SIGNIFICANT DECISIONS REPORT FOR JUNE 26, 2017

Summertime, when the bloggin’ on court decisions is easy, because most sensible folks are taking vacations and enjoying the weather. Some of us, less sensible, altogether devoted to the grind of court blogging, and feeling the recent depredations of week-long hailstorms, must content ourselves with adventures of the mind, jaunting down avenues of legal logic and frolicking in the fields of certiorari.

United States Supreme Court

Luckily for us, June marks the end of the Supreme Court’s term, and so some of our juiciest opinions get released about now. This is a good turn, because the Court of Criminal Appeals did not release any published opinions this week, and even our courts of appeals were a little thin on the ground. No matter; the Supremes are here to rescue us. Let’s kick things off with a Texas case.

Davila v. Davis

Davila was convicted in Tarrant County of capital murder and sentenced to death. During the trial, Davila’s counsel objected to a transferred intent instruction, but the trial court overruled the objection and submitted the instruction. On direct appeal, the issue of the jury instruction was not raised by appellate counsel. Davila sought habeas corpus relief, and, as this was a death penalty case, was represented by an attorney on post-conviction review. His writ counsel did not raise the issue of transferred intent either. Next step in the process was federal habeas review under 28 U.S.C. § 2254, and during this proceeding, his writ counsel argued that appellate counsel provided ineffective assistance of counsel by failing to raise the jury instruction issue.

Ordinarily, under the old law, this type of error would not be cognizable in federal court because it was not presented to the state court of last resort. But in a pair of opinions over the last decade (Martinez and Trevino), we’ve changed federal writ procedure a bit to permit some ways of overcoming this type of procedural default.

The district court denied Davila’s § 2254 petition, holding that neither Martinez or Trevino provided a basis for excusing state habeas counsel’s failure to present the transferred intent claim. Davila sought certiorari, asking the United States Supreme Court to extend Martinez and Trevino to claims of ineffective assistance of appellate counsel.

Justice Thomas delivered the opinion of the Court, joined by Chief Justice Roberts, and associate Justices Kennedy, Alito, and Gorsuch. Justice Breyer filed a dissent, joined by Justices Ginsburg, Sotomayor, and Kagan. No real surprises in the breakdown of the opinion, a contentious 5-4 that would not have been any different with the addition of Gorsuch, because a 4-4 would’ve left the lower court’s decision alone.

Thomas wrote that the Court’s opinion was guided by two principles: first, the requirement of exhaustion of state remedies before seeking federal relief is a well-settled one, and second, a federal court may not review procedurally defaulted claims from state court. Thomas readily admits that a state prisoner may show “cause” to overcome these bars, but “cause” in this case means more than prejudice – there must be “some reason external to the defense” that “impeded counsel’s efforts to comply with the State’s procedural rule.”

For whatever reason, two capital-qualified state post-conviction attorneys did not raise the issue of the transferred intent instruction. Lacking as I do a crystal ball, but being a board-certified criminal appellate attorney, my guess is that even preserved charge error under Almanza is still a difficult row to hoe, because while only the “some harm” standard applies (rather than the harmless error standard), charge error isn’t often your winningest argument on appeal. Still, in the context of a fourteen-point-of-error brief and the associated habeas proceeding, there’s not much to gain from leaving it out.

Martinez and Trevino both dealt with the concept that I have frequently pushed in these posts, which is that ineffective assistance claims should typically not be raised on direct appeal. Because of that, there is a reason for procedural default of certain ineffective assistance claims – Texas law makes it rather difficult to raise them on direct appeal, and thus there’s not much opportunity to raise Martinez or Trevino claims, or so the theory goes.

Thomas claims that “ineffective assistance of appellate counsel, however, do not pose the same risk that a trial error—of any kind—will escape review altogether” (Slip op. at page 10). This I’m not sure I buy, if only because I generally object to the idea that appellate attorneys are not equally capable as trial attorneys of dropping the ball for a client. However, Thomas is correct in one respect – post-conviction habeas is the only venue to complain of ineffective assistance of appellate counsel. Thomas’s prediction of dire gloom, that Davila’s proposed rule “could flood the federal courts with defaulted claims of appellate ineffectiveness” rings true. There has not been a single criminal appeal I’ve worked, on either side of the bar, that featured every possible argument that could be raised. Appellate counsel, by our very nature, pick and choose which arguments we think will present the best. Adding in too many issues of marginal utility dilutes the better issues that you are raising.

So the question becomes – if state habeas counsel fails to raise a point of ineffective assistance of appellate counsel, should we continue to apply Coleman’s procedural bar? This question is much more fraught than I think the dissent gives it credit for being. First, only one class of cases receives mandatory habeas proceedings – death penalty cases. If the Court were to adopt Davila’s proposed rule, an entire class of prisoners—those who were convicted, had a direct appeal, but did not choose to pursue post-conviction relief—would have a claim they could bring in federal court, which is an imposition on state sovereignty. Second, while in this case it does seem somewhat inexcusable that Davila’s appellate counsel and habeas counsel did not raise the issue of transferred intent, I am not sure we want to open the can of worms that is “ineffective assistance of habeas counsel,” because there is no Sixth Amendment right to habeas counsel.

Weaver v. Massachusetts

In another watershed criminal case, the High Court distinguished between two types of structural error. Waitaminute, I hear you saying. You’ve already told us that there are two broad categories of error – normal error subject to harmfulness review, and structural error that is not. That’s true. And now we subdivide structural error into two classes.

Kennedy delivered the opinion, joined by the Chief, Thomas, Ginsburg, Sotomayor, and Gorsuch. Alito concurred in the judgment, and Gorsuch joined his concurrence. Breyer and Kagan dissented.

At issue in the trial was the right to a public trial, which, we must remark, is a structural error. Voir dire proceedings summoned more people than the courtroom could fit, and the defendant’s mother and her minister were excluded from the voir dire phase of trial. But this was not objected to, and thus not preserved for later review. And, as Justice Kennedy noted, not every violation of the right to a public trial “results in fundamental unfairness.”

The question, as Kennedy frames it, is what type of showing must a defendant make when he failed to preserve a structural error on direct review but raises it later in the context of an ineffective assistance of counsel claim. Kennedy answers that, in the context of ineffective-assistance-by-failure-to-complain-about-structural-error, a petitioner must show more than the brute existence of structural error – they must show prejudice, where prejudice means that defendant must show “a reasonable probability of a different outcome but for counsel’s failure to object.” So that makes a third category of structural error – structural error + ineffective assistance of counsel = reviewed for “prejudice.” Have fun, kids.

Lee v. United States

Lee, a childhood immigrant to the United States and lawful permanent resident, got narced out by an undercover for selling ecstasy and weed (nota bene: according to the opinion, it was 200 pills of ecstasy and two ounces of marijuana over eight freakin’ years, which, by my bad lawyer’s math, is about 2 pills a month and a quarter ounce a year – hardly Tony Montana territory). Lee retained counsel and entered into a plea bargain. Central to Lee’s concerns were whether he would be deported to a country he had not been to since he was a preteen. Lee’s counsel foolishly told him that he would not face deportation, and under Padilla v. Kentucky, that’s a big no-no. The answer to the question asked by your client of “will I be deported?” is almost invariably “yes, you will.”

The State sought to argue against the Padilla rule by pointing out that Lee didn’t have much a defense anyway, and would’ve been convicted regardless. But Chief Justice Roberts, joined by Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, disagreed. Thomas and Alito dissented, and Gorsuch sat this one out.

The Chief held that in cases of ineffective assistance of counsel leading to a plea, the correct standard is not “would the client have won at trial” but “would the client have chosen to have a trial instead of pleading guilty?” And since it’s inarguable that Lee’s counsel was ineffective under Padilla, that means relief granted to Lee.

Thomas calls this a “novel standard for prejudice at the plea stage,” but he’s not actually correct. Chief Justice Roberts is correct that ineffective assistance of counsel leading to a plea is judged by the standard of whether, but for the erroneous advice, the defendant would have pleaded guilty. Even a fool’s errand of a trial is still a right a defendant has, and should exercise, when nothing is to be gained by a plea.

Turner et al. v. United States

In a split opinion, Breyer delivered the opinion, joined by the Chief, Kennedy, Thomas, Alito, and Sotomayor. Kagan dissented, joined by Ginsburg, and Gorsuch took no part in the case. The award for this week’s strangest majority coalition goes to this case.

This is a Brady case, so pay attention. The seven petitioners were indicted for the kidnapping and murder of a woman. At issue were undisclosed notes written by a police officer and the prosecutor which referred to an interview with a witness, Davis, who identified an alternative perpetrator. The prosecutor later said he didn’t disclose Davis’s statement because he felt like she was lying and not serious. The government admitted this (and other) evidence was favorable, but contested its materiality. This brings us back to a familiar standard – if the evidence had been disclosed, would the result have been different? The majority answers no, and therefore,  even though the government withheld material, favorable, evidence, there is no relief for the seven defendants.

Alvarez v. Brownsville

This is a case only tangentially related to criminal law, but it’s personal to me, so we are gonna talk about it. George Alvarez pleaded guilty to assault on a public servant. After conviction, he filed a post-conviction writ (this is where I come in) and produced a video that cast doubt on the facts. The video was not disclosed. I told the habeas court that the State would not oppose a new trial with the new evidence, but would not agree to an actual innocence finding. The trial court overruled me, and he was found “actually innocent,” which the Court of Criminal Appeals agreed with. After that, Alvarez filed a lawsuit against the city, claiming a violation of his civil rights under 42 U.S.C. § 1983. The federal district court granted Alvarez summary judgment, and after a damages-only trial, he won a substantial award.

The Fifth Circuit reversed and rendered a judgment of dismissal. Pleading guilty “precludes [a defendant] from asserting a Brady claim under § 1983” (slip op. at page 8).

So for those of us who are dealing with Brady claims, if your client pleads guilty, they cannot assert a claim under § 1983. Your client’s constitutional right to exculpatory evidence is a trial right.

Fourth Court of Appeals

Our only other case of note comes to us from sunny San Antonio, in Murray v. State, No. 04-16-00227-CR, in which Murray was convicted of compelling prostitution. Normally, this type of case is cause for an allusion about how hard life is for a pimp, but in this case, Murray compelled the prostitution of a minor, and so he does not deserve our humor. To support his conviction, the State sought a search warrant for Murray’s Facebook, the service he used to solicit Johns for his victim.

The affidavit for the search warrant was based largely off the child victim’s statement, and as a named person, her word alone would be sufficient to establish probable cause.

The second issue on appeal was whether the Facebook evidence was properly authenticated. The State provided a self-proving affidavit with the records, which satisfies Rule of Evidence 902(10)(B). However, because of Murray’s conduct on the Facebook account, he provided details which corroborated its authenticity, and an appellate court will not disturb a trial court’s admission of evidence absent an abuse of discretion.

That, ladies and gents, is it for this week’s go-round. Tune back in next week!

About Lane A. Haygood

Lane A. Haygood is a board-certified criminal appellate lawyer who practices throughout the State of Texas. Contact him at http://www.haygoodlawfirm.com

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