Habeas Corpus

  • 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.

  • January 20, 2012
    Guest Post

    By Mary Schmid Mergler, senior counsel for The Constitution Project’s Criminal Justice Program. Mergler is the coauthor with Christopher Durocher of the recent ACS Issue Brief The ‘Right-to-Counsel Term.’"


    On Wednesday, the Supreme Court held in Maples v. Thomas that Alabama death row inmate Cory Maples was entitled to have his claims heard in federal court despite a previously missed filing deadline, because his counsel’s complete abandonment of him constituted grounds to excuse that missed filing. The Maples decision was a welcome one, as the triumph of fundamental fairness over procedure and technicalities in our criminal justice system has grown increasingly rare.

    Cory Maples was convicted of murdering two acquaintances after a night of drug and alcohol use. His two court-appointed defense attorneys were inexperienced and ineffective. Their entire defense lasted about an hour. They failed to argue Maples’ obvious intoxication defense, and they failed to produce mitigating evidence of severe abuse that Maples had suffered as a child — the sort of evidence that often prevents juries from issuing a death sentence. In fact, the jury voted 10-2 to sentence Maples to death; a 9-3 vote would have meant life in prison.

    Two lawyers from the New York law firm of Sullivan & Cromwell (S&C) agreed to represent Maples pro bono during his state post-conviction appeals, since Alabama — virtually alone among death penalty states — provides no post-conviction counsel for death row inmates. A state court denied Maples’ initial habeas petition, triggering a filing deadline to appeal. However, prior to that decision, both of his pro bono attorneys had left S&C without providing the required notice to the court or Maples of their departure. When the notice of the denial and impending deadline arrived at S&C, no lawyer ever looked at it; a mailroom employee returned it, unopened, to the Alabama court clerk stamped “Returned to Sender—Attempted, Unknown.” The Alabama court clerk took no further action to ensure Maples or his counsel received notice. (There was a third attorney of record in the case, but as the Court’s opinion explains, he was only involved as local counsel to admit the S&C attorneys to practice in Alabama courts; he was completely uninvolved in the substance of the case.)

    As a general rule, federal courts cannot consider claims of state prisoners in habeas proceedings when a state court has denied those claims based on independent and adequate state procedural grounds. So when Maples subsequently filed a federal habeas petition, the federal district court held that his failure to raise the claims in state court in a timely manner barred the federal court from considering them. Fortunately, an exception to this procedural bar exists if the petitioner can demonstrate “cause for the [procedural] default [in state court] and actual prejudice as a result of the alleged violation of federal law.” The Supreme Court’s opinion in Maples addressed the question of whether such “cause” existed in Maples’ case.

  • January 18, 2012
    Guest Post

    Editor’s Note: This piece first appeared at The Huffington Post on Jan. 11, the ten-year anniversary of the opening of the military prison at Guantánamo Bay.


    By Gary Isaac, Counsel, Mayer Brown LLP, and an Advisory Board member for the American Constitution Society's Chicago Lawyer Chapter. Mr. Isaac is also a contributor to The Guantánamo Lawyers: Inside A Prison Outside The Law.


    Today's an anniversary, but there's no reason to celebrate. Ten years ago the first detainees were brought to Guantanamo Bay. Guantanamo has undermined American values and jeopardized our national security for a decade -- that's long enough. So I've joined a group of retired military officers and habeas attorneys calling for Guantanamo's immediate closure. We've launched www.closeguantanamo.org and have initiated a petition urging President Obama to honor the commitment he made, on his second day in office, to close the prison.

    Signatories to our Mission Statement include Col. Lawrence Wilkerson, Chief of Staff to former Secretary of State Colin Powell; Gen. David M. Brahms (Ret.); Rear Adm. Donald J. Guter (Ret.); Rear Adm. John D. Hutson (Ret.); Col. Morris Davis, former chief prosecutor for the Military Commissions at Guantanamo; retired federal Judge John J. Gibbons, who argued the first Guantanamo case in the Supreme Court; along with many other colleagues who've been involved in the Guantanamo litigation.

    Over half the prisoners still at Guantanamo were cleared for release years ago, by an Obama Administration task force made up of the top intelligence and law enforcement officials in the nation. Some were cleared previously by the Bush Administration -- as long ago as 2004. These men are hardly the "worst of the worst" -- they're simply politically inconvenient.

  • April 14, 2011
    BookTalk
    Habeas Corpus after 9/11
    Confronting America's New Global Detention System
    By: 
    Jonathan Hafetz

    By Jonathan Hafetz, a law professor at Seton Hall Law School who has litigated a number of leading national security habeas corpus cases.  


    Following his inauguration, President Obama ordered the closure of the U.S. prison at Guantanamo Bay within one year. More than two years later, however, Obama’s plan to close Guantanamo is in shambles. More than 170 prisoners remain at Guantanamo, and new legislation makes it extremely difficult to transfer additional prisoners from the naval base. Defense Secretary Robert Gates recently called the prospects for closure “very, very low,” and the administration is pressing ahead with new military commission trials at the base. In many ways, the United States is further from closing Guantanamo now than it was after Obama’s inauguration.

    Guantanamo has always been more than a prison. It is also the symbol of a new, alternative detention system that denies prisoners the full protections of America’s criminal justice system. Guantanamo’s continued existence reflects not merely America’s failure to close this notorious prison, but its acceptance of the larger system the prison embodies.

    Even as Obama vowed to close Guantanamo, he indicated that he would continue to use “military commissions,” pledging to reform the fatally flawed war crimes tribunals rather than end them. The administration’s decision to abandon the federal criminal prosecution of Khalid Shaikh Mohammed and four other alleged 9/11 plotters in favor of military commissions demonstrates the power this alternative system exerts over U.S. counter-terrorism policy. Obama has likewise endorsed another key feature of Guantanamo: the indefinite detention of some terrorism suspects without trial. His recent executive order creating a new review board to periodically examine their cases demonstrates how deeply this practice has become institutionalized. The question, in short, is not whether the post-9/11 detention system will continue (it will), but what form it will take and how broadly it will sweep.