Monday, March 23, 2015

[Ed. note -- Thursday's decisions both involve procedural issues that arise in 28 U.S.C. § 2254 habeas cases.]

Curiel v. Miller, No. 11-56949 (O'Scannlain with Rawlinson and Bybee) ---

In another round of the battle over how to interpret the California Supreme Court's disposition of a state habeas petition, a panel of the Ninth Circuit affirmed the dismissal of a California state prisoner's § 2254 petition as untimely, holding that he was entitled to neither statutory nor equitable tolling. The superior court had dismissed his state habeas petition as "untimely and unmeritorious;" the California Court of Appeal denied his state habeas petition without comment; and the California Supreme Court denied it with "see" citations to In re Swain, 209 P.2d 793 (Cal. 1949), and People v. Duvall, 886 P.2d 1252 (Cal. 1995). A close reading of the pincites in the California Supreme Court's order told the panel nothing about the reasons for denying the petition, but the panel nevertheless concluded that the petitioner couldn't overcome the "strong presumption" under Yist v. Nunnemaker, 501 U.S. 797 (1991), that the California Supreme Court's decision rested on the same grounds as the superior court's. Because the superior-court petition was untimely, it wasn't "properly filed" under Pace v. DiGuglielmo, 544 U.S. 408 (2005), and so the petitioner didn't get statutory tolling. Nor did he get equitable tolling, because trial counsel sent him the trial transcipts six months before his federal petition was due.

The decision is here:

Daire v. Lattimore, No. 12-155667 (Benavides (5th Cir.) with Wardlaw and Clifton) ---

The Ninth Circuit affirmed the denial of a California state prisoner's § 2254 petition, holding that the California state court's didn't unreasonably deny the petitioner's claim of ineffective assistance of counsel in connection with an effort to mitigate the application of California's three-strikes law. Also, the panel questioned prior circuit precedent holding that Strickland v. Washington, 466 U.S. 668 (1984), isn't clearly established federal law under 28 U.S.C. § 2254(d)(1) outside the context of a capital sentencing hearing. 

Here's the opening paragraph of the opinion: "Sophia Dare is a 48-yaer-old woman who has, by all accounts, led a rather difficult life. Her personal history is an unfortunate tapestry of poverty, addiction, mental illness, and incarceration. Interwoven among these dark elements is a disturbing pattern of violence, with Daire having suffered repeated physical and sexual violence at the hands of friends, family members, and unknown assailants." The petitioner was convicted of burglary in a California state court; this was her third felony conviction, and so faced a mandatory 40-year sentence (and possibly more) under California's three-strikes law. At sentencing, counsel filed a motion under People v. Romero, 917 P.2d 628 (Cal. 1996), asking the court to disregard two of the prior convictions for purposes of sentencing, which would allow the court to impose a sentence of less than 10 years. Counsel was aware of the petitioner's bipolar disorder but didn't bring it to the court's attention. In state habeas proceedings, postconviction counsel argued that sentencing counsel was ineffective by failing to highlight and explain how bipolar disorder was manageable and treatable. The state habeas court denied the ineffective-assistance claim, reasoning that sentencing counsel had "properly represented" the petitioner at sentencing, presented "myriad mitigating factors" at sentencing, and that additional mental-health evidence wouldn't have moved the case into the category that was appropriate for relief under the Romero decision. The California appellate courts denied state habeas relief without comment. In federal court, the district judge concluded that presenting mental health evidence would have made a strong case for relief under Romero, but that AEDPA limited relief because the familiar two-part test of Strickland v. Washington, 466 U.S. 668 (1984), didn't constitute "clearly established federal law" for purposes of a sentencing hearing in a noncapital case. (Strickland was a capital case.)

This panel questioned the validity of prior Ninth Circuit decisions like Cooper-Smith v. Palmateer, 443 F.3d 1155 (9th Cir. 2006), in which the court said that there was no clearly established standard for effective assistance of counsel at a noncapital sentencing hearing. Ultimately, though, the panel affirmed because it was clear that the state courts reasonably concluded that sentencing counsel did not render ineffective assistance within the meaning of Strickland (?!?). The record was clear that sentencing counsel properly investigated the petitioner's background and concluded that evidence of her mental illness could be damaging to her case. Her treating physician explained that she was "too unstable to live in the community" and has a history of both violent conduct and abandoning treatment. Under Wong v. Belmontes, 558 U.S. 15, 20 (2009) (per curiam), introducing this mental-health evidence would thus have opened the door to additional aggravating (or at least non-mitigating) aspects of her background and mental illness. Thus the state courts could reasonably have concluded that sentencing counsel's omission was strategic. Moreover, because this was the petitioner's fourth felony conviction, counsel faced a heavy burden under Romero in persuading the judge to impose a sentence below the 40-year requirement. The nature of the petitioner's mental illness, the Ninth Circuit said, would not likely have called for leniency.

The decision is here:


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