Wake Forest Law Review
10Nov

Fourth Circuit Does Not Require a COA to Review Dismissal of a Mixed 60(b)/ § 2255 Motion

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By Elizabeth DeFrance

On July 13, 2015 the Fourth Circuit issued a published opinion in the criminal case United States v. McRae.  The issue before the Court was whether the district court improperly categorized the appellant’s pro se motion as an impermissible successive habeas petition. However, the threshold issue was whether the Court was required to obtain a Certificate of Appealability (COA) before it could review the district court’s categorization of the appellant’s motion.

McRae Claims his Motion was Improperly Categorized

Madison Duane McRae (McRae) was convicted of four drug-related charges in 2005. He unsuccessfully filed a habeas petition under 28 U.S.C. § 2255 in 2008. He later filed the motion at issue in this case, titled “Motion for Relief from Judgment 60(b)(1)(3)(6).”  In this motion, McRae alleged the district court made five errors in its  § 2255 proceedings. The district court held that the motion was a successive § 2255 motion and dismissed it for lack of subject-matter jurisdiction because McRae did not first get a COA as required under 28 U.S.C. § 2244(b)(3). The district court declined to issue a COA. McRae appealed and claims that the district court erred by not treating his motion as a mixed 60(b)/ § 2255. He also argued that the circuit court could review this issue without first obtaining a COA.

COA is Not Required for a “True 60(b)”

A 60(b) motion that challenges a defect in a federal court’s habeas proceedings rather than the court’s conclusion based on the merits is a “true 60(b) motion” and does not require a COA.

The Court Follows Gonzales and Harbison

The Court looked to the Supreme Court’s decision in Gonzalez v. Crosby, in which it held that a 60(b) motion must be treated distinctly from a successive habeas motion because of the “unquestionably valid role” they play in habeas actions. The Court also followed reasoning from the Supreme Court decision in Harbison v. Bell that only a 60(b) motion “with a sufficient nexus to the merits of a habeas petition” should require a COA. Thus, the Court determined that denial of a 60(b) requires a COA because the district court necessarily considers the merits of the underlying habeas claim before denying the motion. However, dismissal of a 60(b) motion on jurisdictional grounds does not require a COA because it is far removed from a consideration of the merits of the habeas claim.

COA was Not Required and the 60(b) Claim Must be Considered on the Merits

The Court held that it did not need a COA before addressing whether the district court erred in categorizing McRae’s motion as a successive habeas petition.

The Court further held that when a motion contains both a 60(b) and a successive habeas claim, the district court must allow the petitioner the option to delete the improper claim and have the 60(b) claim decided on the merits. Because the district court was in the best position to judge the merits of McRae’s 60(b) claim, the Court reversed and remanded for further proceedings.

Circuit Judge Diana Gribbon Motz dissented because the majority’s holding departed from precedent.

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20Oct

Fourth Circuit Lacked Jurisdiction in Capital Murder Appeal

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By Paige Topper

On October 20, 2015, in the criminal case of Porter v. Zook, a published opinion, the Fourth Circuit dismissed Thomas Porter’s appeal for lack of jurisdiction. The Fourth Circuit found that the district court did not issue a final decision on Porter’s actual bias claim against a juror during his trial for capital murder of a police officer.

Porter’s Conviction and Habeas Corpus Claim

In 2005, Porter shot and killed a police officer in Norfolk, Virginia. At the time of the murder Porter fled, resulting in a month-long manhunt. Upon his capture, Porter was indicted in the Circuit Court of the City of Norfolk on multiple charges, including a charge of capital murder. The Norfolk Court granted a motion for a change of venue to the Circuit Court of the County of Arlington due to the community outrage over the officer’s death and Porter’s concerns about an impartial jury. Ultimately, a jury convicted Porter on multiple counts, including capital murder. The jury sentenced Porter to death for capital murder.

Following the Supreme Court of Virginia affirming Porter’s capital conviction and death sentence and later dismissing his petition for habeas corpus, Porter filed a federal habeas corpus petition. David Zook, the Warden of Sussex I State Prison, where Porter is incarcerated, moved to dismiss. The district court granted Zook’s motion and dismissed Porter’s petition. However, the district court issued Porter a certificate of appealability, and Porter timely filed his appeal.

Jurisdiction Limited to Final Decisions of the District Court

The Fourth Circuit noted that while the parties to the appeal did not question its jurisdiction, the Court’s jurisdiction is limited to final decisions of the district courts. The Fourth Circuit further elaborated that a district court’s order is not final until it has resolved all claims as to all parties. This rule holds firm regardless of the label given to the district court decision. Thus, the issuance of a certificate of appealability does not alone establish that the district court resolved all claims between the parties.

District Court Failed to Rule on Porter’s Actual Bias Claim

Porter’s petition raised multiple claims. Among his claims, Porter alleged a violation of the right to trial by an impartial jury. Porter’s claim argued that one of the jurors, Bruce Treakle, was actually biased against Porter because Treakle’s brother was a deputy sheriff in the jurisdiction next to Norfolk, Virginia, at all relevant times to the case. Treakle failed to disclose the information regarding his brother’s profession during voir dire when asked whether he had any members of his close personal family in law enforcement in any capacity as a volunteer or employee.

As a result of Treakle’s relationship to a deputy sheriff, Porter claimed that Treakle was not a fair and impartial juror. To support his claim, Porter pointed to both Treakle’s conduct at voir dire and to Treakle’s admission during an interview with Porter’s counsel that he was emotionally moved by the testimony of the fallen officer’s widow. In addition, the Warden addressed Porter’s actual bias claim separately in his motion to dimiss.

Despite both parties’ focus on the actual bias claim, the district court dismissed Porter’s petition without ruling on this claim. The Fourth Circuit found that the district court did not acknowledge a distinct actual bias claim. Therefore, the Fourth Circuit concluded that, because the district court failed to rule on Porter’s actual bias claim, the district court never issued a final decision on all Porter’s claims. Consequently, the Fourth Circuit lacked jurisdiction over the case.

Fourth Circuit Dismissed and Remanded

The Fourth Circuit dismissed Porter’s appeal for lack of jurisdiction and remanded the case so that the district court could decide Porter’s actual bias claim.

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23Sep

Fourth Circuit Defers to West Virginia’s Habeas Court’s Decision to Deny Habeas Corpus

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By: Mikhail Petrov

Today, in the criminal case of Watkins v. Hoke, the Fourth Circuit issued a published opinion reversing the decision of the United States District Court for the Southern District of West Virginia. In its decision, the Fourth Circuit denied habeas corpus to Defendant Steven Watkins (“Watkins”), who was convicted of attempted robbery. Prosecuting Attorney Brian Parsons (“Parsons”) stated to Defense Counsel James Adkins (“Adkins”), after trial, that he had discussed the element of fear with victim Mike Zimm (“Zimm”) and that Zimm suggested that he might not have been afraid of Watkins. Watkins filed a writ of habeas corpus because fear is one of the elements that is required to uphold a conviction for attempted robbery. The Fourth Circuit deferred to West Virginia’s habeas court’s ruling that Parsons’ discussion of the element of fear with Zimm was not an admission that Zimm was not afraid and the conversation was a routine step in trial preparation.

The Attempted Robbery and the Subsequent Decision of West Virginia’s Habeas Court

On June 7, 2007, Steven Watkins entered Zimm’s Pharmacy in Fayetteville, West Virginia wearing a hard hat, sunglasses, and a red bandanna. When Watkins entered, only the owner, Mike Zimm, and two female employees were inside. Watkins asked a question, but Zimm did not understand and asked Watkins to repeat. Watkins adjusted his disguise and asked Zimm if he had activated the store’s security system. Zimm said he did, even though he had not. Watkins then fled the store and was arrested by the police some time later. Watkins was charged with attempted robbery in the second degree which punishes “any person who … attempts to commit robbery by placing the victim in fear of bodily injury.” At trial, Zimm testified that he was fearful of Watkins. The jury found Watkins guilty.

After trial, Defense Counsel Adkins stated that he was present in a conversation with Prosecuting Attorney Parsons where Parsons allegedly uttered that Zimm had told him that he was never afraid of Watkins. Parsons then stated to Zimm that if that was the case, they should stop prosecuting. Adkins realized that this was possibly exculpatory evidence that should have been submitted to the defendant.

Watkins filed for a habeas corpus proceeding in state court. In a written response, Parsons admitted that he had a discussion with Zimm, but that he only explained the element of fear and that Zimm did not state that he was never afraid. Zimm wanted a better understanding of what fear meant in the context of the case. Watkins argued that the Parsons knowingly withheld evidence that was exculpatory. The state court denied the habeas corpus petition.

Watkins then filed for habeas corpus with the district court. The district court found that the state court never made a finding of whether or not Zimm stated that he was not in fear of Watkins. The district court ordered a plenary evidentiary hearing to make an independent factual determination. Finding later that such a hearing is inconsistent with the Cullen v. Pinholster decision of the Supreme Court (which held that federal habeas law limits review to the record that was before the state court), the district court scrapped the hearing and granted Watkins’ petition for habeas corpus.

The Rule of the Case

Watkins filed a petition for habeas corpus in West Virginia’s state court because Parsons had failed to inform him that Zimm was never in fear of Watkins. A victim’s fear of bodily harm is an essential element, material to a conviction for attempted robbery. In Brady v. Maryland the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

Reasoning of the Fourth Circuit

Watkins contends that the Prosecution violated Brady in failing to produce before trial the fact that Zimm had admitted that he was not afraid at the time of the attempted robbery. If this information is true, it is favorable to Watkins and thus a violation of Brady. But, Watkins’ claim is not supported by the state habeas record or the state habeas court’s finding and conclusion.

Watkins relies on amorphous statements made by Parsons to Adkins after the trial. The post-trial statements of Parsons to Adkins does not make it evidence of something that Parsons knew before trial. The statements could have been based on something after trial and amount only to retrospective speculation.

Additionally, the only evidence of a pretrial conversation was between Parsons and Zimm about the element of fear. The state habeas court found that (1) after the trial Zimm said he may not have been afraid and (2) Parsons had a pre-trail conversation with Zimm to discuss the meaning behind the fear element.

The district court did not find the state habeas court’s finding unreasonable in light of the evidence presented. Nor did the district court find that Watkins had rebutted the state habeas court’s factual finding with clear and convincing evidence. On the contrary, the district court accepted all factual findings. Still, it impermissibly altered the state’s findings to conclude that Parsons admitted to having been told by Zimm that he was not afraid. The record did not support that leap. In granting habeas corpus, the district court failed to accord the appropriate deference to the state habeas court’s findings.

The Fourth Circuit Reversed the Decision of the District Court

The Fourth Circuit concluded that the state habeas court did not base its decision on “an unreasonable determination of the facts” and Watkins’ did not attempt to rebut the presumption of correctness by clear and convincing evidence. Additionally, the Brady rule was not applied in an objectively unreasonable manner. Thus the Court revered the district court’s grant of a writ of habeas corpus.

In her dissent, Judge Diana Gibbon Motz argues that the district court properly concluded that the state court unreasonably applied Brady. Motz goes on to say that the state habeas court did indeed find that Parsons had evidence that Zimm was not afraid of Watkins and that Parsons failure to inform the defense of this evidence clearly violated Brady.

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11Sep

Fourth Circuit Vacates Habeas Relief for Ineffective-Assistance Claim

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By Paige Topper

Issue Raised by the Petitioner 

On April 22, 2015, in the civil case of Jones v. Clark, the Fourth Circuit addressed whether the District Court for the Eastern District of Virginia erred in granting Rashaad Jones’ habeus petition. The Fourth Circuit found that the District Court erred in granting the habeus petition and thus vacated the portion of the habeas order granting relief.

Jones’ Conviction and Habeas Corpus Proceedings

In January 2010, Jereme Joseph reported that someone broke a window in the back of his house and stole a television and other items from his bedroom. One month prior to the theft, Jones had visited Joseph’s house with a mutual friend, at which time he entered through the front door and stayed in the family room. A fingerprint analysis certification indicated that one of the fingerprints on the window belonged to Jones. Jones’ trial counsel did not object to the admission of this certificate. Joseph also testified that following the theft Joseph confronted Jones at the jail about why he committed the crime. Jones responded, “he made a mistake.” This trial judge interpreted Jones’ statement as an admission of guilt.

The trial judge convicted Jones of breaking and entering and grand larceny with a 10-year prison sentence. The Virginia appellate court denied Jones’ direct appeal, and the state supreme court denied his state habeas petition. In response, Jones filed a federal habeas petition. This petition proceeds as a civil action against the state agent, here Harold Clarke, the Director of the Virginia Department of Corrections, who holds the defendant in custody. The district court granted habeas relief on Jones’ ineffective assistance claim. Accordingly, the district court vacated Jones’ convictions and sentence.

The Ineffective-Assistance Claim

An ineffective-assistance claim argues that counsel’s unprofessional errors were so serious as to deprive the defendant of a fair trial. The Supreme Court of Virginia, in Strickland v. Washington, established two necessary components of an ineffective-assistance claim. First, the defendant must show that counsel’s performance was deficient. This component must show that counsel’s errors were so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This component establishes that there is a reasonable probability that, but for counsel’s errors, the result of the case would be different.

Jones argued that his counsel should have objected to the admission of the fingerprint evidence. Specifically, Jones claimed that his counsel’s failure to object prejudiced Jones as the fingerprint was essential to the guilty verdict and without that evidence there was a reasonable probability that he would have been acquitted.

Exclusion of Fingerprint Evidence not Reasonably Likely to Produce a Different Result

The Fourth Circuit acknowledged that the fingerprint evidence constituted strong evidence establishing Jones’ guilt. However, the Firth Circuit found that there was not a reasonable probability that the trial judge would have had reasonable doubt regarding Jones’ guilty if the fingerprint evidence had been excluded. Specifically, the Fourth Circuit determined that even if the fingerprint evidence was removed from the equation, the admission of guilt to Joseph in the jail and the evidence that Jones had recently visited Joseph’s house are sufficient to establish Jones’ guilt of the charged crimes beyond a reasonable doubt.

Portion of the Habeas Order Granting Relief Vacated

The Fourth Circuit held that the state supreme court did not unreasonably conclude that Jones failed to establish the Strickland prejudice for an ineffective-assistance claim. Thus, the district court erred in granting the habeas petition. The Fourth Circuit vacated the portion of the habeas order granting relief and remanded for the district court to dismiss the habeas petition.

The dissent argues that because the trial judge reasoned “when you take the fingerprint and combine it with the recent visit and you combine it with the statement,” there was a reasonable probability that if the fingerprint evidence was excluded, Jones would have been acquitted (emphasis added in dissent).

 

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26Mar

Fourth Circuit Denies Certificate of Appealability for Writ of Habeas Corpus

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By Carson Smith

On March 26, 2015, the Fourth Circuit, in the unpublished opinion Grimes v. Webb, denied Jason Eric Grimes a certificate of appealability on his writ of habeas corpus. The district court denied Grimes’ relief on both the merits and procedural grounds.

There Was No Substantial Showing of a Denial of a Constitutional Right by the District Court

In order for a circuit court to grant a certificate of relief, it must find a substantial showing of a denial of a constitutional right under 28 U.S.C. § 2253(c)(2). Where the district court denies relief on the merits, the plaintiff must show that a reasonable juror would find that the district court’s assessment of the constitutional claims is debatable or wrong. Where the district court denies relief on procedure, the plaintiff must show (1) that the dispositive procedural ruling is debatable and (2) that the petition states a debatable claim of the denial of a constitutional right.

The Fourth Circuit held that there was not a substantial showing of a denial of a constitutional right on either meritorious or procedural grounds. Therefore, the Fourth Circuit denied Grimes’ certificate of appealability and dismissed the case.

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20Mar

Failing to Request Instruction on Heat of Passion is Ineffective Assistance of Counsel

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By Lauren D. Emery

On March 20, 2015 in the published opinion, Mark E. Lee v. Harold W. Clarke, the Fourth Circuit reversed the district court’s dismissal of Lee’s petition for a writ of habeas corpus.

Altercation Instigated by Victim Results in his Death

On September 16-17, 2008, Lee was tried for first degree murder in the death of Thomas Plummer.  The jury heard testimony that on April 9, 2008, Lee was a passenger in a car that drove onto Enslow Avenue in Richmond, Virginia where he encountered Plummer.  Plummer–who had days previously had a fight with Lee–approached the car and told Lee to get out, and the two subsequently got in a physical altercation.  Plummer struck Lee in the face multiple times causing profuse bleeding from Lee’s eye.  Soon thereafter, Plummer yelled out that Lee had stabbed him.  According to a prosecution witness, Plummer began to retreat, but Lee followed him and the two continued fighting and Plummer was again stabbed.  Plummer’s friends ultimately intervened and told Lee to leave and heard him say, “I’m tired of him” and “I’m gonna kill him.”  Plummer ultimately died from his wounds.

After the State rested, Lee’s defense counsel made a motion to strike the first degree murder charge arguing that there was a lack of evidence as to premeditation.  Defense counsel also moved to proceed on a manslaughter charge alone “arguing that there was no evidence of malice given that Plummer provoked Lee by striking first.”  These motions were denied.  Jurors ultimately found Lee guilty of second degree murder and he was sentenced to the maximum of 40 years in prison.

After exhausting other remedies, Lee brought this federal habeas petition alleging ineffective assistance of counsel due to his attorney’s failure to request a heat of passion jury instruction.

Ineffective Assistance of Counsel Supported by Failure to Request Jury Instruction

Ineffective assistance of counsel claims are subjected to a two-part test outlined in Strickland v. Washington (466 U.S. 668).  First, a claimant must show that their counsel’s actions “fell below an objective standard of reasonableness.”  Second, they must show that they were “prejudiced as a result of counsel’s conduct.”  Specifically, they must show that, “but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

As to the first prong, the Fourth Circuit declared that failing to ask for an instruction on heat of passion fell below the standard of reasonableness. It considered the totality of the evidence presented at trial–including uncontested testimony that Plummer struck Lee first–and declared that “a competent attorney would have requested” a heat of passion instruction.  Though the jury heard a general instruction about the lesser included offense of manslaughter, the Fourth Circuit declared that “an instruction on manslaughter is ineffective if not accompanied by an instruction defining heat of passion.”

As to the second prong, the Fourth Circuit found that Lee was prejudiced by the lack of this jury instruction.  The court declared that, even though the defense counsel had made references to Lee acting in the heat of passion in their arguments, instructions from the court carry greater weight with a jury than arguments of counsel.  Thus, “‘arguments of counsel that the …jury heard at the trial’ cannot ‘substitute for [an] explicit instruction.'”  Furthermore, the court found that the statements of Lee’s counsel did not fully and effectively explain nor differentiate the concepts of malice and heat of passion as the Virginia model instruction could.  Finally, because a conviction of manslaughter would have carried a maximum sentence of ten years in prison and, because “there is a reasonable probability that the jury would have found Lee guilty only of manslaughter,” he was significantly prejudiced by this decision.

Case Reversed and Remanded

The Fourth Circuit reversed the decision and remanded the case with instructions to issue Lee a writ of habeas corpus or to grant him a new trial within ninety days.

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5Mar

Fourth Circuit Upholds Life Sentence For Juvenile Defendant In Light of New Supreme Court Precedent

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By Michael Mitchell

Today, in the criminal case of Johnson v. Ponton, a published opinion, the Fourth Circuit affirmed the decision of the District Court for the Eastern District of Virginia, upholding the petitioner’s sentence of life imprisonment without parole for a capital murder and rape conviction.

Petitioner Challenges Life Sentence Based on New Supreme Court Precedent

The Fourth Circuit considered whether the district court’s dismissal of the petitioner’s habeas corpus petition challenging his life sentence.  The court evaluated whether the rule announced in the Supreme Court case Miller v. Alabama can apply retroactively on collateral review.

Mandatory Life Imprisonment Without Parole for Rapist & Murderer

The petitioner Shermaine Ali Johnson was convicted of capital murder and rape in 1998 at the age of sixteen.  Johnson was found guilty, and given his two prior rape convictions, two separate juries imposed the death sentence in spite of the his age.  However, the Supreme Court of Virginia commuted Johnson’s sentence to life imprisonment without the possibility of parole because he was under eighteen.  His conviction and sentence became final in 2005, and seven years later, the Supreme Court decided Miller v. Alabama, prompting Johnson to petition for collateral review in 2013.

Mandatory Life Sentence Without Parole for Children Violates the Eighth Amendment

In Miller v. Alabama, the Supreme Court held that mandatory life sentences without the possibility of parole imposed on a homicide offender who was under the age of eighteen at the time of the offense violates the Eighth Amendment.  The court was concerned with the inherent differences between children and adults in finding that the practice constituted cruel and unusual punishment, although the Miller rule stopped short of categorically barring the death penalty for children.

Judicial Stay Results in Supreme Court Clarification of Miller Rule

In 2014, the Fourth Circuit issued an abeyance pending the Supreme Court’s decision in Toca v. Louisiana, which would clarify whether the Miller rule could be applied retroactively.  However, the Supreme Court subsequently dismissed the writ of certiorari pursuant to the parties’ stipulation.  Instead, the Fourth Circuit relied on Miller‘s companion case, Jackson v. Hobbs.  In accord with Jackson, the court recognized that “an express holding a rule is retroactive, rather than mere application of the rule, is required to establish retroactivity.”  The Fourth Circuit found that the Arkansas Supreme Court’s application of the rule did not constitute an express holding, and therefore, that retroactive application of the Miller rule was not intended.

District Court’s Decision Affirmed by Fourth Circuit

The Fourth Circuit affirmed the district court’s judgment denying the petitioner’s challenge to his life sentence without parole, holding that the Miller rule cannot be applied retroactively in collateral review.

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4Mar

Fourth Circuit Reverses District Court’s Dismissal Of Habeas Petition

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By Carson Smith

On March 3, 2015, in Gordon v. Braxton, the Fourth Circuit reversed and remanded the denial of Jerome Gordon’s petition for writ of habeas corpus by the Eastern District of Virginia. The Fourth Circuit held that “(1) Gordon properly exhausted his state remedies; (2) the state court did not adjudicate Gordon’s claims on the merits; (3) the district court consequently owed no deference to the state court’s denial of Gordon’s petition; and (4) the district court applied the wrong standard in deciding whether to hold an evidentiary hearing.”

Gordon’s Writ of Habeas Corpus for Ineffective Counsel Dismissed In State Court and Federal District Court

In 2009, after pleading no contest to one count of carnal knowledge and one count of production of child pornography, Gordon was sentenced to thirty-five years in prison. Although Gordon failed to file a timely appeal, he filed a pro se habeas corpus petition alleging ineffective assistance of counsel and he requested an evidentiary hearing.

A claim for ineffective assistance of counsel requires a defendant to show (1) that his counsel’s performance fell below an objective standard of reasonableness, and (2) that counsel’s deficient performance prejudiced him. Attorneys have an affirmative duty to file a notice of appeal at the request of a client and a duty to consult the client if the client inquires about the possibility of appeal. Prejudice is established if the defendant shows to a reasonable degree of probability that, but for counsel’s failure to file or consult, the appeal would have been filed.

The state court dismissed Gordon’s claim on the grounds that he had not shown deficient performance because he had not asked for an appeal but merely inquired about the possibility. The state court did not discuss whether the inquiry triggered his counsel’s duty to consult.

Subsequently, Gordon filed a pro se habeas corpus petition in the district court for the Eastern District of Virginia. Pursuant to 28 U.S.C. § 2254(d), the district court gave great deference to the state court’s findings and dismissed Gordon’s petition. The Fourth Circuit granted a certificate of appealability.

Gordon Properly Exhausted His State Remedies 

Before state prisoners can file a habeas petition in federal court, they must first exhaust all state remedies. A prisoner must show that “both the operative facts and controlling legal principles were presented to the state court.” Braxton, the warden, argued that Gordon had failed to exhaust his state remedies because he did not properly file a claim regarding his counsel’s failure to consult.

 The Fourth Circuit held that Gordon had properly filed this claim. He indicated in his affidavit that he had asked his counsel about the possibility of appeal and he referenced multiple cases relevant to the failure to consult issue. Furthermore, the fact that he did not file a separate claim specific to the failure to consult issue was not dispositive as it is fairly common to combine this issue with a failure to appeal claim. Therefore, Gordon properly exhausted his state remedies.

The District Court Failed to Apply the Correct Standard of Review

In dismissing Gordon’s habeas petition and denying his request for an evidentiary hearing, the district court applied a highly deferential standard of review under 28 U.S.C. § 2254(d). Under this standard, a habeas petition can only be granted if the state court (1) unreasonably applied federal law or (2) based its decision on an unreasonable determination of the facts in light of an evidentiary hearing. However, before a district court can apply the § 2254(d) standard, the state court’s decision must “qualify as an adjudication on the merits.” Otherwise, the district court must review the state court’s decision de novo.

The Fourth Circuit held that the state court did not adjudicate Gordon’s petition on the merits because it based its decision “on a materially incomplete record.” The record was incomplete because the state court refused to permit “further development of the facts” for Gordon’s failure to consult claim. In addition, the state court limited its review of the facts to Gordon’s affidavit and failed to consider the allegations made throughout his filings. Since the state court did not adjudicate Gordon’s petition on the merits, the district court should have reviewed the state court’s decision de novo.

The District Court Abused Its Discretion in Denying Gordon an Evidentiary Hearing

 In the process of dismissing Gordon’s habeas petition pursuant to § 2254(d), the district court chose not to hold an evidentiary hearing. An evidentiary hearing can be restricted if the habeas petitioner “failed to develop a factual basis of a claim in State proceedings.” By incorrectly applying the high level of deference required by § 2254(d), the district court accepted the state court’s findings and denied Gordon’s request for an evidentiary hearing. The Fourth Circuit held that this was an abuse of discretion.

The Fourth Circuit Reversed and Remanded 

For the above reasons, the Fourth Circuit held that the district court must review Gordon’s habeas petition anew and in accordance with its holding.

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25Feb

Refugee of War To Be Extradited for War Crimes

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By Andrew Kilpinen

On February 24, 2015, the 4th Circuit affirmed the Western District of Virginia’s judgment denying Almaz Nezirovic’s (“Nezirovic”) petition for a writ of habeas corpus in the published opinion of Almaz Nezirovic v. Gerald Holt. The 4th Circuit held that Nezirovic’s extradition was neither time-barred nor precluded by the political offense exception under the Treaty Between the United States and Serbia for the Mutual Extradition of Fugitives from Justice (“Treaty”).

Nezirovic Tortured Civilians As Internment Camp Guard in Former Yugoslavia

Nezirovic served as a prison guard at the Rabic internment camp in Bosnia and Herzegovina in 1992 shortly after the former Socialist Federal Republic of Yugoslavia collapsed. In 1993, the Doboj Police Department of Bosnia issued a criminal report against Nezirovic alleging that as a prison guard he subjected civilians to torture and inhuman treatment. Nezirovic entered the United States in 1997 as a war refugee. Pursuant to a 2003 order filed by a judge in Bosnia and Herzegovina, Bosnian authorities requested in 2012 that Nezirovic be extradited pursuant to the Treaty.

Nezirovic Appealed District Court’s Writ of Habeas Corpus Denial

A magistrate judge conducted an extradition proceeding and found that there was sufficient evidence that a crime was committed in Bosnia, that if committed in the United States the actions would have been criminal, and Nezirovic is the fugitive sought. Nevirovic’s petition for a writ of habeas corpus with the Western District of Virginia was denied. This appeal followed.

Extradition Not Time-Barred Under Indefinite Limitations of Torture Act

Nezirovic argued that the Treaty prohibits extradition for offenses that would be time-barred in the United States. The Court found war crimes against civilians under the Torture Act, with indefinite limitation, to be the most analogous substantive offense under United States law as the charged offense in Bosnia. Nezirovic argued that the alleged crimes were committed two years before the Torture Act was enacted, and so the Court should apply the five-year statute of limitations related to assault. The Court rejected Nezirovic’s argument under the pretense that the law to be applied is that which is in place at the time the extradition request is made, not the law in effect when Nezirovic allegedly committed the acts. The Court dismissed any ex post facto concerns because the Supreme Court has made clear that U.S. Constitutional protections do not extend to foreign prosecutions.

Nezirovic’s Actions Were Not Political Offenses Exempt From Extradition

Next, Nezirovic argued that his acts were “political offenses” and, as such, exempt from extradition under the Treaty. The Court considered whether Nezirovic’s actions were objectively political in nature to determine if such actions were “relative” political offenses incidental to or in furtherance of a violent political uprising. The Court found, after considering the totality of the circumstances, that Nezirovic’s actions were not political because his victims were citizens.

The 4th Circuit affirmed the district court’s decision to deny Nezirovic’s extradition certification challenge.

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21Jan

“Prison Mailbox Rule” Does Not Help When Letter Is Sent to Wrong Address

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By: Rolf Garcia-Gallont

The Fourth Circuit dismissed the appeal in Oaks v. Clark in an unpublished per curiam decision today, stating that it lacked jurisdiction because the Appellant had failed to file notice of appeal in a timely fashion.

In a footnote, the court noted that Oaks did not benefit from the “prison mailbox rule,” which originated in the 1988 Supreme Court decision of Houston v. Lack. Under the “prison mailbox rule,” a prisoner’s pro se petition for habeas corpus relief is deemed filed when the prisoner hands the petition over to prison authorities for mailing to the district court.

The problem in this case was that Oaks incorrectly addressed the notice of appeal to a state court, which is under no obligation to forward the notice to the proper district court. Therefore, even if prison authorities had dispatched the notice of appeal without delay, it would still not have reached the district court in time.

Because Oaks failed to file a timely notice of appeal or to obtain an extension or reopening of the appeal period, the court denied leave to proceed in forma pauperis and dismissed the appeal.

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30Sep

Fourth Circuit Reiterates Standard for Certificate of Appealability in Habeas Review

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by Katharine Yale

Today, in Hardy v. Warden of the Greensville Correctional Center, the Fourth Circuit considered the district court’s order denying relief on prisoner’s habeas corpus petition under 28 U.S.C. § 2254.

To appeal a final order in a habeas proceeding, a circuit justice or judge must issue a certificate of appealability. Under 28 U.S.C. § 2253, a certificate of appealability may issue only if the defendant is able to show “a substantial showing of the denial of a constitutional right.”

The court, in an unpublished per curiam decision, reiterated the standard for such a showing as set forth in Slack v. McDaniel, 529 U.S. 473 (2000).  If a prisoner’s relief is denied on the merits of his claim, he can meet the “substantial showing” standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong.   Alternatively, if the constitutional claim is not reached and the relief is denied solely on procedural grounds, the prisoner must show that reasonable jurists could debate over whether the petition states a claim of the denial of a constitutional right and whether the district court was correct in its dispositive procedural ruling.

In this case, after reviewing the record, the court held that the prisoner had not made the requisite showing. Thus, the certificate of appealability was denied and the appeal was accordingly dismissed.

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