Monthly Archives: October 2011

Will the 9th Cir. Be Chastised Once More?

To fellow federal habeas fans:

It’s no secret that the Ninth Circuit tends to be chastised by the Supreme Court when it grants habeas relief. Well, you’ll probably want to check out this petition for certiorari: Cavazos v. Williams

First, read the lower court opinion! It starts with a quote of Twelve Angry Men. How can you beat that??

To summarize what’s going on this case, here are the basics. The United States Court of Appeals for the Ninth Circuit has once again granted a writ of habeas corpus to a prisoner. Here, the court avoided § 2254(d)(1) deference by finding that the California Court of Appeal did not “adjudicate on the merits” any Sixth Amendment claim. From there, the court reviewed the constitutional violation claim de novo and granted relief. California of course is unhappy about this and argues that the Ninth Circuit got it wrong.

What I’m most interested in is the § 2254(d)(1) question…though the underlying jury claim is also noteworthy. If a state court spends nearly thirty pages of an opinion conducting an analysis of state law without making any explicit analysis of federal law, can a federal court assume that there’s been no “adjudication on the merits” for § 2254(d) purposes? As the certiorari petitioner points out, the Ninth Circuit’s approach has not been widely adopted in other circuits. Some require an explicit acknowledgment by the state court that it is not making a federal-law determination.

I’ll be paying attention to this one. I haven’t decided if I want the Supreme Court to take the case or not. Too busy to write more on the matter right now. However, I suspect I may be revisiting this case in the near future.

-Zachary Cloud

Federal Habeas Cases To Watch

The Supreme Court of the United States has a surprisingly high number of federal habeas cases on the docket this term. In my own words, here are the ones I’m paying attention to and why:

Maples v. Thomas, 10-63

Issue: Can ineffective assistance of post-conviction counsel excuse a procedural default?

Why Important: After direct review of a conviction, a prisoner no longer has a right to counsel. This case could establish a right to counsel on collateral review…but it probably won’t. I can still dream, right?

Oral Arguments: Occurred on Oct. 4, 2011. See here for audio and here for transcript.

*     *     *

Howes v. Fields, 10-680

Issue: Under § 2254(d)(1), is it “clearly established” that a prisoner isolated from the general population is considered to be “in custody”?

Why Important: For habeas purposes, a ruling on this issue will help flesh out when a prisoner can collaterally attack his sentence. There may be implications for Miranda as well. I’m less interested in those potential implications.

Oral Arguments: Occurred on Oct. 4, 2011. See here for audio and here for transcript.

*     *     *

Martinez v. Ryan, 10-1001

Issue: Like Maples, supra, in some respects. This case asks the Court to decide if there is a right to effective assistance of counsel during a state post-conviction proceeding that presents a prisoner with the first opportunity to raise a constitutional violation claim.

Why Important: For me, this is a companion case to Maples. Both could potentially expand right to counsel to collateral review processes.

Oral Arguments: Occurred on Oct. 4, 2011. See here for audio and here for transcript.

*     *     *

Greene v. Fisher, 10-637

Issue: At what point in the review process does a Supreme Court decision become “clearly established” under § 2254(d)(1)?

Why Important: The determination of this question could help open up federal habeas to more prisoners. Admittedly, the facts in Greene’s case are so unique that I expect a holding to be incredibly narrow. So this case might not have much long-term impact.

Oral Arguments: Occurred on Oct. 10, 2011. See here for audio and here for transcript.

*     *     *

Lafler v. Cooper, 10-209

Issue: Can a prisoner obtain habeas relief for ineffective assistance of counsel in taking a plea bargain?

Why Important: Because the high majority of people accused with crimes take plea deals, effective assistance in advising on whether to take such a deal seems crucial. When attorneys give bad advice at this stage, isn’t that ineffective? The Court will decide. Note: this case is linked with another case, Missouri v. Frye, 10-444.

Oral Arguments: To be held on Oct. 31, 2011.

*     *     *

Gonzalez v. Thaler, 10-895

Issue: This case larges deals with procedural matters of AEDPA. It asks the Court to determine if there was proper appellate jurisdiction and whether a petition was timely filed.

Why Important: As a Senator once said, “I’ll let you write the substance…you let me write the procedure, and I’ll screw you every time.” Love it or hate it, procedure is important. This case will flesh out the procedural requirements for seeking federal habeas relief.

Oral Arguments: To be held on Nov. 2, 2011.

*     *     *

Wood v. Milyard, 10-9995

Issues: Can a court raise sua sponte a statute of limitations bar under § 2244(d)? Does a state’s assertion that it “will not challenge” the timeliness of a petition constitute a waiver of any statute of limitations defense the state might have?

Why Important: Like Gonzalez this case will be important for the clarification it may provide to AEDPA. Not exactly the most exciting case, I know.

Oral Arguments: Not yet scheduled.


-Zachary Cloud

How To Brief A Case

To date, I’ve never discussed how to succeed as a law student. This is so for several reasons. First, there are plenty of bloggers, professors, books, etc… who are more than happy to advise on that. Second, I don’t like to brag about my success in law school (unless you happen to be an employer). Third and finally, I’d much rather discuss the law itself.

This will perhaps explain why I’m surprised at the high volume of search engine referrals I get that read something as follows: “example case brief.” It’s a consistent search phrase that tends to link to pieces I’ve written about appellate briefs. Now, appellate briefs are actual court documents that advance an argument for a party of interest or friend of the court. Case briefs are things that law students write summarizing assigned case opinions. The idea is that by writing a case brief, you’ll be prepared to answer questions the professor will ask you in class about said case. Today, I’ll make a rare departure and give some advice to new law students. Don’t expect this to happen again.

Question: What’s the best way to brief a case?

Answer: Don’t waste your time trying.

Look, I’ve only taken one law school class where I had to know case-specific information on the exam. That class was Constitutional Law. In ConLaw, I would recommend briefing the cases since you need to know them specifically. But outside of that narrow exception, it just makes no sense to waste your time briefing cases. The exam won’t test your intimate knowledge of Palsgraf or International Shoe. It won’t. What you will need to know are the rules that those two cases demonstrate (respectively, the concept of proximate cause in tort law and the “minimum contacts” test in civil procedure).

I can’t tell you how to brief cases properly. There is no right way. And besides, I don’t believe in doing it at all so I’d be a bit of a hypocrite if I tried my hand at telling you how.

But doesn’t that leave you a little vulnerable during class if the prof calls on you? Well sure…but who cares? You’re in law school to get a Juris Doctorate, not to convince your peers and professors that you’re a brilliant little snow flake. And beside, I’m not saying that you should avoid doing your reading. Read what you’re assigned but do it efficiently. Do it intelligently. Annotate sparingly (after all, if everything’s highlighted then nothing is). Thus, if you’re called on to discuss a case, you won’t look unprepared.

Stop thinking about case briefs. Start thinking about that exam at the end of the term that will count for 100% of your grade. Mandatory grade curves mean there are a fixed number of A’s available. Wouldn’t you like to be one of the precious few who gets one?

-Zachary Cloud

“Is the Declaration of Independence illegal?”

The title of this post comes from a fun BBC Article (see here) covering an event in Philadelphia held by the Temple American Inn of Court. America has Inns of Court? I know, I was confused too. I’ve heard rumors about the existence of these American ‘Inns of Court’ before but until now I secretly suspected they didn’t actually exist. Of course, the mere fact that they exist does not make them meaningful. At any rate, the event Temple held is a cool idea. I recommend reading the article and watching the video. That said, the answer to the question debated is quite easy to derive. It certainly requires no lengthy pondering to ascertain.

To the extent that writing such a declaration of independence may have been seditious or treasonous, one can say quite confidently it was illegal for the colonists to author it. Of course.

But doesn’t that miss the point by quite a bit? This is, after all, not about colonists’ right to speak out freely but rather their actual ability to declare themselves a separate sovereign. And that is neither illegal nor legal.

Yes, there’s a difference between “not legal” and “illegal.” For an act or omission to be illegal it must contravene law. To murder is illegal because there is law saying I am not allowed to do as such. Its illegality does not stem from the absence of authorization but from the presence of prohibition. On the other hand, for something to be “not legal,” is only to imply that there is not explicit legal authority to support whatever that ‘something’ may be.

Now, I’m not a legal historian but I would wager that there was no common law or act of parliament expressly prohibiting subjects of the crown from claiming themselves a new sovereign. Rather, it’s one of those things that seems to go without saying. Like the barristers argued at the Temple event in Philly, the US’ reaction to the civil war nicely makes the point. It is no more conceivable that the colonists had an ability to declare themselves sovereign than that the Confederacy had an ability to do so a century later. All of this is to say that there is no legal authority that supports such a declaration. No code, no common law, no statute…nothing can be cited to support the position that separation is a legal action.

So was it illegal to declare sovereignty then? No. Is it now? No. Does that mean it was valid to do so? No. It seems a difficult question for political philosophers but an entirely unproblematic one for the law.

All of that being said, I recognize the debate wasn’t meant to be taken seriously. Nor do I want to discourage the effort – I very much like the idea of getting American lawyers and British barristers together to debate legal questions. I’d merely submit that next time around, Temple Inn should come up with a more debatable question.

-Zachary Cloud

Federalism in Sharp Relief: Legalizing Marijuana

[UPDATE as of 10/18/2011: Nate Silver of FiveThirtyEight did some meta-analysis that is well worth a read. Check it out here.]

So Gallup puts out today that a half of Americans are in favor of legalizing marijuana. See here for the full post.

Unsurprisingly, the modal supporting demographic was the 18-29 year olds – sixty-two percent favor legalization. Also unsurprisingly, liberals and conservatives split drastically. Of course, since age and political ideology co-vary, that’s to be expected. Indeed, in inferential analysis it assuredly would raise issues of multicollinearity.

But why do I care about public opinion? This is a law blog after all…political opinions are not what I like to focus on. Here’s our connection to the law: the federal Control Substances Act, 21 U.S.C. § 801 et seq. 

With more and more states allowing medical marijuana, the US Attorney General has made it clear that it remains a federal violation to possess marijuana regardless of what states authorize. This USA Today piece nicely illustrates the matter.

Now that half the country is supportive of legalization, might we expect the federalism debate to become more vocal? Far more remarkably, might we see Congressmen attempt to dismantle or abrogate the Controlled Substances Act? Could Gonzales v. Raich, 545 U.S. 1 (2005) become inconsequential??

I’ll be watching the matter with a keen eye as it seems only a matter of time before political tensions on this subject spill into the judiciary.

-Zachary Cloud

On Rare Forms of Federal Habeas And A Hollow Victory For Rhode Island

Those who know me are aware that I’m a devoted student of federal habeas corpus, codified in 28 U.S.C § 2241 et seq. Something about collateral attacks fascinate me. But there’s a much rarer form of habeas than the typical § 2254 action we all know and love (or hate, if you’re big on federalism). That form is the writ of habeas corpus ad prosequendum. It’s codified at 28 U.S.C. § 2241(c)(5). Unlike the typical habeas petition filed after a prisoner’s judgment of sentence becomes final, these are filed before proceedings have even begun. For students of latin, the writ’s name says it all: it’s designed to facilitate prosecution.  And indeed, the subsection bears this out: “(c) The writ of habeas corpus shall not extend to a prisoner unless— (5) It is necessary to bring him into court or for trial.” So this provision is available but it’s, in relative terms, rarely used.

So why do I bring this up? What am I getting at?

Ah, I’m glad you asked. There’s been some stirring in the blawgosphere over a recent First Circuit opinion about what can only be seen as a David v. Goliath story. The original opinion can be found here.  However, it’s so ghastly typeset (by using Courier and underlining citations) that I felt it my duty to re-typset a better version for you, which can be found here. The opinion is quite informative but my explanation that follows may be a little less intimidating for the uninitiated.

Defendant-Petitioner Jason Pleau (“Defendant”) is accused of armed robbery and murder at a Rhode Island gas station. He is currently in a Rhode Island prison serving an eighteen-year sentence and has agreed to plead guilty to state charges relating to this robbery/murder for a LWOP sentence.

But the U.S. Attorneys want him too. They would like to charge him with:

  1. Robbery affecting interstate commerce. See 18 U.S.C. § 1951(a).
  2. Conspiracy to commit robbery affecting interstate commerce.
  3. Possessing, using, carrying, and discharging a firearm in relation to a crime of violence. See 18 U.S.C. §§ 924(c)(1)(A), (j)(1).

It is possible that Defendant could receive the death penalty if convicted of these crimes. Yet, to prosecute him on these charges (which stem from the same state charges to which he has agreed to plead guilty), they need to get him into federal court…and that’s a problem since he’s in a Rhode Island prison. Can they do it?

Yup, there’s an Act for that. So in theory, yes.

The Interstate Agreement on Detainers (IAD) deals with just such problems. Codified in 18 U.S.C. App. § 2, the IAD allows for authorities to request custody of an inmate from the jurisdiction said inmate is already incarcerated in. Requesting a prisoner under the IAD is typically naught but a formality. In other words, there’s no need to look back to that ad prosequendum writ; the IAD will do nicely.

But will it? We all thought it would. However, producing the prisoner is not mandatory under the IAD. Indeed, “there shall be a period of thirty days . . . [wherein] the Governor of the sending State” can refuse to honor the request. 18 U.S.C. App. § 2, art. IV(a).

And that’s just what Rhode Island’s governor did here. In a move that everyone seems to agree is of first impression, the governor refused because of Rhode Island’s “longstanding policy” against the death penalty. Handing Defendant over to the feds would open him up to that punishment – and why else would they want him considering he’ll already be LWOPing it up in RI?

Not to be deterred, the US Attorney’s office filed a § 2241(c)(5) petition in federal district court, which Defendant promptly opposed. The district court ruled that Defendant lacked standing and granted the writ. Then the governor stepped in and helped out. On appeal, he was an amicus arguing that the effectiveness of the § 2241(c)(5) petition was nullified by the peremptory IAD denial…and the First Circuit agreed! In a split panel, the majority held that:

[O]nce the federal government has elected to seek custody of a state prisoner under the IAD, it is bound by that decision. Any subsequent ad prosequendum writ is to be considered a written request for temporary custody under the IAD and, as such, subject to all of the strictures of the IAD, including the governor’s right of refusal.

It seems like a win for the little guy, right? Like David has beaten Goliath? Well I’m not sure that’s at all right. Note carefully what the First Circuit says. If the federal prosecutor files an IAD request first, any subsequent § 2241(c)(5) request will be considered naught but a further written request for custody under the IAD regime. But, the court readily acknowledges that “[t]he federal government is not required to seek custody under the IAD; it may elect to seek custody by means of a habeas writ. In that case, the Supremacy Clause requires states to conform to the habeas writ.”

Right. What we have then is an incredibly narrow holding not likely to repeat itself…like ever. AUSAs, in the First Circuit at least, won’t bother going through the IAD anymore. They’ll just go straight to the ad prosequendum petition in the first instance. Why not? What sense would it make to put yourself at risk of being rejected when you can guarantee compliance? Thus, David beats Goliath but it’s a Pyrrhic victory.

Of course, it’s not clear that the battle is over. I suspect that the First Circuit will rehear the case en banc and might well reverse the panel ruling. Of course, that might not even be the end. It could potentially end up at the Supreme Court…and what an interesting case that’d be. The typical proponents of States’ rights are the same Justices who don’t like preventing states from carrying out the death penalty. When the tables are turned, could we expect someone like Justice Kennedy or Thomas to stay true to their pro-states bent and side with RI? Or would it end up being a repeat of Gonzales v. Raich, 545 U.S. 1 (2005)?

I certainly have no crystal ball. I can only see what’s in front of me but what I see is a hollow victory for Rhode Island and a rare form of habeas that’s about to become a lot less rare.

-Zachary Cloud

Coming Attractions: Perry v. New Hampshire

On Nov. 2, the Supreme Court is hearing arguments in Perry v. New Hampshire. Today I had the privilege of sitting in one of the Attorney General of New Hampshire’s practice oral argument sessions. This is a really big case for the reliability of eyewitness identification.

In fact, I’ve been meaning to preview this case even before I was invited to sit in on the moot. Unfortunately, I’ve just been way too busy lately to do any in-depth analysis. That’s regrettable because it’s a great case at the intersection of criminal law and psychology. So do yourself a favor — check it out here. Pro-tip: If there’s one brief you should read, it’s neither the petitioner’s nor the respondent’s – it’s the American Psychology Association’s amicus brief. It carefully lays out all of the empirical studies casting eyewitness identification reliability into doubt.

Like I said, I really wish I could do a more substantive discussion of the case but because of workload and inside information on the respondent’s case strategy, I can’t. But after oral arguments, expect my reactions!

-Zachary Cloud