News

Habeas Hints: Staring Down the Two-Headed Monster: Richter-Pinholster

Feb 7, 2014 No Comments

By Kent Russell

This column provides “habeas hints” to prisoners who are considering or handling habeas corpus petitions as their own attorneys (“in pro per”). The focus of the column is on the Antiterrorism and Effective Death Penalty Act (AEDPA), the federal habeas corpus law which now governs habeas corpus practice in courts throughout the United States.

Part Two of Two

Harrington v. Richter,
131 S.Ct. 770 (2011)

Cullen v. Pinholster,
131 S.Ct. 1388 (2011)

In Richter, the U.S. Supreme Court (SCOTUS) made ineffective assistance of counsel (IAC) claims – heretofore the staple of habeas corpus litigation – even harder to win on federal habeas corpus than they were before; and in Pinholster the Court all but eliminated federal evidentiary hearings as an aid to satisfying AEDPA’s requirement that a state court’s denial of habeas relief be shown to be “unreasonable.” The decisions in Richter and Pinholster represent a two-headed monster that habeas petitioners will frequently face and have to stare down.

In this two-part column, I discuss these two important cases and suggest some Habeas Hints for how to make the best of them. In Part One we focused on Richter. [See: PLN, Nov. 2013, p.12]. Here, in Part Two, we will zero in on Pinholster.

Pinholster concerned a defendant charged with capital murder in California after he solicited friends to rob local drug dealers and, when the dealers tried to prevent the robbers’ escape, beat and stabbed them to death. After his arrest, Pinholster threatened to kill a cooperating witness unless he kept quiet. At the guilt phase of the trial Pinholster stupidly testified in his own defense – boasting that he had committed hundreds of robberies while insisting that he always used a gun, even though he had a history of having kidnapped a person while using a knife. The jury found him guilty of two counts of first-degree murder, triggering the penalty phase of the trial.

Shortly before the penalty phase started, the defense moved to exclude any aggravating evidence on the ground that the prosecution had not provided notice to use such evidence as required under California law. The motion was denied on the basis that Pinholster had represented himself at a previous stage of the case, during which the required notice had been given. Defense counsel then stated that, having banked on the court’s grant of the motion to exclude, he was not prepared to offer any mitigating evidence. The court inquired whether a continuance might be helpful but counsel declined, saying that because he couldn’t think of any mitigation witness other than Pinholster’s mother, having more time wouldn’t matter.

U.S. Sentencing Commission Votes for Two-Level Reduction for Drug Offenders

Jan 13, 2014 No Comments

By Craig Coscarelli

In a vote that may not be historic but is still very important and a sign of the times, the US Sentencing Commission earlier yesterday voted to publish proposed amendments to the federal sentencing guidelines which include an across-the-board reduction in the sentences recommended for all drug offenses. This official press release effectively summarizes and contextualizes this proposed amendment and others that were voted upon at the USSC’s public meeting:

The United States Sentencing Commission voted January 9, 2014 to publish proposed guideline amendments, including possible reductions to the sentencing guidelines levels for federal drug trafficking offenses. Another proposed amendment addressed implementation of the Violence Against Women Reauthorization Act of 2013.

The bipartisan Commission voted to seek comment on a proposed amendment to lower by two [2] levels the base offense levels in the Drug Quantity Table across drug types in guideline § 2D1.1, which governs drug trafficking cases. Commission analysis indicates that such a change in the guidelines would result in a reduction of approximately 11 months for those drug trafficking offenders who would benefit, resulting in a reduction in the federal prison population of approximately 6,550 inmates by the fifth year after the change.

With this reduction, the sentencing guideline penalties for drug traffickers would remain consistent with pertinent drug trafficking statutes, including existing 5 and 10 year statutory mandatory minimum penalties, by structuring the Drug Quantity Table based on levels 24 and 30 (which correspond to a guideline range of 51 to 63 months and 97 to 121 months, respectively), rather than the existing levels of 26 and 32 (which correspond to 63 to 78 months and 121 to 151 months, respectively).

Texas Judges Rarely Disciplined, Seldom Publicly

Jan 8, 2014 No Comments

By Matt Clarke

In 2009, former Harris County, Texas state district judge Woodrow “Woody” Densen was caught on surveillance video keying a neighbor’s car, causing significant damage. The video received widespread media coverage. He pleaded guilty to a misdemeanor charge of criminal mischief and agreed to pay a $1,500 fine and over $6,000 in restitution. [See: PLN, June 2010, p.50; Aug. 2009, p.1].

Six months later, in October 2010, the State Commission on Judicial Conduct (SCJC) imposed disciplinary sanctions on Judge Densen: It gave him a public warning.

The slap on the wrist that Densen received was infinitely more discipline than the SCJC meted out to the vast majority of judges who were the subject of complaints. Less than 4% of the 1,192 complaints against judges received by the SCJC in fiscal year (FY) 2011 resulted in any disciplinary action.

For example, on August 4, 2011, PLN managing editor Alex Friedmann filed a complaint with the SCJC against Angelina County Judge Derek C. Flournoy, related to comments made by Judge Flournoy in a criminal case. Following a sentencing hearing, Flournoy was quoted in a news report as saying to the defendant, Marco Sauceda, “I haven’t heard from you and I have no idea why you didn’t speak [at the sentencing hearing]. That causes me some trouble.”

According to Friedmann’s complaint, “In drawing a negative inference from Mr. Sauceda’s decision not to testify or speak, Judge Flournoy ran afoul of over four decades of Supreme Court jurisprudence that prohibits courts from penalizing or drawing negative inferences when defendants exercise their Constitutional right not to speak or testify.” The complaint noted that the Supreme Court had specifically addressed this issue in Mitchell v. United States, 526 U.S. 314, 330 (1999), and the Texas Court of Appeals had acknowledged that defendants have a right to remain silent during sentencing hearings in Lucero v. State, 91 S.W.3d 814, 816 (Tex. App. 2002).

Regardless, the SCJC declined to take any disciplinary action against Judge Flournoy – a typical outcome for most complaints filed against Texas judges.

Rethinking Life Behind Bars

Dec 11, 2013 No Comments

By Dianne Frazee-Walker

“Courtney called out, ‘Mom, you promised you weren’t going to leave us no more,’ ” Ms. George recalled, her eyes glistening. “I still hear that voice to this day, and he’s a grown man.”

Stephanie George, serving a life sentence without parole in Louisiana for a minor drug infraction still recalls the heartbreaking pleas from her eldest of 3 sons, Courtney, then 8, in 1997.

Ms. George is one of a half a million people in the U.S. locked away in prison for non-violent drug crimes.

When Ms. George was sentenced 15 years ago, her children were 5, 6 and 9. They have been raised by her sister, Wendy Evil, who says it was agonizing to take the children to see their mother in prison. They would fight over who gets to sit on their mother’s lap.

A lockbox, containing a half-kilogram of cocaine seized by police in Ms. George’s attic was sufficient evidence for Judge Vinson to be convinced of a crime severe enough for Ms. George to be separated from her children for the rest of her life.

Judge Vinson, whose reputation is anything but libertarian, defends that a formula dictated by the amount of cocaine in the lockbox and her previous criminal record was what determined Ms. George’s sentence.

Ms. George and Judge Vinson had conflicting views about the cocaine filled lockbox stashed away in Ms. George’s home. Ms. George claimed the cocaine was hidden in the attic and she was not aware it was hidden in her house. She insisted her drug dealing boyfriend placed the cocaine in the lockbox and hid it in the attic.

Originally, Ms. George and Judge Vinson did agree on the fairness of the sentence imposed by federal court because Ms. George was a known drug dealer and the cocaine was found in her house, even though her boyfriend was responsible for putting it there. The punishment for drug possession does not entail a life sentence.

Sixth Circuit Rejects Racial Disparity Challenge To Crack Cocaine Sentences, Reverses Panel That Applied Fair Sentencing Act Retroactively

Dec 9, 2013 No Comments

By Christopher Zoukis

On December 3, 2013, the United States Court of Appeals for the Sixth Circuit, sitting en banc, rejected a challenge to the federal crack cocaine sentencing regimen that had been held unconstitutional in May by a three-judge panel of the Court. By a 10-7 margin, the full court ruled that the crack cocaine sentences handed down to two black defendants, withstood review for racial disparities under the Fifth and Eighth Amendments to the United States Constitution. The Court also ruled that Sentencing Guidelines relief from mandatory minimum sentences provided by the Fair Sentencing Act of 2010, Pub. L. 111-220, 124 Stat. 2372, would not be applied retroactively under 18 U.S.C. § 3582(c)(2). United States v. Blewett, Case No. 12-5226, 5582 (6th Cir., 12/3/12)(en banc).

The en banc court reversed a controversial decision by a three-judge panel of the same court that equated the federal crack cocaine sentencing regimen with “slavery and Jim Crow laws,” and vacated the sentences of two black defendants as violation of the equal protection clause. See United States v. Blewett, 719 F.3d 482, 493 (6th Cir. 2013), vacated (July 11, 2013).

The en banc court ruled that the Blewett defendants’ claim of an equal protection clause violation, due to the crack sentencing laws having a disparate effect on blacks, failed because prior decisions of that court had already addressed the issue, see, e.g., United States v. Williams, 962 F.2d 1218, 1227 (6th Cir. 1992), and that an Eighth Amendment concern over the length of their sentence were negated by Supreme Court decisional law that had upheld far more onerous punishments for drug dealing than the 10-year sentences imposed on Cornelius Blewett and his cousin, Jarreous Blewett. See Harmelin v. Michigan, 501 U.S. 957, 965 (1991)(upholding life-without-parole sentence for 672 grams of cocaine).

Ryan Ferguson Released

Dec 6, 2013 No Comments

By Dianne Frazee-Walker

Last Tuesday morning when inmate #1137593 bent down to tie his shoes, he did not know what the rest of the day would bring.

The inmate’s name was Ryan Ferguson.

Ferguson remained neutral with his emotions because had been through the same scenario before. He was holding back from getting his hopes up that this would be the last day he spent behind bars. Ferguson had served ten-years of a 40-year sentence for a murder he claims he did not commit.

November 12, 2013 turned out to be Ferguson’s lucky day. Just seven-hours later, a composed Ryan Ferguson was surrounded by probing reporters outside the Tiger Hotel in Columba, Missouri. After ten years of being incarcerated for murder, 29-year-old Ryan Ferguson was finally exonerated and set free.

The main question inquiring minds want to know about Ferguson is this: is he bitter about having a decade of his life snatched away from him? Ferguson was a 20-year-old college student when he was arrested. He spent all of his 20s incarcerated.

Amazingly, Ferguson is more interested in moving forward with his new life on the outside than seeking revenge. He has even forgiven his friend that initially lied about his involvement in the murder. Ryan now wants to start a campaign to free this man.

On Halloween night, 2001, Ferguson and his friend, Charles Erickson went out for a night on the town. They engaged in a night of underage drinking until the bars closed at 1:00am. According to Ferguson, Erickson dropped him off at home and he went to sleep. During the wee hours of the morning, Kent Heitholt, sports writer for the Columbia Daily Tribune was brutally murdered in the parking lot of his office.

California Governor Approved Parole for 377 Life-Sentenced Murderers in 2012

Dec 3, 2013 No Comments

By John E. Dannenberg

Last year, California Governor Jerry Brown approved four out of every five parole grant decisions by the Board of Parole Hearings (Board) for prisoners convicted of murder, sentenced to life with parole. Totaling parole grants for 377 lifers, Brown’s record dwarfs the scanty parole approvals of his predecessors, Arnold Schwarzenegger and Gray Davis.

California’s parole process for life-sentenced murderers has been stymied for decades by governors who fear the political repercussions of paroling lifers, based on what happened to former Massachusetts Governor Michael Dukakis. Dukakis had permitted a violent prisoner serving a life sentence, Willie Horton, to have a weekend furlough; while on furlough Horton committed additional violent crimes, including armed robbery, assault and rape.

When Governor Dukakis later ran for President in 1988, his rivals produced a TV ad depicting a revolving door that showed him giving furloughs to violent felons. The infamous ad labeled Dukakis a “soft on crime” liberal who allowed dangerous criminals to commit more crimes. He subsequently lost the presidential election to George H.W. Bush.

Since then, few politicians have ventured to use their discretion to release prisoners serving life sentences for murder. In California, the first governor to be granted the statutory power to make such decisions was Gray Davis. His statement at the time was that if you killed someone, forget it – you’re not getting out (notwithstanding that state law requires release on parole to “normally” be granted). In his years as governor, Davis arbitrarily overruled every favorable Board parole decision for life-sentenced murderers, save five – equating to a lifer parole rate of a fraction of one percent.

WESD Finalizes $150,000 Settlement for Whistleblower Claim

Nov 20, 2013 No Comments

Written by Queenie Wong Statesman Journal

Nov. 1, 2013 | statesmanjournal.com

A laid off Willamette Education Service District teacher and her lawyer will get $150,000 as part of a settlement to a whistleblower lawsuit filed against the district three years ago.

Former teacher Terri Moore claimed she lost her job because she repeatedly reported safety violations at the high school at Hillcrest Youth Correctional Facility and filed a formal complaint about harassment and bullying by Bill Conlon, the school’s principal.

She filed a lawsuit in Marion County Circuit Court in 2010 asking for as much as $500,000, plus attorney fees and reinstatement as a full-time teacher.

Under the settlement, Moore will get $86,355.75 and the law firm representing her — Lafky and Lafky —will receive $63,644.25. She won’t be entitled to return as a full-time employee at WESD, but still could work as a substitute teacher, according to the agreement.

WESD’s liability carrier, the Special Districts Association of Oregon, decided to settle the lawsuit because of the costs of going to trial last month. The district’s board chairman Ken Hector said in a statement Friday he understood the carrier’s decision to settle the case. “Choosing to move forward to defend the case at trial would burden WESD with all attorney fees and costs, impacting our general fund,” Hector said. “The ultimate outcome of resolution for this case is best for WESD and the districts we serve.”

Prison Law Announcement: Lawsuit to Reform New York’s Public Defense System

Oct 31, 2013 No Comments

Prison Legal News recently published a notice for the New York Civil Liberties Union concerning reforming New York’s public defense system. In an effort to better disseminate this prison law information, the Prison Law Blog is publishing the notice. The prison law notice is as follows: For information concerning this prison law matter, call or

The Ramifications of Peugh

Sep 5, 2013 No Comments

By Tommy Walker

I. Peugh v. United States, (No. 12-62)(S. Ct. June 10, 2013)

Recently, the United States Supreme Court decided Peugh referenced above. At first blush it may not seem to have been a decision which would have significant impact with many defendants. However, upon closer review, the ramifications of Peugh are a lot more subtle, and therefore, Tommy Walker and his assistants have given us a more in-depth review. Peugh may also be the forerunner of the upcoming Alleyne case.

In Peugh, the United States Supreme Court held that sentencing a defendant under a version of the U.S. Sentencing Guidelines that was promulgated after he committed his crime and increased the applicable range of the incarceration violates the Ex Post Facto Clause.

The Supreme Court defined the ex post facto clause as: (1) every law that makes an action done before the passing of the law, and which was innocent when done, criminal; and punishes such action; (2) every law that aggravates a crime, or makes it greater than it was, when committed; (3) every law that changes the punishment, and inflicts a greater punishment, than the law annexed to the crime, when committed; and (4) every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offense, in order to convict the offender (slip opinion at page 7). (citing, Calder v. Bull, 3 Dall 386 (1793)).

At issue in Peugh was Calder’s third category of the ex post facto clause laws that “change the punishment, and inflict a greater punishment, than the law annexed to the crime, when committed”. (slip op., at 8). Peugh’s claim was that the ex post facto clause was violated because the 2009 Guidelines call for a greater punishment than annexed to bank fraud in 2000, when his crimes were committed. The Government on the other hand, claimed that because the mere punitive guidelines applied at Peugh’s sentencing were only advisory, there was no ex post facto issue. Id.

News

Habeas Hints: Staring Down the Two-Headed Monster: Richter-Pinholster

U.S. Sentencing Commission Votes for Two-Level Reduction for Drug Offenders

Texas Judges Rarely Disciplined, Seldom Publicly

Rethinking Life Behind Bars

Sixth Circuit Rejects Racial Disparity Challenge To Crack Cocaine Sentences, Reverses Panel That Applied Fair Sentencing Act Retroactively

Ryan Ferguson Released

California Governor Approved Parole for 377 Life-Sentenced Murderers in 2012

WESD Finalizes $150,000 Settlement for Whistleblower Claim

Prison Law Announcement: Lawsuit to Reform New York’s Public Defense System

The Ramifications of Peugh

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