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The Habeas Citebook Ineffective Counsel

Articles by Dale Chappell

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 ...

Washington Supreme Court Announces PRP Petition ‘Final’ Upon Issuance of Certificate of Finality to Allow Tolling of Federal Habeas Clock

by Dale Chappell

Answering a question certified to the Court by the U.S. Court of Appeals for the Ninth Circuit, the Supreme Court of Washington held on February 27, 2020, that a personal restraint petition (“PRP”) is not “final” until a certificate of finality (“COF”) is issued. The question was posed by the Ninth Circuit because Washington law was unclear on when the one-year clock restarts when filing a federal habeas corpus petition after the denial of a PRP petition.

The case came before the Court in a not so unusual fashion. In 2011, Phonsavanh Phongmanivan was convicted in state court and sentenced to just over 25 years in prison. After his direct appeal was denied, he filed a timely PRP petition, which also was denied. Phongmanivan then took his PRP appeal to the Supreme Court, and on December 3, 2015, the state’s highest court denied discretionary review. On February 10, 2016, the Court denied reconsideration, and thereafter, the court of appeals issued a COF.

Just eight days after the COF, Phongmanivan filed a pro se habeas corpus petition in the federal district court, on April 9. However, the court dismissed his petition as untimely, holding that his one-year window ...

News Websites Rethink Using Mugshots as Click-Bait

Once something is on the internet, it can’t be deleted, they say. Enter the jail mugshot. Proven time and again to be an effective way to ruin someone’s life. Especially when they’re innocent. And news agencies have used them to drive traffic to their websites for years, forever memorializing the worst day of someone’s life.

And that’s why some news agencies are rethinking the use of mugshots on their websites. In January, the Houston Chronicle was the latest major newspaper to stop putting mugshots on its website of those who have been arrested but not yet convicted. In an email to the Marshall Project, Managing Editor Mark Lorado said of the decision against posting mugshots on the paper’s website, “We’re better than that.”

The paper even got an unlikely supporter: “Thank you, @HoustonChron for doing the right thing,” tweeted Jason Spencer, spokesman for the Harris County Sheriff’s Office. “I’m hopeful that other media outlets and law enforcement agencies will follow your lead and rethink the practice of publicly shaming arrested people who haven’t been convicted of a crime.”

Others have raised the same concerns. “It creates this situation when you’re criminalizing folks before they’re convicted of any ...

‘Constitutional Crisis’ Still Exists Despite California Supreme Court Ruling on Opening Access to Law Enforcement Brady Lists

The latest attempt by the California courts to “harmonize” the state’s brutally secretive police protection statutes with the U.S. Supreme Court’s ruling in Brady v. Maryland, the 1963 case holding that prosecutors must turn over favorable evidence to the defense in order to satisfy the Due Process Clause of the Constitution, is still no better even after the California Supreme Court’s recent ruling that law enforcement agencies “may” turn over their list of problem officers to prosecutors.

In Association for LA Deputy Sheriffs v. Superior Court, the Court held on August 26, 2019, that a law enforcement agency “does not violate [the Pitchess statutes protecting police officer personnel files] by sharing with prosecutors the fact that an officer, who is a potential witness in a pending criminal prosecution, may have relevant exonerating or impeaching material in that officer’s confidential personnel file.” While the media declared this a major victory for criminal defendants, the ruling is actually anything but that.

Experts who have followed the fallout from the ruling have said that California’s laws on police privacy protection remain in conflict with the Constitution’s due process requirements and undermine the rights guaranteed to defendants by the ...

How to Clear Your Record of Marijuana Charges in Illinois

While Illinois has legalized recreational marijuana and pardoned more than 11,000 people with marijuana cases, removing marijuana charges and convictions from your record may require more leg work from some who don’t qualify under the automatic clearing of certain marijuana records.

“We are ending the 50-year-long war on cannabis,” Gov. J.B. Pritzker said in a statement just after signing into law a measure that legalized recreational marijuana in Illinois. “We are restoring rights to many tens of thousands of Illinoisans,” he said.

But getting those rights restored may take a bit of work for some but will be automatic for others. Last June, Illinois became the eleventh state to legalize marijuana and was one of the first to do so through legislation instead of a vote from the public.

The new law allows removal of marijuana charges from someone’s record, which will greatly help with employment, housing, and other opportunities. So, how do you take advantage of the new law? If you have a charge or conviction for less than 30 grams of marijuana that wasn’t tied to a violent crime, the process is automatic. You don’t have to do anything. But it can take a while. ...

U.S. District Judge Blows Open ATF Fake Stash-House Stings, Wants to Know Why They Only Target Minorities

by Dale Chappell

“Psst ... Wanna make some easy money? I got this drug dealer who owes me big time. You help me rob him, and I’ll split it all with you — drugs, money, everything. You in? Good. Meet me at the High School at 10. Oh, and bring ...

Nevada Supreme Court: Duress Defense May be Used for Non-Death Penalty Charges, Even When Connected to Charges Punishable by Death

by Dale Chappell

The Supreme Court of Nevada held on December 26, 2019, that the defense of duress — as codified in NRS 194.010(8) but is not available in connection with any crime that’s punishable by death — can be asserted as a defense to a crime that is ...

Pennsylvania Supreme Court Holds Retention of Defendant’s ID Card Constitutes ‘Seizure’ for Fourth Amendment Purposes

by Dale Chappell

The Supreme Court of Pennsylvania held on January 22, 2020, that the retention of a person’s identification card by law enforcement constituted a “seizure” under the U.S. Constitution, triggering the protections of the Fourth Amendment’s prohibition on unreasonable seizures.

The case came before the Court after Harold ...



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