Why There Are Lawyers: "Custody" vs. "Confinement"

More language fun, this time from the 7th Circuit.

It is fundamental that to be eligible for habeas relief, one must be "in custody." After all, a habeas petition is a request that one's jailer produce one's body (the corpus part) before the court (instead of the king now) and justify the detention. It is also fundamental that "custody" includes parole or probation.

For the purposes of Federal Rule of Evidence 609(b) and the 10-year limit (absent extreme justification) on the use of prior convictions to impeach, however, it works a little differently. The 10-year limit runs from "the date of the conviction or of the release of the witness from the confinement imposed for the conviction, whichever is the later date . . . ."

The 7th says (in a circuit first-impression case) that once released on probation, one has been released from confinement for Rule 609(b) purposes. But while on probation, for habeas purposes, as I said above one is still "in custody."

I guess it's the difference between Tyson's chickens and the free-range variety.

United States v. Rogers, Case No. 06-6730 (7th Cir. 9/4/08)

Habeas in Indiana: Not What You Might Think

There's an article on SSRN by Professors Nancy King and Susan Sherry at Vanderilt about how habeas has been derailed from challenges to state court judgments to challenges of administrative prison decisions: Habeas Corpus and State Sentencing Reform: A Story of Unintended Consequences. (Thanks to Doug Berman at Sentencing Law & Policy.)

According to the article, 61% of Indiana habeas cases in 2003-04 "contested sentence-administration decisions, not criminal judgments. . . . Thus in Indiana, the primary function of federal habeas review is to examine the decisions of state corrections officials, not state courts . . . ." (P. 11). It is not crystal clear, but it would seem that this is 61% of non-capital cases.

Here's the beef: in one national study of habeas cases filed in 2003-04, "only about one third of 1% of non-capital habeas petitions filed (7 cases total) received any relief and none of the claims granted relief were sentence administration claims." (P. 12).

Because there is no judicial review of decisions by the Department of Correction in Indiana, one would have thought that sentencing administration claims, not subject to the AEDPA, might be more successful. Apparently not.

I have an active interest--meaning a client--with a real problem in this area. He was found guilty but mentally ill some time ago. In Indiana, "GBMI" gets you nothing: you're sentenced just like everyone else. A GBMI verdict is supposed to be a big mitigating circumstance. At least in my client's case, he was given the maximum sentence nonetheless.

There is an unnoticed problem with sentencing the mentally ill like everyone else: they are unlikely to be able to behave themselves in prison. As a result of the misbehavior, they lose their credit time, which is one day for each day actually served in most cases. So a mentally ill inmate is likely to serve twice as much time as a normal inmate.

I am working on a few ideas about how to do something about this. The key seems to me to be that there has to be an equal protection claim against a system in which a judge sentences against a known background employing credit time and, at the same time, is supposed to sentence the mentally ill without regard to the known background.

If anyone has other ideas, please comment.

Danforth v. Minnesota: Major Geek Time

For Blakely in Indiana, the only game left in town is retroactivity. The argument in Danforth v. Minnesota last week has brought me out of lurking. The question, bluntly put, is whether the States are stuck with the U.S. Supreme Court's retroactivity analysis as stated in Teague v. Lane. For all the background, SCOTUSBlog has a wiki with summaries galore and the briefs. The oral argument link (directly to the PDF file) is here.

There has been a great deal of discussion of this case. SCOTUSBlog's post here, Sentencing Law & Policy here (among a number of posts), and Orin Kerr on the Volokh Conspiracy here. The SL&P post also points to Ann Althouse's post, in which she describes the case as "perhaps the most interesting case I've seen in 20 years."

I'm with Doug Berman: this is the case for the law geek. Maybe for the Ueber-Geek. And there is a lot of geeky goodness in the posts I've linked to above.

But if you read those posts, if you read the argument itself and see what the Nine Geeks were interested in, it looks a lot like a raw, "It is-It ain't" argument.

I want to suggest in what follows that all of the geeks are failing to think about this problem correctly. I don't think Teague has anything to do with "federal common law," or the supremacy of Supreme Court decisions. The solution to the problem is that there is no problem at all, because Teague does not speak to the state courts.

The short explanation is that because States do not have to offer collateral review at all, they can quite literally do whatever they like when they do offer collateral review. What they do or do not do has consequences, but those consequences are never a result of having failed to "apply" federal law.

To fellow geeks who think that solution is question-begging, I offer the following more formal presentation:

1. Teague is only about what rules decide whether a new rule of constitutional procedure applies to cases retroactively on collateral review.

2. The question in Danforth is whether those rules apply to state as well as federal court decisions.

2. The federal Constitution does not require that States offer collateral review of convictions or sentences at all.

3. Because States do not have to offer collateral review at all, they may do whatever they wish, subject to certain federal due process procedural limitations, if they do offer collateral review. That is, nothing prevents States from saying, for example, that Strickland v. Washington requires a post-conviction petitioner to show that his lawyer was wearing an off-putting tie during closing argument in order to obtain relief.

4. There are great benefits to the States, however: a) if they do offer collateral review; and especially b) if they correctly apply the two-prong analysis that Strickland actually announced.

5. The great benefits may be more like the avoidance of great penalties for failing to offer collateral review at all or for failing to follow Strickland as written. In either case, a prisoner may file a habeas petition in federal court and get de novo review of his claims, almost as if it were a direct appeal--though not quite, because of Brecht v. Abrahamson and its limitation on harmless-error analysis.

6. But again, nothing requires that state courts apply Strickland at all or even as written. So when state courts do "apply" federal law as written, they're really only saying that as a matter of state law, we're doing something that looks like what the feds do. They are not applying federal law directly.

7. It follows that Teague has nothing to say directly about collateral review in state courts. It's effect is entirely indirect. And that indirect effect can only seen in cases in which SCOTUS has held a case to be fully retroactive and in States that have no collateral review or don't at least offer relief where Teague would as well.

How about a metaphor? The state and federal courts have two completely distinct sandboxes. The state courts do not have to play at all in their sandbox; and if they do play, they can build whatever sort of castles they like. If the state court castles happen to look enough like the castles in the federal courts' sandbox, though, federal habeas review is a lot kinder to the state decisions.

(If you don't like sandboxes, consider that you probably didn't want to read a version of the discussion I had this afternoon on this subject in which I invoked isomorphisms, homomorphisms, and homology groups. That was ugly.)

Suppose, now, that SCOTUS were to declare Blakely fully retroactive to cases on collateral review. Again, nothing requires that the States honor this. A State that has no collateral review at all would certainly not be required to create it just to accomodate a SCOTUS Blakely retroactivity holding. What would happen is that prisoners in a State without collateral review at all would go across the street to federal court with their habeas petitions.

There is one hole, at least, to this highly (overly?) formal take on the Danforth case. If state courts do not actually apply federal law in post-conviction proceedings but are merely aping it, as it were, SCOTUS would have no jurisdiction to take cert. petitions from those proceedings. But we know that it does.

Maybe it shouldn't and should have to wait for cert. petitions in habeas cases. After all, because States do not have to consider federal claims as part of collateral review.

I also undertand that this is an unusual way to think about state post-conviction proceedings. Section 2254 does, after all, speak in terms of "unreasonable applications of federal law." But I won't be deterred from suggesting that even Congress has failed to think correctly about what state courts are really doing in post-conviction proceedings.

Indiana happens to do Teague, but not directly. The Indiana Supreme Court adopted it as its own. Of course, under my approach, the Indiana Supreme Court could only "do" Teague indirectly. State collateral proceedings are always a matter of state law.

I cannot recall in which argument it was, but in a death penalty case, I believe, Justice Sullivan asked the Deputy A.G. whether the court should follow, lock-step, as it develops, SCOTUS's Teague jurisprudence. The answer was a predictable, "Yes."

Correct thinking or the lack of it aside, I really do think the key to Danforth is the purely voluntary availablity of state collateral review: Teague is only about collateral review.

Comments would be great.

What a subject to return with and to.

Washington State: Blakely applies to consecutive sentencing

Sentencing Law & Policy has this post about the Washington Supreme Court's decision yesterday in In re Personal Restraint of VanDelft, No. 77733-1 (Wash. Nov. 30, 2006). The short of it: because there is a statutory presumption in Washington that sentences are to be served concurrently, any factual finding used to justify consecutive sentences is subject to Blakely.

Doug Berman says that the case "may dovetail with some of the issues that were debated in Burton, the Blakely retroactivity case now awaiting a decision from the Supreme Court." I'd say more than "dovetail." In the Burton oral argument, Jeff Fisher spent a great deal of his time answering questions about consecutive sentencing in Washington. He fends off Justices Souter, Breyer, and Stevens on this issue in pages 4-9 of the transcript. And then he has to deal with Chief Justice Roberts' question beginning on page 9:

CHIEF JUSTICE ROBERTS: I'm not sure I understand that. I mean, we have not held, for example, that the fact of a prior conviction is something that has to be submitted to a jury under Blakely. Why, if you're determining that sentences run consecutively, isn't that just the same as looking at a simultaneous conviction and saying they're going to run consecutively?

MR. FISHER: Under some State systems that might be the case, Mr. Chief Justice. However, in Washington the way that the code works is that judges are directed that for multiple crimes the sentences shall run consecutively.

CHIEF JUSTICE ROBERTS: So you'd have --

MR. FISHER: Unless they make the exact kind of extra finding, and it refers them to the precise same statute that was at issue in Blakely itself.

CHIEF JUSTICE ROBERTS: And you're saying that that extra finding can't simply be that this is a conviction for a particular serious crime that's going to go unpunished otherwise?

MR. FISHER: That's right.

CHIEF JUSTICE ROBERTS: So under this system if you had a regime where if you're convicted of murder
and you've been convicted of rape before that, you get an enhanced sentence beyond the normal murder sentence, that would not contravene Blakely. But if you're convicted at the same time for rape and murder and those two sentences run consecutively, you say that that does violate Blakely.

MR. FISHER: If the judge needs to make an extra finding beyond the elements of either of those two
crimes to run them consecutively, then it would violate Blakely.

THE COURT: But we've never held that? We've never held that consecutive -- that the treatment of sentences as concurrent or consecutive is covered by Blakely?

MR. FISHER: You haven't had a case in the Apprendi-Blakely line of cases dealing with consecutive sentences. But what you've done is laid down a rule from the very State that we're dealing with here that says that if the judge needs to make an extra finding beyond the elements of the crime for conviction and beyond the facts encompassed in the jury's finding of guilt for those crimes, then those findings need to be proved to a jury beyond a reasonable doubt. That's why in this case that line, that rule, is triggered.

At page 35, the State argues:

MR. COLLINS: So I just briefly want to go, Justice Souter, to where you started about the consecutive sentence issue. We believe that consecutive sentence is quite different than, from what exists in Blakely and that, in fact, there aren't really additional findings of fact.

Whatever other problems Burton may have--and there are a number--Van Delft directly resolves this particular dispute. (Fisher was correct; and there really should not have been much of a dispute about this. It is a pity that so much argument time was spent on it.)

Of course, the Indiana Supreme Court in Smylie already has held that Blakely does not apply to Indiana's pre-fix consecutive sentencing provisions. Because there was a judicially imposed requirement that consecutive sentences be supported by an aggravating circumstance, I was not sure why. I am even less sure now.

I still think that Burton, despite its problems, is going to be a blockbuster. Why else grant cert in an unpublished 9th Circuit case that affirms the denial of habeas relief? And whatever the result, you have to love Fisher's strategy: Blakely was compelled by Apprendi--indeed, it was no different. You don't like that? O.K., Blakely was so new and fundamental that it should be applied retroactively, not just back to Apprendi, but to the beginning of time.