Federal Habeas (28 U.S.C. § 2254) – Filing Deadline – Brady Claim
The 2254 filing deadline is one year from the date the state-court conviction becomes “final,” subject to certain exceptions, including one which restarts the limitation period from “the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence,” 28 U.S.C. § 2244(d)(1)(D). Friedman’s plea-based conviction became final in 1989, but he became aware of previously undisclosed exculpatory evidence on January 10, 2003, when he viewed a documentary about his case, Capturing the Friedmans. This development arguably restarted the deadline. However, instead of filing a 2254 petition within one year of that date, Friedman filed a post-judgment motion in state court. After that motion was denied, he filed the 2254 petition, but by then he was beyond the “restarted” 1-year deadline and the petition is therefore dismissed as untimely.
Moreover, even if timely, the petition would still fail on the merits: the undisclosed exculpatory evidence related to impeachment of witnesses, and in United States v. Ruiz, 536 U.S. 622 (2002), “the Supreme Court held that the failure to disclose such information prior to a guilty plea does not violate the Due Process Clause.” (The court reserves the possibility that Ruiz is limited to treatment of impeachment, as a subset of exculpatory material.)
Don’t be misled by the dry tone of this post — 2254 habeas analysis inexorably tugs in that direction — besides which, you probably don’t need reminder that the deadline is enforced with strictness, sometimes even with alacrity. And the mere fact that this a celebrated case in its own right, because of the Academy Award-nominated documentary, isn’t alone enough to justify such further reminder. But even if you aren’t familiar with the facts, you can’t read the opinion without becoming appalled. Which is, not incidentally, the reaction of the the 2nd Circuit, whose enforcement of the deadline is so unusually and obviously reluctant as to compel notice. Odds are not only that Jesse Friedman is actually, but that he was railroaded by the prosecutor and, worse, by the judge. As to the latter, a few words will be necessary, but first the 2nd Circuit’s remarkable reaction to his procedural plight. After reciting the prosecutor’s continuing ethical obligation to make right a wrongful conviction, the court observes:
The record here suggests “a reasonable likelihood” that Jesse Friedman was wrongfully convicted. The “new and material evidence” in this case is the post-conviction consensus within the social science community that suggestive memory recovery tactics can create false memories and that aggressive investigation techniques like those employed in petitioner’s case can induce false reports. Indeed, it is not even clear from the record that Assistant District Attorney Onorato was aware of the suggestive questioning techniques that were used by the Nassau County police.10 More importantly, the record does not speak to whether the then-District Attorney of Nassau County, whose principal role was administering and overseeing the activities of one of the largest such offices in the United States,11 was aware of the techniques used by the Nassau County detectives, who were not members of his staff.
Only a reinvestigation of the underlying case or the development of a complete record in a collateral proceeding can provide a basis for determining whether petitioner’s conviction should be set aside. We hope that, even if she continues to oppose relief in collateral legal proceedings, the current Nassau County District Attorney, who was not responsible for the investigation and prosecution of Jesse Friedman, will undertake the kind of complete review of the underlying case suggested in the Comment to Rule 3.8.
In sum, an appellate court faced with a record that raises serious issues as to the guilt of the defendant and the means by which his conviction was procured, yet unable to grant relief, is not obligated to become a silent accomplice to what may be an injustice.
Habeas practitioner Jonathan Kirschbaum rightly calls the decision “truly amazing.” Agreed, not least because the court immediately got the attention of the local prosecutor (not the one who railroaded Friedman), who has agreed to reinvestigate the case. Sometimes moral suasion works.
So the court recognized that Friedman appears to have been innocent — why couldn’t it do anything about it? “The Supreme Court has not finally resolved the issue of whether there is a federal Constitutional right to be released upon proof of actual innocence.” And, because habeas relief can be granted only where “clearly established” Supreme Court precedent has been misapplied in some fashion, a “stand-alone” claim of innocence is a non-starter. This doesn’t mean, however, that the state court can’t, or won’t, grant collateral-attack relief on such a basis. Indeed, Wisconsin courts have granted relief on the basis of actual innocence, as the work of these fine folks attests.
Several remaining observations. The idea that the suppression of exculpatory evidence is rendered meaningless by a guilty plea is somewhat jarring (is a plea knowing and intelligent if not based on an accurate risk-assessment?) but Ruiz leaves no room for argument, at least with respect to impeachment evidence. Indeed, our supreme court adopted that rule in State v. Kevin Harris, 2004 WI 64, ¶23 (“We therefore hold, based on the United States Supreme Court decision in Ruiz, that due process does not require the disclosure of material exculpatory impeachment information before a defendant enters into a plea bargain.”), albeit while declining to overrule court of appeals precedent that “purely exculpatory information” must be disclosed notwithstanding guilty plea, id., n. 15. Harris went on to hold that non-disclosure of exculpatory impeachment material violates the discovery statute, notwithstanding entry of guilty plea, and therefore does support plea-withdrawal on statutory grounds. Net result? In Wisconsin, on a claim of failure to disclose impeachment evidence, you can obtain plea-withdrawal on (§ 809.30) direct review, but not on (§ 974.06) collateral attack. If non-disclosure relates to “purely” exculpatory material then § 974.06 attack on a guilty plea is supported.
Friedman’s isn’t merely a false conviction, but a false confession, case. If you’ve seen enough of drearily repetitive true-crime cable tv, then you know how common it is for a juror to say something like, Well, I’d never confess to something I didn’t do especially not something so horrendous. And Friedman didn’t merely confess, he made a judicial confession, which is to say, in view of the entire world he solemnly confessed in open court — to something he apparently didn’t do. Why? For one thing, the prosecutor threatened to lodge “many more charges” if he didn’t. Permissible under Bordenkircher v. Hayes and the stuff of daily trench work in most courthouses. (Read the opinion, though, to get a sense of a howling pitchfork mob baying at Friedman’s heels.) No, what’s really remarkable is the role played by the trial judge, Abbey Boklan, only too glad to slip back into the role she once occupied as prosecutor. Boklan acknowledged a local “media frenzy,” yet not only did she deny change of venue she fed the frenzy by allowing the proceedings to be televised for the first time in local history. She candidly acknowledged prejudging Friedman’s guilt, and brazenly told defense counsel that if Friedman “went to trial, she intended to sentence him consecutively on every count.” Friedman never had a chance, not with the mob or, at the risk of repetition, the judge. And you can probably guess what happened: he was denied parole multiple times because he wouldn’t admit to guilt during “therapy” and, when finally paroled, Boklan classified him as a “violent sexual predator,” triggering sex offender registration requirements. Here,then, is the court’s efficient summary of why Friedman would plead guilty to something he didn’t do:
Petitioner has come forward with substantial evidence that flawed interviewing techniques were used to produce a flood of allegations, which the then-District Attorney of Nassau County wrung into over two hundred claims of child sexual abuse against petitioner. Petitioner never had an opportunity to explore how the evidence against him was obtained. On the contrary, the police, prosecutors, and the judge did everything they could to coerce a guilty plea and avoid a trial. Thus, with the number of counts in the indictments and Judge Boklan’s threat to impose the highest conceivable sentence for each charge, petitioner faced a virtually certain life sentence if he was convicted at trial. And the likelihood that any jury pool would be tainted seemed to ensure that petitioner would be convicted if he went to trial, regardless of his guilt or innocence. Nor could he have reasonably expected to receive a fair trial from Judge Boklan, the former head of the Nassau County District Attorney’s Sex Crime Unit, who admitted that she never had any doubt of the defendant’s guilt even before she heard any of the evidence or the means by which it was obtained. Even if innocent, petitioner may well have pled guilty.
Any number of people may have made their reputations on Friedman’s back, Boklan not least of all. Will the final chapter diminish those reputations? We will see.