Ninth Circuit: Jaime Charboneau v. Tyrell Davis et al.

 In a second or successive Habeas petition, the clear and convincing proof of actual innocence must have a direct nexus to the facts underlying the claim of the constitutional violation, and it examines all of the evidence in the record available to the reviewing court, without regard to admissibility.  

The facts from the earlier findings that are to be taken to be true are not the ultimate determinations, but the evidentiary proffers underlying the claims; a presumption of correctness is attributed to findings of authenticity.  A letter held to be a copy of an unavailable original is sufficiently established as to authorship, but may be questioned for probity and reliability.  

Where the circumstances of the newly discovered evidence credibly suggest the petitioner's involvement in forgery, a rational factfinder might reasonably weigh the consciousness of guilt suggested by the events in determining the reliability and probity of the evidence.  

Jaime Charboneau v. Tyrell Davis et al.

Ninth Circuit: Craig Ross v. Ronald Davis

 Felony murder constitutional challenge to sentence was appropriately exhausted in state habeas, since despite the state habeas holding to the contrary, petitioner's filings on direct appeal discussed the relevant standard and sought relief.

State jury instructions on aiding and abetting didn't preclude the subsequent capital sentence, because although they didn't require the specific intent necessary under federal law, the separate finding of special circumstances established the necessary intent.

Petitioner had sufficient involvement in the crimes and evinced sufficient reckless disregard of the risk of death.

State court's determinations on ineffective assistance of counsel were not contrary to or an unreasonable application of the federal standard; defense counsel's limited investigation of mitigation evidence wasn't dispositive, as it related entirely to early childhood, and defense closing contained many mitigating inferences from the evidence; the latter are appropriately considered in a Strickland claim.

Craig Ross v. Ronald Davis

Ninth Circuit: Ford v. Peery

 

DISSENT FROM DENIAL OF REHEARING EN BANC

Panel inappropriately hypothetically considered the law as misstated by the prosecutor under AEDPA deference, rather than considering the state court's judgment of the prejudice caused by the statement.

Dicta on questions that are germane to the case and resolved after reasoned determination in a published opinion are binding in the circuit.  This has proved problematic and some have said that it's in tension with Article III.

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/08/18/18-15498.pdf

Eighth Circuit: Scott McLaughlin v. Anne Precythe

 

Although a simple Google search would likely have revealed the impeachment evidence against the defense expert witness in a capital case, not investigating the witness beyond a reasoble reliance on the judgment of the professional commnity was not ineffective assistance of counsel.

Petitioner wasn't prejudiced by lack of replacement psychologist's testimony, a witness who would have provided evidence on an aggravating factor on which the jury ended up not being able to reach a decision, since from a legal point of view the testimony would have been duplicative of the overwhelming evidence on this point; there was therefore not a substantial likelihood of a different result.

AEDPA deference to state habeas finding to the contrary offers an independent ground for overruling the district court ruling that petitioner was prejudiced by the lack of testimony.

Since the ineffective assistance claim wasn't substantial, petitioner can't raise it in federal habeas after defaulting in state habeas, since excuse of default requires a substantial claim.

While jury instructions can't require that a jury be unanimous on any one mitigating factor, they can require that the jury be unanimous in its decision that the mitigating factors outweigh the aggravating factors.

District Court erred in holding that the weighing of mitigating and aggravating circumstances was a finding of fact upon which the legislature had conditioned an increased punishment and that therefore must be performed by the jury, since the supreme court of the state has held in this case that the same precedent referenced by the district court was inapplicable.

CONCURRENCE:

Although the investigation of the expert witness was insufficient, there was no prejudice, given the other evidence offered.  

State supreme court has held that only the existence of a single mitigating factor need be found by the jury under the statutue, as it constitutes eligibility for the increased sentence.

http://media.ca8.uscourts.gov/opndir/21/08/183510P.pdf

Tenth Circuit: Jackson v. Warden, USP-Leavenworth

 

Statutory Habeas is unavailable where an intial challenge to the conviction was made in the court of conviction according to statute, but there was a subsequent change in the law regarding the predicate offense that cannot be relitigated under AEDPA, since it would be second or successive.  The inital collateral challenge was adequate and effective.

https://www.ca10.uscourts.gov/sites/ca10/files/opinions/010110561337.pdf

Eleventh Circuit: Travis D. Turner v. Secretary, Department of Corrections, et al.

Habeas petitioner filing after the statutory cutoff on a form filing where the untimeliness was facially apparent had an opportunity to challenge the propriety of the court's taking judicial notice of the dates on the state's docket for their convictions by having leave to reopen at the district court level to argue error, equitable tolling, or actual innocence.  Court did not abuse its discretion in initially dismissing the petition as untimely without a reply brief or magistrate's review.

 

Travis D. Turner v. Secretary, Department of Corrections, et al.

Seventh Circuit: Cedric Cal v. Jason Garnett

 

Claim of actual innocence after a witness recantation that resulted in a perjury conviction for the witness was not adjudicated by state courts unreasonably.  Since a thorough review of the facts and the state record establish that no relief is warranted, the question of whether a freestanding claim of actual innocence is cognizable in non-capital federal Habeas proceedings need not be answered.

Cedric Cal v. Jason Garnett

Fourth Circuit: US v. Daniel Harris

 

Physical presence in the courtroom is sufficient to give a criminal court jurisdiction over a deft.

Habeas grounds not raised at trial or on direct appeal and then raised for the first time on a collateral challenge are subject to de novo review on matters of law if the government doesn't argue the procedural default at the District Court.

If the conduct relative to the statute's focus, the object of the statute's solicitude, occurred in the US, it is a permissible domestic application of the statute, even if related conduct occurred abroad.  Since the protected victim was in the US while being coerced into the activity by means of the Internet, the present case is a permissible domestic application of the statute, even though the deft was abroad.

US v. Daniel Harris

Ninth Circuit: Walden v. Shinn

 

As the state supreme court, in affirming a denial of severance on direct review, held in the alternative that the evidence of the crimes would be cross-admissible, and this ground wan't challenged on grounds of federal law during state post-conviction proceedings, the omission of the challenge from the federal Habeas petition to the District Court waived the claim.

State court determinations that post-identification police disclosures to witnesses at photo lineup that they had arrested the suspect was not contrary to clear federal law on the question.

State court reasonably declined to infer improper suggestion when photo lineup witness identified one candidate, and the police then momentarily turned off the recording device before the witness identified the defendant.

Since the state's highest court conducted an independent review of mitigation, a federal Habeas claim against the state trial court's holding of insufficient nexus needed to identify the constitutional error in the higher court's analysis.

District court properly denied amendment of federal Habeas ineffective assistance claims subsequent to independent exhaustion in state post-conviction review after federal Habeas had commenced, since the claims did not relate to the same transactions and occurrences; no plain error in the denial of equitable tolling.

State court's determination that admission of crime scene photos was not unduly prejudicial was not an unreasonable application of federal law, since contemporaneous circuit precedent held that there was no circumstance in which admission of irrelevant or prejudicial evidence could justify the writ.  Offered stipulation was not sufficient, since nothing in the Due Process Clause holds that the government can't introduce relevant evidence on an uncontested point. 

Walden v. Shinn

Seventh Circuit: John Mandacina v. Frederick Entzel

 

The tendency of undisclosed potential impeachment evidence to come into view years afterward isn't a structural flaw in statutory Habeas sufficient to justify an application under the traditional form; the statutory form clock restarts from the discovery of the evidence, and second or successive petitions merely limit the petitioner to a single claim.

Although there is not a one-year limit on the older statutory form of Habeas, in such a case, equitable principles restrict abuse of the Writ.

John Mandacina v.  Frederick Entzel

Fifth Circuit: Justin Atkins v. Timothy Hooper, Warden

State trial court's determination that detective's summary of statements of non-testifying witness was not inadmissible hearsay because it didn't recite the witness' words and the detective's purpose in describing the statements was to explain the course of the investigation was an unreasonable application of Supreme Court precedent.

State intermediate appeals citation referencing harmless error does not independently preserve the issue for the federal habeas claim, as the decision was looked through in favor of the reasoned decision of the lower court, and the issue was not presented in the federal collateral challenge.

Justin Atkins v. Timothy Hooper, Warden

Fifth Circuit: USA v. Herman Sanders, et al

Insufficient basis for Habeas on Ineffective Assistance, as the prejudice from the undiscovered evidence of trauma, illness, and coercion would not have caused a single reasonable juror to change their penalty phase vote, given past threats of violence, and incriminating letters offered at trial.

Dissent:  

Quoting state penalty phase closing:  “It’s an incredibly sad tribute that when a man’s life is on the line, about the only good thing we can say about him is he’s a good artist.” 

State waived AEDPA bar on new evidence in federal collateral challenge.

Precedent on reasonable probability isn't tied to the facts of each case -- they don't present a minimum threshold for the showing.

Substantial argument that deft killed only under threat of his own death.

USA v. Herman Sanders, et al

Seventh Circuit: Adetokunbo Fayemi v. Kess Roberson

Easterbrook on Agatha Christie.

Court's proababilistic summary of the Strickland standard did not evince a logic contrary to the rule, so long as the final logic accords.  Given overwhelming evidence, not a misapplication of the law to say that assertion in opening statement that an ultimately non-testifying deft would testify wasn't sufficiently ineffective.

Adetokunbo Fayemi v. Kess Roberson

Seventh Circuit: Kevin Czech v. Michael Melvin

Instructing the jury on Felony Murder theory of First Degree Murder arising from the use of the firearm, whether or not there was an independent felonious purpose to the use of the firearm, was an error of state law.  Precedent holds that this should be examined for harmless error, seemingly establishing a Due Process violation by implication, but one not clearly established for the purposes of Habeas petitions.  Here, though, the error of stare law was harmless, as the verdict would have been the same.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-21/C:17-1838:J:Griesbach:aut:T:fnOp:N:2222884:S:0

Tenth Circuit: Smith v. Aldridge

State habeas determination that a judge's statement claiming that the jury was zealously watched was more credible than five juror affidavits asserting the jurors slept during the trial was not an unreasonable determination of the facts.

https://www.ca10.uscourts.gov/opinions/17/17-6149.pdf

Seventh Circuit: Patrick Hrobowski v. USA

As petitioner was sentenced according to four predicate offenses, two of which were facially infirm, a subsequent change in the law enabling a challenge to the other two predicates that was ultimately successful as to one of them does not allow a late challenge to the two infirm predicates.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-17/C:16-3549:J:Kanne:aut:T:fnOp:N:2219599:S:0

Seventh Circuit: Raul Perez-Gonzalez v. Jacqueline Lashbrook

State habeas determination that petitioner's plea deal did not implicitly waive the state's power to seek contempt sanctions for noncompliance was not an unreasonable determination of the facts or application of facts to law.

http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit=Display&Path=Y2018/D09-17/C:18-1480:J:Brennan:aut:T:fnOp:N:2219305:S:0

Fifth Circuit: USA v. Christopher Vialva

A broad-based challenge to the integrity of the proceedings due to the incapacity of the judge is properly construed as a successive habeas filing rather than a motion to revisit the verdict, as the challenge doesn't arise from a cognizable procedural flaw in the earlier state trial, direct appeal or collateral proceedings.  Where the impacts of the alleged incapacity have already been litigated, permission to file for te writ is appropriately denied.


http://www.ca5.uscourts.gov/opinions/pub/18/18-70008-CV0.pdf

Fifth Circuit: Chris Gilkers v. Darrel Vannoy, Warden

When, in the pendency of  collateral post-conviction challenges, a state habeas that was subsequently challenged in federal habeas is re-reviewed by the state sua sponte, an attempt to resuscitate the federal habeas claim by a 60(d) motion is properly construed as a second-or-sucessive habeas petition, and is subject to those statutory limits. 

http://www.ca5.uscourts.gov/opinions/pub/16/16-30279-CV0.pdf

Ninth Circuit: USA v. Blackstone

Second or successive habeas challenging residual clause conviction under mandatory sentencing guidelines is untimely, as the right has not yet been made retroactive.

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/09/12/17-55023.pdf