary was left to the probation officers discretion. The Court held that such authority should not be delegated. The Court also held that the requirement for counseling was not supported by evidence suggesting that it was necessary or desirable.

In United States v. Harrison, 213 F.3d 1206 (9th Cir. 2000), the Court held that a defendant's ongoing relationship with his lawyer can invoke his right to counsel. Here, the defendant retained a lawyer to represent him in an investigation which subsequently led to charges being filed. He was arrested after the indictment was issued, and questioned. The Court held the ongoing representation could be considered in determining whether the defendant invoked his right to counsel. Because the lawyer had been actively involved in the investigation, the Court held that questioning the defendant without counsel present violated his right to counsel.

An interesting case involving translators is United States v. Martinez--Gaytan, 213 F.3d 890 (2000). There, the defendant challenged the reliability of the translation of his statement. The Court held that a court should not rule in such case without hearing the testimony of the translator, and allowing the defendant to cross-examine them.

A significant blow to defendants hoping to establish error in jury selection was dealt in United States v. Martinez--Salazar, 120 S.Ct. 774 (2000). There, the defendant argued that the trial court erroneously refused to grant a challenge for cause. He argued a due process violation based on the impairment of his peremptory challenges, since he was forced to use a challenge on the juror. Some courts have considered that to be a structural error requiring automatic reversal. The Court held there was no constitutional violation. The defendant had the choice to either use a peremptory challenge to remove the juror, or allow the juror to serve and take the issue up on appeal. By using a peremptory challenge, he essentially waived the right to challenge the juror for cause. The court had already held that there is no constitutional right to peremptory challenges. Thus, the ability to obtain reversal on an erroneous challenge for cause is now sharply limited.

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