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The Habeas Citebook: Prosecutorial Misconduct

Articles by Dale Chappell

SCOTUS ‘Shadow Docket’ Secretly Pushes Agendas, Issues Major Rulings Without Argument or Public Knowledge

 by Dale Chappell

For the first time since 1862, the U.S. Supreme Court has decided a record low number of regular-docket cases – just 52. But that doesn’t mean the highest court in the land wasn’t busy. In fact, it was busier than ever, handing down decisions under the cover of night (sometimes literally) and without any public knowledge or input.

It’s what University of Chicago law professor Will Baud calls the Court’s “shadow docket,” and these aren’t cases left over from an earlier term or from the Court’s normal docket. Instead, these are cases where the Court barely gets any briefing from the parties (and usually the government is a party) and never hears oral argument. Often the decisions are only a sentence long, but their impact is great.

It’s true that the Court decides thousands of cases outside it’s normal “merits docket,” i.e., the docket that the public knows about, and they’re often unimportant decisions. But some cases are groundbreaking. Consider this fact. During the weeks between the beginning of July and the first week of August, reports that the Court handed down the following big decisions without any fanfare:

• It paved the way for the ...

California Court of Appeal Grants Habeas Relief Over Failure to Instruct Jury on ‘Heat of Passion’

Jonathan Hampton filed his appeals and at least two habeas corpus petitions in state court after his 2009 conviction for second-degree murder. He was found guilty by a jury of shooting and killing someone during a drug deal gone bad. While the facts of how the shooting happened were unclear, Hampton testified at his trial that he was trying to escape from a man holding a gun to his head who was robbing him. He said when the gun landed in his lap and the man lunged for him, he shot him “without thinking.” He feared for his life, he said.

Instead of first-degree murder, the jury found him guilty of second-degree murder. The issue in Hampton’s third habeas petition was whether his appellate lawyer was ineffective for failing to challenge that the trial court was required to give the jury a “heat of passion” instruction, which could have allowed a conviction for ...

Attacking the Guilty Plea: The Art of Withdrawing a Guilty Plea

by Dale Chappell

The art of withdrawing a guilty plea comes down to which phase of the criminal proceeding the guilty plea is at when the motion to withdraw is filed. The phases are: (1) prior to it being accepted by the court, (2) after acceptance but before sentencing, and (3) after sentencing. Each phase requires meeting a different standard in order to withdraw a guilty plea. So far, the columns in this series have described challenges to a guilty plea after sentencing in the post-conviction setting. While that’s the most common arena for prisoners, an understanding of the other two phases will help support a later challenge to a guilty plea by asserting an ineffective assistance of counsel (“IAC”) claim with respect to a guilty plea.

The rule for everything relating to a guilty plea, from entering one to withdrawing one, is found in Federal Rule of Criminal Procedure 11. A “research alert” (as I call it) to be aware of is that withdrawing a guilty plea was also previously governed by Criminal Rule 32(e), but everything was moved to Rule 11, when that rule was amended in 2002 in significant ways. So check the dates of the cases ...

Fourth Circuit: Releasee Under First Step Act Can’t ‘Bank’ Extra Time Spent in Prison Toward Future Supervised Release Violation

While the Court’s decision wasn’t a “win” for the prisoner, it provides a glimpse into the Court’s reasoning of how it treats prisoners immediately released who have served too much time in prison.

Ronald Jackson was not the first prisoner released under a change in the law who had spent more time in prison than he should have, but his case was used by the Fourth Circuit to explain its position on what to do with the extra time such prisoners spent in prison when imposing a “time-served” sentence to allow release. Jackson was sentenced 15 years ago for conspiracy to distribute more than 50 grams of crack. Because he had a prior drug conviction, the Government filed a notice requiring the court to impose at least 20 years in federal prison without parole.

Jackson filed a motion in 2019 under the First Step Act that retroactively applied the Fair Sentencing Act ...

Ninth Circuit Clarifies Use of Rule 60(b) for Changes in Law

The U.S. Court of Appeals for the Ninth Circuit has clarified when Federal Rule of Civil Procedure 60(b) may be used to reopen a federal habeas corpus case due to a change in the law that was relied on to deny relief. The split decision was handed down July 24, 2020, and once again expands the use of Rule 60 in the Ninth Circuit.

Michael Bynoe challenged his Nevada State conviction under federal habeas corpus in 2007, but his petition was dismissed before it ever got started. The district court ruled that he failed to exhaust his state postconviction remedies before filing in federal court and dismissed his petition. He asked the court to “stay” (put on hold) his petition while he went back to state court to exhaust his remedies, but the court refused. The court said the law required it to dismiss any petition with claims that were never raised in state court.

But several years later, that law changed, and Bynoe filed ...

California Supreme Court Announces New Time Limit for Habeas ‘Appeal’ Stages, Clarifying Tolling for Federal Habeas Petitioners

Almost nine years ago, Julius Robinson filed a habeas corpus petition in a California superior court, challenging his indeterminate 205-years-to-life sentence for premeditated murder and gun charges. When the court denied his petition, Robinson filed a new petition in the California Court of Appeal, raising the same issues 66 days later. That court denied his petition, and he filed a new petition in the California Supreme Court, which was denied. When he filed a federal habeas petition in federal court under 28 U.S.C. § 2254, it was denied as untimely because he waited too long between the superior court denial and filing in the Court of Appeal – 66 days.

On appeal to the U.S. Court of Appeals for the Ninth Circuit, Robinson argued that the 66-day period was not too long, and this brought up an issue that has perplexed federal courts handling habeas petitions by California prisoners: “At what point ...

Justice Sotomayor Raises Due Process Concerns Over Eleventh Circuit’s Use of Published Successive Habeas Denial Orders

In a statement regarding the denial of certiorari where published orders denying SOS applications were used to foreclose an argument on direct appeal, Sotomayor called the practice “troubling” and stated she’s concerned that it may violate due process. The case came before the Court as a direct appeal from the Eleventh Circuit, where Michael St. Hubert had challenged his 32-year sentence for brandishing a firearm during several robberies. He argued that Hobbs Act robbery, under 18 U.S.C. § 1951, isn’t a qualifying offense to allow the mandatory, harsh consecutive sentence under 18 U.S.C. § 924(c), use of a firearm during a crime of violence. The Eleventh Circuit rejected his appeal using two published orders denying SOS applications, which ruled — without any response from the government or briefing — that ...

California Supreme Court Vacates LWOP Sentence After Its Recent Cases Clarifying ‘Special Circumstance’ Murder

A decade ago, a jury convicted Willie Scoggins of first-degree murder and robbery and further found that a “special circumstance” applied to allow the Sacramento County Superior Court to impose a LWOP sentence. That special circumstance was that he was a major participant in the crime and that he should have known an accomplice had a propensity for violence and would have used a gun, even though Scoggins didn’t plan for the robbery to be armed. He exhausted all of his appeals and filed numerous habeas corpus petitions, all without any success.

But in 2016, Scoggins filed a habeas petition again challenging the special circumstance finding, after the California Supreme Court decided People v. Clark, 372 P.3d 811 (Cal. 2016). In Clark, the Supreme Court ruled that “the mere fact of a defendant’s awareness that a gun will be used in the felony is not sufficient to establish reckless indifference to human life,” ...

Seventh Circuit: Sentences for ‘Non-Covered’ Offenses Can Also Be Reduced Under First Step Act

The U.S. Court of Appeals for the Seventh Circuit ruled on July 22, 2020, that when a “covered offense” under the First Step Act is reduced, a non-covered offense may also be reduced to achieve the purposes of sentencing, reiterating that any covered offense allows a court to apply the First Step Act to an entire case.

When three separate cases filed under the First Step Act came before federal district courts in Illinois, those courts refused to lower the overall sentences, either because a non-covered offense under the First Step Act had the same lengthy sentence or because the corrected sentence would have remained within the original Guidelines sentencing range (“GSR”). On appeal, all three were vacated and remanded when the Seventh Circuit ruled that the district courts had the authority to reduce those sentences for all the counts.

De Novo Review

The first point the Court made was that its review on appeal was de novo, meaning it reviewed the district courts’ reasoning without any deference to those decisions. This meant that it wasn’t whether the district courts abused their discretion denying relief under the First Step Act but whether the district courts improperly ...

Fourth Circuit Grants ‘SOS’ § 2254 Petition Attacking Three-Decade-Old Murder Conviction Based on New Evidence

The U.S. Court of Appeals for the Fourth Circuit granted permission for a state prisoner to file a second or successive (“SOS”) habeas corpus petition in the federal court to attack a three-decade-old murder conviction based on newly discovered evidence.

On August 23, 1985, a mother of two went missing in Lancaster County, Virginia. Four days later, police found her body tied to a cinderblock in the Rappahannock River. She had been strangled. Emerson Stevens, a local crabber, was implicated in her murder. He was tried and convicted for first-degree murder. After his appeals went nowhere, he filed postconviction challenges in state and federal courts, all without any success.

Over 30 years later, Stevens filed an application in 2019 seeking permission from the Fourth Circuit to file a SOS § 2254 petition in federal district court attacking his conviction based on a “box of materials” finally turned over to him by the Virginia State Police. He said he had been requesting this box for decades.

Stevens then pursued federal postconviction relief, again, even though by this time he had been paroled two years earlier by the State. He raised three claims in his application to the Fourth ...



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