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Articles by Kent A. Russell

Rundown on California Propositions 57 and 64

by Kent A. Russell, Esq.

In the November 2016 elections, California voters enacted Propositions 57 and 64, two new laws that will potentially benefit thousands of prisoners and scores of prior marijuana offenders.

Prop 57 makes most non-violent prisoners eligible for much earlier parole consideration than was possible under the prior law. Although Prop 57 does not automatically require that parole be granted to non-violent offenders covered by the new law, by generating earlier parole consideration it jump-starts the complex parole process that, properly handled, could lead to release on parole.

Prop 64 substantially reduces sentences for most marijuana offenses. Moreover, it is retroactive in the sense that it applies to reduce sentences applicable to prior marijuana offenses which, had they been committed today, would have resulted in either a lesser penalty or no penalty at all under the new law.

Although both Prop 57 and Prop 64 take effect immediately, regulations that govern the way these laws operate in individual cases have yet to be enacted, and it may be some time before such regulations are published and applied. In the meantime, prisoners and their families will be well advised to understand the basics of these new laws and ...

Habeas Hints: Staring Down the Two-Headed Monster: Richter-Pinholster

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 the Antiterrorism and Effective Death Penalty Act (AEDPA), the federal habeas corpus law which now governs habeas corpus practice in courts throughout the United States.

Part Two of Two

Harrington v. Richter,
131 S.Ct. 770 (2011)

Cullen v. Pinholster,
131 S.Ct. 1388 (2011)



In Richter, the U.S. Supreme Court (SCOTUS) made ineffective assistance of counsel (IAC) claims – heretofore the staple of habeas corpus litigation – even harder to win on federal habeas corpus than they were before; and in Pinholster the Court all but eliminated federal evidentiary hearings as an aid to satisfying AEDPA’s requirement that a state court’s denial of habeas relief be shown to be “unreasonable.” The decisions in Richter and Pinholster represent a two-headed monster that habeas petitioners will frequently face and have to stare down.

In this two-part column, I discuss these two important cases and suggest some Habeas Hints for how to make the best of them. In Part One we focused on Richter. [See: PLN, Nov. 2013, p ...

Habeas Hints: Staring Down the Two-Headed Monster: Richter-Pinholster

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 the Antiterrorism and Effective Death Penalty Act (AEDPA), the federal habeas corpus law which now governs habeas corpus practice in courts throughout the United States.

Part One of Two

Harrington v. Richter,
131 S.Ct. 770 (2011)

Cullen v. Pinholster,
131 S.Ct. 1388 (2011)



In Richter and Pinholster, the U.S. Supreme Court (SCOTUS) dealt body blows to the already slim chances for relief on federal habeas corpus by making ineffective assistance of counsel (IAC) claims even harder to win than they were before (Richter), and by all but eliminating federal evidentiary hearings as an aid to satisfy AEDPA’s requirement that a petitioner show the state court’s denial of habeas corpus relief was “unreasonable” (Pinholster). Because evidentiary hearings in federal court traditionally have been the gateway to relief on habeas corpus, and because IAC claims – which by definition bring something new to the table that wasn’t considered at trial – have until now been the staple of habeas litigation, the decisions in Richter and Pinholster ...

Habeas Hints: Actual Innocence

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 the Antiterrorism and Effective Death Penalty Act (AEDPA), the federal habeas corpus law which now governs habeas corpus practice in courts throughout the United States.



In McQuiggin v. Perkins, 133 S.Ct. 1924 (2013), the U.S. Supreme Court held that “actual innocence,” if proved, is a gateway through which a habeas petitioner can make it into federal court even though the AEDPA statute of limitations has run. McQuiggin is an important case because it potentially opens the door to the federal courthouse for prisoners who claim they are innocent but whose convictions are so old that they otherwise would have been barred by AEDPA’s one-year statute of limitations. On the other hand, the standard of proof for actual innocence claims is so demanding that only a handful of prisoners will be able to satisfy it.

McQuiggin involved a habeas corpus petitioner (Floyd Perkins) who had been convicted of first-degree murder and sentenced to death in 1977. The prosecution’s star witness at trial, Damarr Jones, was ...

Habeas Hints: 2012 Supreme Court Habeas Highlights: Plea Bargaining Cases

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 “AEDPA” (Antiterrorism and Effective Death Penalty Act), the federal habeas corpus law which now governs habeas corpus practice in courts throughout the United States.

Missouri v. Frye, 132 S.Ct. 1399 (2012)

Lafler v. Cooper, 132 S.Ct. 1376 (2012)

In Missouri v. Frye (Frye) and Lafler v. Cooper (Cooper), the U.S. Supreme Court (SCOTUS) held that, when a plea offer by the State is rejected due to ineffective assistance of counsel (IAC), the defendant may be entitled to a second chance at accepting the offer – even if he subsequently pleaded guilty to less favorable terms, or went to trial, was found guilty and received a longer sentence than that provided for in the original plea offer.

In Frye, the defendant was charged with a felony for a fourth offense of driving with a revoked license. The prosecutor sent Frye’s lawyer a letter offering to reduce the charge to a misdemeanor if Frye pleaded guilty within a specified time period and agreed to a 90-day sentence ...

Habeas Hints: Expert Testimony in Habeas Cases

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 in federal courts throughout the U.S.

EXPERT TESTIMONY ON HABEAS CORPUS:
How To Get It and Use It

An expert witness declaration can be immensely valuable on habeas corpus to support a claim that trial counsel was ineffective in failing to use an expert witness for the defense. Granted, it’s difficult for a prisoner, indigent and confined within prison walls, to obtain expert testimony to support a pro se habeas corpus petition. Nevertheless, it’s possible to do so, especially if the prisoner follows these “Habeas Hints”:

1. Determine whether your case is one in which the defense lawyer’s failure to call an expert amounted to “deficient performance” and was “prejudicial”.

The trial lawyer is charged with the responsibility of deciding whether and how to use an expert witness for the defense. When trial counsel fails to call an expert on an important issue, that can support a claim of ...

Habeas Hints: The Year in Review

by Kent Russell, Blaire Russell & Chandra 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 in federal courts throughout the United States.

Habeas Year In Review: 
Supreme Court Term 2009-2010

Holland v. Florida, 130 S. Ct. 2549 (June 14, 2010).

The question in Holland was whether the AEDPA’s 1-year statute of limitations could be “tolled” (suspended) for equitable reasons after the state post-conviction proceedings had become final and before a federal habeas corpus petition was filed. In an opinion by Justice Breyer, the Supreme Court held that the one-year statute of limitations on petitions for federal habeas relief by state prisoners is subject to “equitable tolling”, whereby a petition that would otherwise be untimely is rescued by “extraordinary circumstances.”

In Holland, counsel (Collins) was appointed for the petitioner (Holland) on state and federal habeas. Despite Holland’s repeated attempts to contact Collins to remind him about the AEDPA limitations period, Collins didn’t respond to Holland’s communications and then failed to file a federal habeas petition before the AEDPA clock ran out. When Holland discovered that the deadline had expired, he filed a federal habeas petition pro se, five weeks late. Both the federal district court and court of appeals held that Holland’s petition was untimely, and that Collins’s conduct—while clearly negligent – did not amount to ...

Habeas Hints: Certificate of Appealability

by Kent Russell

This column is intended to provide “habeas hints” to prisoners who are considering or handling habeas corpus peti-tions as their own attorneys (“in pro per”). The focus of the column is habeas corpus practice under AEDPA, the 1996 ha-beas corpus law which now governs habeas corpus practice throughout the U.S.

CERTIFICATE OF APPEALABILTY: 2010

This Habeas Hints column revisits the Certificate of Appealability (COA) requirement in light of the 2009 amendment to Rule 11 of the Federal Habeas Corpus Rules, which now requires that, at the same time that a District Court Judge makes an order denying a petition for writ of habeas corpus, the judge must also make an order granting or denying a COA.
Traditional COA Requirement

Under AEDPA

If a federal habeas corpus petition is dismissed at the District Court level, to pave the way for a possible appeal, the petitioner must first obtain permission to appeal (a “Certificate of Appealability,” or “COA”) from the District Court. If the District Court denies the COA application, the petitioner can then attempt to obtain one by making a timely motion for a COA in the U.S. Circuit Court of Appeals. (The deadline to apply ...

HABEAS HINTS – CALIFORNIA COMMENT Pace and Bonner: Avoiding and Fighting “Untimeliness” Rulings Under California Law

by Kent Russell

Recently, the interplay of two decisions, one from the U.S. Supreme Court and one from the Ninth Circuit, has created a potential minefield for California habeas corpus petitioners in the form of “untimeliness” rulings under California law, which can result in a federal court dismissing a petition as untimely even though the state petition was filed within the time limits for statutory tolling set forth under AEDPA (the federal habeas corpus statute).

In Pace v. Guglielmo, 544 U.S. 408 (2005), the U.S. Supreme Court held that, if a state court denies a state habeas petition as “untimely”, that petition was not “properly filed” under state law. In Bonner v. Carey, 425 F.3d 1145 (9th Cir. 2005), the Ninth Circuit held that, because statutory tolling can only be granted for a state habeas petition that was “properly filed”, Pace requires the federal court to deny statutory tolling to a petition that a lower California court had found to be untimely, even though the state petition had been filed within the 15-month-from-finality period that the AEDPA statute of limitations allows. Meanwhile, because California does not have any specific time limits that apply to filing habeas ...

“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.

HABEAS YEAR IN 
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 ...

 

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