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
I had to do a double take when I read this sentence in the opening paragraph of the slip opinion in Ricky Adkins v. Warden, Holman CF, No. 11-12380: “Because we determine that Mr. Adkins is entitled to habeas relief based on his Batson claim, we do not decide his other claims.” I’ll warn you now, the opinion is quite long, 53 pages, but that’s including Judge Tjoflat’s 18 page dissent. The bulk of the opinion is devoted to a discussion of the prosecutor’s repeated striking of African American venire members in violation of Batson v. Kentucky, 476 U.S. 79 (1986). If your a criminal defense attorney with a trial coming up soon, this may be a good time to brush up on Batson issues.
Since criminal defense and criminal appeals attorneys know that it’s so rare that the Eleventh ever grants habeas relief, you might wonder what was different about this case. Well, for starters, the 3-judge panel consisted of Judges Barkett, Tjoflat, and Martin. Luckily for Ricky Adkins, Judges Barkett and Martin were in the majority. Second, there were some pretty compelling facts in the record that really favored Ricky Adkins, and which showed that the trial court failed to properly consider all the relevant circumstances, as required in the third step of the Batson analysis. The Court noted the circumstances that the trial court failed to consider: (1) the strength of Mr. Adkins’s prima facie case of purposeful discrimination; (2) the fact that the prosecution explicitly noted the race of every black veniremember (and only black veniremembers) on the jury list the state relied on in jury selection; (3) the fact that specific proffered reasons provided by the prosecutor were incorrect and/or contradicted by the record; (4) the fact that the trial court relied upon, and did not subject to adversarial testing, an affidavit from the prosecutor that was submitted after the Batson hearing; and (5) the fact that the trial court relied upon facts not part of the record, such as the trial court’s personal experience with the prosecutor in unrelated matters. See Adkins, slip op., pgs. 21-22.
Now that Adkins’ petition has been granted, what’s the relief? The State of Alabama gets to retry him!
Up next, the Eleventh Circuit slaps down Florida Governor Rick Scott’s controversial drug testing plan for welfare recipients . . .You can read the article from the Sun Sentinel here.
The United States Court of Appeals for the Eleventh Circuit has recently released an en banc decision in the habeas appeal of Wydell Evans v. Sec’y, Dept. of Corrections, No. 10-14920. As far as Eleventh Circuit opinions go, it’s rather long at 72 pages, but considering that it’s an en banc opinion, the 72 pages seems unexpectedly short. As one familiar with the Eleventh Circuit might expect, the majority opinion affirmed the denial of Evans’ petition for habeas corpus relief. In so doing, the Court focused its analysis on the prejudice prong of Strickland v. Washington, 466 U.S. 668 (1984), and held that even though Evans’ trial counsel performed only a minimal investigation into mitigating evidence for the penalty phase of the trial, and presented no mitigating evidence to the jury, Evans was not prejudiced because the evidence of mitigation which counsel could have presented was more harmful than helpful. See Evans v. Sec’y, Dept. of Corrections, Slip op., pgs. 3-37.
Whether you handle criminal defense, habeas petitions, death penalty work, or federal appeals, this opinion might be worth your time to review. Not only does Judge Jordan’s concurrence contain a good discussion of the standards of review applicable to habeas proceedings, but Judges Wilson and Martin author great dissents. Judge Wilson’s dissent focuses on the Court’s decision to render the en banc decision at all. If you handle federal appeals before the Eleventh Circuit, Judge Wilson’s dissent might be valuable the next time you have to draft an opposition to a motion for en banc consideration. SeeEvans, Slip op. pgs. 46-49. Judge Martin’s dissent contains a thought-provoking discussion of the role of defense counsel in death penalty cases. In short, Judge Martin agrees with the majority that the mitigating evidence that counsel could have presented to the jury would have portrayed Evans in a bad light. However, Judge Martin notes that the jury was already familiar with Evans’ character flaws, anyway. And, most importantly, Judge Martin observes: isn’t it the job of death penalty counsel to investigate and present whatever mitigating evidence can be found? SeeEvans, Slip op., pgs. 50-72.
In a rare move, the United States Court of Appeal for the Eleventh Circuit has voted to rehear a case en banc. The case, Michael Duane Zack III v. Tucker, No. 09-12717, concerns the issue of timeliness of federal habeas claims. In the original opinion, released in January, 2012, the Court held that the District Court erred in applying the statute of limitations separately to each claim in the petition to find that only certain claims were timely filed. I suspect that most criminal defense and criminal appellate lawyers would agree that it seems logical that the timeliness of a federal habeas petition should be viewed as to the whole petition, not claim-by-claim. I certainly hope that the Court does not change its conclusion on rehearing. The order granting rehearing en banc can be viewed here. For those of you who practice in the Southern District of Florida, take note that our own Judge Jordan’s name appears on the order granting rehearing.
It’s Friday, so I thought I’d post something quick: on October 14, 2011, a notice of appeal was finally filed in Florida’s death penalty case of Evans v. Tucker (previously Evans v. McNeil), No. 08-14402-CIV-JEM. Those of you who read my blog know that this is the case where the Federal Court granted, in part, a petition for habeas corpus based on the finding that Florida’s death penalty scheme is unconstitutional. Now that the notice of appeal has finally been filed, the case is heading to the United States Court of Appeals for the Eleventh Circuit. I’ll be sure to keep you posted.
In the case of Kenneth Loggins v. Thomas, No. 09-13267, 2011 WL 3903402 (11th Cir. Sept. 7, 2011), the Eleventh Circuit held that sentencing a person to life without parole for committing a homicide while under the age of 18 (a juvenile) does not violate the United States Constitution. While the 61 page opinion is lengthy, the Court dealt with some important issues.
As for the facts, a word of warning: the murder, which Loggins and several friends committed when he was 17, is quite brutal, and the Eleventh does not hold back in its description of the crime. Loggins’ original sentence of death was reversed in light of the United States Supreme Court opinion of Roper v. Simmons, 543 U.S. 551 (2005) (holding that it is unconstitutional to execute criminals who were under the age of 18 when they committed their crimes). After Loggins was resentenced to life without parole, he appealed that sentence, arguing that the sentence was unconstitutional. Loggins lost all his appeals in the Alabama state courts, and eventually filed a petition for writ of habeas corpus under section 2254 in Federal Court, raising the same issue. The District Court denied Loggins’ 2254 petition, and he appealed to the Eleventh Circuit.
The Court’s analysis of the core issue, the constitutionality of a sentence of life without parole for the crime of homicide committed while a juvenile, begins on page 35. Although Loggins argued that there was a national and international consensus against such a sentence, the Court quickly rejected such arguments based on some interesting criminal sentencing statistics. As a Florida criminal appeals attorney, I was saddened to read, on page 45, that Florida stands out as the State that has the highest number of people sentenced to life without parole for non-homicide crimes committed while the people were juveniles. Out of the 123 inmates imprisoned nationwide, 77 are imprisoned in Florida.
In addition to the main issue of the constitutionality of the sentence of life without parole, the Loggins opinion is also worth reading because it contains a good discussion of other issues that arise in 2254 habeas proceedings, such as the deference owed to State court decisions, whether claims were adjudicated on the merits, what constitutes clearly established federal law, and retroactivity.
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).
A recent opinion issued by the Eleventh Circuit is the latest example of how difficult it can be for a criminal defendant to win a petition for writ of habeas corpus. On May 26, 2011, the Eleventh Circuit affirmed the District Court’s denial of Mark Duke’s 2254 petition, finding that the Alabama prosecutor’s statements made in closing argument did not impermissibly comment on Duke’s right to remain silent. However, in a strong dissent, Circuit Judge Wilson pointed out the logical flaws of the majority opinion’s analysis of the prosecutor’s statements. The slip opinion can be found here.