Comments on Current Events In Criminal Law from the Federal Criminal Courts in Texas

July 30, 2007

THE SLIPPERY SLOPE OF POST-CONVICTION APPEALS
The first, and perhaps most important, statute a criminal defendant should become aware of following an arrest is Rule 103 of the Texas Rules of Evidence. Rule 103(a)(1) requires that an objection be made to any pretrial, trial or post-trial error in order for it to be heard on direct appeal. A criminal defendant should stress to his attorney, whether appointed or retained, that he/she expects the attorney to object to any adverse rulings made by the trial court throughout the criminal proceedings against the defendant. While some of the objections clearly will not have a basis in law, the defense attorney should nonetheless make the objection, research the issue, and be prepared to present it on direct appeal. The failure to object by a defense attorney will haunt a criminal defendant throughout the post-conviction process.

Following exhaustion of direct appeal remedies, a state prisoner is faced with three procedural remedies: 1) he/she can file an application for a writ of certiorari to the United States Supreme Court seeking review of the denial of direct appeal by the Texas Court of Criminal Appeals; 2) he/she can file an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court; or 3) he/she can file an application for writ of habeas corpus in the state courts pursuant to Article 11.07(3)(a)(b) of the Texas Code of Criminal Procedure.

There are several important factors to be considered by a state prisoner prior to making any final decision as to which remedy to pursue. First, and most important, is that 28 U.S.C. § 2244(d)(1) requires that a federal habeas corpus petition under § 2254 be filed within one year of the final judgment of the Texas Court of Criminal Appeals. The United States Supreme Court this term in Lawrence v. Florida, 127 S.Ct. 1079 (2007) resolved a conflict between the federal circuits by pronouncing that 28 U.S.C. § 2244(d)(2) does not toll the 1-year limitation period during the pendency of a certiorari petition before the U.S. Supreme Court. The Supreme Court concluded that the federal statute of limitation is tolled only while state courts review a state post-conviction application; and that application becomes final when all state procedures are exhausted. Id., at 1080-82. See also: Carey v. Saffold, 536 U.S. 214, 220.

Second, if a state prisoner elects to file a § 2254 application in the United States District Court following denial of the state appeal within the time limitation specified under § 2244(d)(1), he can only present issues that were raised on direct appeal. See, Justices of Boston Mun. Court v. Lydon, 466 U.S. 294, 302-03 (1984). See also: Jones v. Dretke, 375 F.3d 352, 355 (5th Cir. 2004)[exhaustion requirement satisfied when state courts sua sponte examine federal issues on direct appeal]. Accord: 28 U.S.C. § 2254(c).

In most instances the preferred procedural course is to file an application for a writ of habeas corpus pursuant to Art. 11.07(3)(b) of the Texas Code of Criminal Procedure raising any and all issues not presented on direct appeal. For example, ineffective assistance of counsel claims, newly-discovered evidence claims, suppression of favorable evidence/prosecutorial misconduct claims, or recanted trial testimony claims. These are federal constitutional issues that either cannot be presented on direct appeal (e.g., ineffective assistance) or were not available for direct appeal (e.g., newly-discovered evidence).

Art. 11.07(3)(b) sets for the state habeas corpus procedure:

“An application for writ of habeas corpus filed after final conviction in a felony case, other than a case in which the death penalty is imposed, must be filed with the clerk of the court in which the conviction being challenged was obtained, and the clerk shall assign this application to that court. When the application is received by that court, a writ of habeas corpus, returnable to the Court of Criminal Appeals, shall issue by application of law. The clerk of that court shall make appropriate notation thereof, assign to the case a file number (ancillary to that of the conviction being challenged), and forward a copy of the application by certified mail, return receipt requested, or by personal service to the attorney representing the state in that court, who shall answer the application not less than the 15th day after the date the copy of the application is received. Matters alleged in the application not admitted by the state are deemed denied.”

The state prisoner must thoroughly research the issues to be presented
in the habeas application. The issues must be presented with clarity and with appropriate supporting case law. State issues will be decided by state case law; federal issues by federal case law. For state issues, the state prisoner should concentrate his research on cases, first, from the Texas Court of Criminal Appeals, and, second, from the court of appeals with jurisdiction over the county in which his/her conviction was obtained. These are critically important points because he/she will have only one bite out of the habeas apple.

A “properly filed” state habeas corpus application tolls the time limitations provisions of § 2244(d)(1). See, Artuz v. Bennett, 531 U.S. 4, 8 (2000). See also: Smith v. Ward, 209 F.3d 383, 385 (5th Cir. 2000)[holding that a habeas petition, even if untimely, should be regarded as “properly filed” if statute of limitations is not absolute bar to filing].

Once state habeas corpus remedies are fully exhausted, the state prisoner can include some, or all, of the issues presented on direct appeal (those of constitutional magnitude) and those presented in the Art. 11:07(3)(b) petition in his/her § 2254 federal habeas petition. At this procedural juncture the most important thing to remember is that federal courts “may entertain an application for a writ of habeas corpus only on the ground that the prisoner’s confinement violates the Constitution, laws, or treaties of the United States.” See, 28 U.S.C. 2254(a) (2000) [Emphasis added].

A federal court will grant habeas relief for a violation of federal law
by a state only if the violation is a “fundamental defect which inherently results in a complete miscarriage of justice” or offends the basic principles of fair procedures. See, Reed v. Farley, 512 U.S. 339, 354 (1994) [quoting Hill v. United States, 368 U.S. 424, 428 (1962)]. Federal courts are equally strict in their adherence to the longstanding rule that violations of state law are not cognizable under § 2254 unless the violations reach constitutional magnitude. Pulley v. Harris, 465 U.S. 37, 41 (1984) [habeas relief denied to state prisoner claiming that state’s refusal to conduct a proportionality review of death sentence amounted to a constitutional violation because it was considered error of state law]; Brown v. Sanders, 126 S.Ct. 884, 896 (2006) [considerations of sentencing guidelines later invalidated by state supreme court did not rise to level of a constitutional violation]; Estelle v. McGuire, 502 U.S. 62, 67-68 (191)[holding that it is not within the “province of a federal habeas court to reexamine state court determinations on state-law questions”]. See also: Thacker v. Dretke, 396 F.3d 607, 615 (5th Cir. 2005) [claim that jury charge violated state law not cognizable because state courts reasonably adjudicated constitutional issue].

The Thacker case is a good barometer for measuring federal habeas intervention. That case involved an alleged violation of purely state law that the state courts adequately addressed on direct appeal. But on the other hand if a jury charge rises to the level of a due process violation, the federal courts will unconditionally grant habeas relief. See, Cockerham v. Cain, 283 F.3d 657, 663 (5th Cir. 2002).

Once a valid “federal violation” is presented by a state prisoner, the federal courts will then conduct what is commonly referred to as a Brecht analysis. See, Brecht v. Abrahamson, 507 U.S. 623, 629-30 (1995). Under the Brecht analysis, the federal court must determine, first, if the violation amounts to a “structural defect” or, second, whether it is a lesser trial error that “had substantial and injurious effect or influence in determining the jury’s verdict.” Id., at 623 [quoting Kotteakos v. United States, 328 U.S. 750, 756 (1946)].

A “structural defect” violation automatically leads to a grant of federal habeas relief. See, Buhl v. Cooksey, 233 F.3d 783, 806 (3rd Cir. 2000) [denial of right to self-representation structural error requiring automatic reversal]. Other errors, however, require a lesser standard of review. For example, in Robertson v. Cain, 324 F.3d 297 (5th Cir. 2003) the Fifth Circuit found that an erroneous jury instruction effectively relieving state of its 14th amendment burden of proving state prisoner’s intent to kill for first degree murder had a “substantial and injurious effect” requiring reversal. Id., 309-10. See also: Brown v. Keane, 355 F.3d 82, 92 (2nd Cir. 2004) [improper admission of 911 tape in violation of Confrontation Clause had substantial, injurious effect and was not “harmless error”].

While “trial errors” do not carry the constitutional weight as “structural errors,” the Supreme Court has recognized that “in an unusual case, a deliberate and egregious [trial] error … might so infect the integrity of the proceeding to warrant … habeas relief” absent a showing of substantial influence on the verdict. See, Brecht, supra, 507 U.S. at 638 n. 9.

Distinguishing which “trial errors” warrant reversal from those that do not is sometimes difficult undertaking. For example, the Fifth Circuit found that the state’s failure to produce a state prisoner’s parole officer as hearing witness did not have “substantial and injurious effect” because of court’s inability to conclude if the failure contributed to the parole revocation decision. See, Williams v. Johnson, 171 F.3d 300, 307 (5th Cir. 1999). See also: Medina v. Matesanz, 298 F.3d 98, 101 (1st Cir. 2002) [improper jury instruction did not have substantial and injurious effect on jury’s verdict]; Robinson v. Crist, 278 F.3d 862, 866 (8th Cir. 2002) [prosecutor’s comments about defendant’s failure to testify did not have substantial and injurious effect].

Sometimes even federal judges experience difficulty reaching a reversal/no reversal determination. The U.S. Supreme Court has held that if a judge has a “grave doubt” as to whether the error had substantial and injurious effect – something the court defined as a doubt in the judge’s mind that “is so evenly balanced that he feels himself in virtual equipoise” - he must find in favor of the habeas petitioner. See, O’Neal v. McAninch, 513 U.S. 432, 435 (1995). See, e.g., Robertson v. Cain, supra, 324 F.3d at 309-10.

Some of the more common constitutional claims presented to federal courts by state prisoners are: ineffective assistance of counsel, Miranda violations, prosecutorial misconduct, significant judicial errors, and insufficiency of evidence.

The U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668, 687 (1984) held that a state prisoner makes an ineffective assistance claim when he/she establishes that counsel’s performance was so deficient and prejudicial as to deprive him/her of a fair trial. The Fifth Circuit has held that the Strickland standard is met when a state prisoner shows counsel failed to investigate potentially mitigating evidence. See, Lockett v. Anderson, 230 F.3d 695, 716 (5th Cir. 2000). See also: Henry v. Poole, 409 F.3d 48, 64 (2nd Cir. 2005) [Strickland standard satisfied by showing counsel elicited alibi for wrong time period and continued to pursue the alibi defense even after error was pointed out to him]; Harris v. Cotton, 365 F.3d 552, 556 (7th Cir. 2004) [Strickland standard met when it was shown that counsel failed to present mitigating evidence that would have supported defendant’s self-defense theory based on victim’s erratic behavior].

The U.S. Supreme Court in Withrow v. Williams, 507 U.S. 680 (1993) held that Miranda violations are an unconstitutional infringement on the 5th Amendment and, therefore, are cognizable in federal court. Id., 688-93. See also: Gibbs v. Frank, 387 F.3d 268, 276 (3rd Cir. 2004) [Miranda violation because testimony was admitted beyond waiver limitations mandated by state law]. But see: Soffar v. Cockrell, 300 F.3d 588, 596-98 (5th Cir. 2002) (en banc) [no Miranda violation because defendant signed multiple waivers].

With respect to prosecutorial misconduct claims, the U.S. Supreme Court held that a state prisoner establishes a due process violation when he/she shows that the prosecution suppressed exculpatory evidence which, if disclosed, would have produced a different outcome in the proceedings. See, Kyles v. Whitley, 514 U.S. 419, 453 (1995). Interpreting Kyles, the Third Circuit held that the prosecution’s failure to provide police reports to defense counsel warranted reversal of state conviction. See, Slutzker v. Johnson, 393 F.3d 373, 388 (3rd Cir. 2004). See also: Crivens v. Roth, 172 F.3d 991, 999 (7th Cir. 1999) [due process violated when prosecution withheld evidence that could have been used to impeach testimony of key state witness]. The Fifth Circuit has held that the burden rests with the state prisoner to show that the prosecution withheld exculpatory or mitigating evidence. See, Hill v. Johnson, 210 F.3d 481, 486 (5th Cir. 2000) [state prisoner failed to show prosecution withheld evidence of “deals for leniency”].

The U.S. Supreme Court held that a reversible “judicial error” occurs when a defendant is convicted without the state proving each element of the offense charged beyond a reasonable doubt. See, Fiore v. White, 531 U.S. 225, 228-29 (2001) (per curiam). A reversible judicial error also occurs when the trial court refuses to instruct the jury on a justification defense. See, Jackson v. Edwards, 404 F.3d 612, 622 (2nd Cir. 2005). See also: Lakin v. Stine, 431 F.3d 959, 963 (6th Cir. 2005) [due process violated when trial court improperly allowed a corrections officer to shackle defendant during trial rather than the court making an independent determination of the need for shackling]. But see: Bigby v. Dretke, 402 F.3d 441, 563-64 (5th Cir. 2005) [no due process violation after trial judge admitted testimony about the defendant’s attack on the judge; decision did not constitute judicial bias that had substantial and injurious effect on jury verdict].

Perhaps the most difficult claim for a state prisoner to establish in federal court is an insufficiency of evidence claim. The U.S. Supreme Court in Jackson v. Virginia, 443 U.S. 307 (1979) held that a state prisoner is entitled to a reversal of conviction when it is shown that no rational trier of fact, viewing the evidence in a light most favorable to the prosecution, “could have found the essential elements of the crime beyond a reasonable doubt.” Id., at 319. See also: Policano v. Herbert, 430 F.3d 82, 92-93 (2nd Cir. 2006) [due process violated when evidence insufficient to prove reckless disregard of life because defendant intended to kill victim rather than create reckless risk that death would occur]. But see: Hamilton v. Mullin, 436 F.3d 1181, 1194-95 (10th Cir. 2005) [due process not violated because evidence substantially supported verdict].

Despite a popular misconception, a state prisoner cannot secure habeas corpus relief based solely on an “actual innocence” claim absent an independent constitutional violation. See, Herrera v. Collins, 506 U.S. 390, 400 (1993). Herrera, a Texas inmate, sought federal habeas relief based on newly discovered evidence (an “affidavit” from his brother that he actually killed the persons for which Herrera stood convicted of killing) that showed he was innocent of the crime for which he had been convicted. Id., at 393-98. The Supreme Court held that following a criminal conviction there is no “presumption of innocence” and that a claim is innocence is based upon fact and habeas corpus is not the proper vehicle for presenting such a claim. Id., at 399-400. The nation’s highest court suggested that executive clemency would be the proper remedy for presenting an “actual innocence” claim. Id., at 411-12.

Interpreting Herrera, the Fifth Circuit said the case does not apply in cases where evidence is not “newly discovered” and there is no “substantial doubt” about the guilt of the accused. See, Dowthitt v. Johnson, 210 F.3d 733, 742 (5th Cir. 2000). See also: Doe v. Menefee, 391 F.3d 147, 164-65 (2nd Cir. 2004).

Finally, it must be clearly understood that federal habeas relief is not available under § 2254(d)(1) if the claim was decided on the merits by the state courts unless the state decision was (1) “contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court” or (2) “based on an unreasonable determination of the facts.” See, Rice v. Collins, 126 S.Ct. 969, 974 (2006); Williams v. Taylor, 529 U.S. 362, 405 (2000).; Carey v. Musladin, 127 S.Ct. 649 2006);

Navigating through state and federal post-conviction proceedings is obviously a daunting task. The John T. Floyd Law Firm is both prepared and available to assist prospective clients facing such a task. A prospective client’s claims will be immediately assessed, thoroughly researched, and professionally presented to the appropriate court by the John T. Floyd Law Firm if retained to do so.

SOURCES: Texas Code of Criminal Procedure, Texas Rules of Evidence, and the Georgetown Law Journal, Thirty-Six Annual Review of Criminal Procedure (2007).

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