The Supreme Court recently resolved a split in authority in Duncan v. Walker, 121 S.Ct. 2120 (6/18/01).
The issue was whether a prior federal habeas petition tolled the limitations period. The defendant initially filed a habeas
petition before filing in state court. The petition was dismissed and a state petition was filed. Clearly, the filing of a
state petition tolls the limitations period. The question is whether the filing of a federal petition did the same. The
court held it did not, and therefore the petition was not timely. Another Habeas decision is Rodriguez v. Mitchell,
No. 99-2170 (2nd Cir 6/6/01). There, the defendant filed a federal habeas petition, which was denied. He then filed a
motion to vacate the judgment under Rule 60 of Federal Rules of criminal procedure. The issue was whether the Rule 60
motion should be treated as a second or subsequent habeas petition. The court held it should not, which is contrary to
decisions from the Fifth, Ninth, and Seventh circuits.
Redmond v. Kingston, 240 F.3d 590 (2001). This is a habeas case, in which the defendant successfully urged
the violation of this right to confrontation. The claim was based on the inability to cross examine the complaining witness
concerning a prior false allegation of rape she made to get her mother's attention. Court holds that such evidence provided
evidence of a motive in making the allegation, and therefore was relevant to her credibility. The state court ruling denying
relief was an unreasonable application of Supreme Court precedent, and relief was granted.
A somewhat troubling case is
Malede v. United States No. 96-CF-737 (D.C. Cir 2/22/01) There, a defendant filed a complaint against his lawyer with
the bar association. Counsel vehemently denied the allegations, and filed a motion to withdraw alleging he could not
longer effectively represent the defendant. That motion was denied, and the lawyer represented the defendant at trial.
On appeal, the defendant alleged the court erred in denying the motion without a hearing. Court holds that filing a
complaint with a disciplinary authority is not sufficient to create a conflict. Neither was the response of the lawyer,
with in the court characterized hostile and contemptuous). No matter what a lawyer’s feelings toward a client may be, the
court determined that does not prevent him from providing effective assistance. A defendant must still show how the conflict
caused his lawyer to not pursue sure strategy or tactic. The defendant did not do so, and therefore no hearing was
An important case involving the standard of review in habeas is Washington v. Schriver, No. 00-2195
(2nd Cir 01/05/01). On direct appeal, the state court relied on state law, and affirmed the defendant's conviction.
The question in federal court was what deference should be given to that determination. The court holds that deferential
review is only applicable when the state court discussed or at least cited federal law. Where that is not done, it cannot
be said the claim was "adjudicated on the merits" in the state court proceeding. Thus, in that situation, the claims
should be reviewed under pre AEDPA standards. The courts are not in agreement on this issue, and the fourth circuit has
explicitly rejected it in Bells v. Jarvis.
Another case addressing the standard of review in federal court is Penry v. Johnson 121 S.Ct.
1910 (06/04/01). This was Penry's second trip before the court. In his first, the court reversed his death sentence and
conviction because the jury was not given a means by which to consider evidence of mental retardation and childhood abuse.
Penry was tried again, and the same issues were submitted. However, in an attempt to comply with the Penry holding,
an additional special issue was also submitted which essentially told the jurors to answer a special issue no if they
found mitigating circumstances. Court holds decision was an unreasonable application of Penry, and granted relief, even
though every court that had considered the issued had held to the contrary.
An important opinion for inmates challenging parole is Crouch v. Norris No. 00-2415 (8th Cir. 5/1701). There,
the defendant filed an unsuccessful attack on his conviction. He was subsequently denied parole, and sought relief. The issue
was whether he could bring a second federal habeas petition to challenge his parole. Court holds the AEDPA should not be
construed literally, but instead interrupted in light of pre-ADEPA abuse of the writ principals. Here, the parole claims
could not have been raised in the first federal petition, because they did not exist. Therefore a second federal petition
would not be abusive, and would not be barred under the AEDPA.
The right to be present at a writ hearing was addressed in Oken v. Warden, 233 F.3d 86 (1st Cir. 2000)
The court held there is no sixth amendment right to be present at such hearings. Instead, a petitioner is only entitled to
fundamental fairness, which is guaranteed by due-process. Due-process was provided in this case by allowing the petitioner
to rebut testimony by way of deposition. The petitioner was also allowed to review transcripts of part of the testimony
before cross-examination was finished. While the right to be present is important, the court finds that right deserves
less weight in a post-conviction context.
An important decision for habeas petitioners is Artuz v. Bennett, 121 S.Ct. 361 (11/07/00). The issue was
concerning a properly filed habeas petition. The government argued that a petition subject to a mandatory procedural bar
was not a properly field petition, and therefore did not toll the limitations period. The Court holds that properly filed
is nothing more than compliance with the rules governing filing. Thus, as long as a petition is in the proper form, and
filed in the appropriate place, the fact that it may not have merit, or subject to dismissal, is not controlling.
Limitations will be tolled until the petition is ruled on by court.
A potentially important habeas decisions is Flowers v. Walter, 239 F.3d 1096 (9th Cir. 2001). There the
court held that the AEDPA codified the retro-activity approach of Teague v. Lane. That holding is contrary to the decisions
from the First, Seventh, Fifth, and Eleventh Circuits. The importance of that holding is that a rule maybe retro-actively
applied even if that declaration has not been made by the Supreme Court. The court also noted that the Teague exception for
watershed rules of criminal procedure affecting the fairness and accuracy of a criminal proceeding still applies under the
The Supreme Court recently decided two habeas cases. Daniels v. United States, 121 S.Ct. 1578 (04/25/01)
and Lackawanna County Pa. District Attorney v.Coss, 121 S.Ct. 1567 (04/25/01) The issue in both cases was whether a
defendant in a federal habeas corpus action could challenge a prior conviction used for enhancement. In one case, the
defendant was sentenced as an armed career criminal, and sought to attack one of the convictions used to establish that
status. In the other case, a prior sentenced was used in sentencing the defendant on a more recent case. In both cases
the court held that a defendant cannot challenge convictions in that manner. Once a defendant is no longer in custody,
and the time for challenging the convictions has passed, then he cannot belatedly file a claim in a subsequent action.
The court does recognize an exception for convictions that are obtained in violation of the right to counsel.
Although not technically a criminal law decision, the decisions in Immigration and Naturalization
Services v. St. Cyr, 121 S.Ct. 2271, & Calcano-Martinez v. Immigration and Naturalization Service, 121 S.Ct. 2268 (6/26/01)
are important. The court first held that the AEDPA language was not sufficiently clear to eliminate habeas jurisdiction.
Therefore, the court had jurisdiction to consider the claims. The next issue was whether certain amendments could be
applied retro-actively, since there was language indicating that was their intent. The defendant had a prior conviction,
which at the time made him deportable, but deportation was subject to waiver. Subsequent amendments eliminated discretion
to grant such a waiver. Court holds that elimination of the waiver provision attached a new disability to a transaction
already completed. Waiver was applied with some frequency, and therefore it could be assumed that it was part of the
consideration to plead guilty. The court ultimately concluded that the amendments were not sufficiently clear to authorize
a retro-active affect.
Challenging Your Conviction With Post-Conviction Writs
When an appeal of your criminal conviction has proven futile, an attorney can prepare and argue a state or federal
post-conviction writ of habeas corpus. The Texas version is referred to as an 11.07, 11.071, or 11.09 writ, whereas a
federal writ is known as a 2255 or 2254 writ.
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