Habeas Corpus

  • April 26, 2017
    Guest Post

    by Brian W. Stull, Senior Staff Attorney, Capital Punishment Project at the American Civil Liberties Union

    Monday’s argument in Davila v. Davis involved a technical question of habeas corpus procedure: can a prisoner’s failure to raise the ineffectiveness of his direct appellate counsel in a collateral state post-conviction proceeding be excused by the ineffectiveness of the post-conviction lawyer? But the answer may turn on the more familiar judicial concern over opening floodgates. Some of the justices appeared concerned that the extension of Martinez v. Ryan and Trevino v. Thaler Davila proposed would do just that. To ground that discussion in facts, Justice Breyer asked for empirical data. While the advocates did not have ready answers at the lectern, answers were relatively easy to find at the computer.

    Justice Breyer asked petitioner Davila’s attorney to “what extent has the Martinez claim proved a burden on Federal court? Is there any empirical information?” Counsel did not have a ready answer. Justice Breyer later asked the same of the Solicitor General of Texas, who repeated the figure of 3,800 cases, which Texas had previously cited in its Respondent’s Brief.

    It is easy to reproduce this figure by searching on Westlaw for those district court decisions citing either Martinez or Trevino. Sure enough, the number is nearly exact (3,837). But spot checking of the 3,800 leads to at least three pertinent observations. First, not all cases citing one of the two decisions involved a claim under Martinez/Trevino. A court may cite Martinez or Trevino for a proposition stated within, without deciding a claim based on the decisions.

  • February 9, 2017
    Guest Post

    by Brandon L. Garrett, Justice Thurgood Marshall Distinguished Professor of Law, University of Virginia School of Law

    Someone please give the new administration and its lawyers a pile of pocket constitutions. With a straight face, apparently, government lawyers argued earlier this week that the Trump executive order on immigration and refugees could not even be reviewed in the courts. But because the executive order violates the constitution so blatantly, yesterday the Ninth Circuit delivered a stinging blow to the administration. 

    In their unanimous opinion, the Ninth Circuit highlighted how totally unsupported the government position was---there was simply “no precedent” that such an order would be “unreviewable” by the courts. The very notion runs “contrary to the fundamental structure of our democracy.”  In other words, the administration lost big.

    It was surprising that in its papers, the government cited Boumediene v. Bush, the 2008 decision holding that habeas corpus offers rights to Guantanamo Bay detainees. This was another bumbling move. The Boumediene decision was front and center in the Ninth Circuit's decision.

    Boumediene was the ruling that once and for all undid President George W. Bush’s effort to make “unreviewable” the cases of the people detailed at Guantanamo Bay. In Boumediene, the Supreme Court emphasized: "Where a person is detained by executive order, rather than, say, after being tried and convicted in a court,” the need for judicial review “is most pressing."  

  • March 25, 2013
    Guest Post

    by Peter Jan Honigsberg, professor of law at the University of San Francisco and Director of the Witness to Guantanamo project and author of Our Nation Unhinged, the Human Consequences of the War on Terror

    Damien Corsetti was an interrogator at the Bagram Air Force Base in Afghanistan in 2002, where, according to The New York Times, he was known as the “King of Torture.”  In 2006, he was prosecuted for alleged abusive treatment he committed while an interrogator, but was acquitted.  Nevertheless, he told our Witness to Guantanamo project that he had mistreated his prisoners.

    When he began working in summer 2002, Corsetti believed in what he was doing.  He thought they were all guilty and, like most Americans, he was angry.  He explained how he had obtained information regarding several alleged plots through his interrogations in time for the U.S. to intervene and prevent the incidents from occurring.  He saved American lives.

    In the months that followed, however, he and other interrogators began to have doubts about their work. They asked a Judge Advocate General, or JAG lawyer, for advice.  The JAG attorney assured them that their actions were legal because the Bush administration had decided not to adhere to the Geneva Conventions. After hearing the JAG assessment, Corsetti felt obligated to follow orders.

    Corsetti told us how he would hood prisoners, tighten the cord at the neck, and then pour water over the hood.  The process wasn’t quite the same as “waterboarding,” but the detainees did experience the sensation of drowning or suffocating.

    He forced prisoners into extremely uncomfortable and awkward “stress positions” for hours.  He noted how the military later renamed the term “stress positions” to “safety positions,” explaining that the safety positions were for the safety of the interrogators and the military personnel on the base, not the detainees.

  • July 17, 2012

    by Jeremy Leaming

    Unless the U.S. Supreme Court steps in to uphold its precedent on the death penalty, Texas and Georgia will execute two men who are mentally disabled.

    Although several states over the last five years have abolished capital punishment, others such as Texas and Georgia remain seemingly oblivious to Supreme Court precedent or obstinately opposed to providing those on death row a proper hearing.

    In Texas, the nation’s most ruthless proponent of capital punishment, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit has flat out refused to follow the Supreme Court’s March 2012 Martinez v. Ryan opinion, which cleared the way for federal courts to review some post-conviction habeas reviews raising ineffective counsel claims.

    Yokamon Hearn convicted and sentenced to death for kidnapping and murdering a man in Dallas was not competently represented at trial or at post-conviction proceedings. As the Texas Defender Service notes, Hearn’s trial attorneys failed to uncover and reveal at trial a slew of mitigating circumstances, such as the fact that he suffered from brain damage. During his appeals, Hearn’s new attorney’s also failed to raise the mitigating circumstances.

    Even after the high court’s opinion in Martinez, the Fifth Circuit panel, in what the Atlantic’s Andrew Cohen details as a rather strained opinion found a way to shut down any further review of mitigating factors in Hearn’s case. The court, “the most stridently conservative federal appeals court in the nation” found a way “to avoid giving Hearn the relief to which he is entitled,” Cohen wrote.

    Texas Defender Service Executive Director Kathryn M. Kase notes that the full Fifth Circuit has been asked to review the panel decision, but because of the Circuit’s “history of flouting” Supreme Court rulings fears that Hearn will be executed on July 18, unless the Supreme Court intervenes.

    In the Georgia case, which Cohen also covers, Warren Hill is facing the death penalty even though, as Cohen notes, a veteran Georgia state judge has said Hill is mentally disabled.

    Again, Supreme Court precedent is in play.

  • March 28, 2012
    Guest Post

    By Brandon L. Garrett, a professor at the University of Virginia School of Law and Lee Kovarsky, an associate professor at the University of Maryland School of Law. Together they are writing a habeas corpus casebook, forthcoming next year from Foundation Press. Garrett is the author of Convicting the Innocent: Where Criminal Prosecutions Go Wrong. Professor Kovarsky was a primary author of the American Bar Association’s Amicus brief in Martinez.


    Last week, the Supreme Court’s two opinions requiring competent plea-bargaining counsel justifiably received considerable public and scholarly attention. A 7-2 decision in favor of the prisoner in a third case, Martinez v. Ryan, may nonetheless have a greater long-term impact on criminal process — with perhaps the most surprising outcome of the three. Martinez will improve the representation of prisoners at a downstream phase of criminal adjudication: during the murky process of state “post-conviction” review, often called “state habeas.”

    An Arizona jury had convicted Louis Martinez of sexually abusing his eleven-year-old stepdaughter. His trial lawyer did not challenge DNA evidence the State presented, never called a rebuttal expert, and never objected to the prosecutor’s expert. Arizona — like many states — required Martinez to file his first Sixth Amendment challenge to the effectiveness of his trial lawyer in a state habeas proceeding. However, Martinez’s habeas lawyer filed a statement saying that Martinez had no viable Sixth-Amendment claim. After the time to file the claim elapsed, Martinez obtained a new lawyer, who filed a state habeas petition challenging the trial lawyer’s representation. The Arizona courts held that the claim had been forfeited. The lower federal courts also refused to consider the claim, citing to the state procedural default. (Federal habeas review is usually unavailable to a prisoner that has not complied with applicable state procedural rules.) In short, the inadequacy of his state habeas lawyer made it impossible for Martinez to enforce his right to an effective trial lawyer. The Supreme Court reversed, and held Martinez should have been given a chance to present the claim that his trial lawyer was ineffective. His inadequate representation excused his untimely state habeas filing.

    What is state habeas review? It is a phase of criminal process that is usually sandwiched between direct state review of the conviction and federal habeas review. (We say “usually” because sometimes the direct review and state post-conviction phases overlap.) There is enormous variation in state post-conviction law, including the circumstances under which a prisoner is entitled to state post-conviction counsel. Prisoners must navigate an extraordinarily complex body of state criminal process either pro se or without a federal guarantee of effective representation. Moreover, some claims, such as ineffective-assistance-of-trial-counsel challenges, are not usually raised on appeal. The facts demonstrating a trial lawyer’s ineffectiveness usually lie outside the four corners of the trial transcript. Moreover, there is also often a conflict of interest on appeal — the trial lawyer and the appellate lawyer are often the same representative. State habeas process allows state courts to review the effectiveness of trial counsel without such problems, all before federal habeas process becomes necessary. Yet state habeas process, which usually produces nothing more than a summary order, is notorious for lacking procedural safeguards.