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

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.

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