Appellate Law, Criminal Defense, Criminal Appeals & Criminal Appellate Review and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit for Criminal Attorneys, Criminal Lawyers & Appellate Lawyers
It’s been a very busy few days since I was last able to post anything. So last evening, I went to the Eleventh Circuit homepage to scan the latest criminal appeals decisions, and came across Holsey v. Warden, Georgia Diagnostic Prison, No. 09-14257, an opinion affirming the denial of a petition for writ of habeas corpus filed by Holsey, a death row inmate in Georgia. I was shocked to see that the opinion is 152 pages long!!
Normally, you might think that a longer opinion is more valuable in that such opinions at least allow the lawyers in the case to feel like their positions have been well considered by the Court. Compared to State court criminal appellate opinions, many of which are mere PCAs, or no more than a few paragraphs long, federal court opinions at least tend to provide a more thorough analysis of the issues. However, this 152-page opinion is a bit extreme, and I don’t mind saying so because even Judge Edmondson agrees! In his concurrence, beginning on page 104, Judge Edmondson makes some valid points, such as (1) longer opinions tend to contain more information than is needed to dispose of the issues, thereby increasing the chance for judicial error; (2) longer opinions can be overly taxing on the fellow judges of the panel, who have other cases to decide, on members of the Bar who try to stay current with the Court’s latest thinking, and on the public at large, as non-lawyers may have difficulties understanding the basis for the court’s decision; and, (3) longer opinions make it more difficult for lawyers to discern the rationale from dicta.
If you have any time to spare, I suggest a quick review of Judge Edmondson’s concurrence. And if you need something to get you fired up for the day, don’t miss Judge Barkett’s dissent!
Florida criminal defense lawyers who handle federal petitions for writ of habeas corpus won’t be surprised to learn that the United States Court of Appeals for the Eleventh Circuit has recently rejected a claim of actual innocence. Although the case, Roger Allen Rozzelle v. Secretary, Florida Dept. of Corrections, No. 10-13595, is long and contains a highly factually intensive analysis and procedural history, it’s worth taking a few minutes to review the Court’s discussion of the different types of claims of actual innocence that can be made in the habeas context. Such discussion is found at pages 26-49 of the slip opinion.
Turning back once more to the topic of petitions for writ of habeas corpus, if a court determines that all the procedural requirements have been met, the court may then proceed to review the merits of the petition. Under section 2254(d) (1)-(2), the petition shall not be granted with respect to any claim that was adjudicated on the merits in State court, unless the adjudication “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, “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.”
The Eleventh Circuit opinion of Childers v. Floyd, No. 08-15590, 2011 WL 2162083 (11th Cir. June 2, 2011), illustrates how difficult it can be to prevail on the merits of a habeas petition. In 2001, while Childers had been serving as a County Commissioner for Escambia County, Childers and a fellow County Commissioner, Willie Junior, became involved in a kick-back scheme relating to the construction of a soccer complex owned by one Joe Elliot. Junior entered a plea agreement with the State, and testified against Childers at Childers’ trial. After Childers was convicted of bribery and unlawful compensation for official behavior, Childers was sentenced to 42 months’ incarceration. Elliot was acquitted. See Childers, 2011 WL 2162083 at *1-*6
Childers moved for a new trial, arguing that the trial court erred in part by violating his 6th Amendment confrontation rights. The trial court disagreed, and Childers pursued his 6th Amendment claim through direct appeal and in his petition for writ of habeas corpus. Even though Childers initially won a victory in his appeal to the Eleventh, the Court voted to rehear the case en banc, and ultimately affirmed the district court’s denial of Childers’ petition. See Childers, 2011 WL 2162083 at *9-10. In its rationale, the Court emphasized the long-standing principles of comity, and determined that the state court had properly adjudicated Childers’ claim on the merits. See Childers, 2001 WL 2162083 at *10-*13. Proceeding to the merits of the petition, the Court recalled the parameters of review under section 2254(d)(1), as well as the highly deferential review of state court factual findings. See Childers, 2001 WL 2162083 at *13-*21. After analyzing Childers’ claims in light of the “multiple layers of deference owed to the state court’s determination,” 2011 WL 2162083 at *22, the Court ultimately found that Childers was not entitled to habeas relief because Childers failed to show that the District Court of Appeal unreasonably applied federal law, or that the decision was contrary to clearly established federal law.
People should take two things away from the Childers opinion. First, while prevailing on a petition for habeas corpus in the Eleventh Circuit is extremely difficult, it is possible. Unfortunately, any victory may be short-lived.
As I mentioned in my last post on petitions for writ of habeas corpus, petitions have to be timely filed. In addition to timeliness, petitioners also have to consider the issues of exhaustion and procedural bar.
Exhaustion is a concept based on comity and federalism. Although the Federal courts are available to consider Federal constitutional questions, the Federal courts do not sit in a strict appellate capacity over the State courts. Generally, for the exhaustion element to be met, the petitioner must have presented any Federal constitutional claims to the State court, thereby allowing the State court the opportunity to review the claims first. If the claims have not been presented to the State court, a Federal court may find that the claims have not been exhausted. In such instance, the Federal court may dismiss the Federal 2254 petition without prejudice, so as to allow the petitioner to present, or exhaust, his claims in State court. In addition, if a 2254 petition contains both exhausted and unexhausted claims, (otherwise known as a “mixed petition”), the 2254 petition may likewise be dismissed without prejudice. A good discussion of these principles can be found in Thompson v. Wainwright, 714 F.2d 1495, 1503-1504 (11th Cir. 1983); Snowden v. Singletary, 135 F.3d 732, 736 (11th Cir. 1998); and, Bailey v. Nagle, 172 F.3d 1299 (11th Cir. 1999).
With regard to procedural bar, where a 2254 petitioner has failed to raise his or her Federal claims properly in State court, the Federal court may find that the petitioner is procedurally barred from raising the claims in Federal court, unless a petitioner can make a showing of cause for and actual prejudice from the default, or by establishing a fundamental miscarriage of justice. See Bailey, 172 F.3d at 1306. As noted in Bailey, 172 F.3d at 1302-1303, claims are generally procedurally defaulted in two ways: (1) where the State court correctly applies a procedural default principle of state law and determines that the Federal claims are barred; or, (2) where the petitioner never raised the claim in State court, and it is obvious that the unexhausted claim would be procedurally barred based on a State law procedural default. Where unexhausted claims would be procedurally barred in State court, the Federal court may determine that such claims do not provide a basis for Federal habeas relief. See Snowden, 135 F.3d at 736.
Nevertheless, where it would be futile for a petitioner to return to State court because procedural defaults bar any right to relief, the Federal court may determine that such futility is an exception to the exhaustion requirement, and decline to dismiss the petition. See Bailey, 172 F.3d at 1306-1307 (Carnes, J. dissenting).
Pursuant to 28 U.S.C. sec. 2244(d), petitioners applying for a writ generally have 1 year in which to file their petition. This 1 year statute of limitations runs from the latest of (a) the date that the judgment became final by direct review or the expiration of the time for seeking direct review; (b) the date on which an impediment to filing an application created by State action is removed, if the applicant was prevented from filing by such State action; (c) the date on which the constitutional right being asserted was initially recognized by the Supreme Court, if the right is newly recognized and has been made retroactively applicable to cases on collateral review; or, (d) the date on which the facts supporting the claim presented could have been discovered through due diligence. See28 U.S.C. sec. 2244(d)(1)(A)-(D). However, the time during which properly filed motions for State postconviction relief or other collateral review with regard to the judgment is excluded from the calculation of the 1 year statute of limitations. See28 U.S.C. sec. 2244(d)(2).
Time calculations can be straightforward or complex, depending on such factors as whether the petitioner has directly appealed the judgment, whether the petitioner has filed motions for postconviction relief or other collateral review, whether the petitioner has “properly filed” motions for postconviction relief, whether newly recognized rights have been made retroactively applicable to cases on collateral review, and the “mailbox rule.” For a brief discussion of timeliness of a petition and tolling, counsel may wish to review the recently published order in Williams v. Secretary, Dept. of Corr., No. 6:09-cv-1809-Orl-31KRS, 2011 WL 2173858 (M.D. Fla. June 2, 2011). For a brief discussion of the “mailbox rule,” counsel may review the Eleventh Circuit opinion in Powles v. Thompson, 282 Fed. App’x 804 (11th Cir. 2008). Finally, when calculating the number of tolled or untolled days between filings, counsel may also wish to consult www.timeanddate.com.