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The Habeas Citebook: Prosecutorial Misconduct

Articles by Dale Chappell

California Supreme Court Finds IAC, Vacates Conviction in LAPD Officer’s Murder Case (Again) – 36 Years Later

The Supreme Court of California granted habeas corpus relief, vacating a conviction and death sentence in the 1983 murder of Los Angeles Police Officer Paul Verna, after finding ineffective assistance of counsel (“IAC”) once again, over three decades later.

Kenneth Gay was convicted of first-degree murder and was sentenced to die for his part in the shooting death of Verna. The crime happened in 1983, when Verna stopped a stolen vehicle driven by Pamela Cummings. Gay and Pamela’s husband, Raynard Cummings, were also in the vehicle, and they had just committed a string of robberies. When Verna stepped up to ask the two men for their identification, one of the men shot the officer, then got out and kept shooting until Verna was dead.

The question at trial was who did the shooting. There were witnesses. Lots of them. But none was reliable. The witnesses with the best vantage point were just kids, ages 11 to 14. Their stories varied: some said a light-skinned black man shot Verna, and some said it was a taller dark-skinned black man. The adults’ stories were even less reliable.

The prosecutor’s star witness was Pamela, who was charged in the murders ...

Ninth Circuit Opens Door for Savings Clause Relief, Recognizes ‘Actual Innocence’ for Mandatory Career Offender Sentences

by Dale Chappell

Finally answering a question that had been left open in the Circuit, the U.S. Court of Appeals for the Ninth Circuit held on February 24, 2020, that a person may be “actually innocent” of an erroneous mandatory career offender sentence, opening the door for relief under the savings clause.

In yet another case expanding the reach of the so-called savings clause, Michael Allen brought a challenge to his mandatory career offender sentence in the U.S. District Court for the District of Oregon, arguing that he was “actually innocent” of the sentence imposed on him over 20 years ago. Allen pleaded guilty in 1997 to federal drug and firearm charges and was sentenced to just short of 27 years, the minimum the court could have imposed under the then-mandatory U.S. Sentencing Guidelines.

Allen did challenge his sentence under 28 U.S.C. § 2255 in 2003, but that was denied. Out of options when the law changed much later on, Allen turned to the “escape hatch” of § 2255, as the Ninth Circuit calls it, filing a habeas corpus petition in the district court where he was being held in prison, and not where he was sentenced, as the savings ...

Attacking the Guilty Plea: The Ineffective Assistance of Counsel Standard

More than 95 percent of state and federal prisoners plead guilty, and most of them do so on the advice of their lawyer. A successful attack on a guilty plea would then depend on showing that counsel’s bad advice to plead guilty rendered the plea not “knowing and voluntary.”

We covered the knowing and voluntary nature of a guilty plea in my last column in this series on attacking the guilty plea (see March 2020 CLN, p.18). In this column, we will go over the ineffective assistance of counsel (“IAC”) standard in the guilty plea context.


A.  The Negotiation of a Guilty Plea of a ‘Critical Phase’ of a Criminal Case

Criminal defendants are expected to rely on their lawyer’s advice in deciding to plead guilty. And the U.S. Supreme Court has recognized as much. In Padilla v. Kentucky, 559 U.S. 356 (2010), the Court reaffirmed its longstanding position on the issue and held that “the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.”

The Court’s statement was hardly a surprise. For over 70 years, the Court has said lawyers ...

SCOTUS: ‘Serious Drug Offense’ Under ACCA Is Self-Defining, Match with Equivalent Federal Offense Not Required

The Supreme Court of the United States held on February 26, 2020, that just as the elements clause of the Armed Career Criminal Act (“ACCA”) statute provides the criteria defining what prior offenses qualify as “violent felonies,” so too do the criteria defining what prior offenses qualify as “serious drug offenses,” and therefore there was no need to match the prior drug offense to an equivalent federal offense for it to suffice.

Eddie Shular pleaded guilty in the U.S. District Court for the Northern District of Florida to possession with intent to distribute crack cocaine and possessing a firearm as a convicted felon. He was sentenced to 15 years in federal prison without parole, the minimum sentence the court could have imposed under the ACCA. But Shular did not come to court with a clean background.

In 2012, Shular pleaded guilty to six counts of sales or intent to sell cocaine in Florida, in violation of Fla. Stat. § 893.13(1)(a). Those six convictions, the district court determined, all qualified Shular for the ACCA penalty, which mandates a 15-year minimum sentence for any defendant having had three prior convictions for “violent felonies” and/or “serious drug offenses.”

Shular appealed, ...

Kansas Supreme Court Holds Threat of Violence Statute Violates First Amendment to Extent it Criminalizes ‘Reckless’ Conduct

The Supreme Court of Kansas held on October 25, 2019, that the statute criminalizing speech determined to be a threat of violence is unconstitutional, at least as far as it prohibits “reckless disregard” for others.

When Timothy Boettger was angry about the police refusing to investigate the shooting death of his sister’s dog, he vented his anger in words to a friend, criticizing the cops. He told his friend that “he had some friends up in the Paseo area in Kansas City that don’t mess around, and that [his friend] was going to end up finding [his] dad in a ditch.” His friend’s dad was a Douglas County Sheriff’s deputy.

When this friend reported what Boettger said to the police (and his dad), Boettger was charged with one count of making a criminal threat under K.S.A. 2018 Supp. 21-5415(a)(1). Boettger took his case to a jury, and he was found guilty. He appealed and lost. Then the Kansas Supreme Court granted his petition for review and reversed.

Under § 21-5415(a)(1), a “criminal threat” includes a threat to “[1] commit violence communicated with intent to place another in fear ... or [2] in reckless disregard of the risk ...

En Banc Ninth Circuit Provides Guidance on When Amended Habeas Petition ‘Relates Back’ to Original Claims to Avoid Dismissal as Untimely

Addressing what can often be a confusing issue for many pro se habeas petitioners, the en banc U.S. Court of Appeals for the Ninth Circuit held on February 24, 2020, that attaching a court order to a habeas application to support the claims is sufficient to allow a later amended petition to “relate back” to the original claims to avoid dismissal as untimely filed new claims.

The issue came before the Court after Ronald Ross filed a pro se federal habeas petition in the U.S. District Court for the District of Nevada raising eight claims for relief. In support of his claims, Ross attached a state court opinion that detailed the factual basis for the claims, which were the same ones he had raised in state court. Ross also moved for appointment of counsel, which was granted, and counsel filed a “First Amended Petition” adopting Ross’ eight claims, plus added three more.

Was Ross’ Amended Petition’s Claims Timely Filed?

The overarching question before the Ninth Circuit was whether Ross’ three new claims in the amended petition that counsel filed were time-barred. Ross had until October 27, 2014, to file his federal habeas petition, and he filed it ...

Fifth Circuit Settles In-Circuit Confusion, Holds Implicit Extension of Time to File State Appeal Tolls AEDPA Clock to File Federal Habeas Petition

he U.S. Court of Appeals for the Fifth Circuit held on February 3, 2020, that when a Louisiana state court grants an extension of time, even implicitly through other actions, a state post-conviction action remains “pending” to toll the one-year clock under the Antiterrorism and Effective Death Penalty Act (“AEDPA”). The Court’s decision settled conflicting opinions among the federal district courts in Louisiana on the issue.

When Colby Leonard’s post-conviction relief motion was denied by a Louisiana state court in 2013, he applied to the state appellate court for a supervisory writ to appeal the denial. However, Leonard failed to properly file the application for the writ, so the appellate court dismissed it. But the court gave him a break: “In the event Leonard elects to file a new application with this Court, the application must be filed on or before October 22, 2013.” Leonard then filed a proper application in the appellate court before that date.

When Leonard’s writ was denied on the merits and the Louisiana Supreme Court denied review, he filed a federal habeas corpus petition in the U.S. District Court for the Middle District of Louisiana less than a month later. This ...

Second Circuit Holds Denial to Proceed Under Pseudonym by Magistrate Judge Is Immediately Appealable

n a question of first impression that implicated the Court’s jurisdiction, the U.S. Court of Appeals for the Second Circuit held on February 6, 2020, that a magistrate judge’s order denying a prisoner’s request to file a motion pursuant to 28 U.S.C. § 2255 under a pseudonym or to seal the filings in order to protect his confidentiality was an immediately appealable order under the “collateral order doctrine.”

The question landed before the Court after John Pilcher filed a letter with his § 2255 motion asking to file under a pseudonym and to file the motion under seal to protect his identity. The magistrate judge appointed to hear his motion and make a recommendation to the district judge denied outright Pilcher’s request in an order, finding that his criminal conviction was already public knowledge and that his grounds for sealing the motion were not enough to overcome the right of the public to open records under the First Amendment to the Constitution. Pilcher appealed.

The first thing the Second Circuit addressed was whether it has jurisdiction to hear Pilcher’s appeal from a non-final order of the district court denying his motion to proceed anonymously. Typically, the ...

Seventh Circuit: Unsupported CI Statements Insufficient to Justify Higher Drug Quantity for Sentencing

The U.S. Court of Appeals for the Seventh Circuit held on January 28, 2020, that the unsupported statements by confidential informants (“CI”) about drug amounts and transactions outside the direct criminal charges were not enough to support a sentence based on a drug total 32 times higher than the actual drugs seized.

There was no dispute in this case that police seized 143 kg of marijuana and two firearms from Joel Helding’s car and apartment. They also found methamphetamine residue on some digital scales. What was in dispute was how the sentencing judge, William Conley of the U.S. District Court for the Western District of Wisconsin, took the word of CIs which the Presentence Report (“PSR”) used to increase the total drug amount for sentencing to impose a higher sentence.

Helding was charged with possessing with intent to distribute more than 100 kg of marijuana, under 21 U.S.C. § 841(a), and possessing a firearm in furtherance of a drug trafficking crime, under 18 U.S.C. § 924(c). The charges were brought after a CI told Wisconsin police that Helding was transporting drugs into the state. Helding pleaded guilty to both counts, which exposed him to a minimum of ...

Ninth Circuit: Proposition 47 Creates New, Intervening Judgment to Allow Another Federal Habeas Petition Attacking Entire Case

The U.S. Court of Appeals for the Ninth Circuit held on January 30, 2020, that the “reclassification” of a prior conviction as a misdemeanor under Proposition 47 created a new judgment in the case that allowed a new federal habeas corpus petition attacking the entire case, which would not be a “second or successive” petition.

Nicolas Morales long ago filed a federal habeas corpus petition under 28 U.S.C. § 2254 challenging his 2009 California attempted robbery conviction and 35-year three-strikes sentence.

That petition was denied by the district court as untimely filed. Years later, the state court granted Morales’ motion to “reclassify” his grand and petty theft convictions in the same case as misdemeanors but left his robbery conviction and sentence intact.

Morales then filed another federal habeas petition challenging his robbery conviction, raising the same claims as his previous petition that was dismissed. The district court this time dismissed Morales’ petition as an unauthorized “second or successive” petition, finding that Proposition 47 did not create a new judgment in the state case and Morales was therefore trying to challenge the same judgment as before, which is prohibited under the Antiterrorism and Death Penalty Act without authorization ...



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