Observations on Lafler and Frye: Little Relief in Sight for Defendants Whose Lawyers Botched Plea Negotiations

In a pair of much-noted decisions last March, the Supreme Court held that the constitutional right of defendants to effective assistance of counsel is not limited to trial representation, but also extends to plea bargaining.  More specifically, in Lafler v. Cooperthe Court addressed the case of a man who was convicted at trial after his lawyer advised him to turn down a generous plea deal on the basis of what seems to have been an egregious misunderstanding of the law; the Court held that the original offer must again be made available to the defendant.  Meanwhile, in Missouri v. Frye, the Court addressed the case of a man whose lawyer failed to tell him of a pending plea offer until after the offer had expired; the Court held that the lawyer’s performance fell below the constitutionally required minimum, but remanded for a determination as to whether the defendant had actually been prejudiced by his lawyer’s incompetence.

To read Justice Scalia’s two dissents in these cases, one might think the Court had radically broken from precedent and opened up plea bargaining to constitutional scrutiny for the first time.  In truth, the principle that the Constitution guarantees minimally competent legal representation at what is without question the most important phase of contemporary criminal litigation follows naturally from the Court’s earlier decisions and has been widely recognized in the lower courts for years.  Nor is there anything novel about the Court imposing constitutional standards on the plea-negotation process; the Court began doing so in the 1970’s.

In fact, Lafler and Frye remind me of one of the Court decisions from that era, Henderson v. Morgan (1976).  The comparison is not meant as a compliment.   Continue reading “Observations on Lafler and Frye: Little Relief in Sight for Defendants Whose Lawyers Botched Plea Negotiations”

The Sixth Circuit Gets Its Turn in the Woodshed

With the Court’s end-of-term flurry now complete, I find myself with a substantial backlog of interesting cases to blog about.  I’ll start with Parker v. Matthews (No. 11-845), a habeas case.  Actually, this case should be paired up with last month’s decision in Colemen v. Johnson, which I blogged about here.  In Coleman, the Court took the Third Circuit to task for a habeas grant.  The Court emphasized the high level of deference that federal habeas courts must show to state-court decisions on the merits, particularly state-court decisions rejecting Jackson v. Virginia claims (i.e., that the trial evidence did not establish the defendant’s guilt beyond a reasonable doubt).  In light of Coleman and a recent run of similar decisions, it has seemed to me that the Court is trying to shut down federal habeas review entirely for certain types of state-court decisions on the merits.

Parker continues the pattern.  This time, it was the Sixth Circuit’s turn to be taken to the woodshed.  The very first sentence of the per curiam opinion set the tone: “In this habeas case, the United States Court of Appeals for the Sixth Circuit set aside two 29-year-old murder convictions based on the flimsiest of rationales.”  The Court left no doubt that the Sixth Circuit had not only gotten it wrong in Parker, but it had gotten it badly wrong.

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Another Habeas Slap-Down From the Supremes–Where Is Habeas Law Heading?

The Supreme Court summarily overturned yet another habeas grant earlier this week in Coleman v. Johnson (No. 11-1053).  Johnson was convicted in Pennsylvania state court as an accomplice and co-conspirator in a murder.  Without getting into all of the details, let’s just say that the state’s case against Johnson was circumstantial and something less than airtight.  Johnson thus sought to have his conviction overturned in state court on the ground that the evidence was insufficient to support the jury’s verdict, invoking Jackson v. Virginia, 443 U.S. 307 (1979).  The state courts rejected this claim, as did a federal district court, but the Third Circuit reversed.

The Supreme Court overturned the Third Circuit’s decision in a brusque per curiam opinion.

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New Issue of FSR Assesses ’96 Reforms of Habeas and Prisoner Rights Litigation

In a single month sixteen years ago, April 1996, Congress adopted sweeping changes to both habeas corpus and prisoner rights litigation through the Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act.  A new issue of the Federal Sentencing Reporter (edited by yours truly) now assesses the legacy of the AEDPA and PLRA.  The issue includes much insightful commentary by leading scholars and practitioners.  A list of the authors and article titles appears after the jump.

Although the issue is now out in hard copy, the contents are not yet available through the FSR website.  Stay tuned.  In the meantime, I do have a few extra copies of the issue and would be happy to send them to interested readers of this blog.  You can request a copy by emailing me at michael.ohear@marquette.edu.

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SCOTUS to Decide on Padilla Retroactivity

Earlier today, the Supreme Court granted cert. in Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011). Chaidez held that the Court’s decision in Padilla v. Kentucky, 130 S. Ct. 1473 (2010), would not be applied retroactively to defendants whose convictions were already final when Padilla came out. In Padilla, the Court held that a lawyer performs below minimal constitutional standards when he or she fails to advise a client of the deportation risks of a guilty plea. Now, the Court itself will have an opportunity to determine whether its decision should have retroactive effect.

The majority and dissenting judges in Chaidez all agreed that the case turned on whether Padilla announced a new rule of criminal procedure, within the meaning of Teague v. Lane, 489 U.S. 288 (1989). With only a couple of execeptions not relevant here, Teague prohibits retroactivity for new rules. So, the question in Chaidez seems to boil down to whetherPadilla announced a new rule or merely applied the basic ineffective assistance test of Strickland v. Washington, 466 U.S. 668 (1984).

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SCOTUS: Court of Appeals Cannot Resurrect Waived Statute of Limitations Defense

Earlier this week, in Wood v. Milyard (No. 10-9995), the Supreme Court ruled that a federal court of appeals may not reject a habeas petition on the basis of a statute of limitations defense that was previously waived by the state.  Wood, a Colorado lifer convicted in 1987, had filed his federal habeas petition in 2008.  Under the Antiterrorism and Effective Death Penalty Act, state prisoners have only one year after their convictions become final in which to seek federal habeas relief.  In Wood’s case, however, there was some uncertainty as to whether and for how long the SOL had been tolled by state post-conviction proceedings.  When specifically invited by the district court to address the SOL issue, the state replied that it would “not challenge, but [is] not conceding, the timeliness of Wood’s [federal] habeas petition.”  The district court then denied Wood’s petition on other grounds.

On appeal, the Tenth Circuit raised the timeliness problem sua sponte and ruled against Wood on that basis, without addressing the merits of his petition.

The Supreme Court reversed, holding that the state’s deliberate decision that it would “not challenge” Wood’s timeliness constituted a waiver of the defense, and that the Tenth Circuit abused its discretion by resurrecting the defense over the state’s waiver.

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A Good Week for the Right to Counsel

With three decisions this week, the U.S. Supreme Court has signficantly strengthened defendants’ right to effective assistance of counsel.  In my next post, I’ll cover the two decisions that have received the most press coverage, Lafler v. Cooper and Missouri v. Frye.  Here, I’ll comment on Martinez v. Ryan, a decision that seems much narrower than the other two, but that may ultimately prove no less significant.  At issue is the right to counsel in collateral proceedings — an issue that has been hotly contested at the Court for many years.

Here’s what happened.  An Arizona jury convicted Martinez of sexual conduct with a minor.  After trial, the state appointed a new lawyer to handle Martinez’s post-conviction challenges.  This lawyer pursued a direct appeal, which proved unsuccessful, and also initiated a state collateral proceeding by filing a “Notice of Post-Conviction Relief.”  Later, however, the lawyer filed another statement asserting that she could find no colorable claims for collateral relief.  Martinez then had 45 days to file a pro se petition in order to keep the collateral proceeding alive.  He did not do so, allegedly because his lawyer failed to advise him of what was happening in his case.  In any event, the state trial court then dismissed the collateral proceeding.

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SCOTUS Affirms Discretion of Habeas Courts in Deciding Whether to Substitute Counsel

Yesterday, in Martel v. Clair (No. 10-1265), the U.S. Supreme Court affirmed that district judges in habeas cases have broad discretion in responding to defendants’ requests for new counsel.  In so doing, the Court rejected an argument that a capital defendant may only replace his appointed lawyer if the defendant has suffered an actual or constructive denial of counsel.  Rather, the Court held, capital defendants are subject to the same “interests of justice” standard that governs requests for new counsel by noncapital defendants.  The Court further emphasized that the inquiry is highly context-specific and must be reviewed deferentially by appellate courts.

Here’s what happened.

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Can Prosecutors Knowingly Exploit Inaccurate Testimony?

Courts have long recognized that a prosecutor violates the Due Process Clause by knowingly presenting perjured testimony.  It may be a different matter, however, when a prosecutor merely takes advantage of inaccurate testimony that a defendant has offered.  Or so suggested the Seventh Circuit earlier this month in Bland v. Hardy (No. 10-1566).

Bland was convicted in an Illinois state court for the killing of his stepmother in connection with a plot to steal guns from her home.  The killing occurred in September 2000.  At his trial, Bland testified that he had been arrested on a felon-in-possession charge in January 2000, at which time police had confiscated a gun from him.  However, Bland was mistaken about the date: the arrest and confiscation actually occurred in January 2001, i.e., after the killing.  The prosecutor knew that Bland had mixed up the dates, but nonetheless used the mistaken testimony during closing arguments in order to develop a motive theory: Bland wanted to steal guns from his stepmother’s home because his gun had recently been taken, and he could not legally purchase a new one.

After unsuccessful efforts to obtain post-conviction relief in state court, Bland applied for federal habeas corpus relief.  However, the Seventh Circuit decided that his due process claim was defeated by 28 U.S.C. § 2254(d), which habeas limits relief to state-court decisions that are contrary to, or involve an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.  Since the Supreme Court has never expressly extended the bar on using perjured testimony to exploiting errors in a defendant’s testimony, the Seventh Circuit held that habeas relief was impermissible.

Although the particular deference rules of habeas meant that the Bland court did not have to — and did not — affirmatively hold that the exploitation of inaccurate testimony comports with due process, the court seemed surprisingly untroubled by what strikes me as quite ethically dubious conduct.  Surely, a knowing effort to mislead the jury merits some sort of censure.  Yet, the court instead shifted the blame to defense counsel: “Bland’s counsel could have corrected the error when it was made, or immediately after he left the stand, or even in closing argument.”

It may be the case that defense counsel does indeed deserve some blame — and it may also be the case that nothing here merits habeas relief — but it is troubling to see a court effectively sending a message that it’s okay for prosecutors to try to mislead the jury as long as there is a lawyer on the other side who is able to call them on it.

A Test for Richter’s Reach

As I discussed in this post, in its decision last year in Harrington v. Richter, the Supreme Court gave more teeth to the command of 28 U.S.C. § 2254(d) that federal habeas courts must defer to state-court adjudications on the merits.  More specifically, the Court held that deference must be shown even to an unexplained, summary ruling by a state court.

Earlier this month, the Court granted cert. in a new case that may (let us hope) impose a limitation on Richter.  In Cavazos v. Smith (No. 11-465), the Court will consider whether § 2254(d) is owed to a state-court decision that did not even acknowledge the petitioner’s federal constitutional claim.

Here’s what happened.

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