Two habeas opinions today -- a favorable ruling on a statute-of-limitations issue that applies to Montana prisoners, and a denial of relief for a California death-row prisoner.
Rogers v. Ferriter, No. 13-35790 (Fletcher with Hurwitz and Baylson (E.D. Pa.)) --- The panel reversed the dismissal of a Montana state prisoner's § 2254 habeas petition as untimely, holding that time while the Montana Supreme Court's Sentence Review Division held an application for review in abeyance (allowing the petitioner to seek other judicial relief from his conviction or sentence) qualified for statutory tolling under 28 U.S.C. § 2244(d)(1). The opinion suggests that the state all but conceded that this was the proper outcome of the case under Carey v. Saffold, 536 U.S. 214 (2002).
Congratulations to David Ness of Federal Defenders of Montana, Inc.
The decision is here:
Andrews v. Davis, Acting Warden of San Quentin State Prison, Nos. 09-99012, 09-99013 (Ikuta with NR Smith and Murguia) --- Finding that a reasoned opinion of the California Supreme Court regarding a California death-row prisoner's claim of penalty-phase ineffective assistance was entitled to deference under AEDPA, the panel reversed the district court's grant of relief from a death sentence. The panel further dismissed a challenge to California's lethal-injection protocol as unripe (California has no such protocol in place), and determined that a COA was required for the petitioner's cross-appeal on other grounds.
The IAC claim here was the subject of protracted state habeas proceedings, with the California Supreme Court appointing a referee for six questions relating to the claim and ultimately issuing a published opinion rejecting it. See In re Andrews, 52 P.3d 656 (Cal. 2002). The petitioner was convicted of killing three people, including one who was raped before being killed. The jury found three special circumstances -- multiple murder and robbery-murder for two of the victims, rape-murder for the third, and a prior conviction for killing a grocery store clerk some 12 years before the crime here.
The referee identified three broad categories of unpresented mitigating evidence -- the petitioner's family background, the conditions of his confinement in a juvenile reform school in Alabama during the 1960s, and his mental health. His parents were alcoholics, and he was raised by his grandparents in a segregated neighborhood in Mobile, Alabama. After his mother returned to his life and his father died, when he was 10, he started skipping school. When he was 14, he stole a car and was sent to what was then known as the Alabama Industrial School for Negro Children. There, he was exposed to beatings, brutality, inadequate conditions including malnourishment, and sexual predators. He was released at the age of 16, and three months later he was involved in the murder of the grocery clerk. Fleeing from the scene of that crime, he and a companion killed a taxi driver. He was sent to prison in Alabama at the age of 18, where he was again exposed to deplorable conditions, sexual violence, and a gladiator atmosphere [these two are my words, not the opinion's]. He was involved in the stabbing of two fellow inmates, but was also frequently the "prey rather than the predator" because of his small size. When he was released in 1976, he was involved in robbing a laundromat, but he escaped from jail on that charge and moved to California. He had a stable life, including a girlfriend and a child, until he was involved in the crime here. His mental-health issues include organic brain damage and PTSD.
The California Supreme Court rejected the petitioner's IAC claim, finding neither deficient performance nor prejudice. On the prejudice prong, the state court said that the prosecution could have presented substantial rebuttal evidence (despite the prosecutor's testimony before the referee that he would not have done so), and so a sentence other than death was not reasonably possible. The Ninth Circuit panel upheld this conclusion as reasonable under AEDPA. This case was not like Williams v. Taylor, 529 U.S. 362 (2000), because the petitioner here did not have a "nightmarish" childhood. Nor was it like Porter v. McCollum, 558 U.S. 30 (2009), because all of the aggravating factors were valid and thus the double-edged nature of his background was not reduced. Accordingly, the panel reversed the district court's grant of penalty-phase relief.
The petitioner raised five uncertified issues, some of which went to the validity of his conviction, and so was required to obtain a COA in order to pursue those claims under Jennings v. Stephens, 135 S. Ct. 793 (2015). The district court did not certify them for appeal, and the panel declined to do so. Although he had exhausted his claim based on Lackey v. Texas, 514 U.S. 1045 (1995) (mem.), and the court declined to deem it waived for failure to present it to the district court, the court denied a COA because there was no clearly established federal law on the issue. Counsel adequately investigated the guilt-phase issues, and both undisclosed evidence and destroyed evidence would not have affected the outcome of the case. Thus there was no cumulative error.
The decision is here: