Monday, May 30, 2005

Circuit Grants Habeas Based on Trial Court's Refusal to Admit Exculpatory Testimony of a Defense Witness from a Previous Trial

Christie v. Hollins, Docket No. 03-2878 (2d Cir. May 27, 2005) (Newman, Pooler, Katzmann) (Op. by Newman): A fabulous week for habeas petitioners: This is the second time in one week that the Circuit has reversed a district court's denial of habeas and granted the writ. See Henry v. Poole, below. Here, Judge Newman concludes that the trial court's refusal to allow the defense to introduce a witness's exculpatory testimony from the defendant's first trial (at which the jury acquitted the defendant of the two more serious counts, and hung on the third count), despite the defendant's herculean efforts to ensure the presence of the witness at the second trial, violated the defendant's right to present a defense at trial. This was so even applying AEDPA deference: The state courts' determination that (1) the defense had not made diligent efforts to securethe witness's presence at trial, and (2) the absence of the testimony made no difference to the outcome, was an unreasonable application of clearly established federal law.

Circuit Excises Section 3553(b)(2) in Light of Booker, and Will Review Departure Decisions under Abuse of Discretion Standard

United States v. Selioutsky, Docket No. 04-2740 , (2d Cir. May 27, 2005) (Newman, Wesley, Hall) (Op. by Newman): This is yet another opinion by Judge Newman fleshing out some important details of the post-Booker sentencing (and appellate) world left unresolved by Booker itself. In this case, the Circuit (1) excises Section 3553(b)(2), which required mandatory application of the Guidelines, except for a few very narrow departure grounds, in child pornography and other sex offense cases; and (2) holds that it will review departure decisions by district courts under the pre-PROTECT Act standard of review -- abuse of discretion. Additionally, the Court clarifies that although Booker implements a general standard of reasonableness in evaluating the propriety of a sentence on appeal, the Court will review legal questions leading to the imposition of that sentence de novo, questions of fact under the clearly erroneous standard, and mixed questions of law and fact under either the de novo standard or the clearly erroneous standard depending on whether the question is more legal or more factual (citing Vasquez, 389 F.3d 65 (2d Cir. 2004)). Finally, the Court also continues its trend -- beginning with Rubenstein -- of evaluating whether the district court properly determined the advisory Guidelines range (including departures), and of remanding for resentencing when it determines that that range was improperly calculated (again including departures) -- even while paying lip service to the rule that a sentence may be upheld as reasonable even where the Guidelines range was improperly calculated. Nonetheless, the Court admitted that even where an error led to the imposition of the final sentence, it may affirm that sentence if the record shows that (1) the district court would have imposed the same sentence absent the error, and (2) the sentence itself is reasonable.

The essential facts are very simple. Defendant pled guilty to possessing child pornography and faced a Guidelines sentence of 60 months (because the range of 70 to 87 months exceeded the 5-year statutory maximum). He sought a downward departure at the pre-Booker sentencing on the basis of exceptional family circumstances -- defendant lived with and provided some unspecified financial support to his elderly parents, one of whom was scheduled to have surgery soon. Although defendant had a brother in Pennsylvania, the record does not indicate whether that brother would have assisted their elderly parents if defendant were incarcerated. The record also showed some uncertainty about whether defendant intended to move to Florida to rejoin his own family even if he were not incarcerated.

Despite these uncertainties and a relatively weak record, the district court departed downward and imposed a 30-month sentence. The Government appealed.

The first question faced by the Court was whether Section 3553(b)(2) survives Booker. This Section requires sentencing courts to impose a sentence within the Guidelines range in all child sex offense and other similar cases, absent facts warranting a departure specified by the Guidelines. Booker of course excised Section 3553(b)(1), which also generally required a district court to impose a sentence within the Guidelines range absent a departure, but did not address the continuing viability of its sister provision for the simple reason that neither Booker nor Fanfan had been convicted of a child sex offense.

The Circuit disposed of this question quickly, concluding that the same rationale that led to Section 3553(b)(1)'s excision in Booker -- i.e., mandatory Guidelines violate the Sixth Amendment -- yields the same result for Section 3553(b)(2). Importantly, the Circuit ruled that Section 3553(b)(2) was invalid in its entirety, and not simply in its requirement of a Guidelines sentence. Op. at footnote 6. Therefore, in determining whether to depart downward in a child sex offense case, a district court is no longer constrained by the narrow grounds specified in Section 3553(b)(2), and may depart on any ground justifying a departure in any other case.

The Court went on to discuss the applicable standard of review in evaluating the appropriateness of the downward departure. Although Booker excised Section 3742(e) and replaced it with a standard of "reasonableness," the Circuit explained (citing Crosby) that a sentence may be unreasonable not only as to its length, but also because of procedural errors leading to its imposition. And while the Circuit may overlook any such errors and proceed to the ultimate question of whether the sentence imposed is reasonable or unreasonable (regardless of any errors), it may also notice any such errors and remand for resentencing without such errors instead. As the Court explained, such errors "could render a sentence unreasonable under Booker."

The Court clarified that in performing its appellate function of reviewing such "procedural errors" in sentencing, it will be governed by the same standards that it used before Booker. Thus, legal questions will be reviewed de novo, factual determinations will be reviewed under the clearly erroneous standard, and mixed questions of law and fact will be evaluated under either the de novo standard or the clearly erroneous standard depending on the nature of the question presented (following the procedure outlined by Vasquez, cited above). And as for departure determinations, the Court ruled -- citing Koon for support -- that it will use the pre-PROTECT Act standard of review: Abuse of discretion.

Applying that standard, the Court concluded that the departure was not warranted and remanded the case for further fact finding. Specifically, the Court required the district court to determine on remand whether (1) defendant's brother would be available to care for the parents were defendant incarcerated, and (2) defendant actually intended to remain with the parents in Brooklyn (rather than move to Florida to join his own family) were he not incarcerated.

Finally, the Court addressed the possibility that the sentencing court may have imposed the same 30-month sentence even absent the erroneous departure as a "non-Guidelines" (or variance) sentence after Booker. See foonote 7. If the record supported such a finding on appeal, and if the Circuit determined that a 30-month sentence was not unreasonable, any error in departing would be deemed harmless. However, because the record did not clearly demonstrate that the court would have imposed the same sentence absent the departure (it was a pre-Booker sentencing, after all), remand was required.

Thursday, May 26, 2005

Circuit Grants Habeas on IAC Claim, and Suggests Need for En Banc Review of Whether New York's IAC Standard Is "Contrary to" the Strickland Standard

Henry v. Poole, Docket No. 03-2884 (2d Cir. May 24, 2005) (Oakes, Kearse, Sack) (Op. by Kearse): This probably happens once in a blue moon: Judge Weinstein denies habeas, but the Circuit reverses and grants habeas. But, alas, that is what occurred in this case. The Circuit, by Judge Kearse, ruled that state trial counsel was ineffective for advancing a "fallacious" alibi defense at trial. The decision also has an interesting discussion on whether New York State's IAC standard, see People v. Benevento, 91 N.Y.2d 708, 697 N.E.2d 584 (1998), is "contrary to" the federal Strickland standard for purposes of AEDPA deference. Although the Circuit held in an earlier case that the two standards are not contrary to each other, see Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir. 2001), both Judge Kearse and Judge Sack, in a separate concurrence, apparently disagree with that earlier case and suggest that en banc review of the question may be required in an appropriate case. This case is not that case, however, because the Court ruled that habeas should be granted even applying AEDPA deference to the state court's decision on the IAC question.

The opinion is classic Judge Kearse -- very long & detailed. But the essential facts are as follows. Victim is a livery car driver who was robbed at gunpoint by several men shortly after midnight on August 10th. Three weeks later, petitioner Henry is arrested on an unrelated charge, and for unknown reasons put in a lineup for the earlier robbery. Victim IDs Henry the robber with the gun, even though Henry doesn't come close to fitting the discription given earlier by the victim. At trial, the sole evidence against Henry was the driver's shaky ID.

Defense counsel thoroughly challenged the victim's ID of Henry. Additionally, counsel promised to the jury that his client had an alibi, and then called the defendant's girlfriend to testify on this point. The girlfriend testified that the defendant was with her during the day and into the late evening of August 10th -- which is of course about 24 hours after the robbery. Although the prosecutor noticed this on cross, and demonstrated that the girlfriend's evidence did not actually consitute an alibi, defense counsel somehow did not. Counsel continued to characterize the girlfriend's testimony as an alibi during his summation.

The prosecutor exploited this mistake during his summation. After pointing out the obvious fact that the girlfriend's testimony was irrelevant to whether defendant robbed the victim shortly after midnight on August 10th, the prosecutor turned the defense's blunder against the defendant. He argued that this "false" testimony was fabricated by the defendant, and suggested that this was evidence of consciousnes of guilt. (This argument really does not make much sense: The girlfriend's testimony was not "false" in any way, but simply irrelevant. Her testimony would constitute "fallacious" alibi evidence only if she claimed to be with the defendant at the time of the robbery, and this claim proved to be inaccurate. Here, the girlfriend testified truthfully (or at least was not contradicted on this point) that she was with the defendant about 24 hours after the robbery. Again, this is not false, but simply irrelevant.). Defense counsel did not object to this line of argument.

The Circuit concluded that defense counsel's presentation of "fallacious" alibi evidence constituted ineffective assistance. The difficult point was the prejudice component of the Strickland test -- after all, if counsel did not even have to raise an alibi defense, how does his failed attempt to present alibi evidence harm the defendant? After all, counsel (concededly) attacked the victim's ID testimony aggressively and thoroughly, and this line of defense stood independent of the failed alibi defense. Judge Weinstein relied on this point in denying habeas. Nonetheless, Judge Kearse concluded that counsel's error created a reasonable probability of a different result, finding that "the State's weakened case was bolstered . . . by the false alibi evidence." The Court noted that the prosecutor "capitalized on counsel's reliance on the fallacious alibi evidence by arguing that the alibi was fabricated and suggesting that" this was evidence of consciousness of guilt by the defendant. The Court thus concluded that counsel's blunder in presenting "false" alibi evidence prejudiced his client in a case with weak evidence of his guilt. The Court also concluded that the New York Court of Appeals's contrary determination on this question was an "unreasonable application" of Strickland.

One suspects that the outcome of this case depended heavily on the serious doubt concerning Henry's guilt, which was established solely by very shaky ID testimony. Additionally, although the opinion purports to apply AEDPA deference to the New York court's determination that Henry had not demonstrated a Sixth Amendment violation, that is a bit hard to swallow. More likely, the Panel's clear belief that the New York IAC standard is in fact "contrary to" the Strickland IAC standard informed its purported application of AEDPA deference.

Wednesday, May 25, 2005

Second Circuit Criticizes Supreme Court Rationale in Hodari D.

U.S. v. Swindle, Docket No. 03-1773 (2d Cir. May 11, 2005) (Feinberg, Cardamone, and Parker)(Op. by Feinberg)

In a refreshingly frank decision, the Second Circuit upheld the denial of a suppression motion, finding that it was "constrained by relevant Supreme Court precedent" in affirming the legality of a seizure. In doing so, the Court was highly critical of that precedent -- California v. Hodari D., 499 U.S. 621 (1991) -- finding no "principled basis" for the decision.

The facts of Swindle are straightforward. While on patrol in an unmarked car in Buffalo, police were searching for a suspect whose physical description did not match that of the defendant, Swindle. While patrolling, they saw Swindle exit a "known drug house" that the suspect had supplied in the past, get in a car that resembled a car that the suspect had "been seen near" and drive away. The officers followed the car for a short time and then flashed their lights and attempted to pull him over. Swindle disobeyed the order, continued to drive, committed several traffic infractions, tossed a bag of crack cocaine outside the car, and fled on foot after eventually pulling over. The police caught him and charged him with possessing the crack.

The Court held that the police officer's initiation of the flashing lights constituted an order to stop. The Court further found that the police had no basis under Terry to initiate such a stop. Mr. Swindle did not match the description of the suspect they were looking for, he was not driving the same car as the suspect's (only a similar make to a car the suspect had "been seen near") and he had not committed any traffic infractions. In sum, "Swindle was simply a black man in a high-crime area driving a car that the wanted fugitive had previously been seen 'near." The Court was strongly critical of the officers conduct, calling it "a clear abuse of police authority." The Court thus had "no difficulty concluding that the officers acted unreasonably in ordering Swindle to pull over."

Unfortunately for Mr. Swindle, the Court felt constrained by Hodari D. in finding that the conduct to be evaluated for judging probable cause for a seizure includes the defendant's conduct after the unreasonable order to stop but before he was actually seized. Thus, even though the initial order to stop (by flashing police lights) was unreasonable and without cause, Mr. Swindle's subsequent conduct of violating traffic laws, tossing the drugs and fleeing on foot, did provide the officers with probable cause for the seizure. The Court did suggest, however, that Mr. Swindle might have a civil remedy for the abusive police conduct: "Although we are precluded from from holding that the officers' unreasonable order violated the Fourth Amendment, we believe that it was an abuse of authority for which Swindle and others like him might seek redress under a source of authority such as the Fourteenth Amendment or some provision of state law."

Mr. Swindle also argued that the initial order to stop was itself a seizure. While the Court was sympathetic to this argument, it once again felt constrained by Supreme Court precedent. In addition to Hodari D., the Court cited County of Sacramento v. Lewis, 523 U.S. 833 (1998) holding that "a police pursuit in attempting to seize a person does not amount to a 'seizure' withing the meaning of the Fourth Amendment." The Court was clearly troubled by this rule, noting that "a substantial argument could be made that a broader definition of 'seizure' -- or some other remedy -- is required to adequately protect Fourth Amendment values from the harms flowing from police initiation of Terry stops without reasonable suspicion."

The Court concluded with a final lament about the Hodari D. line of cases:

"Even if the kind of order given in Swindle's case is rare -- and we do not suggest that it is -- we see no persuasive reason for the law to tolerate it. In view of what we believe to be the controlling cases, however, we must affirm a conviction that was achieved with evidence obtained by an abuse of police power. A remedy for Swindle's Fourth Amendment complaint can come only from higher authority."

Whether that "higher authority" refers to SCOTUS or some other more-ethereal being, it would appear that Mr. Swindle's chances of ever receiving satisfaction from his Fourth Amendment claim are equally poor.

Posted by David Patton

Thursday, May 19, 2005

A Second 2255 Petition Need Not Satisfy 2244's Stringent "Gatekeeping" Requirements If Filed Before the First Petition Has Become Final

Usama Whab v. United States, Docket No. 05-1214 (2d Cir. May 19, 2005) (Walker, Leval, Duplantier) (Op. by Leval): This is a surprisingly good, pro-defendant opinion -- in a case litigated by a pro se petitioner, no less. (Two cheers for the Court!) Essentially, the Circuit held that if a defendant files a second 2255 motion before his first 2255 petition has become "final" (i.e., before the time for seeking cert. on the first petition has run), the defendant need not satisfy 2244(b)(3)(A)'s rigorous requirements for "second or successive petitions" (including the requirement of prior approval from the Circuit before filing) . While the traditional "abuse of the writ" doctrine would still apply to such petitions, a petitioner need not satisfy 2244's gatekeeping requirements in such a situation.

The essential facts are as follows. After the Circuit affirmed his conviction on direct appeal, Whab filed his first 2255 petition in April 2004. The district court dismissed the petition, and denied as well as a COA. Whab then sought a COA from the Circuit.

While that request was pending, Whab filed a new application in the Circuit in March 2005, seeking permission under 2244 to file a second 2255 petition. While this new application was pending, the Circuit denied the COA request on the first petition, in April 2005.

This opinion deals with Whab's application to file a second 2255 petition. The Circuit ruled that Whab did not need to satisfy 2244's gatekeeping provision because that provision is triggered only when the subsequent petition is filed after the first petition has become final. And because Whab's first 2255 petition was still pending in the Circuit (in the form of the request for a COA) when he filed his second 2255 petition (in the form of the application for permission to file a second petition he filed in the Circuit), 2244's gatekeeping provision does not come into play. As the Court summarized, "so long as appellate proceedings following the district court's dismissal of the initial petition remain pending when a subsequent petition is filed, the subsequent petition does not come within AEDPA's gatekeeping provisions for 'second or successive' petitions." Op. at 4. The Court thus transferred Whab's second 2255 petition to the district court, and instructed the district court to consider the petition without subjecting it to 2244's rigorous standard. Op. at 6.

Finally, the Court explained in a lengthy footnote that its opinion should "not be misconstrued as providing a free pass to prisoners to file numerous petitions before an initially filed petition is finally adjudicated on the merits." Op. 6 n.2. This is so because even though 2244's gatekeeping requirements do not apply in such cases, the traditional "abuse of writ" doctrine does. Id. (citing McClesky v. Zant, 499 U.S. 467 (1991)).

This is true enough -- but only to a point. Section 2244's requirements are far more difficult to satisfy than the court-created abuse of writ standards. Thus, it may well behoove a defendant in such a situation to file a second 2255 before his first has become final.

Thursday, May 05, 2005

Does a District Court Have the Authority to Use the Beyond-a-Reasonable-Doubt Standard at Sentencing after Booker?

United States v. Evelyn Gonzalez, Docket No. 04-1956-cr (2d Cir. May 3, 2005) (Meskill, Calabresi, Wesley) (Op. by Meskill): This odd case has already received a good deal of attention from Professor Berman and others. And rightly so, for it seems to suggest -- if only in dicta and only by silence -- that a district court has the authority, after Booker, to use the beyond-a-reasonable-doubt ("BRD") standard of proof to determine facts relevant to Guidelines enhancements.

The facts are simple. The defendant was charged with conspiracy to distribute 5 kilograms of cocaine. She was convicted at trial by a jury. However, in response to two questions, the jury specfically found that Ms. Gonzalez's offense did not involve either 5 kilograms or more, or 500 grams or more, of cocaine.

At the pre-Booker sentencing, the Government relied on Watts to argue that in determining the appropriate offense level, the district court should overlook the jury's verdict and find by a preponderance of the evidence that the defendant had conspired to distribute at least 5 kilograms of cocaine. The district court, "refusing to vitiate the jury's drug weight finding," Op. at 5, rejected this argument and determined -- consistent with the jury's verdict -- that the defendant had conspired to distribute at least 400 grams but less than 500 grams of cocaine. It did so despite "stat[ing] that the two kilograms of cocaine that Gonzalez's husband possessed when he was arrested was foreseeable to Gonzalez and could theoretically form the basis of its sentencing calculation." Id.

The defendant appealed (challenging her conviction & sentence on other grounds), but the Government did not. Regarding the sentence, the Panel of course ruled that a Crosby remand was appropriate. Op. at 10-11.

In addition, the Court rejected the defendant's very odd "rule of lenity" argument; she claimed that the "factual ambiguity" regarding the amount of drugs for which she should be held responsible should be resolved in her favor. The Court quickly rejected this argument, pointing out that the rule applies only to the resolution of ambiguous statutes (and Guidelines), not ambiguous facts.

Moreover, the Court pointed out that using such a rule to resolve factual ambiguities would "straightjacket a district court in exercising its authority -- that endures post-Booker -- to resolve disputed facts by a preponderance of the evidence when arriving at a Guidelines sentence." Op. at 13. The opinion essentially ends there.

Quite surprisingly, the opinion says nothing about the district court's apparent refusal to use the preponderance standard to determine the appropriate Guidelines range. As noted, the district court -- contrary to Watts -- clearly deferred to the jury's conclusion that the Government had not established BRD that the defendant was responsible for more than 500 grams of cocaine when it sentenced the defendant. And if the district court did not have the authority to disregard the preponderance standard in favor of the BRD standard, one would have expected the Circuit to say something about this. It did not, however.

The most logical reading of this case, then, is that while the district court has the "authority" to use the preponderance standard to resolve sentencing disputes, Op. at 13, it also has the authority to use the higher, BRD standard. This is only dicta, however, and only by implication. Nonetheless, the opinion should be of value to attorneys trying to convince a district court to use the BRD standard at sentencing.