On Point: 4. Procedure

Eric Blackmon v. Tarry Williams, 7th Circuit Court of Appeals No. 14-3059, 2016 WL 3007212, 5/24/16

Two eyewitnesses to the murder of Tony Cox were shown a photo array and live line-up, and both independently identified Eric Blackmon—a man they did not know—as one of two gunmen who shot and killed Cox. The judge at Blackmon’s bench trial relied heavily on the two eyewitness identifications. (Slip op. at 3-11). While Blackmon’s trial lawyer put on two alibi witnesses, Blackmon alleges he failed to interview and present six additional alibi witnesses. The Seventh Circuit holds this allegation entitles Blackmon to a hearing to take testimony from the missing alibi witnesses and trial counsel.

Questions presented:

Johnson v. United States, 135 S. Ct. 2551 (2015) found the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(B)(ii)(defining “violent felony”) unconstitutionally vague. That clause is identical to the residual cause in the career-offender provision of the United States Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2)(defining “crime of violence”)

(1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”);

(2) whether Johnson‘s constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and

(3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.

Question presented:

Duane Buck’s death penalty case raises a pressing issue of national importance: whether and to what extent the criminal justice system tolerates racial bias and discrimination. Specifically, did the United States Court of Appeals for the Fifth Circuit impose an improper and unduly burdensome Certificate of Appealability (COA) standard that contravenes this Court’s precedent and deepens two circuit splits when it denied Mr. Buck a COA on his motion to reopen the judgment and obtain merits review of his claim that his trial counsel was constitutionally ineffective for knowingly presenting an “expert” who testified that Mr. Buck was more likely to be dangerous in the future because he is Black, where future dangerousness was both a prerequisite for a death sentence and the central issue at sentencing?

Deborah K. Johnson v. Donna Kay Lee, 578 U.S. __ (2016)(per curiam); SCOTUS docket

Like Wisconsin, California has a rule that a defendant may not raise a claim for the first time on on state collateral review if he could have raised it on direct appeal. Wisconsin calls it the “Escalona bar.” California calls it the “Dixon bar.” The issue in this case was whether the California Supreme Court’s application of the “Dixon bar” provided an independent and adequate state ground for barring federal habeas review.  SCOTUS answered “yes.”

Lee’s litigation strategy is interesting. After losing her direct appeal in California state courts, she skipped state postconviction review and filed a federal habeas petition. The federal court stayed her petition and directed her to exhaust her state-court remedies. She filed a state habeas petition, which the California Supreme Court denied in a summary order that cited Dixon.

Tony Thomas v. Tarry Williams, 7th Circuit Court of Appeals No. 14-2610, 5/18/16

Thomas’s federal habeas petition argued the state withheld potentially exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), but didn’t raise this claim in his state postconviction proceeding so he can’t raise it in his federal habeas petition.

Kernan v. Hinojosa, USSC No. 15-833, 2016 WL 2842454 (May 16, 2016) (per curiam), reversing Hinjosa v. Davey, 803 F.3d 412 (9th Cir. 2015); Scotusblog page

The Ninth Circuit Court of Appeals concluded that the California courts hadn’t made a determination of Hinojosa’s claim on the merits and therefore applied de novo review rather than AEDPA’s highly deferential standard. The supreme court summarily holds the court of appeals’ conclusion was wrong, and that AEDPA does apply.

Michael Miller v. Dushan Zatecky, 7th Circuit Court of Appeals No. 15-1869, 4/26/2016

An Indiana state court sentenced Michael Miller to a total of 120 years in prison on three counts of child molestation. On direct appeal, his lawyer raised challenges to the sufficiency of the evidence and the admission of other-acts evidence, but did not contest the length of his sentence. Miller then filed a state collateral attack, alleging his original appellate counsel was ineffective for not attacking the sentence.

Welch v. United States, USSC No. 15-6418, 2016 WL 1551144 (April 18, 2016), vacating and remanding an unpublished order of the 11th Circuit; Scotusblog page (including links to briefs and commentary)

Associate Federal Defender Shelley Fite has kindly agreed to provide her take on the high court’s latest:

Federal defenders and procedure wonks naturally appreciate Welch v. United States, in which the (7–1) Supreme Court held that Johnson v. United States, 135 S. Ct. 2551 (2015), applies retroactively to cases on collateral review.  But (read on!) the case does have some application for state practitioners—at least those who do post-conviction work.

Brian K. Boulb v. United States, 7th Circuit Court of Appeals No. 15-1383, 4/4/16

Boulb filed a § 2255 habeas petition challenging his federal conviction 16 months after the conviction was final. That was four months too late. Boulb argued he was entitled to equitable tolling of the 12-month filing deadline because of his mental incompetence, but his allegations aren’t sufficient to justify an evidentiary hearing on the question.

Woods v.  Etherton, USSC No. 15-723 (April 4, 2016) (per curiam), reversing Etherton v. Rivard, 800 F.3d 737 (6th Cir. 2015); SCOTUSblog page (including links to petition, response and reply)

This was a federal habeas action in which the petitioner claimed, among other things, that: (1) the state trial court’s admission of an anonymous tip violated his rights under the Confrontation Clause, (2) trial counsel was ineffective for failing to object to the admission of the tip; and (3) appellate counsel was ineffective for failing to raise claims (1) and (2).  The petitioner lost because, in SCOTUS’s view, his appellate counsel and the state habeas court deserved, but were not given, the benefit of the doubt.