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“Habeas Hints”

by Kent Russell

This column provides “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 under AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice throughout the U.S.

REVIEW: 2009

Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009)

In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the prosecution cannot present “testimonial statements” – those prepared for the primary purpose of being used at trial – unless the defense has had an opportunity to cross-examine the author of the statement. In Melendez-Diaz, the Court held that laboratory reports, such as those commonly used to identify illegal drugs, are “testimonial” under Crawford, and hence cannot be used as evidence at trial unless the prosecutor brings the lab tech in as a “live” witness whom the defense can then cross-examine. Moreover, the mere right of the defense to have called the analyst as its own witness does not defeat the State’s obligation to produce that witness, since the Confrontation Clause requires that the State bear the consequences of any no-show by an analyst whose testimony the State must present in order to prove its case. Hence, and because the vast majority of states had previously permitted the prosecutor to introduce lab reports as “business records” without having to bring in the technician who prepared the report, Melendez-Diaz means that prosecutors will now have to incur the additional hassle and expense of bringing in lab technicians and analysts in to testify at trial. The defense at the trial level thereby benefits two-fold: first, by having the opportunity to use cross-examination to expose flaws in those lab analyses that may actually be faulty; and second, by having the ability in routine cases to force the prosecution to incur the added expense and uncertainty attendant to bringing in live witnesses, which can then lead to more favorable plea offers.

Nevertheless, these benefits that Melendez-Diaz confers on the defense at the trial level will not easily translate to advantages on habeas corpus, for several reasons:

(a) Based on the “Teague” rule, a habeas corpus petitioner cannot benefit from a “new” rule of criminal procedure that was announced after his or her conviction became final on direct appeal. Melendez-Diaz, decided on June 25, 2009, is seemingly is such a new rule. Hence, most prisoners, whose convictions became final well before that date, will not be able to make a tenable Melendez-Diaz claim on habeas corpus. Note, however, that one can argue that the result in Melendez-Diaz was “dictated” by Crawford, and if that contention holds water, then petitioners can employ Melendez-Diaz to challenge convictions which did not become final before March 8, 2004, when Crawford was decided.

(b) The petitioner in Melendez-Diaz had the foresight to make a Confrontation objection at trial, thereby preserving that claim for appeal, and forcing the Government to carry the burden of negating prejudice from any Melendez-Diaz violation, which is typically hard for the Government to do. (See, e.g., Duvall v. United States, --- A.2d ----, 2009 WL 2043963 (D.C. 2009) [Melendez-Diaz error not harmless even though identity of the substance was not contested and there was other evidence that it was an illegal drug].) If, however, no Confrontation objection was raised at the trial level, then raising the argument for the first time on appeal could preserve it for habeas, but the petitioner would have the burden of showing prejudice by the much tougher (although not impossible) standard of “plain error”. If the claim was not raised at trial or on appeal, it likely will be procedurally barred on habeas corpus.

(c) Many states have statutes that require the defense to give timely pre-trial notice to the prosecution of any intention to confront the analyst at trial, and the Supreme Court approved in principle of those types of rules. Therefore, if the State had such a notice procedure in a given case and the defendant failed to utilize it within the time limits provided, that could be fatal to asserting any Melendez-Diaz claim on appeal or on habeas.

(d) Just because the defense has the right to confront and cross-examine the analyst or lab technician does not mean that a savvy defense attorney will actually want to do so. If a lawyer decides that a given forensic analysis is sound, s/he will very often decide that it’s far better to have the results read to the jury from a cold stipulation, rather than have the conclusions related “live” to the jury by a well-qualified expert witness for the prosecution. And, once the decision has been made to stipulate to the test results rather than force the State to bring in the analyst for live testimony, the defendant can’t later turn around on habeas corpus and complain that the stipulation was used in lieu of live testimony.

Habeas Hint:

As with any Supreme Court decision expanding the scope of constitutional rights, you have to look carefully before you leap into assuming that the decision is actually going to do you any good on habeas. That said, a defendant whose conviction was significantly based on laboratory tests that were introduced at trial without the analyst being called as a witness, and who can overcome the caveats listed above, should consider making a timely habeas corpus claim based on Melendez-Diaz error (or, derivatively on ineffective assistance of counsel in failing to assert a Confrontation objection to a questionable laboratory analysis). Furthermore, unless and until the Supreme Court says otherwise, petitioners should argue that Melendez-Diaz applies not only to laboratory reports, but also to other forensic reports that are prepared with the expectation that they will be used in criminal cases – for example: handwriting and fingerprint analyses; autopsy reports; and forensic statements regarding child sex abuse complainants.

District Attorney’s Office for Third Judicial District v. Osborne, 129 S.Ct. 2308 (2009)
In this case, the Supreme Court held that there was no Due Process right under the Constitution for a prisoner to obtain DNA testing results that might prove his innocence. On the face of it, this seems like a bad decision for habeas corpus petitioners. However, a closer reading of the case shows that it involved a civil rights lawsuit under 42 USC § 1983 – a completely different remedy than 28 U.S.C. § 2254, the habeas corpus statute – and that: (a) the defendant’s lawyer testified that she had purposefully declined to ask for any DNA testing at the trial level out of fear that it would prove that her client was guilty; and (b) the defendant had since confessed to committing the crime at his parole hearing.

Habeas Hints:

Because most petitioners seeking DNA testing on habeas corpus have never admitted that they are guilty, and didn’t have trial lawyers who concede that they ran away from DNA testing at trial, the “bad” holding in Osborne – that there is no automatic Due Process right to DNA testing – is readily distinguishable. Meanwhile, some of the reasoning in Osborne is potentially helpful, for example:

Osborne denies a federal right to DNA testing based on the assumption that state courts are already affording a habeas corpus petitioner all the process and discovery he or she needs to obtain DNA evidence in an appropriate case, namely one where: (a) a conviction was based primarily on eye-witness testimony; (b) there is “doubt” regarding the identification; and (c) DNA testing would prove exonerating. Almost all legitimate DNA claims meet these criteria. Hence, if a petitioner whose case meets these requirements attempts to utilize all available state law remedies to obtain DNA testing and the State refuses to provide it, the petitioner can argue that the State is not affording the Due Process that Osborne assumes that the States have to provide and are providing. Similarly, if the petitioner attempts to obtain post-conviction discovery of DNA results through the available State processes and the State won’t provide it, the petitioner can argue that Osborne requires such discovery at some level, thereby establishing good cause for the federal court to grant DNA discovery under the rules allowing for limited discovery on federal habeas corpus.

Osborne holds that Brady does not automatically impose a requirement on the prosecution to disclose potentially favorable evidence post-conviction, but it does not hold that the State is automatically exempt from such an obligation. Rather, Osborne says that a Brady obligation exists on a case-by-case basis in the post-conviction context, depending on the degree to which fundamental fairness requires a post-conviction disclosure. Hence, consistently with Osborne, petitioners can maintain that the State has an obligation to continue to disclose favorable evidence even after conviction, but should tailor a Brady request to the particular facts of the case rather than to any per se disclosure requirement.

Cone v. Bell,129 S.Ct. 1769 (2009)

In Cone, the state had refused to consider a Brady claim made in a second state habeas corpus petition, either because the claim had been previously presented in the first state petition and had been denied (arguably making it “successive”), or because the claim had not been presented at all in the first petition (“waiver”). The federal circuit court had then automatically refused to consider the merits of the claim on the assumption that a federal court was barred from questioning any ruling by a state court that was based on the application of state law.

The Supreme Court reversed because the state court’s reasoning in applying its own procedural rules to bar the Brady claim was unsound. As to the “successive claim” rationale, the Supreme Court found that it was bogus because a federal court is not barred from considering a claim that a state court declined to consider because it had been presented and rejected previously. (See Ylst v. Nunnemaker, 501 U.S. 797, 804, n. 3 (1991).) The Court then rejected the “waiver” rationale because the state had never actually denied the Brady claim on that basis.

Habeas Hint:

This decision is significant because it draws the line between a federal court “deferring” to the state courts on matters of state law; and automatically accepting all state court determinations of state no matter how fundamentally flawed or irrational they may be. Hence, where the state argues that a state procedural bar must be automatically accepted as a bar to federal court review, counter by arguing that:

A state’s refusal to consider a claim on habeas because that claim was previously denied in state court can never be a bar to federal habeas corpus review.

A state court procedural bar that relies on “false premises” is not binding in federal court.
A state procedural bar that is not based on principles that were “well-established” and “consistently applied” at the time is not binding in federal court. (See, e.g., Townsend v. Knowles, 562 F. 3d 1200 (9th Cir. 2009) [untimeliness ruling by a lower California court that was not supported by well-established case law was not “adequate” to prevent a hearing on the merits on federal habeas corpus].)

Phelps v. Alameida, 569 F. 3d 1120 (9th Cir. 2009)

This eloquent 35-page decision by Judge Stephen Reinhardt holds that Rule 60(b) – rather than the back-breaking “successive petition” provisions under 28 U.S.C. § 2244(b)(3)(A) – can be used to challenge a habeas corpus petition that was denied on a procedural basis, where fairness and equity demand relief. The specific equitable principles cited in Phelps were lack of clarity in the law at the time of the original denial; subsequent change in the law favoring petitioner’s original arguments; diligence in seeking review after the law changed; and the fact that the petitioner was not challenging the merits of the denial.
Where a prior federal habeas corpus petition was denied solely on procedural grounds and these or other similarly compelling equitable considerations are present, one should use Rule 60(b) to attempt to set aside the dismissal.

Kent A. Russell specializes in habeas corpus and is the author of the California Habeas Handbook, which thoroughly explains state and federal habeas corpus under AEDPA. The 5th Edition, completely revised in September of 2006 and seasonally updated since then, can be purchased for $49.99, which includes priority mail postage. Prisoners who are paying for the book from their prison account are eligible for the special prisoner discount price of $39.99, if claimed at the time of purchase. An order form can be obtained from Kent’s website (, or simply send a check or money order to: Kent Russell, “Cal. Habeas Handbook”, 2299 Sutter Street, San Francisco, CA 94115.

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Related legal cases

Melendez-Diaz v. Massachusetts

District Attorney’s Office for Third Judicial District v. Osborne

Cone v. Bell

Phelps v. Alameida