Saturday, August 18, 2018

Case o' The Week: Ninth Responds to SOS - Henry and Second or Successive Habeas Petitions

 If at first you don't succeed, file, file again.
 Henry v. Spearman, 2018 WL 3716085 (9th Cir. Aug. 6, 2018), decision available here.

Players: Decision by Judge Gould, joined by Judges Schroeder and 10th Circuit Judge Ebel. 
  Admirable victory for ND Cal FPD Appellate Chief Carmen Smarandoiu (argued), and AFPD Todd Borden (on the briefs).

Facts: In 1996, Henry was convicted in California state court of second-degree murder. Id. at *1. “The jury was instructed that it could convict Henry of murder based on California’s unique second-degree felony-murder rule, which imputes the requisite malice from the commission of a felony that, viewed in the abstract, is ‘inherently dangerous.’” Id.
  Henry filed an unsuccessful habeas petition in federal court.
  After Johnson, he moved the Ninth for leave to file a second or successive (“SOS”) § 2254. Id. Henry argued that, after Johnson, California’s second-degree murder rule is unconstitutionally vague. Id.    

Issue(s): “In this case, Henry must make a prima facie showing that his proposed petition 

  [1] relies on 
  [2] a new rule of constitutional law, 
  [3] made retroactive to cases on collateral review by the Supreme Court, 
  [4] that was previously unavailable.” Id. at *1. 

  “[T]he controlling question for us is whether Henry has made a prima facie showing that his petition ‘relies on’ Johnson. We have never before considered what is required for a claim to ‘rel[y]’ on a qualifying new rule for the purposes of § 2244(b).” Id. at *2.

Held:We conclude that Henry has made the necessary showing to file another § 2254 petition, and so we grant Henry’s motion to file a second or successive habeas corpus petition.” Id. at *1.

Of Note: California’s wacky second-degree felony-murder rule is, by any fair reading, unconstitutionally vague. Unlike other states, Cali takes an “abstract” approach to evaluating the underlying crime’s dangerousness for this offense. Id. at *3. The California Supreme Court has used different and conflicting approaches to determining dangerousness, and the “risk threshold” for that standard is (to be charitable) “imprecise.” Id. 
  Notably, this unfair law is targeted for reform: the State legislature is actively considering a bill. See California considers limiting broad ‘felony murder’ law, Aug. 16, 2018, available here.
  In the meantime, how many incarcerated state prisoners should be filing habeas challenges to their second-degree felony convictions, after Johnson II? California officials confess “they don’t know how many convicts are serving time for felony murder.” Id. 
  This would be a great Note for a law school student – how many folks are wrongfully incarcerated under this unconstitutional law? (And how do we federal defense counsel get their habeas petitions into the district courts?)

How to Use: Judge Gould articulates a new Ninth rule for the “relies on” test, in the context of SOS petitions. “We agree with the Third Circuit that § 2244(b) calls for a ‘permissive and flexible, case-by-case approach’ to deciding whether a second or successive habeas corpus petition ‘relies on’ a qualifying new rule of constitutional law. . . . We ask whether the rule ‘substantiates the movant’s claim,’ even if the rule does not ‘conclusively decide[ ]’ the claim, or if the rule would need a ‘non-frivolous extension’ for the petitioner to get relief. Id. . . . ‘[I]t is for the district court to determine whether the new rule extends to the movant’s case, not for this court in this proceeding.’; ‘[W]hether the new rule ... extends to a prisoner like [petitioner] ... goes to the merits of the motion and is for the district court, not the court of appeals.’” Id. at *2 (citations and quotations omitted).
   Henry is an important “get into court” win: habeas folks will want to add it to their arsenal.
Professor Evan Tsen Lee
For Further Reading: “When I was in law school, one of my professors told us, ‘The job of academics is to look in dark corners and describe what we see.’ In this dark corner of the criminal law . . . I see a rule whose time is up.’”
   So concludes U.C. Hastings Prof Evan Tsen Lee in a terrific article, cited by Judge Gould in Henry. See Why California’s Second-Degree Felony-Murder Rule is Now Void for Vagueness, 43 Hastings Const. L.Q. 1, 53-56 (2015), available here

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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