A Tale of Two Courts

A TALE OF TWO COURTS : A TALE OF TWO COURTS How to protect your client’s right to federal review while litigating in state court.

It was the best of times it was the worst of times… : It was the best of times it was the worst of times… Your client has just lost her appeal in a mangled Memorandum Opinion that makes no sense. Certiorari was hopeless because the state court decision was contrary to already clearly established U.S. Supreme Court precedent. But you knew you could win in federal habeas corpus because you had protected your client’s right to federal review when you properly litigated the federal issue in state court.

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28 U.S.C. § 2254 : 28 U.S.C. § 2254 (a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States. (b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-- (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

28 U.S.C. § 2254 : 28 U.S.C. § 2254 (d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-- (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Baldwin v. Reese, 541 U.S. 27 (2004) : Baldwin v. Reese, 541 U.S. 27 (2004) In Baldwin the Supreme Court discussed the ways that a federal claim can be preserved for habeas review. The Court framed the issue as one of having “fairly presented” a claim to the state courts so that due to comity the state court can have a chance to rule first.

Slide 7 : Comity – The principle in accordance with which the courts of one jurisdiction will give effect to the laws and judicial decisions of another, not as a matter of obligation, but out of deference and respect.

Slide 8 : Comedy – a drama of light and amusing character and typically with a happy ending. - Merriam Webster

Slide 9 : Comedy - a ludicrous or farcical event or series of events. - Merriam Webster

Slide 10 : In Baldwin, the State of Oregon appealed the Ninth Circuit’s grant of a writ of habeas corpus on ineffective assistance of appellate counsel grounds. Reese, in his motion for discretionary review to the Oregon Supreme Court, had only argued this claim under state law. He had argued his ineffective assistance of trial counsel as a federal claim.

Slide 11 : The Ninth Circuit found that because Reese had presented his federal claim in the lower courts of Oregon that this had preserved the claim for review. The Supreme Court, however, found that it was too burdensome for overworked state court judges to read lower court opinions. The claim must be in the brief to the state high court.

Slide 12 : The Supreme Court stated the following: A litigant wishing to raise a federal issue can easily indicate the federal law basis for his claim in a state-court petition or brief, for example, by citing in conjunction with the claim the federal source of law on which he relies or a case deciding such a claim on federal grounds, or by simply labeling the claim “federal.” Baldwin, 541 U.S. at 32.

Slide 13 : Reese argued that under Oregon state law that the ineffective assistance of appellate counsel test was the same as the one under federal law. Thus, Reese argued the Oregon Supreme Court had been presented with the claim. The Supreme Court, however, left undecided the issue of whether or not a claim decided under state law that shares identity with a federal claim has been fairly presented. The Court said Reese had not fairly presented this legal theory in his Brief in Opposition to Certiorari.

Ways to Fairly Present a Claim : Ways to Fairly Present a Claim Cite to the federal source of law on which you rely; Cite to a case deciding your claim on federal grounds; or Label your claim “federal.”

Slide 15 : Sounds very simple. But beware. The Sixth Circuit is not always as forgiving as the language in Baldwin. What happened in Slaughter v. Parker, 450 F.3d 225 (6th Cir. 2006) is a cautionary tale. In Slaughter a claim about an improper juror question was specifically said to violate the 6th and 14th Amendments.

Slide 16 : Here is what the Slaughter Court said: Slaughter's brief to the Supreme Court of Kentucky reproduces the juror's question, argues that it was improper, and concludes “[b]ased on this denial of due process and a fair trial by an impartial jury, appellant is entitled to a new trial.” In support he cites “14th and 6th Amendments. Section 11 of the Kentucky Constitution.” This is the only reference to federal law that Slaughter's brief makes. The rest of the argument urges only that the trial court did not comply with Kentucky law when it allowed for juror questioning. The brief relies on a number of state court cases but does not cite a single federal case. On direct appeal, the Supreme Court of Kentucky denied Slaughter's claim because “[i]t is proper for jurors to ask questions of witnesses so long as they are pertinent and competent.” Slaughter, 744 S.W.2d at 413 (citing Miller v. Commonwealth, 188 Ky. 435, 222 S.W. 96 (Ky.1920)). The court made no reference to federal law, and did not treat Slaughter's claim as one brought under federal law. Slaughter, 450 F.3d at 336.

Slide 17 : Here is another instance of inadequate presentation according to the Sixth Circuit: We are of the opinion that the petitioner did not “fairly present” his claim. In his direct appeal, the petitioner focused entirely on the applicability of Ohio's rape shield law. Ohio Rev.Code Ann. § 2907.02. He did not cite any federal precedent and his appellate brief only alleges that the trial judge's limitation on cross-examination denied him a “fair trial” and “due process.” As this court recognized in Franklin, this is not sufficient to alert a state court that an appellant is asserting the violation of a specific constitutional right. While it is true that a few of the state cases cited by the petitioner on direct appeal contain references to the Confrontation Clause, the majority of those cases were concerned with Ohio evidence law. We do not think that a few brief references to the Confrontation Clause in isolated cases is enough to put state courts on notice that such a claim had been asserted. Thus, we hold that the petitioner failed to “fairly present” his Confrontation Clause claim to the Ohio courts. McMeans v.Brigano, 228 F.3d 674, 682 (6th Cir. 2000).

Slide 18 : The Sixth Circuit has laid out the following criteria for when a claim is fairly presented: (1) reliance upon federal cases employing constitutional analysis; (2) reliance upon state cases employing federal constitutional analysis; (3) phrasing the claim in terms of constitutional law or in terms sufficiently particular to allege a denial of a specific constitutional right; or (4) alleging facts well within the mainstream of constitutional law. Whiting v. Burt, 395 F.3d 602, 613 (6th Cir.2005).

Slide 19 : The Second Circuit’s test is very similar to part four of the Sixth Circuit’s test. They say that something is fairly presented if it asserts a “factual matrix that is ‘well within the mainstream of due process adjudication.’ ” Daye v. Attorney Gen., 696 F.2d 186, 193 (2nd Cir. 1982) (quoting Johnson v. Metz, 609 F.2d 1052, 1057 (2d Cir.1979)).

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Slide 21 : The Slaughter Court stated: While a petitioner need not cite “chapter and verse” of constitutional law, “general allegations of the denial of rights to a ‘fair trial’ and ‘due process' do not ‘fairly present claims' that specific constitutional rights were violated.” Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir.2004) (internal citations omitted). Slaughter, 450 F.3d 236.

Factual Default : Factual Default It is possible to default factual theories as well as legal theories. The best practice is to fully factually develop your arguments in support of your claims in state court.

Slide 23 : Here is a self-explanatory paragraph from a Sixth Circuit case: Jells includes two more pieces of withheld information that were referenced in his Amended Petition for Post-Conviction Relief. However, these items were not presented as part of his Brady claim at that time, and were instead presented as part of a sufficiency-of-the-evidence claim. These claims were defaulted because they cannot be considered to have been fairly presented. Baldwin v. Reese, 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). To present a claim fairly, it is sufficient if the substance of the claim was presented to the state courts, such that the ultimate question would have been the same despite variations in the legal theory or factual allegations urged in its support. Picard, 404 U.S. at 277-78 [92 S.Ct. 509]; Whiting v. Burt, 395 F.3d 602, 612-13 (6th Cir.2005). Here, the state courts would not have been alerted that the alleged information supported his Brady claim through Jells's presentation of the information in the sufficiency-of-the-evidence context. Jells v. Mitchell, 538 F.3d 478, 504 (6th Cir. 2008).

Slide 24 : It should be noted that not getting all your facts in the state court record is not necessarily fatal to your claim. As the Sixth Circuit has said: The Supreme Court has explained that “presentation of additional facts to the district court, pursuant to that court's directions, [does not] evade[ ] the exhaustion requirement when the prisoner has presented the substance of his claim to the state courts,” so long as “the supplemental evidence presented by [the prisoner] d[oes] not fundamentally alter the legal claim already considered by the state courts.” Vasquez v. Hillery, 474 U.S. 254, 257-58, 260, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986). Satterlee v. Wolfenbarger, 453 F.3d 362, 366, fn. 2 (6th Cir. 2006).

DO YOU WANT TO WIN YOUR FEDERAL CLAIM? : DO YOU WANT TO WIN YOUR FEDERAL CLAIM? There is a school of thought in habeas circles that you should try to hide your best claims from the state courts. After all, they will deny relief regardless of merit. This may be more applicable in post-conviction than appeals because victories in appeals are much more frequent. For most clients winning now is better. One strategy is to direct the state court towards the state law aspect of your claim. However, most claims share legal identity whether in state court or federal court. A decision on state law grounds is likely to cover the federal grounds. Another strategy would be to put the good claim towards the end of your brief. If you succeed in hiding a claim your reward could be de novo review in federal court.

Discretionary ReviewRequired for Exhaustion? : Discretionary ReviewRequired for Exhaustion? Under Sixth Circuit caselaw, because Kentucky does not require discretionary review for exhaustion, one does not have to present a claim on MDR to the Kentucky Supreme Court to exhaust it for federal habeas purposes. Adams v. Holland, 330 F.3d 398, 405 (6th Cir. 2003) (interpreting a similar Tenn. law)

However… : However… The United States Supreme Court has not squarely ruled on this issue. In fact, in O’Sullivan v. Boerckel, 526 U.S. 838 (1999) the Court suggests the opposite of the Adams decision: In this regard, we note that nothing in our decision today requires the exhaustion of any specific state remedy when a State has provided that that remedy is unavailable. Section 2254(c), in fact, directs federal courts to consider whether a habeas petitioner has “the right under the law of the State to raise, by any available procedure, the question presented.” (Emphasis added.) The exhaustion doctrine, in other words, turns on an inquiry into what procedures are “available” under state law. In sum, there is nothing in the exhaustion doctrine requiring federal courts to ignore a state law or rule providing that a given procedure is not available. We hold today only that the creation of a discretionary review system does not, without more, make review in the Illinois Supreme Court unavailable. O’Sullivan, 526 U.S. at 847-8.

28 U.S.C. § 2254 : 28 U.S.C. § 2254 (b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that-- (A) the applicant has exhausted the remedies available in the courts of the State; or (B)(i) there is an absence of available State corrective process; or (ii) circumstances exist that render such process ineffective to protect the rights of the applicant.

Slide 29 : “As state postconviction relief was no longer available at the time the facts came to light, it would have been futile for petitioner to return to the Virginia courts. In these circumstances, though the state courts did not have an opportunity to consider the new claims, petitioner cannot be said to have failed to develop them in state court by reason of having neglected to pursue remedies available under Virginia law.” - Williams v. Taylor, 529 U.S. 420, 444 (2000)

Slide 30 : Possible post-RCr 11.42 remedies: i. CR 60.02 ii. RCr 10.02/10.06

Slide 31 : Can I raise IAC claims based on issues actually litigated or which could have been litigated on direct appeal?

Slide 32 : Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006) recognized that claims that do not rise to the level of palpable error could satisfy the less rigorous standard for finding counsel ineffective. Because of the materially different standards, the Kentucky Supreme Court held that claims that could have been or were raised on direct appeal are cognizable as ineffective assistance of counsel claims in RCr 11.42 proceedings. Id. at 5.

Slide 33 : Leonard v. Commonwealth, 279 S.W.3d 151 (Ky. 2009): Martin applies to capital cases and is not retroactive to cases already through state post-conviction review.

Slide 34 : “When a state court declines to review the merits of a petitioner’s claim on the ground that it has done so already, it creates no bar to federal habeas review.” - Cone v. Bell, 129 S.Ct. 1769, 1781 (2009).

Slide 35 : Must I raise IAC claims based on issues actually litigated or which could have been litigated on direct appeal?

Slide 36 : Suppose you want to raise as a direct error an issue that was decided either under palpable error on direct appeal or not at all decided on direct appeal.

Cause and Prejudice : Cause and Prejudice “In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” - Coleman v. Thompson, 501 U.S. 722, 750 (1991).

Slide 38 : “To hold, as we do, that an ineffective-assistance-of-counsel claim asserted as cause for the procedural default of another claim can itself be procedurally defaulted is not to say that that procedural default may not itself be excused if the prisoner can satisfy the cause-and-prejudice standard with respect to that claim.” - Edwards v. Carpenter, 529 U.S. 446, 453 (2000)

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Slide 41 : It is a far, far better thing that I do, than I have ever done; it is a far, far better rest that I go to, than I have ever known. - Sydney Carton A Tale of Two Cities