habeas corpus tolling

Howard v. Ukibarri, 457 F.3d 1146 (10th Cir. 2006)(Held that the statute of limitations to file motion for writ of habeas corpus was tolled during pendency of motion for modification of sentence).

KKK White Knights Leader

Harrington v. Gillis, 456 F.3d 119 (3rd Cir. 2006)(2254)(Flores-Ortega claim).
US v. Hull, 456 F.3d 133 (3rd Cir. 2006)(First impression; mere possession of a pipe bomb not a federal crime of violence. KKK White Knights Leader set up by informant).
US v. Wall, 456 F.3d 316 (3rd Cir. 2006)("Out of time" petition for rehearing restart the clock
for 1-year habeas filing).
US v. Charlesworth, 456 F.3d 347 (3rd Cir. 2006)(alien was denied opportuinty for judicial review of reinstating deportation order; 2. failure to inform alien

defendant's amended motion was insufficient because it was not submitted under oath or accompanied by an affidavit.

US v. Kafo, No. 05-3034 (7th Cir. November 03, 2006)

Denial of a motion brought pursuant to 28 U.S.C. section 2255 is vacated and remanded where defendant's amended motion was insufficient because it was not submitted under oath or accompanied by an affidavit. http://caselaw.lp.findlaw.com/data2/circs/7th/053034p.pdf

counsels’ inadequate representation due to a conflict of interest and a failure to raise that claim on appeal

Hammon v. Ward, No. 05-6158 (10th Cir. October 26, 2006)

Denial of a habeas petition challenging convictions for possession of a controlled dangerous substance, and firearms-related offenses is vacated and remanded for an evidentiary hearing where petitioner made sufficient allegations to merit the opportunity to present evidence in support of his habeas claim concerning his counsels’ inadequate representation due to a conflict of interest and a failure to raise that claim on appeal. http://laws.lp.findlaw.com/10th/056158.html

swiped from volkala conspiracy

[Jonathan Adler, October 26, 2006 at 8:06pm] 0 Trackbacks / Possibly More Trackbacks
Sixth Circuit Habeas Happenings:
There was lots of activity and acrimony relating to habeas corpus petitions on the U.S. Court of Appeals for the Sixth Circuit last week. On Thursday, the Court rejected a petition for rehearing en banc in Keith v. Mitchell over the dissent of four judges. The original three-judge panel split 2-1, with Chief Judge Boggs writing the majority for himself and Judge Gibbons and Judge Clay dissenting. Judge Clay dissented again from the denial of en banc review, joined by Judges Moore, Martin, and Cole. His dissent argued that Kevin Keith received constitutionally inadequate assistance of counsel during the mitigation phase of his trial.
Judge Martin wrote separately “to express again [his] dismay and frustration with the shortcomings of our approach to reviewing death sentences through habeas corpus appeals,” and to suggest that legal representation in capital cases is potentially unconstitutional. Martin continued:
members of this Court have gone on record to second-guess the jurisprudence of the Supreme Court, and this Court, that requires counsel to conduct an adequate investigation of potential mitigating circumstances for purposes of capital sentencing, and mandates the reversal of convictions where this does not occur. [Here Martin cites the opinions by Chief Judge Boggs and Judge Suhrheinrich in Poindexter v. Mitchell, which I covered here.] This reasoning strikes me as demonstrating callousness and possible animosity toward the Sixth Amendment right to counsel.Martin further intimated that this “animosity” likely influenced the outcome in this case.
On the same day, in Apanovitch v. Houk, the Sixth Circuit reversed and remanded the district court’s denial of Anthony Apanovitch’s habeas petition “[i]n light of the state’s apparent failure to provide potentially exculpatory materials to Apanovitch prior to the filing of his petition” and the availability of evidence that had not undergone DNA testing. The panel’s unanimous opinion was written by Chief Judge Boggs, joined by judges Daughtrey and Moore.
On Friday, a little bit of disagreement resurfaced on the Sixth, but not along the usual ideological lines. In Spisak v. Mitchell, the Sixth Circuit granted a death row inmate's habeas petition on the grounds that he received ineffective assistance of counsel during the mitigation phase and the judge gave improper jury instructions. If nothing else, "the decision is worth a read to see just how ineffective a capital attorney can be," observes Robert Loblaw on the Decision of the Day blog.
The majority opinion in Spisak, written by Judge Clay, rejected the inmate's other claims. Judge Moore wrote an opinion dissenting in part, as she would have granted the petition on additional grounds, specifically "the trial court’s exclusion of expert testimony and evidence regarding Spisak’s insanity defense and the trial court’s refusal to submit the insanity defense to the jury."
Given that the panel of Judges Clay, Daughtrey and Moore was, in Loblaw's words, "every habeas petitioner’s dream," and not representative of the current composition of the Sixth Circuit on habeas issues these days, it will be interesting to see whether the state seeks en banc review.
[Links via Decision of the Day.]

contrary to the ineffective assistance of counsel standard

Goodman v. Bertrand, No. 04-3946 (7th Cir. October 31, 2006)
Denial of petition for writ of habeas corpus is reversed where the state court decision in defendant's appeal was contrary to the ineffective assistance of counsel standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), and an unreasonable application of the standard because the cumulative effect of the defense counsel's errors constituted ineffective assistance of counsel.
http://caselaw.lp.findlaw.com/data2/circs/7th/043946p.pdf

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district court exceeded the permissible bounds

Yung v. Walker, No. 03-2023 (2d Cir. October 31, 2006)
Grant of conditional writ of habeas corpus and denial of respondents' request for an evidentiary hearing is vacated where the district court exceeded the permissible bounds of its discretion in granting the petition without affording the state courts an opportunity to make additional findings and to conduct an evidentiary hearing to permit the parties to present additional evidence concerning the justification for the closure.
http://caselaw.lp.findlaw.com/data2/circs/2nd/032023p.pdf

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introduction of the confession violated his rights under the Confrontation Clause, and the error was not harmless

Stevens v. Ortiz (10/19/06 - No. 05-1250)
Denial of a habeas petition in a first-degree murder case is reversed where a conclusion -- that the admission of a non-testifying accomplice's confession, which also inculpated petitioner in a murder-for-hire, did not violate petitioner's rights under the Confrontation Clause -- was contrary to clearly established federal law, the introduction of the confession violated his rights under the Confrontation Clause, and the error was not harmless. http://laws.lp.findlaw.com/10th/051250.html

untested DNA

Apanovitch v. Houk (10/19/06 - No. 94-3117)
Denial of a 1991 habeas petition in a death penalty case is reversed in part and remanded, pursuant to a Brady claim, in light of the state’s apparent failure to provide potentially exculpatory materials to defendant prior to the filing of his petition, and of the untested nature of certain DNA evidence. The remainder of the district court's order is affirmed over remaining Brady claims, a claim of insufficient evidence, and challenges to the admission of certain witnesses. http://caselaw.lp.findlaw.com/data2/circs/6th/943117p.pdf
Spisak v. Mitchell (10/20/06 - No. 03-4034)
Denial of a petition for writ of habeas corpus in a death penalty case is reversed in part as to denial of claims that: 1) petitioner's trial counsel rendered ineffective assistance during the mitigation phase of his trial; and 2) unanimity and “acquittal-first” jury instructions infringed petitioner's constitutional rights. http://caselaw.lp.findlaw.com/data2/circs/6th/034034p.pdf

Ineffective assistance of counsel

Stanley v. Bartley, No. 06-2184 (7th Cir. October 17, 2006)

Grant of a petition for habeas corpus by a convicted murderer is affirmed where defense counsel's failure to interview witnesses prior to trial rendered his assistance ineffective. http://caselaw.lp.findlaw.com/data2/circs/7th/062184p.pdf

Due Process violated

Niederstadt v. Nixon, No. 05-4329 (8th Cir. October 17, 2006)

Grant of a petition for a writ of habeas corpus from a reinstated conviction for sodomy is affirmed where, in applying its construction of the sodomy statute at issue to defendant, the Missouri Supreme Court violated his right to due process as neither the plain language of the statute nor state law at the time of defendant's conduct defined "forcible compulsion" as encompassing his acts. http://caselaw.lp.findlaw.com/data2/circs/8th/054329p.pdf

habeas corpus winner

US v. Nelson (10/09/06 - No. 06-6071)

An order denying defendant's motion to amend and supplement his previously denied motion for a writ of habeas corpus is vacated for lack of subject matter jurisdiction as the motion had to be treated as a successive motion for relief under 28 U.S.C. section 2255. Further, construing defendant's notice of appeal as an implied application for authorization to file another § 2255 motion, authorization is denied. http://laws.lp.findlaw.com/10th/066071.html

Counsel failed to investigate

Outten v. Kearney (09/28/06 - No. 04-9003)
Petition for writ of habeas corpus in a first degree murder capital punishment case is granted and the case remanded for resentencing where counsel's failure to conduct a reasonable investigation of defendant's background in anticipation of his capital sentencing violated his Sixth Amendment right to effective assistance of counsel. http://caselaw.lp.findlaw.com/data2/circs/3rd/049003p.p

Ineffective assistance of counsel

In re Hernandez (09/27/06 - No. G035909).

Habeas petition challenging conviction of first degree murder, kidnapping, hit-and-run driving causing death, and making a fraudulent insurance claim, finding of sanity by jury, and 25-year-to-life sentence, is granted as to the issue of petitioner's sanity where trial counsel committed prejudicial error by failing to object to the testimony of the prosecution’s expert witnesses at the sanity trial. http://login.findlaw.com/scripts/callaw?dest=ca/caapp4th/slip/2006/g035909.htmlhttp://caselaw.lp.findlaw.com/data2/californiastatecases/g035909.pdf

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Equitable tolling winner

Roy v. Lampert (09/22/06 - No. 04-35514).

Dismissal of petitioners' federal habeas petitions as untimely is remanded for an evidentiary hearing on their equitable tolling claim where they made sufficient allegations that they pursued their claims diligently and faced extraordinary circumstances once they were transferred to an Arizona prison facility which allegedly had a woefully deficient law library. (Amended opinion, rehearing en banc denied) http://caselaw.lp.findlaw.com/data2/circs/9th/0435514p.pdf

Ineffective assistance of counsel

Martin v. Grosshans, 424 F.3d 588 (7th Cir. 2005).

Ineffective assistance of counsel: counsel's performance defeicient in failing to object to irrelevant and prejudicial testimony of prosecution's witness; failing to move for mistrial after prosecutor's inflammatory closeing argument, and cummulative error.

prosecutor struck potential jurors on the basis of their race is reversed

Kesser v. Cambra (09/11/06 - No. 02-15475). In a murder case, denial of a petition for a writ of habeas corpus making a Batson claim that the prosecutor struck potential jurors on the basis of their race is reversed where, in light of Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317 (2005), the California Court of Appeal’s findings were “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” http://caselaw.lp.findlaw.com/data2/circs/9th/0215475p.pdf

Ineffective Assistance of Counsel Death Penalty

Frierson v. Woodford, No. 04-99002 (9th Cir. September 14, 2006)Denial of a habeas corpus petition in a death penalty case is reversed with respect to the penalty phase of trail where trial counsel provided ineffective assistance in failing to investigate and present important mitigation evidence at the penalty phase of a trial, and in failing to review juvenile court records and to challenge a key mitigation witness's assertion of his privilege against self-incrimination at the penalty trial, and the errors were prejudicial. http://caselaw.lp.findlaw.com/data2/circs/9th/0499002p.pdf

Denial of his habeas petition is reversed

Comer v. Schriro, No. 98-99003 (9th Cir. September 13, 2006).

The Constitution does not permit a state to execute a capital defendant who wants to die but whose properly filed federal habeas appeal has not yet been substantively reviewed. The state's and a death row prisoner's motions to dismiss his own appeal are denied where, although petitioner competently and voluntarily waived his habeas appeal right, upholding the waiver would amount to a violation of the Eighth Amendment. Denial of his habeas petition is reversed as to the penalty phase where petitioner's sentence was invalid and habeas relief was merited based on the violation of his due process rights that occurred when he was sentenced to death while nearly naked, bleeding, shackled, and exhausted. http://caselaw.lp.findlaw.com/data2/circs/9th/9899003p.pdf

Batson winner

Wilson v. Beard, 426 F.3d 653 (3rd Cir. 2005)(2254)(Batson winner).

egregiously improper closing argument

Hodge v. Hurley, 426 F.3d 368 (6th Cir. 2005)(2254)(No. 03-3166)During his egregiously improper closing argument, the prosecutor commented on the credibility of witnesses, misrepresented the facts of the case, made derogatory remarks about the defendant, and generally tried to convince the jury to convict on the basis of bad character, all while defense trial counsel sat idly by.

Violated Confrontation Clause

Kittelson v. Dretke, 426 F.3d 306 (5th Cir. 2005)(2254)(State trial court violated Confrontation Clause and due process by permitting state to imply that a second child had accused defendant, but excluding defense evidence of recantation, and exclusion of evidence was not harmless.

The Great Writ

FAY v. NOIA, 372 U.S. 391 (1963) 372 U.S. 391 . The basic principle of the Great Writ of habeas corpus is that, in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: If the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release. We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum, 5 in [372 U.S. 391, 400] Anglo-American jurisprudence: "the most celebrated writ in the English law." 3 Blackstone Commentaries 129. It is "a writ antecedent to statute, and throwing its root deep into the genius of our common law. . . . It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I." Secretary of State for Home Affairs v. O'Brien, 1923. A. C. 603, 609 (H. L.). Received into our own law in the colonial period, 6 given explicit recognition in the Federal Constitution, Art. I, 9, cl. 2, 7 incorporated in the first grant of federal court jurisdiction, Act of September 24, 1789, c. 20, 14, 1 Stat. 81-82, habeas corpus was early confirmed by Chief Justice John Marshall to be a "great constitutional privilege." Ex parte Bollman and Swartwout, 4 Cranch 75, 95. Only two Terms ago this Court had occasion to reaffirm the high place of the writ in our jurisprudence: "We repeat what has been so truly said of the federal writ: `there is no higher duty than to maintain it unimpaired,' Bowen v. Johnston, 306 U.S. 19, 26 (1939), and unsuspended, save only in the cases specified in our Constitution. " Smith v. Bennett, 365 U.S. 708, 713 .