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Habeas Hints: Habeas Year in Review: 2007

This column is intended to provide "Habeas Hints" to prisoners who are considering or handling habeas corpus petitions as their own attorneys ("in pro per"). The focus of the column is on habeas corpus practice under AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice throughout the U.S.

2007 looked like a promising year back in January, when the Supreme Court held in Cunningham v. California, 127 S.Ct. 856 (2007) that the 6th Amendment right to a jury trial is violated by a California sentencing scheme that allowed judges to impose upper-term sentences without a supporting jury finding via proof beyond a reasonable doubt.
Unfortunately, as the year unfolded, Cunningham relief was going up in smoke. Meanwhile, an exhaustive study of the operation of AEDPA in the federal courts over the last decade confirmed what habeas corpus litigants had long suspected; that the chances of actually winning a non-capital habeas corpus case are ridiculously low. And, throughout the year, an ever more conservative U.S. Supreme Court was cutting back even further on the procedural rights of habeas corpus petitioners.

In this column, we'll take a look at what turned out to be a pretty lousy habeas year, but I'll do my best to at least suggest some "Habeas Hints" from 2007.

Cunningham: Requiem

The ink had barely dried on the Supreme Court's Cunningham opinion when, in March, the California Legislature "Bookerized" Cunningham by passing new legislation that permanently removed the statutory "presumption" in favor of the mid-term sentence, which had been the basis for the Cunningham court's finding that California's sentencing law violated the 6th Amendment. As a result, much as federal judges were given the power in United States v. Booker to depart from the U.S. Sentencing Guidelines without the need for a supporting jury finding, California judges were given the discretion to sentence a defendant to any of the 3 terms for an offense --- including, of course, the upper term --- without any need for a supporting jury verdict. Thus, any California prisoner who was sentenced to the upper after March of 2007 will not have any right to challenge the sentence based on the Sixth Amendment principles set forth in Cunningham.

With new sentences excluded from its reach, the potential applicability of Cunningham claims is now limited entirely to sentences imposed before April of 2007. Such sentences fall into three groups, based on the date when the sentences became final following an unsuccessful direct appeal: [A] before June of 2000, when Apprendi was decided; [B] between June of 2000 and August of 2004, when Blakely was decided; and [C] between August of 2004 and April of 2007, when the new California legislation which legislatively repealed Cunningham took effect. In a prior column, I explained that prisoners in Group [A] had no chance for sentencing relief; but, I proposed a theory whereby those in Group [B] could argue that, because Cunningham applied 6th Amendment principles that could be traced directly back to Apprendi, the result in Cunningham was "dictated by" the result in Apprendi. Consequently, and because habeas corpus petitioners are entitled to the benefit of a Supreme Court decision that came down before their conviction and sentence became final, I suggested that Group [B] prisoners could argue that Cunningham applied to them, even though Cunningham itself has never been declared to be retroactive and, in all likelihood, never will be. Unfortunately, however, this argument now appears to be dying or already dead. For one thing, the Ninth Circuit has recently held that the result in Blakely was not dictated by Apprendi, because Apprendi defined the statutory maximum sentence to include any sentence authorized by the Legislature --- a definition which necessarily includes an upper-term sentence. Shardt v. Payne, 414 F.3d 1025 (9th Cir. 2005). If Blakely wasn't "dictated by" Apprendi, then neither was Cunningham. Moreover, cases coming down in 2007 have held that, because the California Supreme Court went the other way in its pre-Cunningham decision and because Cunningham itself was not unanimous, Cunningham was not even dictated by Blakely, let alone by Apprendi. See, e.g., Buckley v. Nakayema (E.D. Cal. 3/27/07). Thus, except in the very unlikely event that Cunningham is declared to be retroactive, prisoners who fall into Group [B] should expect that their Cunningham claims will be quickly turned down in the California courts, and that federal courts will reject their Cunningham claims as well.

Furthermore, even those prisoners in Group [C] who can actually make it to first base by successfully arguing that Cunningham was dictated by Blakely are going to face very rough sledding, thanks to two decisions by the California Supreme Court which came down on July 17, 2007: People v. Black, 2007 Cal. LEXIS 8071 and People v. Sandoval, 2007 Cal. LEXIS 8087. The rules established by these decisions make it very difficult for a petitioner to even qualify for re-sentencing under Cunningham, and those few who do qualify are now extremely likely to wind up with the same sentence they got the first time around:

Rule 1: Cunningham does not apply at all to consecutive sentences.

Rule 2: A single aggravating circumstance that renders a defendant eligible for the upper term sentence is sufficient. Therefore, a sentence does not violate Cunningham if (1) the defendant admits to any conduct that justifies the upper-term sentence; or (2) the sentence is based to any degree on a prior conviction or prior criminality.

Rule 3:Any Cunningham error will be found "harmless" wherever the jury made a factual finding that supports at least one legitimate aggravating factor justifying the upper term.

Rule 4:Catch 22: Even if the defendant manages to qualify for re-sentencing under Rules 1-3, the same trial judge can rely on the newly enacted anti-Cunningham law to sentence the legitimately defendant to the same upper-term sentence that was originally imposed; without any additional jury findings being required.

Findings of AEDPA Study as to Non-Capital Habeas Corpus Petitions
In August, Vanderbilt University completed the first comprehensive study of how AEDPA is working in practice in the federal district courts. The study analyzes statistics garnered from capital (death penalty) and non-capital habeas corpus petitions in the decade since AEDPA was enacted. The sobering findings of the study are summarized below, with an emphasis on the findings in non-capital cases.

- Each year, prisoners have filed more than 18,000 federal habeas corpus cases seeking relief under AEDPA. 93% of these filings were done without a lawyer.

- Of more than 2,300 federal habeas corpus cases in the study, only 7 petitioners received relief on habeas corpus. That translates to a success rate of only 1 in every 284 cases, which is less than 3 "winners" per thousand cases filed! This rate is considerably lower than the rate of success before AEDPA (formerly about 1%, or 10 per 1,000).

- 35% of all non-capital habeas corpus petitions attacked guilty pleas as opposed to trial errors. However, all 7 of the winning cases in the study attacked convictions, not pleas.

- By far the most prevalent claim was for ineffective assistance of counsel. The next most "popular" claims were insufficient evidence of guilt and erroneous evidentiary rulings.

- Evidentiary hearings in non-capital cases were granted at a rate of only 4 per 1,000.

- Discovery was granted at a rate of only 3 per thousand non-capital filings.

- 22% of the non-capital dismissals were based on the statute of limitations.

- About 11% of non-capital petitions were dismissed for lack of exhaustion. Stays pending exhaustion were relatively rare in non-capital cases, only 2.5% (25 per 1,000), although most of those stays were granted by California's Central District Court.

- Procedural default accounted for 13% of terminated cases.

- Non-capital cases took an average of 11.5 months in federal court to be completed.

Habeas Hint: It's next to impossible to find any "good" news in this study, but one point does jump out at me from these rather dismal statistics: With the success rate being so very low and the rate of dismissals for untimeliness and procedural default being so high, it's absolutely critical for habeas corpus petitioners to make sure they do everything possible to see to it that federal habeas corpus petitions are filed within the AEDPA period of limitations and without incurring any state procedural defaults. In other words, bad as these statistics are, they demonstrate that by simply making sure that a federal habeas corpus petition is filed in time and in compliance with state court rules for exhaustion, the chances of success increase twice to three times over what they would otherwise be. Therefore, the message is the same one that I've preaching for the past 10 years: (1) If you're planning on filing for habeas corpus relief with or without an attorney, start in as soon as possible after your conviction is affirmed on direct appeal; (2) Spend your AEDPA time wisely, leaving enough time to permit exhaustion while you support your habeas claims with investigation and/or expert testimony; and (3) Use the guidance provided in the California Habeas Handbook to help you in dealing successfully with the demands of AEDPA.
U.S. Supreme Court Habeas Decisions (2006-07)

Lawrence v. Florida, 127 S. Ct. 1079 (2007)

Resolving a conflict in the circuit courts, Lawrence squarely holds that a prisoner is not entitled to statutory tolling under AEDPA between the time that a state's highest court denies a state habeas corpus petition and the time that decision becomes final by expiration of the period to file for Certiorari (90 days), or for the time that a petition for Certiorari is pending in the U.S. Supreme Court after a denial on state habeas. In other words, although the AEDPA statute of limitations still does not begin to run until after a conviction becomes final on direct appeal (in California, 90 days after the California Supreme Court denies the petition for review), it is now clear that, in all jurisdictions, statutory tolling is only allowed between the date that a first state habeas corpus petition is filed and the date that the state's highest court denies relief on state habeas corpus.

Burton v. Stewart, 127 S. Ct. 793 (2007)

A Washington state prisoner who files a federal habeas corpus petition while the state courts are still in the process of reviewing the sentence imposed for that conviction cannot later file another habeas petition challenging that state conviction without complying with the "successive petition" requirements of AEDPA (which are effectively impossible to meet).

Habeas Hint: This is actually good news for most prisoners in the sense that, based on Burton, it is not until all sentencing issues are fully and finally addressed in the state courts that the AEDPA will start to run on one's first federal habeas corpus petition.

Fry v. Pliler, 127 S. Ct. 2321 (2007)

On federal habeas corpus, the court will always apply the standard of prejudice from Brecht v. Abrahamson, 507 U.S. 619 (1993), even in cases where the state courts never recognized that there had been federal constitutional error in the first place and, as a result, never applied the more prisoner-friendly standard of Chapman v. California, 386 U.S. 18 (1967).

Habeas Hint: This decision effectively means that a petitioner in federal court must always carry the burden of showing that federal constitutional error "probably" affected the outcome of the trial or plea. As a result, it is now more important than ever that state trial lawyers make and preserve objections based on the U.S. Constitution as well as on state law; and that state appellate lawyers make sure to invoke the Chapman standard on direct appeal whenever it is possible to allege a claim based on federal constitutional error.

Kent A. Russell specializes in habeas corpus and post-conviction cases. He is the author of the California Habeas Handbook, which thoroughly explains state and federal habeas corpus and AEDPA. The new 5th Edition (completely revised in September, 2006) is now shipping, and can be purchased for $39.99 (cost is all-inclusive for prisoners; others pay $10 extra for postage and handling). Use the order form available on the website -- -- or just send your address and check or money order to: Kent Russell, "Cal. Habeas Handbook", 2299 Sutter Street, San Francisco, CA 94115.

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Related legal cases

People v. Black

People v. Sandoval

Lawrence v. Florida

Burton v. Stewart

Fry v. Pliler