Tuesday, November 07, 2006
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).
Sunday, November 05, 2006
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
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
Friday, November 03, 2006
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
Thursday, November 02, 2006
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.]
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
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
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
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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