Rainwater Law Group

Effective Criminal Defense

Williams v Johnson, No. 07-56127 [October 21, 2016]

Williams v. Johnson

On remand from the United States Supreme Court. Williams claims that the dismissal of a holdout juror was a violation of her Sixth Amendment rights. The Supreme Court reversed the Ninth Circuit’s grant of the writ, after finding that the claim had not been “adjudicated on the merits in the State court,” holding “[w]hen a state court rejects a federal claim without expressly addressing that claim, a federal court must presume that the federal claim was adjudicated on the merits.” Thereafter, the Ninth Circuits order affirming the district court’s denial of the petition was vacated by the Supreme Court, instructing the Ninth Circuit to review the merits of the claim under the standard in 28 U.S.C. § 2254(d). Williams first claim that the inquiry of the juror violated the Sixth Amendment by impermissibly intruding on jury deliberations. The Court found that the hearing focused on the issue of jury bias, not on the nature of the jury’s devision and, therefore, “process employed by the trial judge was not contrary to, nor an unreasonable application of, Supreme Court authority.” Next, Williams argued that there was a reasonable probability that the juror was excused because of his views as to guilt or innocence, the theory on which the Ninth Circuit had previously granted the petition based on its case law. Under AEDPA review the court cannot rely on its own precedent and the Court found no controlling Supreme Court case, therefore, she is not entitled to habeas relief on this theory. William’s final argument is that state appellate court unreasonably approved the dismissal of the juror for bias. The Court rejected the argument finding that contrary to William’s argument the “state appellate court did find that Juror 6 was biased because he would not follow the law” an approved reason by the Supreme Court. Further, the finding was not unreasonable. Even if the trial judge did not make a finding that Juror 6 was unwilling to follow the law, the state appellate court did make such a finding.

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Visciotti v. Martel, No. 11-99008 [October 17, 2016]

Visciotti v. Martel

On Visciotti’s appeal to the California Supreme Court, it assumed that counsel afforded him “inadequate representation in some respects” during the penalty phase, but determined that he was not prejudiced and denied his petition. The district court granted his petition as to the penalty phase and the 9th Circuit affirmed. The Supreme Court in Woodford v. Visciotti 537 U.S. 19 (2002) summarily reversed the 9th Cir. On remand, the district court denied his remaining claims and he appealed that denial. He raised claims that 1) his counsel’s ineffective assistance during the guilt and penalty phases of his trial requires habeas relief as to the death sentence; 2) the trial judge’s closure of the death qualification voir dire proceedings violated his Sixth Amendment right to a public trial. The trial court held death qualification in chambers with only the court, counsel, a court reporter and, some of the time, Visciotti. His attorney did not object to this procedure, nor did the court make any findings of necessity. At trial, the prosecution agreed not to introduce a prior assault conviction, but Visciotti’s attorney had him testify about his prior criminal history. After that, the prosecution presented rebuttal testimony as to Visciotti’s description of the prior assault. At the penalty phase, the prosecution’s case consisted solely of the testimony of the victim of the prior assault. His attorney case was based on jury sympathy for Visciotti’s family who testified his was never violent to his family and was only violent when on drugs. Thereafter, the prosecution was allowed to call a second victim of his assault to rebut his non-violence. The California Supreme Court described Visciotti’s counsel penalty phase argument as “a rambling discourse, not tied to particular evidence.” [His lawyer was subsequently suspended from the practice of law for a laundry list of failures to his clients during the time he was representing Visciotti. Nevertheless, the California Supreme Court on habeas affirmed the conviction as Visciotti was not prejudiced by his attorney’s failures over a dissent who maintained that Visciotti’s counsel’s “abysmal across-the-board performance rendered the penalty phase of the trial a complete and utter farce.” On remand from the Supreme Court Visciotti argued that the California Supreme Court decision rested on an unreasonable determination of the facts and the 9th remanded to the district court to rule on the argument. Under the doctrine of the law of the case, the Court held it was bound by the prior Supreme Court decision and denied his petition on ineffective assistance grounds. While complaining about the practice of the Supreme Court of deciding the prior case without merits briefing or addressing all the issues, it was bound to follow that opinion. That decision also precluded the Court from considering his cumulative ineffective assistance of counsel issue at both the guilt and penalty phases. On the voir dire issue the Court held that the question of whether it could review the merits of Visciotti’s public trial claim turns entirely on whether he established trial counsel was ineffective and, therefore, excuse the procedure default. Under the highly deferential review of counsel performance, the Court could not find that any competent attorney would have objected to the sequestration of jurors during voir dire, give the law in 1983. Therefore, counsel’s failure to object was not deficient performance, and there is no cause to excuse his default of that claim. Both judges Berzon and Pregerson wrote a concurrence complaining about how the Supreme Courts summary reversal procedure prevents a full hearing of the issues because the parties do not fully develop their merits argument at the certiorari stage.

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McDaniels v. Kirkland, No. 09-17339 [December 24, 2015]

McDaniels v. Kirkland

The Court held that where evidence was presented to the state trial court but not to any state appellate court federal courts may consider the entire state-court record, including evidence presented only to the trial court. [The state waived any procedural default by failing to raise it below.] The Petitioners appealed their murder convictions in the California Court of Appeals on Batson grounds but failed to place “the entire record of voir dire before the California Court of Appeal, nor did they ask that court to perform a comprehensive comparative juror analysis.” [The court notes that the failure to augment the record may constitute a flaw in the fact-finding process that would make the decision based on an unreasonable determination of the facts.] The en banc Court remanded to the original three judge panel to “evaluate whether, in light of the whole state-court record, the California Court of Appeal’s rejection of Petitioners’ challenges to the strikes was based on an unreasonable determination of the facts.

On Remand at McDaniels v. Kirkland :

On remand from the en banc court the panel reconsidered petitioners’ contentions that the California Court of Appeal’s adjudication of their Batson claims was based on an unreasonable determination of the facts, after the en banc court “clarified that in assessing Petitioners’ claims, we are to ‘consider the entire state-court record, not merely those materials that were presented to the state appellate courts.’” The panel, finding the en banc decision "novel," after considering the entire state-court record again finds it was not based on an unreasonable determination of the facts and denied the petitioners’ habeas relief.

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