On Point: 22. Habeas corpus

Cory M. Welch v. Randall Hepp, 7th Circuit Court of Appeals No. 14-1164, 7/14/15

The Wisconsin Court of Appeals rejected Welch’s claim that he was denied a fair trial because of two improper comments by two witnesses. His habeas petition was denied by the district court, and the Seventh Circuit affirms, holding Welch has not shown that the Wisconsin appellate court’s decision was “so lacking in justification” that there is no possibility for “fairminded disagreement,” Harrington v. Richter, 562 U.S. 86, 103 (2011).

Robert Gacho v. Kim Butler, 7th Circuit Court of Appeals No. 13-3911, 7/2/15

The dismissal of Gacho’s habeas petition without prejudice to refiling makes the dismissal order non-final; because the court of appeals’ jurisdiction extends only to final orders, his appeal is dismissed.

Kevin Stanbridge v. Gregory Scott, Seventh Circuit Court of Appeals Nos. 14-1548 & 14-2114, 6/29/15

While Stanbridge’s prior sexual abuse conviction is a necessary predicate for his current confinement as a sexually violent person, once the sentence for the conviction expired he is no longer “in custody” for that conviction for purposes of bringing a collateral attack against the conviction.

Brumfield v. Cane, USSC No. 13-1433, (June 18, 2015), reversing Brumfield v. Cain, 744 F.3d 918 (5th Cir. 2014); SCOTUSblog page (including links to briefs and commentary); Majority opinion by Sotomayor; dissenting opinion by Thomas (joined in part by Roberts, Scalia and Alito)

Brumfield was convicted of murder and sentenced to death before Atkins v. Virginia, 536 U.S. 304 (2002) prohibited the execution of the intellectually disabled. Afterwards, Brumfield, who has an IQ of 75, sought to prove is intellectual disability in state court, but was denied the time and funding to get an expert as well as an evidentiary hearing. In a 5-4 decision, SCOTUS found this an unreasonable determination of the facts in light of the evidence presented under 28 USC §2254(d)(2) and allowed Brumfield to have his Atkins claim considered on the merits in federal court.

Davis v. Ayala, USSC No. 13-1428 (June 18, 2015), reversing Ayala v. Wong, 756 F.3d 656 (9th Cir. 2013); majority opinion by Justice Alito; concurrences by Justices Kennedy and Thomas; dissent by Justice Sotomayor

SCOTUSblog page (including links to briefs and commentary)

Jury selection for Hector Ayala’s murder trial spanned 3 months and involved more than 200 prospective jurors. So when the prosecutor used peremptory challenges to strike every single Black and Hispanic juror from the pool, the defense objected based on  Batson v. Kentucky. The trial court gave the prosecution a chance to present race neutral reasons for its strikes, but excluded the defense from the hearing. Ayala, who was convicted, said excluding him and his lawyer violated his constitutional rights. The majority assumed, but did not decide that, a constitutional violation occurred  and then held . . . (all together now) “harmless error!”

The California Supreme Court held that it was error (as a matter of state law)

Oscar C. Thomas v. Marc Clements, 7th Circuit Court of Appeals No. 14-2539, 6/16/15, petition for rehearing en banc denied, 8/7/15

Thomas is entitled to a new trial for the intentional homicide of Joyce Oliver-Thomas, his ex-wife, because his trial lawyer was ineffective for failing to ask a pathology expert to review the conclusions of the state’s forensic pathologist—conclusions on which the prosecutor relied heavily in arguing that Thomas caused Oliver-Thomas’s death intentionally rather than accidentally, as Thomas claimed.

Curtis J. Pidgeon v. Judy P. Smith, Warden, 7th Circuit Court of Appeals No. 14-3158, 5/13/15

In a federal habeas case, the Seventh Circuit has confirmed that the Machner hearing, like New Glarus beer and squeaky cheese curds, is a Wisconsin anomaly. State v. Machner, 92 Wis. 2d 797 (Ct. App. 1979.) Special guest Shelley Fite (SPD alum turned Federal Defender staff attorney) explains what this federal court decision could mean for state court IAC claims.

Steven D. Johnson v. Brian Foster, 7th Circuit Court of Appeals No. 13-2008, 5/6/15

Johnson’s failure to file a petition for review in the Wisconsin Supreme Court means he failed to complete a full round of state-court review, which in turn means his federal habeas petition is barred under the doctrine of “procedural default.” This default could be excused if Johnson shows that prison officials interfered with his ability to comply with the state court’s procedural rules. Johnson argues the prison wrongful denied his request for a litigation loan under § 301.328(1m), and that should excuse his failure to petition the state supreme court for review. The court rejects the argument, holding the loan denial wasn’t an external impediment to Johnson filing a petition for review.

Woods v. Donald, USSC No. 14-618, 2015 WL 1400852, 3/30/15 (per curiam), reversing Donald v. Rapelje, 580 Fed. Appx. 227 (6th Cir. 2014) (unpublished); docket

Trial counsel’s absence during about 10 minutes of testimony regarding evidence relating to Donald’s co-defendants—evidence trial counsel said he had “no interest in”—did not amount to a denial of counsel at a critical stage of trial justifying a presumption of prejudice under United States v. Cronic, 466 U.S. 648 (1984). Thus, the Sixth Circuit erred in granting Donald habeas relief on that ground.

Lawrence Owens v. Stephen Duncan, 7th Circuit Court of Appeals Case No. 14-1419, 3/23/15, cert. petition granted, 10/1/15; petition dismissed as improvidently granted, 1/20/16

The Seventh Circuit grants habeas relief to Owens, who was convicted of murder after a bench trial, because the trial judge’s finding of guilt was based on evidence that did not exist and thus denied Owens’s right to due process of law in violation of the Fourteenth Amendment, Holbrook v. Flynn, 475 U.S. 560, 567 (1986) (“one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial,” quoting Taylor v. Kentucky, 436 U.S. 478, 485 (1978)).