On Point

Questions Presented:

This case presents three questions involving· AEDPA (the Antiterrorism and Effective Death Penalty Act of 1996), and Lafler v. Cooper, 132 S. Ct. 1376 (2012), this Court’s recent decision expanding ineffective-assistance-of-counsel claims to include rejected plea offers:

1. Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under AEDPA in holding that defense counsel was constitutionally ineffective for allowing Respondent to maintain his claim of innocence.

2. Whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea.

3. Whether Lafler always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.

Lower court opinion: Titlow v. Burt, 680 F.3d 577 (6th Cir. 2012)

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The issues statement refers to last term’s decision in Lafler v. Cooper, which held that a defendant has the right to effective assistance in plea bargaining (see On Point’s post here). But this case arrives on a different factual footing than Lafler. In that case, the defendant rejected a plea offer on the deficient advice of counsel; Titlow, by contrast, had already entered a plea under a favorable deal (which included testifying against his aunt, a co-defendant), but then fired his lawyer, hired a new lawyer, and withdrew his plea. After trial he was convicted of a greater offense and got a longer sentence than he could’ve received under the plea bargain. These differences may not matter, however, as it seems unlikely the Court will  reach the Lafler issue because of the other two issues it has to resolve first.

The first issue involves a federal habeas court’s deference to state court factual findings. In a nutshell, Titlow says he withdrew his plea on the deficient advice of his new lawyer. The state court concluded he did so because he asserted his innocence and wanted to withdraw the plea and have a trial. The Sixth Circuit Court of Appeals (over a dissent) held the state court’s decision was based on an unreasonable determination of the facts. This case will therefore give the Supreme Court the opportunity to expound on federal habeas court review of state court fact finding, but given the general trajectory of the Court’s cases reminding federal courts to be deferential (not a few of which have involved reversing the Sixth Circuit, as noted in our post on another recent cert grant), the Sixth Circuit’s conclusion looks vulnerable.

The second issue arises from an apparent circuit split as to whether it is enough that the defendant simply says he would have accepted the plea offer if hadn’t received bad advice from his lawyer—the Sixth Circuit’s approach—or whether some objective evidence of the defendant’s intent is required—the approach in pre–Lafler cases in other circuits, including the Seventh. Paters v. United States, 159 F.3d 1043, 1047 (7th Cir. 1998). The analogy, of course, is the rule that objective evidence is needed to establish prejudice when a defendant claims he entered a plea due to counsel’s deficient performance. State v. Bentley, 201 Wis. 2d 303, 311-12, 548 N.W.2d 50 (1996), citing Hill v. Lockhart, 474 U.S. 52, 59 (1985).

If Titlow’s claim makes it past these hurdles, the Court will have to address the issue of remedy. The Sixth Circuit gave the state time to reoffer Titlow the original plea agreement and, if Titlow accepted, told the state court to exercise its discretion to fashion a sentence that remedies the violation of her constitutional right to the effective assistance of counsel. The dissent argued this left out a remedy Lafler itself provided: The discretion to leave the conviction and sentence from the trial undisturbed. Nor does Lafler make it the trial court’s responsibility to fashion a sentence that remedies the constitutional because, the dissent says, the remedy for the violation is the government’s reoffering of the original plea agreement. In short, while this case is a possible vehicle for clarifying the remedy required by Lafler’s rule, the chances are the Court doesn’t reach the issue.

UPDATE (10/8/13): For a more detailed discussion of the case posted in advance of today’s oral argument, see the article here (which goes so far as to suggest the parties’ disputes about what even happened in the case might lead the Court to dismiss as improvidently granted).

Questions presented:

1. Whether the Michigan Supreme Court’s recognition that a state statute abolished the long-maligned diminished-capacity defense was an “unexpected and indefensible” change in a common-law doctrine of criminal law under this Court’s retroactivity jurisprudence. See Rogers v. Tennessee, 532 U.S. 451 (2001).

2. Whether the Michigan Court of Appeals’ retroactive application of the Michigan Supreme Court’s decision was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement” so as to justify habeas relief. Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).

Lower court opinion: Lancaster v. Metrish, 683 F.3d 740 (6th Cir. 2012)

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This is a federal habeas case from the Sixth Circuit, which granted relief to Lancaster, a state prisoner in Michigan. When Lancaster was tried in 1994 he presented defenses of insanity (which he later abandoned) and diminished capacity. He won a retrial in his first federal habeas proceeding, but by the time he was retried in 2005, the Michigan Supreme Court had concluded diminished capacity was not a defense under state law. People v. Carpenter, 627 N.W.2d 276 (Mich. 2001). The Sixth Circuit held that the retroactive application of Carpenter to Lancaster’s retrial violated due process under the standard from Rogers (which had upheld the retroactive application of the elimination of the common law “year and a day” rule in homicide cases).

The primary issue in the case is the ability of a state to abolish a common law defense and then keep a criminal defendant from raising that defense against acts occurring before the abolition, which may provide the occasion for the  Court to elaborate on Rogers. As for the diminished capacity defense in particular, Wisconsin does not recognize it. Steele v. State, 97 Wis. 2d 72, 294 N.W.2d 2 (1980). Thus, any commentary the Court might offer on that doctrine will not affect state practice.

The second issue relates to federal habeas cases, but instead of establishing a new rule the Court’s decision will likely just be another reminder to lower federal courts about how deferential habeas review must be to state court decisions. The Court has reversed Sixth Circuit habeas grants a number of times in the last few years, most recently in Parker v. Matthews, 132 S. Ct. 2148 (2012) (per curium), where the Sixth Circuit’s decision was characterized as “based on the flimsiest of rationales” and “a textbook example of what [AEDPA] proscribes….” The Court may particularly emphasize deference to state law, for the linchpin of the Sixth Circuit’s opinion is whether the state had recognized the diminished capacity defense. The state supreme court concluded diminished capacity had not been recognized as a defense separate from insanity since 1975, while a majority of the Sixth Circuit essentially did its own reading of state cases and concluded otherwise. As the dissenting Sixth Circuit judge points out, it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. Given the state court’s determination that diminished capacity was not an established defense, the dissent concluded its official elimination was foreseeable and so does not violate the rule of Rogers. The Supreme Court will probably agree.

Questions Presented:

1. Do the Constitution’s structural limits on federal authority impose any constraints on the scope of Congress’ authority to enact legislation to implement a valid treaty, at least in circumstances where the federal statute, as applied, goes far beyond the scope of the treaty, intrudes on traditional state prerogatives, and is concededly unnecessary to satisfy the government’s treaty obligations?

2. Can the provisions of the Chemical Weapons Convention Implementation Act, codified at 18 U.S.C. § 229, be interpreted not to reach ordinary poisoning cases, which have been adequately handled by state and local authorities since the Framing, in order to avoid the difficult constitutional questions involving the scope of and continuing vitality of this Court’s decision in Missouri v. Holland, 252 U.S. 416 (1920)?

Lower court opinion: United States v. Bond, 681 F.3d 149 (3rd Cir. 2012)

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This case presents an interesting, if esoteric, question: How far can Congress legislate in the course of implementing an international treaty without running afoul of the Tenth Amendment? The decision will have no impact on SPD-related cases because it involves the power of Congress to create crimes. Lawyers defending federal criminal cases in Wisconsin, however, might have to deal with a crime created by legislation implementing a treaty.

For those interested in more background, the facts are these: Bond learned that her friend Haynes was pregnant and that Bond’s own husband was the father. To exact revenge, Bond acquired highly toxic chemicals and applied those chemicals to Haynes’s mailbox, car door handles, and house doorknob. Bond was convicted of violating a provision of the Chemical Weapons Convention Implementation Act of 1998, which implements the 1993 Chemical Weapons Convention. Bond challenged her conviction on Tenth Amendment grounds, but the court of appeals rejected her argument based on Missouri v. Holland, which states that “if [a] treaty is valid there can be no dispute about the validity of the statute [implementing that treaty] under Article 1, Section 8, as a necessary and proper means to execute the powers of the Government.”

The decision will tell us more about the Court’s evolving approach to congressional power, as Holland has been taken to mean that if a treaty commits the United States to enact some legislation, then Congress has the power to enact that legislation, even if it would lack such power under the Constitution in the absence of the treaty. At its logical extreme, Holland implies the legislative powers of Congress may be expanded by treaty, virtually without limit. The meaning of Holland has become more important, for we are making more commitments under international law at the same time the Supreme Court has been more willing to limit Congress to its enumerated powers. That’s lead some to claim the treaty power may be used to evade the limits that the Court has established. Thus, this case may set new limits on Congress when it is legislating to implement a treaty.

State v. Willie M. McDougle, 2013 WI App 43; case activity

Failure to object to admission of, and expert opinion based on, autopsy reports prepared by another pathologist

Trial counsel was not ineffective for failing to object on confrontation clause grounds to either the opinion testimony of the pathologist who did not conduct autopsy or the reports of pathologist who did conduct the autopsy because any failure to object was not prejudicial:

¶17      …[T]rial counsel’s decision not to object to Dr. Poulos’ testimony or the admission of Dr. Jentzen’s reports did not prejudice McDougle. Contrary to what McDougle argues, it is simply not true that without the testimony and reports at issue, “one could not conclude that the [victim’s] death was a gunshot homicide.” As noted, multiple witnesses testified that they saw McDougle fire several shots into the victim at close range. Indeed, one such witness testified that McDougle pointed the gun “straight into [the victim’s] face,” and shot him. (Some capitalization omitted.) Also, McDougle never challenged the victim’s cause of death. Rather, his defense at trial was that he was not the person who shot the gun. Additionally, we note that the autopsy report did not identify the victim’s assailant. In these circumstances, testimony and documentation confirming that the victim died of blood loss from gunshot wounds was unnecessary, its admission was harmless, and trial counsel’s failure to object did not subject McDougle to prejudice. See Strickland, 466 U.S. at 694.

Jantzen did the autopsy but had apparently moved on to the greener fields of academe by the time of McDougle’s trial (¶4 n.3), so Poulos read his reports, formed an opinion about cause of death (an opinion not identical to Jantzen’s in every detail), and conveyed his opinion to the jury. (¶5). Jentzen’s report was also admitted. (¶6). Trial counsel didn’t object. (¶16). The admission of autopsy reports without the supporting testimony of the person performing the autopsy, and the propriety of allowing one expert to act essentially as a surrogate for a non-testifying expert’s opinion, are issues roiling Confrontation Clause jurisprudence now, especially in the aftermath of the split opinions in Williams v. Illinois, 567 U.S. ___, 132 S. Ct. 2221 (2012) (on which, see here and here). Compare, for example, State v. Kennedy, No. 11-0223 (W. Va. Nov. 21, 2012) (testifying pathologist’s original observations and opinions, though based on review of autopsy report by another pathologist, admissible, but transmission of the other pathologist’s opinion and admission of his report violated Confrontation Clause), with People v. Leach, No. 111534 (Ill. Nov. 29, 2012) (autopsy report is not testimonial hearsay so its admission did not violate the Confrontation Clause). But instead of analyzing recent decisions, the court disposes of McDougle’s claim on lack-of-prejudice grounds, so the admissibility in Wisconsin of autopsy reports by someone other than the pathologist who prepared them will have to wait for another day.

Failure to object to evidence of prior felony convictions

In prosecution of charge of felon in possession of a firearm, trial counsel was not ineffective for failing to object to admission of evidence of two prior felony convictions when one would do the job; while allowing more than one conviction should not be needed in the usual case, it is a matter for the trial court’s discretion, and in any event there is no prejudice even if counsel was deficient:

¶23 …. As noted, evidence of McDougle’s guilt was overwhelming, and included the eyewitness testimony of individuals who saw McDougle shoot Ponder at a close range. That the jury knew that McDougle had been convicted of one felony as opposed to two in these circumstances—particularly given the fashion in which the felonies were introduced—did not, as McDougle argues, create “an atmosphere of aspersion and disrepute so as to convince the jury that [he] was a habitual lawbreaker who should be punished.” Consequently, McDougle has not shown prejudice, his ineffective assistance of counsel claim as to this issue fails, see Strickland, 466 U.S. at 694, …

While objecting to the admission of two prior convictions when one would suffice is obviously the better course, it is worth pointing out that trial counsel tried to avoid the admission of any prior conviction evidence by stipulating to McDougle’s status as a felon, but McDougle refused to agree to the stipulation. (¶¶7-8). The state then introduced the two prior convictions, though by reference to case number rather than an offense in an effort to mitigate prejudice. (¶¶9-10).

State v. Jesus C. Villarreal, 2013 WI App 33; case activity

Trial counsel was ineffective because he had an actual conflict of interest arising from his dual representation of both Villareal and a defense witness who had testified at Villarreal’s first trial (which ended in a hung jury ) and who, before the second trial, was accused of committing perjury during the first trial.

The witness was Villarreal’s sister, Sara, and her testimony was a key part of Villarreal’s defense at his first trial because she supplied motive evidence explaining why the alleged victim would falsely accuse Villarreal, and there is no dispute that it was important to Villarreal that she testify at the second trial consistently with the above testimony at the first trial. (¶¶12-13). The issue arose because, following Villarreal’s first trial, an investigating officer accused Sara of having given perjured testimony. This investigation prompted Villarreal’s lawyer to suggest that he should represent both Villarreal and his sister Sara. The investigating officer sought to question Sara, and counsel advised Sara to meet with the officer. The meeting took place, with counsel in attendance, five months prior to Villarreal’s second trial. (¶13). This created an actual conflict of interest:

¶15      To the extent that Sara was motivated to protect her brother and, thus, wanted to testify consistently with her statements at the first trial, Sara’s and Villarreal’s interests may have been aligned. However, when Sara learned that she was being investigated for committing perjury at the first trial, her interest was potentially at odds with Villarreal’s interest. Villarreal’s interest was in having Sara testify consistently at the second trial. Sara’s interest was in not being successfully prosecuted for perjury.

¶16      The potential for a conflict of interest was transformed to an actual conflict of interest that adversely affected [trial counsel]’s representation when [trial counsel] advised Sara to cooperate and be interviewed by the investigator who had accused her of perjury. We agree with the concession the prosecutor made before the circuit court. The prosecutor aptly explained:

The mere act of [Sara] giving another statement to the police adversely affected [Villarreal] as it potentially gave the State more to cross-examine [Sara] about at the second trial.

¶17      Whether Sara had perjured herself during the first trial or not, advising Sara to cooperate and be interviewed by the investigator appears to have been in Sara’s interest. If Sara was telling the truth, the interview gave her an opportunity to convince the investigator that she should not be charged with perjury. If Sara was not telling the truth, cooperating with the interview was at worst a calculated risk that she could avoid perjury charges by being cooperative. However, although participating in an interview with the investigator was in Sara’s interest, it was not in Villarreal’s interest.

….

¶19      …[F]rom Villarreal’s perspective, the interview with the police officer had no significant upside and a serious potential downside because of the likelihood that it would produce additional inconsistent statements that could be used to impeach Sara at a second trial. It is hard to imagine that a lawyer only concerned with Villarreal’s interests would have advised a witness to submit to a police interview between the two trials.

The standard for raising a conflict of interest claim after trial is more onerous than that applied when the issue is raised before trial. (¶¶8-9). After trial, it is not enough to show a mere possibility of a conflict; instead the defendant must show an actual conflict of interest that adversely affected counsel’s performance. State v. Love, 227 Wis. 2d 60, 594 N.W.2d 806 (1999); Cuyler v Sullivan, 446 U.S. 335, 348 (1980). The “effect” that a defendant needs to show should not be confused with the usual ineffective assistance requirement of prejudice because the required “effect” is on the attorney’s performance, not the outcome of the proceeding. Thus, if a defendant demonstrates an actual conflict of interest that adversely affects his or her attorney’s performance, prejudice is presumed. (¶10). A concurrence by Judge Lundsten agrees with the majority’s legal and factual analysis, but “question[s] whether this test makes sense when the identified conflict of interest has no effect on the fairness of the trial or other proceeding at issue.” (¶25). As he acknowledges, however, if this is a problem with existing law, it occurs only infrequently, and it’s a problem the state supreme court can’t fix it because of controlling federal law. (¶¶31, 33).

State v. Derik J. Wantland, 2013 WI App 36, petition for review granted 11/21/13; case activity

It was not unreasonable for the police to search a briefcase found in a vehicle during a traffic stop after the driver consented to a search of the car and the passenger did not unequivocally assert ownership of the briefcase and withhold consent to its search.

Wantland was a passenger in a car stopped by police. The driver (Wantland’s brother) consented to a search of the car. (¶3). When the officer located a briefcase, he asked the men what was in it; Wantland said “a laptop” and then “Got a warrant for that?” (¶3). When the officer responded he could open the briefcase, Wantland laughed and said the briefcase also contained Visine and antacid pills. (¶3). The officer opened the briefcase and found an antacid bottle containing two pills later identified as morphine. (¶3).

The court concludes the search of the briefcase was reasonable. The driver had authority to consent to the search of the car and, by implication, objects in the car. State v. Matejka, 2001 WI 5, ¶¶38-40, 241 Wis. 2d 52, 621 N.W.2d 891; Florida v. Jimeno, 500 U.S. 248 (1991). The briefcase was not locked or secured and was not distinctively marked as belonging to the passenger rather than the consenting driver, which might have rendered the search of it unreasonable. Cf. Matejka, 241 Wis. 2d 52, ¶36 (suggesting a “locked” suitcase or briefcase might limit the driver’s authority to consent). To limit the consent to search given by the driver, Wantland needed to clearly and unequivocally assert that he, not the driver, was the owner of the briefcase and that he was objecting to any search of it. (¶9). The court concludes Wantland’s exchange with the deputy did not amount to such an assertion:

¶8        ….[W]hen the deputy got to and inquired about the briefcase, Wantland did not respond with words of greater clarity such as “That’s mine, please don’t open it,” but instead responded with “Got a warrant for that?” While this question could be interpreted as an objection to searching the briefcase, it also could be interpreted by a reasonable person as inquiring whether the deputy in fact had a warrant or, more likely under the circumstances here, as a more general inquiry into whether the deputy had lawful authority to search the briefcase. By itself, this question was not an unambiguous declaration of ownership of the briefcase or objection to the search of it. When accompanied by laughter and a continued identification of items the deputy could expect to find in searching the briefcase, the meaning of Wantland’s warrant question became even less clear.

The court also holds the police did not have to stop and clarify whether Wantland owned the briefcase and was objecting to it being searched. That requirement is too burdensome because the “numerous challenges and dangers” of doing a roadside vehicle search mean the police need to be able to perform a search as expeditiously as possible to minimize risks and delay. (¶11). Thus, where the owner of individual property located in a vehicle is present during a consensual search and fails to clearly and unequivocally assert his or her ownership of the property and objection to the search of it, it is not unreasonable for the searching officer to continue the search, including of the individual item, without seeking clarification. (Id.).

Review of court of appeals summary disposition (PDF here: MINERVA LOPEZ ORDER 3 8 13); case activity

Issue (composed by On Point)

Did the circuit court err in concluding that it should deny Lopez’s pre-sentencing plea withdrawal motion because plea withdrawal would substantially prejudice the state?

This issue statement is based on the summary disposition issued by the court of appeals and a review of the parties’ court of appeals briefs. According to those documents, Lopez entered pleas to child abuse charges but, before sentencing, moved to withdraw her pleas. The circuit court concluded she satisfied the “fair and just reason” standard for pre-sentence plea withdrawal, State v. Rushing, 2007 WI App 227, ¶16, 305 Wis. 2d 739, 740 N.W.2d 894, but also concluded the state would be substantially prejudiced by plea withdrawal and so denied her motion. (Slip op. at 2). The state claimed it would be prejudiced because in the time that passed since Lopez’s plea the victim had turned 16, depriving the state of the opportunity to use “a potent piece of evidence”—namely, the victim’s recorded interviews, made when she was 14, and admissible under Wis. Stat. § 908.08 until she reached the age of 16. (Slip op. at 2, 4).

The court of appeals, over a dissent by Judge Lundsten, concluded the state did not establish substantial prejudice. It noted there were many reasons why the victim might have turned 16 before the trial could commence, and the age cut-off—and thus any benefit to the victim in avoiding testifying—was a legislative determination made independently of any reasons why the trial did not occur before the victim turns 16. (Slip op. at 5). The court also distinguished Rushing, ¶¶8-9, 16, and State v. Bollig, 2000 WI 6, ¶¶43-46, 232 Wis. 2d 561, 605 N.W.2d 199, where plea withdrawal was denied because the state was prejudiced by the victim’s faded memory; here, there was no indication of faded memory, and the victim is older and therefore less likely to forget.

Thus, the case will address an apparently narrow, but still significant, issue concerning pre-sentence plea withdrawal: Is the state substantially prejudiced by a plea withdrawal because there is a child victim whose recorded statements were admissible under Wis. Stat. § 980.08 before the plea but, because the victim has turned 16 since the plea was entered, those statements are no longer admissible? It may also be a vehicle for the supreme court to expound on the meaning of the phrase “substantial prejudice.”