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Sixth Circuit Habeas Happenings:

There was lots of activity and acrimony relating to habeas corpus petitions on the U.S. Court of Appeals for the Sixth Circuit last week. On Thursday, the Court rejected a petition for rehearing en banc in Keith v. Mitchell over the dissent of four judges. The original three-judge panel split 2-1, with Chief Judge Boggs writing the majority for himself and Judge Gibbons and Judge Clay dissenting. Judge Clay dissented again from the denial of en banc review, joined by Judges Moore, Martin, and Cole. His dissent argued that Kevin Keith received constitutionally inadequate assistance of counsel during the mitigation phase of his trial.

Judge Martin wrote separately "to express again [his] dismay and frustration with the shortcomings of our approach to reviewing death sentences through habeas corpus appeals," and to suggest that legal representation in capital cases is potentially unconstitutional. Martin continued:

members of this Court have gone on record to second-guess the jurisprudence of the Supreme Court, and this Court, that requires counsel to conduct an adequate investigation of potential mitigating circumstances for purposes of capital sentencing, and mandates the reversal of convictions where this does not occur. [Here Martin cites the opinions by Chief Judge Boggs and Judge Suhrheinrich in Poindexter v. Mitchell, which I covered here.] This reasoning strikes me as demonstrating callousness and possible animosity toward the Sixth Amendment right to counsel.
Martin further intimated that this "animosity" likely influenced the outcome in this case.

On the same day, in Apanovitch v. Houk, the Sixth Circuit reversed and remanded the district court's denial of Anthony Apanovitch's habeas petition "[i]n light of the state's apparent failure to provide potentially exculpatory materials to Apanovitch prior to the filing of his petition" and the availability of evidence that had not undergone DNA testing. The panel's unanimous opinion was written by Chief Judge Boggs, joined by judges Daughtrey and Moore.

On Friday, a little bit of disagreement resurfaced on the Sixth, but not along the usual ideological lines. In Spisak v. Mitchell, the Sixth Circuit granted a death row inmate's habeas petition on the grounds that he received ineffective assistance of counsel during the mitigation phase and the judge gave improper jury instructions. If nothing else, "the decision is worth a read to see just how ineffective a capital attorney can be," observes Robert Loblaw on the Decision of the Day blog.

The majority opinion in Spisak, written by Judge Clay, rejected the inmate's other claims. Judge Moore wrote an opinion dissenting in part, as she would have granted the petition on additional grounds, specifically "the trial court's exclusion of expert testimony and evidence regarding Spisak's insanity defense and the trial court's refusal to submit the insanity defense to the jury."

Given that the panel of Judges Clay, Daughtrey and Moore was, in Loblaw's words, "every habeas petitioner's dream," and not representative of the current composition of the Sixth Circuit on habeas issues these days, it will be interesting to see whether the state seeks en banc review.

[Links via Decision of the Day.]

Kovarsky (mail):
That a sixth amendment right to effective assistance of counsel does not attach to state postconviction proceedings is one of the great constitutional crimes of our criminal jurisprudence.

That being said, I'm not surprised to see panels realign on non-IE issues, because IE claims tend to be the most intrusive, in terms of the second guessing they require. There are lots of federal judges, including on the federal appellate judiciary, that are quite receptive to many habeas claims, but not to IE. They are not entirely without support, as the controlling Strickland standard contains a prejudice prong that renders much "ineffecteness" moot if it would not have changed the outcome of the case.

As far as the jury instruction cases are concerned, both substantive rulings and decisions to grant or deny rehearing should be interpreted in light of the Supreme Court's recent grant of 3 capital jury instruction cases, where the general consensus is that in two of the cases the Court will correct the standard the Fifth Circuit has been using to review error in captial jury instructions, and in the third it will absolutely crush the texas court of criminal appeals with respect to a "harmless error" doctrine on review of texas capital jury instructions that it just made up.
10.26.2006 10:10pm
Daniel Chapman (mail):
*gasp* You mean a judge just MADE UP a doctrine of law? NO WAY! :)
10.26.2006 10:16pm
Kovarsky (mail):
daniel,

what made up doctrine are you talking about? do you mean the alluded-to ignoring of supreme court precedent?
10.26.2006 11:09pm
therut:
If attornys and Judges are incompetent why are they not held personally accountable. Why not malpractice cases aganist both, disbarment and removal of the Judges? Is there a good ole boy mentality in the Legal profession where they protect their own? Isn't the mantra of medical malpractice cases the ole saw horse of protecting the little man and causing better medical care? It is time for the what is good for the goose is good for the gander tactic to be applied.
10.26.2006 11:36pm
Kovarsky (mail):
therut,

who was incompetent? like the commentator above, i just don't understand. i do federal postconviction litigation, and i don't understand even what the accusation is.
10.27.2006 12:04am
Christopher M (mail):
it will be interesting to see whether the state seeks en banc review.

Wouldn't it be shocking if they didn't? Does the state ever not seek en banc review of a decision granting a new (penalty) trial in a death-penalty case? They could change the brief into an en banc petition in all of three or four hours, and with a little more time they could file a brief more carefully targeted at the opinions handed down.
10.27.2006 12:32am
Daniel Chapman (mail):
What's not to understand, Kovarsky? I was making a poor joke, and I took the "made up doctrine" language directly from you.

Feign ignorance often enough, and people will start to believe it.
10.27.2006 1:00am
Kovarsky (mail):
therut,

it wsan't clear what you were referring to you when you talked about ousting judges. the smith decision appealed from the texas court of criminal appeals is horrible. there's a difference between crappy decisionmaking and malpractice.
10.27.2006 3:19am
Kovarsky (mail):
Christopher M.,

the state does not seek en bank review as much as you might think. a lot of times if they have bad facts they don't want to run the risk of getting a disfavorable en banc ruling on an issue they have to adjudicate for a gazillion other offenders. ineffective assistance claims are so hard to petitioners to win, even before panels, that i would be surprised if they would seek or secure en banc.

a funny story on a recent 5th circuit argument. as you might know, the 5th is notorious for finding in favor of the state on a wide variety of posconviction claims. in one particular instance, where the state happened to lose on an atkins claim in state court, the state AG didn't know that the yellow light during his opening argument did not signal that his time was over. when the panel noted he could either continue or save time for rebuttal, it became apparent that the AG's confusion was attributable to the fact that they're so unaccustomed to being the apppellant.
10.27.2006 3:25am
MS (mail):
Kovarsky,

When I was clerking, I got an appellee's brief from the federal public defender (suppression hearing) that was printed with a blue cover and labeled "Defendant-Appellant." It should have been funny, but it wasn't.
10.27.2006 11:05am