FEDERAL HABEAS REVIEW
The direct appeal is often the first battle in a longer post-conviction war. If that appeal is lost, the client may eventually launch a collateral attack in the federal district court. His vehicle for that attack will be 28 U.S.C. § 2254, which authorizes persons in state custody to petition federal courts for writs of habeas corpus.
When the conviction is fresh and the appeal new, a federal petition seems little more than a remote possibility. You nevertheless need to keep that possibility in mind. Although you will likely leave the field of battle after an unsuccessful appeal, your client may wish to struggle on. The way you handle his appeal will either help or hinder his post-conviction efforts. Assessing the likelihood that your client will eventually attack his conviction under section 2254 is necessary so that you can make informed decisions on appeal and protect his prospects for federal post-conviction relief.
1. Briefing
a. Initial Case Review
When a new appeal comes into your office, you undoubtedly review it with an eye toward locating arguable error and determining what issues you will present in the brief. In addition, you should also be routinely assessing the likelihood that your client will eventually attack his conviction under section 2254.
The longer the client will be in prison following an unsuccessful appeal, the more likely he is to eventually file a federal petition. The client serving a long term in the state prison will almost inevitably give serious consideration to filing a section 2254 petition. The inmate serving a lengthy prison term has nothing to lose by pursuing post-conviction relief: excepting service of the sentence or a pardon, it is his only lawful way out. Thus, regardless of your assessment of the merits of his appeal, a client facing a long prison term may well seek section 2254 review if his conviction stands up in the state courts.
Conversely, a client may receive such a light sentence that a federal petition is precluded. Suppose for example that your client received a short sentence that will be fully served by the time he gets a decision on appeal. The federal district court will lack jurisdiction to review his conviction. A section 2254 action may be brought only by persons in state "custody." (28 U.S.C. § 2241(c)(3).) Once a client has served his prison time and been discharged from any parole term, he is no longer in "custody" and cannot petition for relief under section 2254. (Maleng v. Cook (1989) 490 U.S. 488, 492.) For the client serving a short sentence, the direct appeal in state court may be the only opportunity to attack his or her conviction.
For the client serving a long sentence, however, the direct appeal may be just the first skirmish in a protracted engagement that will, years later, end up in federal court. For that client, one of your responsibilities is to handle his appeal in state court so that he is in the best possible position to pursue collateral relief in federal court.
b. Preserving Issues For Collateral Review
From the outset, your assessment of the likelihood of a section 2254 petition in the future, no matter how distant, should affect your handling of the appeal. Nowhere is this more true than in your decision regarding what issues to brief.
Probably the most challenging task facing an appellate lawyer is deciding what issues to brief and what issues to forego. Typically, an appellate lawyer will first review the record to spot all arguable issues and then decide which particular issues to raise. As a matter of strategy, the common wisdom is that appellant's counsel should winnow out the weaker issues and focus on "one central issue if possible, or at most on a few key issues." (Jones v. Barnes, supra, 463 U.S. 745, 751-752.) One of the factors to be considered in deciding whether to forego an arguable issue is the likelihood that the client will eventually file a section 2254 petition.
Your deciding to forego an issue on appeal directly impairs the client's ability to raise that issue in a section 2254 petition. You need to be aware that because of the interplay of federal and state law, foregoing an issue on appeal will probably prevent it from being presented later as a claim in a federal petition.
As a prerequisite to asserting a claim in a section 2254 petition, a petitioner must show that he has exhausted his state remedies by previously presenting the claim in state court. (O’Sullivan v. Boerckel, supra, 526 U.S. 838, 842-845.) If you forego a claim on direct appeal, your client will likely never be able to exhaust the claim in state court. Under California law, foregoing an available issue on appeal amounts to a waiver, and your client will ordinarily be barred from resurrecting the issue in state collateral proceedings. (In re Harris (1993) 5 Cal.4th 813, 825; habeas corpus cannot serve as a second appeal.) Because he or she cannot present the claim in state court, your client cannot meet the exhaustion requirement. Your waiver of his claim on appeal will probably thus bar him from litigating the claim in federal collateral proceedings. (Coleman v. Thompson (1991) 501 U.S. 722, 729-732; claim which is procedurally defaulted under state law cannot be raised on federal habeas corpus.)
As a caveat to the foregoing discussion, it should be noted that a defendant enjoys the federal constitutional right to the effective assistance of appellate counsel. (Evitts v. Lucey (1985) 469 U.S. 387, 393-400.) Thus, if appellate counsel unreasonably fails to raise an issue, a defendant may pursue a claim of ineffective assistance of appellate counsel on state habeas. By exhausting this federal issue on state habeas, the defendant can then proceed to federal court on his Sixth Amendment claim and the underlying issue which would otherwise have been procedurally defaulted.
In protecting a client's right to pursue federal relief in the future, you must carefully research existing relevant federal case law. But, you must also anticipate reasonably foreseeable developments in federal case law. (Reed v. Ross (1984) 468 U.S. 1, 14-20.) An available issue might stand little hope of success in state court under existing precedent, but if that issue might foreseeably form a basis for relief in a future section 2254 petition, under either existing or reasonably foreseeable precedent, you should be wary of foregoing the issue. When a case is sufficiently serious that a federal petition can be anticipated, you must exercise utmost care to preserve issues that may be viable in the future when your client files a petition under section 2254.
c. Making a Federal Case
The real possibility that a client will eventually seek relief under section 2254 should also affect your framing of the issues on appeal. A claim for post-conviction relief is cognizable under section 2254 only if it arises under federal law. (Duncan v. Henry, supra, 513 U.S. 364, 365-366.) Violations of state law in obtaining a conviction may be important on direct appeal in state court, but they are utterly irrelevant in section 2254 proceedings. The only issues a federal petitioner can raise are federal ones. To preserve an error for federal review, you should therefore consider framing it on appeal as an issue of federal as well as state law.
Under 28 U.S.C. section 2254(d)(1), a federal court must rely on the law “as determined by the Supreme Court” in granting relief. The quoted “phrase refers to the holdings, as opposed to the dicta” of the court’s decisions. (Williams v. Taylor (2000) 529 U.S. 362, 412.) Also, it must be shown that the state court decision was contrary to or an unreasonable application of United States Supreme Court decisional law.
It is a regrettable reality that trial attorneys often fail to specify that their objections are being made under the federal Constitution. As a result, the state appellate court may find that any objection under the federal Constitution has been waived. (See People v. Gordon (1990) 50 Cal.3d 1223, 1254, fn. 6; admission of extrajudicial statement was reviewed only under the Watson standard since a "federal constitutional right of confrontation" objection was not made at trial.)
Given the appellate courts' inclination to find waiver, it is incumbent upon appellate counsel to raise a claim of ineffective assistance of trial counsel when an adequate federal objection was not made at trial. In this way, a federal claim can be preserved when it would otherwise be lost.
Turning to the substantive law, it is manifest that evidentiary error provides the most fertile area for transforming generic state error into a federal constitutional claim. In this regard, the constitutional foundation is found in either the Sixth Amendment's compulsory process and confrontation clauses or the Fourteenth Amendment's due process clause. (See Crane v. Kentucky (1986) 476 U.S. 683, 690.) Under these provisions, a state court commits federal constitutional error when it excludes highly relevant and necessary defense evidence. (Ibid., see also Rock v. Arkansas (1987) 483 U.S. 44, 53-56.) Importantly, a federal claim may be made even if no error was made under state law.
Chambers v. Mississippi (1973) 410 U.S. 284 illustrates this principle. There, the defendant sought to admit a confession made by a third party. Under state law, the confession was inadmissible under the hearsay rule. Notwithstanding this well established state rule, the Supreme Court held that exclusion of the confession constituted a violation of the due process clause.
"The testimony rejected by the trial court here bore persuasive assurances of trustworthiness and thus was well within the basic rationale of the exception for declarations against interest. That testimony also was critical to Chambers' defense. In these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." (Chambers, supra, 410 U.S. at p. 302.)
Chambers establishes a clear rule. So long as the defendant can demonstrate that he cannot receive a fair trial absent the admission of important evidence, the federal Constitution is implicated. This is so regardless of the exact form which the evidence takes. (Rock v. Arkansas, supra, 483 U.S. 44, 56-62; exclusion of defendant's hypnotically enhanced testimony was violative of her constitutional right to testify; Crane v. Kentucky, supra, 476 U.S. 683, 687-692; exclusion of evidence regarding the circumstances surrounding the defendant's confession violated his right to confront the witnesses against him.)
A case handled by SDAP further illustrates the usefulness of the foregoing authorities. In Franklin v. Henry (9th Cir. 1997) 122 F.3d 1270, the defendant was charged with molesting a friend's daughter. In order to impeach the daughter's testimony, the defendant sought to introduce her prior false claim that her mother had molested her. Although it found that the trial court had erred by excluding the evidence, the Sixth District declared the error to be harmless under Evidence Code section 354. (People v. Franklin (1994) 25 Cal.App.4th 328, 336-337.) Importantly, the court failed to address the defense contention that the error rose to the level of a federal constitutional violation. Thankfully, the Ninth Circuit did not ignore the claim. Instead, finding that "[e]xclusion of the evidence deprived Franklin `of the basic right to have the prosecutor's case encounter and "survive the crucible of meaningful testing"' [citations]," the court reversed the judgment. (Franklin, supra, 122 F.3d at p. 1273.)
Although the law is much less certain in this area, it is also possible to argue that the erroneous admission of irrelevant and prejudicial evidence may constitute a federal due process violation. (See Estelle v. McGuire (1991) 502 U.S. 62, 68-70; court considers such an issue.) A case from the Ninth Circuit provides an example of this type of error.
In McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, the defendant was charged with murdering his mother who had died after her throat was slit. The forensic evidence showed that almost any kind of knife could have inflicted the fatal wound. At trial, the government presented evidence that the defendant: (1) had owned a Gerber knife in the past (but not at the time of the crime); (2) was a knife aficionado; (3) wore a knife in the past; and (4) scratched "Death is his" on his closet door with a knife. After finding that this evidence was completely irrelevant, the Ninth Circuit reversed the defendant's conviction.
"His was not the trial by peers promised by the Constitution of the United States, conducted in accordance with centuries-old fundamental conceptions of justice. It is part of our community's sense of fair play that people are convicted because of what they have done, not who they are. Because his trial was so infused with irrelevant prejudicial evidence as to be fundamentally unfair, McKinney is entitled to the conditional writ of habeas corpus that the district court awarded him." (McKinney v. Rees, supra, 993 F.2d at p. 1386, fn. omitted, emphasis in original.)
As McKinney makes clear, a defendant may be deprived of due process when the government seeks to shore up a weak case with a dose of highly prejudicial evidence. Thus, in an appropriate case, McKinney can serve as persuasive authority in support of a claim of federal error.
Another example of turning state error into a federal contention may be found in the area of prosecutorial misconduct (or the more sanitized term "prosecutorial error"). (People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) In this regard, two possible theories exist.
First, as the U.S. Supreme Court has indicated, a prosecutor's misconduct may be so egregious that it rises to the level of a due process violation. (Darden v. Wainwright (1986) 477 U.S. 168, 181.) Thus, in any case where the prosecutor engages in substantial misconduct, a federal claim should be advanced. (See People v. Samayoa (1997) 15 Cal.4th 795, 841; "`" [a] prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct `so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.'"' [Citations.].")
Aside from a global due process claim, it is essential to note that some types of prosecutorial misconduct may violate specific constitutional rights. For example, if the prosecutor refers to facts outside the record, he or she is effectively acting as an unsworn witness who has not been subjected to cross-examination. (People v. Bolton (1979) 23 Cal.3d 208, 214-215, fn. 4.) Under these circumstances, a Sixth Amendment violation is shown. (Ibid.; accord People v. Johnson (1981) 121 Cal.App.3d 94, 104.)
Finally, it should not be overlooked that there is authority for the proposition that cumulative prejudice flowing from mere state error can result in a federal due process claim. For example, this can occur "where the violation of a state's evidentiary rule has resulted in the denial of fundamental fairness, thereby violating due process, . . ." (Cooper v. Sowders (6th Cir. 1988) 837 F.2d 284, 286; see also Lincoln v. Sunn (9th Cir. 1987) 807 F.2d 805, 814, fn. 6.) Thus, when the record shows that substantial error infected the proceedings, counsel should not hesitate to argue that the defendant was denied a fair trial under the federal due process clause.
In short, as the foregoing survey demonstrates, garden variety state error can often be the basis for a viable federal contention. As a result, defense counsel should strive to be as creative as is reasonably possible in order to develop and preserve federal constitutional claims.
d. Pursuit of the Federal Writ.
The federal proceeding can be initiated by filing a form petition which is included in the Appendix. In the alternative, the Northern District will accept a professionally prepared pleading which contains all of the necessary allegations. (SDAP will provide a sample upon request.) The initial appointment of counsel is discretionary. (18 U.S.C. section 3006A(a)(2)(B).) However, counsel must be appointed if an evidentiary hearing is to be held. (Rules Governing Section 2254 Cases in the United States District Courts, rule 8(c).)