The Federal Corner - January/February 2010

"THE FEDERAL CORNER"

Hats Off To the Capital Habeas Lawyers and To Their Successes

F. R. (Buck) Files, Jr.

Waldo isn't ready to die. Although he has been convicted of capital murder and sentenced to death, he knows that he has one last shot at survival - a petition for writ of habeas corpus alleging ineffective assistance of counsel.

In 1984, the Supreme Court gave inmates a roadmap for seeking habeas relief on an ineffective assistance of counsel claim:

• Show that your lawyer's performance was deficient; and,
• Show that this deficient performance prejudiced the defense of your case.

Strickland v. Washington, 466 U.S. 660, 104 S.Ct. 2052, 80 L.Ed.2d 657 (1984).

It is an understatement to say that inmates all across America got the message. Over 10,000 habeas pleadings alleging ineffective assistance of counsel and citing Strickland have now been filed in the federal courts.

In 1996, Congress enacted the Anti-Terrorism and Effective Death Penalty Act which provided for special habeas corpus proceeding in capital cases (28 U.S.C. §§ 2221-2265). The AEDPA was intended to severely restrict the ability of inmates in state custody subject to a capital sentence to have access to the federal courts and to restrict the ability of United States judges to grant habeas relief to these inmates. Almost everyone thought that passage of the AEDPA would speed up the death machine and it has.

Inmates, though, are still filing habeas pleading alleging ineffective assistance of counsel and some of these are bearing fruit; e.g., during the last quarter of 2009, the United States District Courts of Appeal for the Fifth, Ninth, Eleventh, Fourth, Eighth and Sixth Circuits have considered 15 such cases and granted some relief in five of them; four on ineffective assistance of counsel issues.

The following is a chart showing the case; the date of the offense [Note: All these cases involve the offense of murder and a death sentence.]; the Petitioner's complaint; and, the result.

FROM THE FIFTH CIRCUIT

Pierce v. Thaler, 2009 WL 4572839 (5^th Cir. 2009) [Not Selected for Publication in the Federal Reporter]

Year Offense Occurred: 1986

The Allegations of Ineffective Assistance: Petitioner alleged that his lawyer failed to investigate and present mitigating evidence that he was mentally retarded; that he was abused as a child; and, that he suffered an impoverished upbringing.

The Result: "[Petitioner's] request for a COA is granted as to the Atkins and ineffective assistance of counsel claims."

Crawford v. Epps, 2009 WL 4324990 (5^th Cir. 2009) [Not Selected for Publication in the Federal Reporter]

Year Offense Occurred: 1993

The Allegations of Ineffective Assistance: Petitioner alleged that his lawyer failed to develop a meaningful attorney/client relationship with him; that he failed to investigate critical aspects of Crawford's insanity defense; that he failed to seek a competency evaluation prior to trial; that he conceded his guilt during his opening statement; that he introduced prejudicial evidence during presentation of the defense's case; that he presented an inadequate closing argument following the guilt phase; and, that he failed to investigate and present significant mitigating evidence.

The Result: Relief denied on the ineffective assistance of counsel issue; however the Court granted "...Crawford a COA on his claim that he was subjected to a psychiatric evaluation of his competency without the benefit of counsel in violation of the Sixth Amendment."

Wesbrook v. Thaler, 585 F.3d 245 (5^th Cir. 2009)

Year Offense Occurred: 1997

The Allegation of Ineffective Assistance: Petitioner alleged that his lawyer failed to investigate his neurological impairments.

The Result: Relief denied.

Jackson v. Thaler, 2009 WL 3241499 (5^th Cir. 2009) [Not Selected for Publication in the Federal Reporter]

Year Offense Occurred: 1998

The Allegations of Ineffective Assistance: Petitioner alleged that his lawyers committed a fraud on the court by singing and filing the petition without his permission; that they should have raised additional issues in the petition; and, that they were not dedicated to serving his best interests.

The Result: Relief denied.

FROM THE NINTH CIRCUIT

Cox v. Ayers, 588 F.3d 1038 (9^th Cir. 2009)

Year Offense Occurred: 1984

The Allegations of Ineffective Assistance: Petitioner alleged that his lawyer did not obtain all public records regarding his family; that he did not interview additional family members, counselors, friends, or teachers; and, that he decided not to present retained experts as witnesses.

The Result: Relief denied.

Pinholster v. Ayers, ___ F.3d ___, 2009 WL 4641748 (9^th Cir. 2009)

Year Offense Occurred: 1982

The Allegation of Ineffective Assistance: Petitioner alleged that his lawyer failed to investigate his background for mitigating evidence to present during penalty phase of trial.

The Result: "The case is remanded for the district court to issue a writ vacating Pinholster's death sentence, unless within a reasonable time set by the court the State conducts a new penalty phase trial or imposes a lesser sentence consistent with applicable law."

Jones v. Ryan, 583 F.3d 626 (COA 9^th Cir. 2009]

Year Offense Occurred: 1992

The Allegations of Ineffective Assistance: Petitioner alleged that his lawyer failed to secure the testimony of a partisan mental health expert; and, that he failed to timely move for neurological and neuropsychological testing.

The Result: "We reverse and remand to the district court with instructions to issue the writ of habeas corpus."

FROM THE ELEVENTH CIRCUIT

Randolph v. McNeil, ___ F.3d. ___, 2009 WL 4913329 (11^th Cir. 2009)

Year Offense Occurred: 1989

The Allegations of Ineffective Assistance: Petitioner alleged that his lawyer conceded his guilt in mentioning that he had already confessed to the police; and, that he did not raise a voluntary intoxication defense.

The Result: Relief denied.

Cummings v. Secretary for the Department of Corrections, ___ F.3d ___, 2009 WL 4452816 (11^th Cir. 2009)

Year Offense Occurred: 1993

The Allegations of Ineffective Assistance: Petitioner alleged that his lawyer was ineffective in parts of jury selection; and, that he failed to investigate or present mitigating evidence

The Result: Relief denied

Pardo v. Secretary, Florida Department of Corrections, 587 F.3d 1093 (11^th Cir. 2009)

Year Offense Occurred: 1986

The Allegations of Ineffective Assistance: Petitioner alleged that his lawyer failed to request a competency hearing; that he failed to discover the cause of his insanity; and, that he did not seek a severance as to the murder counts against him.

The Result: Relief denied.

Hammond v. Hall, 586 F.3d 1289 (11^th Cir. 2009)

Year Offense Occurred: 1988

The Allegations of Ineffective Assistance: Petitioner alleged that his lawyer failed to investigate mental health evidence and present it as mitigating circumstances; that he introduced a videotape that suggested that Petitioner had committed a separate and uncharged murder; and, that he failed to move for a mistrial during the sentencing phase.

The Result: Relief denied.

Maples v. Allen, 586 F.3d 879 (11^th Cir. 2009)

Year Offense Occurred: 1999

The Allegation of Ineffective Assistance: Petitioner alleged that his lawyer failed to pursue an out-of-time appeal.

The Result: Relief denied.

FROM THE FOURTH CIRCUIT

Walker v. Kelly, ___ F.3d ___, 2009 WL 4877761 (4^th Cir. 2009)

Year Offense Occurred: 1996

The Allegations of Ineffective Assistance: Petitioner alleged that his lawyer failed to raise a Brady issue; and, that he did not properly utilize the report of an autopsy that indicated that witnesses who testified against him had not seen the shooting.

The Result: Relief denied.

FROM THE EIGHTH CIRCUIT

McGehee v. Norris, ___ F.3d ___, 2009 WL 4825148 (8^th Cir. 2009)

Year Offense Occurred: 1996

The Allegations of Ineffective Assistance: Petitioner alleged that his lawyer failed to challenge the constitutionality of his sentence on the ground that his co-defendants received lesser sentences; and, that he abandoned his challenge to victim impact testimony.

The Result: Relief denied.

FROM THE SIXTH CIRCUIT

Johnson v. Mitchell, 585 F.3d. 923 (6^th Cir. 2009)

Year Offense Occurred: 1983

The Allegations of Ineffective Assistance: Petitioner alleged that his lawyer did not timely object to the prosecutor's closing argument; that he failed to investigate the state's case adequately; that he failed to present mitigating evidence to the jury; and, that he failed to articulate an effective argument that the mitigating factors outweighed the aggravating factors.

The Result: "...Johnson has established that the state courts unreasonably applied well-established law in concluding that the petitioner's attorney at his second trial afforded him constitutionally effective assistance of counsel during the penalty phase of the proceedings. We...reverse the judgment of the district court relating to the petitioner's sentence and remand this matter for issuance of a conditional writ of habeas corpus vacating Johnson's death sentence, unless the State of Ohio conducts a new sentencing hearing within 180 days of remand."

My Thoughts

Did you notice the dates of the cases? They are all old cases. Good lawyers are still keeping their clients alive for years and years and years. I take off my hat to those lawyers who enjoy capital habeas practice. If it were not for them, the death machine would have the potential for running out of business.

If you ever undertake the defense of a capital murder case and your client is convicted and sentenced to death, anticipate that your client and his or her habeas counsel are going to raise an ineffective assistance of counsel issue in a habeas proceeding. They will be entitled to your complete file and will compare what is in it to the record on appeal. If you have represented your client properly, your client will have little chance of prevailing; if you have not, you have the potential for being embarrassed. I ain't preaching. I have been there - on both sides - and did not enjoy either experience.