Federal Habeas Corpus: How to Raise a Fourth Amendment Claim

The slam dunk for federal habeas claims, if there exists such a thing, would be a claim that successfully challenges the evidence in a criminal case. By tossing the illegally-obtained evidence, not only would the conviction be overturned but the prosecution wouldn`t have a case for a new trial. The prisoner walks free.

But reality is that successful Fourth Amendment claims are hard to come by. Even with a solid Fourth Amendment claim, pursuing federal habeas corpus relief is not easy. Here`s a look at some successful cases, but first some background.

The Purpose of The Fourth Amendment

The Fourth Amendment to the U.S. Constitution protects people from “unreasonable searches and seizures” by the government. The key word here is unreasonable, which the courts have stressed is the measuring stick for Fourth Amendment violations. See Davis v. United States, 564 U.S. 229 (2011). Unless a search is unreasonable, the courts usually let it stand.

The remedy for a Fourth Amendment violation is what`s called the “exclusionary rule,” a judge-made rule that allows a court to suppress evidence obtained in violation of the Fourth Amendment. However, the remedy isn`t aimed at righting the wrong against the defendant prosecuted by that evidence. Instead, the rule`s sole purpose is “to deter future Fourth Amendment violations.” Davis. In other words, the exclusionary rule is designed to punish law enforcement so they won`t do it again. Any windfall for the defendant is merely coincidental. This line of reasoning is important when it comes to Fourth Amendment habeas claims.

Bars to Fourth Amendment Challenges in Federal Habeas Corpus

The Supreme has created a formidable barrier to Fourth Amendment habeas claims:

Where the state has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was intended at his trial.

Stone v. Powell, 428 U.S. 465 (1976)

The court reasoned that its rule in Stone was necessary because the exclusionary rule wouldn`t have much force in deterring law enforcement if it`s invoked years later in a habeas case. The Court also said that the costs of undoing a conviction through habeas corpus are “comparatively great,” when compared to a direct appeal. Withrow v. Williams, 507 U.S. 680 (1993).

Withrow also held that the rule in Stone is not a jurisdictional bar to habeas relief, and the prosecution could waive or forfeit the “defense.” And the Court emphasized that Stone applies to only Fourth Amendment claims, and refused to extend the bar to other constitutional claims.

Since over 95% of convictions in this country are by way of a guilty plea, another bar to a Fourth Amendment challenge is the guilty plea itself. The Supreme Court discussed the reason for this bar in Haring v. Prosise, 462 U.S. 306 (1983):

When a defendant is convicted pursuant to his guilty plea rather than a trial, the validity of that conviction cannot be affected by an alleged Fourth Amendment violation because the conviction does not rest in any way on evidence that may have been improperly seized. (emphasis added)

Exceptions to Bars on Fourth Amendment Habeas Challenges

Fortunately, there are some exceptions to the rules barring Fourth Amendment habeas challenges. One way around the bar in Stone for Fourth Amendment claims is to reframe the claim as an ineffective assistance of counsel (IAC) claim, arguing that counsel failed to challenge the evidence. In Kimmelman v. Morrison, 477 U.S. 365 (1986), the Supreme Court held that an IAC claim regarding counsel`s failure to challenge the evidence was really a Sixth Amendment right-to-counsel claim, and not a “direct” Fourth Amendment claim barred by Stone. Thus, the Court provided a work-around for Fourth Amendment habeas claims using the well-worn path for IAC claims.

Another exception to the Stone Fourth Amendment habeas bar is showing that the state court failed to provide a “full and fair opportunity” to challenge the Fourth Amendment claim, or that there was no opportunity to do so. The Seventh Circuit provided some guidance on what a full and fair opportunity to litigate a Fourth Amendment claim would look like:

A petitioner has had the benefit of such an opportunity [for full and fair litigation of a Fourth Amendment claims] so long as (1) he can clearly apprise the state court of his Fourth Amendment claim along with the factual basis for that claim, (2) the state court carefully and thoroughly analyzed the facts, and (3) the court applied the proper constitutional case law to those facts.

Miranda v. Leibach, 394 F.3d 984 (7th Cir. 2005)

However, the court said the test is whether there was an “adequate opportunity to pursue the claim in the state court system,” not whether the challenge was successful or the court`s decision was wrong.

An example of no full and fair opportunity to litigate a Fourth Amendment claim happens when the state court uses the wrong standard of review for the claim. Herrera v. LeMaster, 301 F.3d 1192 (10th Cir. 2002) (en banc). Another would be when the state court has completely ignored the claim. Agee v. White, 809 F.2d 1487 (11th Cir. 1987). There are lots of ways a state court can prevent a full and fair opportunity to litigate a Fourth Amendment claim.

A work-around also exists for raising Fourth Amendment habeas claims after a guilty plea, and it`s like the one in Kimmelman: You must challenge the knowing and voluntary nature of the guilty plea and show that counsel`s advice to plead guilty, despite the Fourth Amendment violation, affected your decision to plead guilty. Tollett v. Henderson, 411 U.S. 258 (1973).

When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in [Supreme Court cases dealing with IAC claims].

While Kimmelman allowed that counsel`s failure to challenge the Fourth Amendment violation created a ground for habeas relief, Tollett also requires a showing that counsel`s advice to plead guilty was wrong because of the Fourth Amendment violation. Both claims come back to a Fourth Amendment violation, and both point the finger at counsel — but not directly at the Fourth Amendment violation.

Successfully Challenging Fourth Amendment Violations for State Petitioners

Here`s an example of a successful Fourth Amendment habeas claim by a state petitioner. In Bostick v. Peters, 3 F.3d 1023 (7th Cir. 1993), the petitioner filed for federal habeas relief, under 28 U.S.C. sec 2254, claiming that the drug evidence was obtained in violation of the Fourth Amendment. While the district court ruled that the claim was barred by Stone, the court of appeals found that the state court had prevented a full and fair opportunity to litigate the claim in state court and reversed the district court.

The court established a two-step process for determining whether the state court provides a full and fair opportunity to a petitioner: “[1] whether the state procedural mechanism, in the abstract, presents the opportunity to raise a Fourth Amendment claim, and [2] whether the claim in question was in fact frustrated by a failure of that mechanism.”

The state court had a rule that had prevented the petition from developing his Fourth Amendment claim, and this “unanticipated and unforeseeable application of a rule on appeal prevented the state courts from properly considering the merits of the petitioner`s claim,” the court concluded. “Indeed, if Fourth Amendment claims fall on deaf ears in the state courts and defendants are then precluded from raising their claims on collateral review, the efficacy of the exclusionary rule in deterring future Fourth Amendment violations would be undermined.”

Successfully Challenging Fourth Amendment Violations for Federal Petitioners

For federal petitioners, Fourth Amendment habeas claims are even more difficult, since any claim not raised on direct appeal cannot be raised in a motion under 28 U.S.C. sec 2255, unless “cause and prejudice” are shown. Massaro v. United States, 538 U.S. 500 (2003). But Massaro also held that an IAC claim can provide cause and prejudice to avoid this procedural default.

In United States v. Cavitt, 550 F.3d 430 (5th Cir. 2008), a federal petitioner filing for relief under 28 U.S.C. sec 2255 claimed that his guilty plea wasn`t valid due to counsel`s failure to challenge the drug evidence obtained during an illegal search. While the district court denied relief, stating that Stone barred his Fourth Amendment argument, the court of appeals vacated that decision and found that the IAC claim bypassed the Stone bar. On remand, the district court found that counsel was indeed ineffective and allowed the petitioner to withdraw his guilty plea. See Cavitt v. United States, 2009 U.S. Dist. LEXIS 144833 (E.D. Tex. May 29, 2009).

IN CONCLUSION, Fourth Amendment claims in federal habeas corpus are no doubt complex. There`s lots of obstacles but there`s also ways around those obstacles. Plan your route accordingly and you`ll win federal habeas relief on your Fourth Amendment claim.

Dale Chappell is the author of hundreds of published articles on the federal criminal justice system, and the Insider`s Guide series of federal post-conviction books. Follow his blog at www.zenlawguy.com and on Twitter at @zenlawguy.

SCOTUS Says No Procedural-Default Exceptions to Excuse Federal Habeas Evidentiary Hearing Bar in Shinn v Martinez Ramirez

In yet another case further limiting the federal habeas corpus remedy, the Supreme Court of the United States (SCOTUS) held on May 23, 2022, that post-conviction counsel`s failure to develop a meritorious claim in state court did not excuse the bar to an evidentiary hearing in the federal court, regardless of how egregious trial counsel`s error was.

The case arose from two separate death-penalty cases in Arizona that happened 30 years ago. Both cases were granted federal habeas relief, with the federal courts each holding an evidentiary hearing and finding that post-conviction counsel`s failure to develop the claim of trial counsel`s ineffective assistance bypassed the bar on a federal evidentiary hearing. The state appealed to SCOTUS in both cases, and the Court consolidated them for appeal.

SCOTUS presented the question this way:

The question presented is whether the equitable rule announced in Martinez [v. Ryan, 566 U.S. 1 (2012),] permits a federal court to dispense with sec 2254(e)(2)`s narrow limits because a prisoner`s state postconviction counsel negligently failed to develop the state-court record.

The Court`s answer was rather straight-forward: “A federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on ineffective assistance of state postconviction counsel.” However, the Court`s reasoning for its decision dealt another serious and far-reaching blow to federal habeas corpus, according to three dissenting Justices.

A Federal Habeas Court May Not Hear a Defaulted Claim, But There are Exceptions

In general, a claim brought before a federal habeas court that is procedurally-defaulted cannot be heard by the court. But there are exceptions to this judge-made rule. SCOTUS reiterated that a claim raised in a federal habeas petition must first be presented in the state court. Woodford v. Ngo, 548 U.S. 81 (2006). This rule, the Court said, “affords states an initial opportunity to pass upon and correct alleged violations of prisoners` federal rights,” thereby protecting state-federal comity.

But federal courts may excuse procedural default if the petitioner “can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law.” Coleman v. Thompson, 501 U.S. 722 (1991). Cause is established when “some objective factor external to the defense impeded counsel`s efforts to comply with the state`s procedural rule,” and prejudice is established by showing that the constitutional violation “worked to [the petitioner`s] actual and substantial disadvantage.” Murray v. Carrier, 477 U.S. 478 (1986).

AEDPA`s Evidentiary Hearing Bar is Not the Same as Procedural Default

In the Antiterrorism and Effective Death Penalty Act (AEDPA), Congress added a bar that prevents a federal habeas court from holding an evidentiary hearing, unless certain criteria are met:

If the applicant has failed to develop the factual basis of a claim in state court proceedings, the court shall not hold an evidentiary hearing on the claim unless the applicant shows that

(A) the claim relies on

(i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable, or

(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence, and

(B) the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. sec 2254(e)(2)

The Court noted a distinction between sec 2254(e)(2) and procedural default and focused on the language, “if the applicant has failed to develop the factual basis of a claim in state court proceedings.” The Court held that this made any errors by counsel “attributable” to the habeas petitioner, since “the attorney is the petitioner`s agent when acting, of failing to act, in furtherance of the litigation, and the petitioner must bear the risk of attorney error.”

If the failure to develop the factual basis in state court for a habeas claim was not the fault of the petitioner or their lawyer, however, then sec 2254(e)(2)`s bar does not apply, the Court reiterated. But that was not the situation in this case and the petitioners were required, by law, to meet all of the exceptions under sec 2254(e)(2) to obtain an evidentiary hearing in federal court.

While the Court made clear that sec 2254(e)(2)`s bar is mandatory and the exceptions must be met for an evidentiary hearing in federal court, if the petitioner is at fault for the undeveloped claim, it implicitly recognized that sec 2254(e)(2) is not a jurisdictional bar when it acknowledged the state`s “forfeiture” of the argument in the lower courts and “forgave” that forfeiture for this appeal.

The Martinez Exception Does Not Apply to the AEDPA`s Evidentiary Hearing Bar

In Martinez, SCOTUS created a “narrow exception” to the rule that attorney error cannot establish cause to excuse a procedural default, and held that ineffective assistance of state post-conviction counsel may excuse a procedurally-defaulted ineffective assistance of trial counsel claim, if the state requires such claims to be raised in a post-conviction action and not on appeal. This was true, the Court said, even though there is no constitutional right to counsel in post-conviction proceedings, like there is in a criminal proceeding.

Again, the Court distinguished procedural default from the evidentiary hearing bar under sec 2254(e)(2):

But sec 2254(e)(2) applies whenever any state prisoner failed to develop the factual basis of a claim, without limitation to any specific claim. There would be no reason to limit [the petitioners`] reconstruction of sec 2254(e)(2) as they propose. Unlike for procedural default, we lack equitable authority to amend a statute to address only a subset of claims. Thus, if a prisoner were not “at fault” under sec 2254(e)(2) simply because postconviction counsel provided ineffective assistance, the prisoner`s blamelessness would extend to any claim that postconviction counsel negligently failed to develop. Not even Martinez sweeps that broadly.

The Court rejected what it said would be a “rewrite” of sec 2254(e)(2), and that Martinez “addressed only one kind of claim: ineffective assistance of trial counsel.” The Court said that trial-ineffective-assistance claims are “uniquely important.” Thus, the Martinez exception to procedural default for ineffective assistance of trial counsel claims didn`t apply to sec 2254(e)(2)`s evidentiary hearing bar.

Justices Sotomayor, Kagan, and Breyer dissented, noting that neither the AEDPA nor the Court`s precedents led to the outcome the Court reached:

This decision if perverse. It is illogical: It makes no sense to excuse a habeas petitioner`s counsel`s failure to raise a claim altogether because of ineffective assistance in post-conviction proceedings, as Martinez and Trevino [v. Thaler, 569 U.S. 413 (2013),] did, but to fault the same petitioner for that postconviction counsel`s failure to develop evidence in support of the trial-ineffectiveness claim. In so doing, the Court guts Martinez`s and Trevino`s core reasoning. The Court also arrogates power from Congress: The Court`s analysis improperly reconfigures the balance Congress struck in the [AEDPA] between state interested and individual constitutional rights.

Regardless, the majority`s opinion held that the only exceptions to the evidentiary hearing bar under sec 2254(e)(2), when the petitioner is at fault for failing to develop the claim in state court, are the ones listed in the statute and they must be met for a federal court to hold an evidentiary hearing. See Shinn v. Martinez Ramirez, No. 20-1009, 2022 U.S. LEXIS 2557 (May 23, 2022).

While the Court`s ruling is disturbing, it thankfully doesn`t apply to too many state prisoners seeking federal habeas relief. Less than 2% of federal habeas cases result in evidentiary hearings, out of tens of thousands filed each year. And when the federal court does hold a hearing, it`s usually because the state court erred in not holding a hearing, I`ve seen, and not because the petitioner failed to develop the record for the claim. This makes the Court`s ruling here rather empty. But the concerning part is Justice Thomas` rants about how federal habeas corpus has been undoing countless state convictions and setting convicted people free. His rants are baseless, of course, but he has taken numerous dissenting opinions that he`s joined over the years in cases that have expanded habeas relief to state prisoners and turned them into a majority opinion in not only this case but another one he authored shortly before this, Brown v. Davenport, 2022 U.S. LEXIS 2096 (U.S. Apr. 21, 2022). In that case, Thomas led the majority of conservative Justices to a decision that even if a state prisoner can show that a trial error had a “substantial and injurious effect” on his case, he must still overcome the AEDPA`s deference standard under sec 2254(d). Again, his opinion there affects few petitioners but the discussion in the opinion all but eviscerates the importance of habeas corpus in protecting constitutional rights. I believe the Court is on a dangerous path to upend the few protections left for prisoners in the federal courts against violations of their fundamental rights.

Federal Habeas Court Finds Both Trial and Post-Conviction Counsel Ineffective, Vacates Death Sentence

Sammie Stokes confessed to capital murder so his best chance of avoiding the death penalty was a strong presentation of mitigating evidence to sway the jury at sentencing. But Stokes` lawyers failed to pursue any meaningful mitigation, and the U.S. Court of Appeals held on August 19, 2021, that this not only amounted to ineffective assistance of counsel (IAC), but also found that Stokes` state post-conviction lawyers were ineffective to excuse that he procedurally-defaulted this claim, vacating his death sentence.

Stokes had a horrific childhood in rural South Carolina. Without recounting all the disturbing details the court expressed about his upbringing, it`s enough to say that an expert from the Center for Disease Control (CDC) tested Stokes under the well-known “Adverse Childhood Experiences” (ACE) standard and found that he scored a 9 out of possible 10 points. To put this in perspective, the expert noted that only 13 percent of the population have an ACE score of more than 3 points, and less than 1 percent score more than 6. Stokes` score put him in a class nearly by himself: His childhood was worse than 99.9 percent of the population, the expert said.

Despite all of this Stokes` two lawyers, who admittedly had no experience with mitigation defense, decided not to present any of the details of Stokes` childhood to the jury in efforts to avoid the death penalty. Instead, they hired a retired prison warden who said that prison staff could deter Stokes from further crime by using deadly force. “[Prison guards] have the ability … to effect lethal force if that person does not adequately follow certain rules and regulations,” this ex-warden testified before the jury. “I have ordered inmates killed because they did not follow the rules and regulations and that inmate has been killed.”

This was an attempt to convince the jury that life in prison was adequate to deter Stokes from further offenses. In response, the state presented “robust aggravating evidence” of Stokes` crimes to convince the jury to impose the death penalty — and they did so unanimously.

Stokes exhausted his state appeals without success, and then filed an application for post-conviction relief (PCR) in state court, claiming IAC because counsel failed to present any mitigating evidence at sentencing. He was appointed two different lawyers for this round of challenges but they pursued a different route, ignoring the failure-to-mitigate claim. The lower courts denied Stokes` petition and both the South Carolina and U.S. Supreme Courts refused to hear the case.

Federal Habeas Corpus

Stokes then turned to the federal courts and filed a habeas corpus petition in the district court, under 28 U.S.C. sec 2254, again raising the mitigation claim. With counsel present, the court held a limited evidentiary hearing to determine whether procedural-default should be excused based on PCR counsel`s failure to raise the mitigation claim earlier. Typically, a claim raised in a federal habeas petition that wasn`t addressed in the state court is “procedurally-defaulted,” prohibiting the federal court from addressing the claim in the first instance. sec 2254(b). The idea is that the state court must have the first opportunity to fix the error.

But when post-conviction counsel is ineffective for failing to raise the claim in state court, the Supreme Court held in Martinez v. Ryan, 566 U.S. 1 (2012), that the procedurally-defaulted claim may be heard by the federal habeas court if certain criteria are met:

1. The IAC claim regarding trial counsel is “substantial”,
2. Post-conviction counsel was ineffective for not raising the claim,
3. State post-conviction proceedings were the first opportunity to raise an IAC claim, and
4. State law requires IAC to be raised in the post-conviction proceedings, and not on direct appeal.

State Post-Conviction Lawyers Were Ineffective to Excuse Procedural Default

First, the court found Stokes` trial counsel IAC claim was substantial, because it had “some merit,” which is the same standard as the Supreme Court`s ruling for granting a certificate of appealability (COA) in a habeas case.

A petitioner must show that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322 (2003).

Stokes` trial-counsel IAC claim was substantial because, the Court said, “the basis for questioning trial counsel`s effectiveness is plain enough that PCR counsel`s failure to adequately pursue it was objectively unreasonable.”

Second, the Court found that PCR counsel were ineffective for failing to pursue the mitigation claim in state court. Capital defense counsel have the duty to investigate and present substantial mitigating evidence, which includes the obligation to conduct a thorough investigation of the defendant`s background,” the Supreme Court held in Williams v. Taylor, 529 U.S. 362 (2000).

While PCR counsel hired an investigator who uncovered significant mitigating evidence, they failed to hire an expert capable of analyzing those “red flags” showing trial counsel were ineffective, the Court said. “The basis for questioning trial counsel`s effectiveness is plain enough that PCR counsel`s failure to adequately pursue it was objectively unreasonable.”

The Court also clarified that Stokes didn`t have to show “prejudice” in order to establish PCR counsel were ineffective. A typical IAC claim regarding trial counsel requires showing (1) counsel`s performance was deficient, and (2) that absent the errors there`s a “reasonable probability” of a different outcome — or “prejudice.” Strickland v. Washington, 466 U.S. 668 (1984). However, for an IAC claim regarding PCR counsel, the standard is not so strict:

Asking the petitioner to show that PCR counsel`s ineffectiveness prejudiced the state proceedings would effectively require the petitioner to show that the defaulted claim is meritorious.

Note: Not all courts agree on this more lenient IAC standard for Martinez claims. See McKiver v. Sec`y Dept. Corr., 991 F.3d 1357, 1369 (11th Cir. 2021) (“McKiver must prove that his postconviction counsel performed deficiently and that the deficient performance prejudiced his defense.” (citing Strickland)).

Third and Fourth, South Carolina State law says that IAC claims regarding trial counsel must be raised in a post-conviction proceeding. Sigmon v. Stirling, 956 F.3d 183 (4th Cir. 2020). State court rules also require appointment of counsel in post-conviction proceedings when an evidentiary hearing is held, as was the situation in Stokes` PCR case. S.C. Rule Civ. Proc. 71.1(d).

Finding all four of the Martinez criteria met by Stokes, the Court next tackled an obstacle created by the Antiterrorism and Effective Death Penalty Act (AEDPA). Under sec 2254(d), a federal court must “defer” to a state court`s decision and cannot grant habeas relief unless that decision was (1) contrary or an unreasonable application of “clearly established federal law,” or (2) an “unreasonable determination of the facts” presented in state court. But this bar only applies if the state court decided the claim “on the merits.” That didn`t occur here because PCR counsel failed to pursue the mitigation claim, allowing the federal court to review Stokes` claim de novo, or as if the court were deciding his claim in the first instance.

The Ineffectiveness of Trial Counsel

Addressing Stokes` IAC claim regarding trial counsel, the Court applied Strickland`s two-step analysis and found that trial counsel were “constitutionally deficient,” their investigation of mitigation evidence was “inadequate,” and their decision not to present Stokes` tortured childhood to the jury was “unreasonable.”

The Court found no less than five reasons why Stokes` defense lawyers were ineffective: (1) they had no experience with mitigation defense, yet consulted no experiecned attorneys or mitigation experts, (2) their mitigation efforts totaled just 45 hours and didn`t begin until six months into their representation of Stokes, (3) they hired an inexperienced mitigation investigator, (4) they failed to develop any of the investigator`s findings, and (5) they “failed to pursue the indications of extreme childhood trauma, neglect, and abuse.”

The Court reiterated that mitigation has nothing to do with the defendant`s conduct, and everything to do with mitigating a defendant`s “moral culpability.”

Mitigation is not a defense to prosecution. It is not an excuse for the crime. It is not a reason the client should “get away with it.” Instead, mitigation is a means of introducing evidence of a disability or condition which inspires compassion, but which offers neither nor excuse for the capital crime…. It explains the influences that converged in the years, days, hours, minutes, and seconds leading up to the capital crimes, and how information was processed in a damaged brain.

But trial counsel never did this, and the lack of mitigation evidence may have swayed just a single juror, the Court said, enough for a different outcome: “In sum, trial counsel`s unreasonable mitigation efforts prejudiced Stokes. Given Stokes`s immediate confession, his defense turned almost exclusively on mitigation from its very outset. Yet trial counsel spent too little time on their investigation and failed to appreciate their findings,” the Court concluded. “Had the jury heard the unpresented evidence, the probability that at least one juror would have voted against death is great enough to undermine our confidence in the outcome.”

The Court therefore reversed the denial of Stokes` habeas petition and remanded with instructions for the district court to grant relief unless the state resentences Stokes. See: Stokes v. Stirling, 2021 U.S. App. LEXIS 24826 (4th Cir. Aug. 19, 2021).

Federal Court Says Four-Year Delay for State Appeal Excused Federal Habeas Exhaustion Requirement

Seventh Circuit Holds Four-Year Delay for State Appeal Excused Habeas Exhaustion Requirement

Waiting more than four years for a Wisconsin State court to hear a defendant`s appeal was “ineffective to protect the rights secured by the United States Constitution,” the U.S. Court of Appeals for the Seventh Circuit held on August 18, 2021, allowing a federal habeas corpus petition to proceed without exhausting state-court remedies.

Marvin Carter pled guilty in 2017 to a drug and firearm charge in a Wisconsin State court. As part of the plea deal, the prosecutor had agreed in to recommend no more than six years in prison. But at sentencing the prosecutor instead told the judge, “I so wish we would have allowed this to proceed through to the end of the trial and let the jury make their verdict because then I would have had four counts on the table today.” Taking the hint, the judge sentenced Carter to nine years in prison, not the six years in the plea agreement.

Carter then filed the necessary notice for an appeal, a process that has been called “unusual” as far as state appellate proceedings go. First, he had to file his notice within 20 days that he wanted to file a “post-conviction motion,” not an appeal. Only after that gets dismissed may Carter filed an actual direct appeal. What`s also odd is that it`s the trial judge who imposed the sentence that hears the post-conviction motion prior to an appeal. Carter was appointed counsel for this process, and by 2019 counsel had filed twelve motions for extensions of time, each time waiting until the last day to do so. Each motion was granted and, on top of that, the court itself imposed three more extensions of time.

Carter finally gave up and filed a habeas corpus petition in federal court, under 28 U.S.C. sec 2254, with the same claims he intended to raise in the state court about his sentence. The district court, however, told him he still had to give the state court one more shot at hearing his claims, and dismissed his petition without prejudice so he could file again later if needed. Instead, Carter filed an appeal.

Habeas law says that a state prisoner must exhaust any post-conviction remedies in state court before a federal court may hear his federal habeas petition. Sec 2254(b)(1). But there are some exceptions. That same section excuses exhaustion if there`s an “absence of available state correction process,” or “circumstances exist that render such process ineffective to protect the rights of the applicant.” The question before the Seventh Circuit was whether any exceptions to exhaustion applied because of the state court`s delay.

First, the Court had to determine that it had jurisdiction to hear the case. The state had argued that because the district court`s dismissal was without prejudice, it wasn`t a “final” decision to allow an appeal. Under 28 U.S.C. sec 1291, a federal court of appeals has jurisdiction only over “final” decisions of a district court. The Court acknowledged that a dismissal without prejudice is usually done to allow a petitioner to fix a deficiency, like exhaustion of state remedies, and then file again. But there are exceptions to this, it noted:

When it would be futile for the plaintiff or petitioner to attempt to resolve the issue that caused the district court to dismiss the case, then, a seemingly nonfinal order is functionally final and thus appealable.

The Court said that Wisconsin`s appellate process had “failed Carter” and it would be “futile” for him to keep trying to exhaust state remedies so he could file a federal habeas petition. The Court`s sentiments on Wisconsin`s appellate process continued, with the Court finding that such an “ineffective” process was a reason to excuse exhaustion in Carter`s case.

Congress was careful to, in recodifying the exhaustion requirement under the Antiterrorism and Effective Death Penalty Act (AEDPA), to ensure that state prisoners exhaust any state-court remedies before going to federal court with a habeas petition. This preserves federalism concerns, or respect for the state courts as a first resort for relief. But the Supreme Court has said that exceptions in a statute are just as important as its mandates. “Exceptions and exemptions are no less part of Congress`s work than its rules and standards — and all are worthy of a court`s respect.” BP PLC v. Mayor and City Council of Balt., 141 S. Ct. 1532 (2021).

Carter had made a “colorable” claim under Santobello v. New York, 404 U.S. 257 (1971), a case where the Supreme Court held that a defendant is entitled to resentencing or to withdraw his plea, if the prosecutor breaches the plea agreement. That`s what Carter claimed the prosecutor did by his statements to the judge that led to a sentence above the one in the plea agreement. The Seventh Circuit said this claim, though, “had fallen on deaf ears,” leaving the Court with the impression that “for Carter, justice delayed has become justice denied.”

The Court closed with the following quote:

We were alarmed to see the state point its finger at Carter and, in its briefing, go so far as to say that he is at fault because he complained to no one about the delays until after he came into federal court. It is not clear to us what else Marvin Carter could have done or, for that matter, why the state is so intent on avoiding responsibility for its own failings. And we were shocked anew by the state`s presentation at oral argument. When asked whether the Attorney General had filed anything with the Wisconsin Supreme Court alerting it to the serious problems in the lower courts, counsel insisted, “We don`t have a problem.” That view if indefensible: a miscarriage of justice occurs when a convicted person must wait four years for appellate review.

The Court therefore vacated the dismissal of Carter`s habeas petition and remanded with instruction for the district court to review the merits of his claims. See: Carter v. Buesgen, No. 20-3140, 2021 U.S. App. LEXIS 24672 (7th Cir. Aug. 18, 2021).

Federal Court Affirms Habeas Relief in Louisiana Murder Case

Fifth Circuit Affirms Habeas Relief Based on Counsel`s Failure to Interview Witness in Murder Case

Finding that defense counsel failed to interview the state`s key witness in a Louisiana murder case, the U.S. Court of Appeals for the Fifth Circuit affirmed the grant of habeas corpus relief, ordering a new trial, despite the state courts denying relief without any reasoned opinion.

George Hughes has been in prison since 2004 for killing his daughter Amy`s boyfriend, Drew Hawkins. The murder happened after Amy called her father and said that Hawkins had attacked her, so Hughes went to her house to confront Hawkins with a gun. There was no question that Hughes shot and killed Hawkins, instead, the question was exactly how it happened. Hughes was charged with second-degree murder and his defense was that he didn`t intentionally shoot Hawkins.

The story Hughes gave was confirmed by a forensic expert: He and Hawkins had a fight and the gun went off when Hawkins gabbed it. But there were two witnesses who said that Hawkins was backing away from Hughes when he shot him. The first witness, his own daughter, was found unreliable when her sister testified at trial that Amy had her back to the incident and didn`t see the shooting. There were also reports that Amy was threatened by Hawkins` family.

And the second witness, the state`s key witness, also testified that she saw Hawkins backing away from Hughes before he was shot. But her testimony didn`t match her statement to the police that she was inside her house when she heard the gunshot. When confronted at trial, the witness said it was an error and that she did see the shooting. Hughes was convicted by a non-unanimous jury and sentenced to life in prison without parole.

After all his appeals were rejected, Hughes filed for state post-conviction relief, claiming ineffective assistance of counsel (IAC) because counsel never interviewed the witness before trial. The court held two hearings and post-conviction counsel found yet another witness: the key witness` roommate, Lee, who testified that they were both inside the house during the shooting. Former defense counsel also testified that he was wrong for not interviewing the witness, because he would have discovered the roommate and discredited the state`s only credible witness against Hughes.

Despite those two hearings and the court commissioner`s findings supporting IAC, the state court denied relief without any reasoning. The appellate court did the same, and the Louisiana Supreme Court entered a one-page order that Hughes hadn`t met the IAC criteria established by the U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984).

Hughes then filed a federal habeas petition, under 28 U.S.C. sec 2254, again raising the IAC claim. Despite his filing being too late, the federal court found that equitable tolling applied to allow timely-filing. The court held that the state court`s “ultimate legal conclusion was objectively unreasonable” and granted relief by ordering a new trial.

The state appealed the grant of relief, arguing that the state courts were owed “deference” under the Antiterrorism and Effective Death Penalty (AEDPA). Under sec 2254(d), a federal court cannot grant habeas relief unless the state court`s decision was “contrary to, or involved and unreasonable application of, clearly established federal law,” or was based on an “unreasonable determination of the facts” presented. The “clearly established federal law” in this case was Strickland, which held that IAC requires showing (1) counsel`s representation fell below an “objective standard of reasonableness” and (2) the error was “prejudicial to the defense.”

Importantly, the Supreme Court has held that an “unreasonable application” means more than just merely wrong, but that the state court decision is “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86 (2011).

This is indeed a high bar to overcome.

The court found that counsel`s performance was deficient because he failed to make any attempts to interview the state`s witness. “Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary,” the Strickland Court said, citing the American Bar Association standards on attorney conduct.

Describing the witness as “the cornerstone” of the state`s case, the court said the witness was a “particularly promising investigation lead” counsel should have pursued. The court rejected that counsel`s cross-examination of the witness at trial, no matter how effective it was, could have cured the error.

The fact that counsel`s cross examination was effective does not necessarily indicate that a reasonable lawyer, viewing the trial ex ante, would have regarded an interview of the eyewitnesses as unnecessary…. Moreover, assuming that counsel`s cross-examination was effective, that is not to say it could not have been improved prior to investigation.

As for prejudice, or showing a difference in the outcome, Hughes had an additional burden. With a failure-to-investigate claim, a habeas petition must also allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial. Hughes offered that interviewing the witness would have revealed her roommate`s conflicting story, and the court agreed.

Lee testified at the state evidentiary hearing that Allen [the witness] was watching television on the night of the shooting and specifically stated that Allen was sitting in the chair inside her apartment when both of them heard the shot. Lee repeatedly testified that Allen only went outside after hearing the shot: We heard the shot, and Allen jumped up and grabbed the phone. She heard somebody yell `help,` and she went out the door.

The court therefore affirmed the district court`s grant of habeas relief and grant of a new trial. See Hughes v. Vannoy, 2021 U.S. App. LEXIS 23286 (5th Cir. Aug. 5, 2021).


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