 You're watching FJTN, the Federal Judicial Television Network. Recent changes in federal law have meant that more appellate and district courts are more frequently involved in death penalty case appeals. And that means staff in clerk's offices must be aware of changes and new interpretations that affect these important cases. To help your court better understand these changes, live from our studios, the Federal Judicial Center presents Capital Case Issues Update, featuring Ira Robbins, Professor of Law and Justice at American University here in Washington, D.C., and Cynthia Rapp, Staff Attorney at the Supreme Court of the United States. This program will focus on the law, related case updates, and changes in how the Supreme Court processes death penalty case appeals. Now here's your host, Fran Toller. Welcome to our broadcast. We're happy to have you with us today. In 1996, the Anti-Terrorism and Effective Death Penalty Act, commonly called a DEPA, made significant changes in the law of federal habeas corpus. Many of the provisions in Chapter 153, Section 28 of the United States Code, were amended. And a new chapter, 154, dealing exclusively with death penalty cases, was added. As you know, these changes created interpretive problems in three areas. The effect of the new law on pending cases, the prerequisites for invoking Chapter 154, and the interpretation of particular provisions of Chapter 153. More than four years have passed since a DEPA was enacted. Now is an appropriate time to update the staffs of appellate and district clerk's offices about the impact of the law as it relates to death penalty cases, current and pending cases that may affect how the law is interpreted, and federal court issues related to the processing of death penalty cases. Joining us today are Ira Robbins, professor of law and justice, Washington College of Law, American University, Cynthia Rapp, staff attorney, Supreme Court of the United States, and Judy Roberts, chief clerk's programs here at the FJC. Let's take a couple of moments to review our agenda today. First, Professor Robbins will review a DEPA's impact on the habeas statute and recent Supreme Court decisions related to death penalty cases. This will be followed by a question and answer period. We'll take a five-minute break, and then Judy Roberts will talk with Cynthia Rapp about death penalty cases from a federal court perspective, followed by a Q&A with Ms. Rapp. Finally, Professor Robbins and I will return for brief closing remarks. A couple of other reminders before we begin. You will be able to fax or phone in your questions for both question and answer periods. The numbers are shown on your screen. Also, all of the materials are posted on the FJC's DCN intranet website, including evaluations and roster forms. It is my great pleasure to introduce Professor Robbins. Welcome, Ira. Thank you very much, Fran. I'm going to be making many points regarding the writ of habeas corpus, both general and specific. Let me begin with the purpose of habeas corpus. Certainly, I'm overgeneralizing here, but I don't think unfairly. The purpose of habeas corpus is to review the constitutionality of convictions and sentences. It's not to review any unfairness, but only constitutional unfairness. The writ, however, is not totally open-ended. There are numerous restrictions, many of which I'll address in the next half hour or so. As a result of these restrictions, habeas corpus has become extremely complicated. There are numerous threshold questions that district judges, especially, but also appellate judges, have to address. Questions that we didn't have just 20 years ago. Justice Breyer, in a case decided in April of this year, referred to the complexity of the Supreme Court's habeas corpus jurisprudence, which he called a complexity that, in practice, can deny the fundamental constitutional protection that habeas corpus seeks to assure. He also said that our system of dealing with some of the habeas restrictions has an attractive power only for those who like difficult puzzles, and habeas corpus is certainly difficult. Consider the difficulty for litigants, especially for prosa litigants, as I go through some of the provisions of the recent enactment. Apart from addressing the merits, that is to say, the alleged constitutional violation in his or her case, the litigant must also confront the numerous intricacies of habeas corpus. These points were made clear by a judge in the Eighth Circuit just two weeks ago. He wrote, not only has the procedural web of habeas corpus taken on a life of its own, but it has developed its own unique nomenclature, and it certainly is unique. He continued, rather than addressing the underlying merits of the constitutional claims asserted by a petitioner for habeas relief, opinions and habeas actions are now riddled with terms like procedural default, cause and prejudice, abuse of the writ, successive petitions, mixed petitions, adequate and independent state law grounds, the look through presumption, objective factors external to the defense, the presumption of correctness, and many more of these doctrines and sub-doctrines. These together serve as a trap for the unwary prose litigant. As if this weren't enough in terms of the complexity of habeas corpus, Congress added new restrictions in 1996. The Anti-Terrorism and Effective Death Penalty Act passed on April 24th of that year. I'm going to spend a couple of minutes now talking about the structure of that act, just to set up some of the discussion regarding the provisions and the exceptions. The act contains on habeas corpus two chapters, chapter 153 and 154. Chapter 153 is entitled General Habeas Corpus Reform Provisions. Chapter 154 is entitled Special Habeas Corpus Procedures in Capital Cases. Let me address the second one first. Chapter 154 can best be called an opt-in provision. If the states provide a certain level of counsel, quality counsel, competent counsel for state death row inmates, and they have a mechanism for that provision for all death row inmates who want counsel, then the states get certain benefits in return, such as a shorter statute of limitations and a statute of limitations on district and appellate courts to decide these cases. To date, and perhaps I'll have more time to address this later, but to date no jurisdiction has satisfied the opt-in provisions. Therefore, chapter 154 right now doesn't apply in any case. So we look at chapter 153. Chapter 153 contains the General Habeas Corpus Reform Provisions, which apply now in all non-death cases, as well as in all death cases in which the state has not opted in, which means all death cases today. The statute, however, is inartfully drafted. In fact, it's a very sloppy statute. Many judges have said so and, in fact, have written that in their published opinions. Justice Souter in one of the first cases to come down after the passage of the new statute wrote, in a world of silk purses and sows ears, this act is not a silk purse in the art of statutory drafting. In effect, there are many internal inconsistencies in this statute. Courts have had a hard time with the statute. Indeed, one of the provisions, until the Supreme Court stepped in in April, had the federal courts of appeals giving us six or seven or even eight different interpretations of the same language. With that as the structure, let me now shift over to an overview of some of the most important provisions of this new law, basically to provide some framework and some background. It's important and in many cases literally critical to understand the nuances of the habeas process, especially those nuances that are being litigated heavily. I'm going to address the following topics in my portion of the time. First, the statute of limitations, then the new and very important section 2254d. Third, I'll address federal evidentiary hearings. Next, the appeals process and finally successive petitions. Along the way, I'm going to mention relevant case law, particularly case law from the United States Supreme Court. But now let me get on to statute of limitations. Until 1996, there was no such thing as a statute of limitations on habeas corpus. Habeas was purely an equitable remedy. It was not unheard of for inmates to file for a habeas writ, as long as a quarter of a century or more after the conviction and sentence became final. And in fact, there have been grants of habeas corpus after 25 or 30 years or so. Under the new statute, however, that wouldn't occur. The limitations period under the 1996 act is one year. But to say that the statute of limitations is one year belies many interesting, subtle questions lurking beneath the surface. For example, when does the one year begin to run? Note that the one year applies to both state and federal prisoners. We have a split among the circuits on when the year begins to run for federal prisoners. Let's assume a federal prisoner, having been denied habeas corpus at the district level, wants to get into federal court and doesn't apply for cert. When does that time for cert affect the statute of limitations? Well, if the inmate doesn't go for cert, some circuits are saying that the time for the one year beginning to run is from the issuance of the mandate from the court of appeals. Other circuits are saying, however, that even if the inmate doesn't file for cert, the time of the statute of limitations doesn't start to run until the time for filing for cert has expired. We have a five to two split on that question. Regarding state prisoners, we have a tolling of the statute of limitations. The statute tolls while there is a properly filed application for state post-conviction or other collateral relief pending in the state courts. But what does properly filed mean? Is it a question under federal law or under state law? Here too, the circuits are split. Most of the circuits, by a vote of four to two at this point, a split of four to two, most of the circuits are saying that properly filed is a question of state law, not federal law. Another nice question is how much of the time in the state courts is told? Only that time during which some filing is actually pending or the in-between time as well, in between a denial at a lower state court and the time for filing for appeal in the higher state court. The circuits, interestingly, are all in agreement on this one. Six circuits have ruled and all of them have said that the in-between time counts as tolling time as well. Many of you out there may think that this is counter-intuitive, and I've spoken with many people in the circuits who think that, but the circuits are of one mind on this question. Now, what about the time while a petition for cert is pending in the Supreme Court? So far, you should be aware the Supreme Court has not ruled on this question. But under Chapter 154, the opt-in provision, there is a special sub-provision that says that the time pending on cert in the Supreme Court counts as tolling time. There's no comparative procedure or no comparative provision in Chapter 153. Does that mean that Congress intentionally left it out? Or does that mean that this is one of those internal inconsistencies and Congress didn't really think about the question? Two circuits have ruled on this question so far regarding Chapter 153, and both of them say that on Chapter 153 the time pending for a petition for cert in the Supreme Court does not count as tolling time. So litigants certainly have to keep that in mind. Or what happens if a petition is pending in federal court and it's denied, let's say, for lack of exhaustion? It might be pending there for a year or more. Does that year or more count against the one-year statute of limitations or is that tolling time? Here the circuits are split, one to one. So you can see just with the statute of limitations how complicated it can get. If there are so many circuit splits, how is a litigant supposed to get it right? Whatever getting it right actually means. And of course when we're dealing with statutes of limitations every extra day is important from the prisoner's perspective. Two other points on statute of limitations. First, constitutionality. And I can generalize from this to other restrictions as well. The Constitution of the United States has the words habeas corpus in only one place. Article 1, Section 9, Clause 2, which states the following. The privilege of the writ of habeas corpus shall not be suspended unless when in cases of rebellion or invasion the public safety may require it. Well if we have a statute of limitations which we didn't have before does that count as an unconstitutional suspension of the writ? Several circuits have ruled on the question generally saying there is no per se unconstitutional suspension but some of the circuits, especially the second have allowed for the possibility that there might be an unconstitutional suspension as applied in particular cases. My final point on statutes of limitations is that all of the circuits that have ruled on the question so far have said that it is not a jurisdictional issue. Meaning if the state doesn't raise the statute of limitations the federal court doesn't have to consider it. It may if it wishes to but it's not obligated to do so. Seven circuits have ruled on this question all seven are in agreement. Let's move on from statute of limitations to what I call federal court's adjudication function. There is a controversy generally regarding federal habeas corpus. That is to say in federal habeas corpus federal judges have the power to undo all that occurred in the state court system. With that sort of federal state system or federal state relationship there's always going to be conflict. The question is how can we avoid if at all unnecessary conflict? Or put differently do we want federal review of state court convictions and sentences to be de novo or deferential? This was the precise question that was raised in a Supreme Court case called Right v. West in 1992. Should habeas in federal court be de novo review, complete independent plenary review of what went on in the state system or should we defer in some way, presume the correctness of what went on in the state system? By a vote of six to three in Right v. West the court decided that habeas should continue to be de novo as it has been for most of this century. Now that happened only eight years ago so why even say that the question is right for reconsideration today? The answer is that four years ago we got the new statute, the Anti-Terrorism and Effective Death Penalty Act of 1996. One of the key provisions in that law, perhaps to my mind the key provision of all of them, is the new 28 U.S. Code section 2254D. It's a long provision, it's a convoluted provision, but in part it says that a federal writ of habeas court shall not be granted to a state prisoner's claim unless the adjudication of the claim in the state court involved an unreasonable application of law to fact. In the state system so we have to ask what exactly do we mean by an unreasonable application? This is the key question. This is the question that has plagued the lower federal courts which have given us six, seven or eight different interpretations depending on how you understand the circuit court opinions. Now without getting too bogged down in the nuances of these interpretations they really fall into two different patterns. One focuses on whether in the state court system there was an unreasonable application of law to facts. I call this the unreasonable application approach or pattern. The other is whether the jurists in the state system were unreasonable in the way they applied the law to the facts. I call this the unreasonable jurist approach. Several circuits including the fourth, fifth, seventh and eleventh had adopted variants of the unreasonable jurist approach. The fourth circuit statement the one that went up to the supreme court this year basically was the following. It asked whether the state's application of law to facts cannot be unreasonable or it said the state's application of law to facts cannot be unreasonable unless reasonable jurists would all agree that it was unreasonable. That's a tough test to satisfy. If this was the test that the supreme court had adopted I submit that it would have meant the end of federal court review of state court convictions. Instead the supreme court reversed the fourth circuit in a case called Williams against Taylor, there were two Williams cases, Williams against Taylor this year so this one was Terry Williams. In Terry Williams against Taylor the court rejected the reasonable jurist test. This said that the federal habeas court should not transform the inquiry into a subjective one in effect by finding some jurist who would support it. Although the court was split on many other issues in the case all nine justices agreed and this is rare to get all nine justices to agree on something to do with habeas corpus. All nine justices agreed that the fourth circuit's approach was too restrictive. Five justices said that the most important point is that an unreasonable application of federal law is different from an incorrect application of federal law that is to say a state's application of law to fact might be incorrect but it might not be unreasonable. So in effect the court struck a middle ground unlike the fourth circuit the supreme court rejected a subjective reasonable jurist test but the court also rejected the approach of four of the justices led by Justice Stevens who argued that if the state court was wrong in its application of law to fact on a particular constitutional claim then its decision was necessarily unreasonable. The majority did not buy that. One or two other words about this section 2254D. Note that although the supreme court did not address the following point in its decision many of the circuits have addressed the question is the new 2254D jurisdictional? The answer is at least to date no it is not jurisdictional. Now 2254D is complicated. Habeas corpus is complicated. If it's difficult for you sitting out there to understand this to understand some of these things that I've pointed out already imagine how it resonates or imagine how it doesn't resonate with a prosa litigant particularly one who happens to be illiterate. Let's shift now to the topic of federal evidentiary hearings. Habeas corpus as I pointed out is both complicated and controversial. It doesn't get any more controversial when the state has taken the time to hold a hearing perhaps an extensive hearing and the federal court goes and reconsiders the facts as well as the application of law to fact. In 1966 Congress gave us what is called a presumption of correctness of state court findings of fact. It was a rebuttable presumption and there were seven ways to rebut it. I don't want to say that it was easy to rebut it but it was not all that difficult because some of those seven ways to rebut the presumption were rather open-ended. Under the new Habeas Act passed in 1996 however those seven ways to rebut the presumption have been repealed. There are some similarities but those seven ways have been repealed. There is a greater amount a greater increment of presumption of correctness of state court findings of fact. But there is one nice issue that's worth addressing now one that went up to the Supreme Court this year and that has to do with a provision called 28 U.S. Code 2254 E2. Which states the following. If the applicant has failed to develop the factual basis of a claim in state court proceedings then the court shall not hold an evidentiary hearing on the claim unless the applicant shows a combination of the following three things. A new rule of constitutional law made retroactive. A factual predicate that could not have been previously discovered through the exercise of due diligence and the actual innocence of the underlying claim. Now whenever you have a doctrine or sub-doctrine that requires actual factual innocence of course it's going to be difficult to satisfy. For a prisoner to get an evidentiary hearing only if he or she can show actual innocence means that more than 99% of state prisoners in federal court will not be getting evidentiary hearings. So interpreting this provision is very important. And one of the interesting issues or interpretations that has developed under the provision is the following. Remember the language says if the applicant has failed to develop the material facts. Well the respondents the prosecutors, the representatives of the Attorney General's offices have been arguing that this is really a strict liability provision. It doesn't matter whether it's the applicant who didn't develop the facts or the judge or the prosecutor if the material facts haven't been developed then there can be no hearing. That's not the way the law has gone or at least the way it has been interpreted. That is a position taken by the AGs that is contrary to that taken by every single federal circuit to have addressed the question and by the Supreme Court as well. The Supreme Court decided the issue this year on April 18 in a case called Williams v. Taylor. This Williams v. Taylor was Michael Williams v. Taylor. Note regarding the two Williams v. Taylor cases. Both were habeas corpus cases dealing with issues under the anti-terrorism act of 1996. Both were from the 4th circuit and both were reversed by the Supreme Court. Those of you sitting out there from the 9th circuit know that the 9th circuit has not had a great record in the Supreme Court on habeas corpus with many reversals sometimes unanimous. Well the good news for the 9th circuit is that this year the 4th circuit is the one that took the brunt of Supreme Court habeas reversals. So I hope you're listening to this both in the 9th circuit. Maybe you'll breathe a sigh of relief in the 4th circuit as well where maybe your court has been pushing the envelope of interpretation at least with respect to the cases that were in the Supreme Court this year. So note that in Michael Williams v. Taylor the Supreme Court here too found for the prisoner remanding the case for an evidentiary hearing on one of the issues. Now we'll shift over to the topic of appeals which many of you have a great deal of contact with. On appeals there is a requirement now under the new law that once habeas has been denied in the district court in order for the court of appeals to have jurisdiction the prisoner must get a certificate of appeal ability from either the district court or the appellate court. The counterpart in the old law was something that was called a certificate of probable cause. The basic purpose of this certificate is to show that there is some non-frivolous issue worthy of review. Now under the old certificate of probable cause practice only the state inmate had to get it not the federal inmate and certainly not the state either if the state lost below. So a very important point here is that under the new act not only state prisoners who want to appeal denials of habeas but also federal prisoners who want to appeal denials of section 2255 relief must get a certificate of appeal ability. There are lots of interesting issues regarding the certificate but I'm going to focus on one and one only in light of the recent supreme court decision and that concerns the standard for granting the certificate. Under the old law the standard for granting a certificate of probable cause was whether the prisoner could make a substantial showing of the denial of a federal right. Under the new law for certificates of appeal ability the prisoner must make a substantial showing of denial not of a federal right but of a constitutional right which probably although it hasn't been interpreted all that much by a lot of courts which probably means we have a higher threshold here. What should happen when a district court denies a habeas petition on procedural grounds such as exhaustion or procedural default without reaching the prisoner's underlying constitutional claim. Certainly in and of itself a procedural ground is not usually of constitutional dimension. So does that mean that a certificate of appeal ability can never be granted in these circumstances. If it does mean that then since most district court rulings and habeas cases are procedural there could never be an appeal well the supreme court addressed that question this year in a case called Slack v. McDaniel and it ruled that a certificate of appeal ability should issue when the prisoner shows at the least the following two things first that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and second that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. In other words cutting to the chase on this the supreme court held that the jurisdiction of the courts of appeals on certificates of appeal ability survives. The final topic that I'm going to address now is successive petitions. I'm going to address it under both types of successive petitions. There are two types they are called claim successive petitions and new claim successive petitions. A same claim successive petition is a claim filed later in a petition in federal court that is identical to a claim filed earlier on habeas in federal court. A new claim successive petition is a new claim filed in a later petition that might have been presented in an earlier federal habeas petition but was not. The rule for a same claim successor is simply stated in the statute for a same claim successor simply stated same claim successive petitions shall be dismissed. That's it. That's all the statute says on that. As for new claim successors however it says that new claim successive petitions shall be dismissed unless the prisoner can satisfy a certain standard which again is some combination of the reason for not raising it or a new rule of constitutional law made retroactive and actual innocence of the underlying claim but looking at the procedure here for satisfying that standard the district courts do not have the power to decide that a particular claim meets the test. Instead the court of appeals serving as a gateway has to make the decision whether to authorize the district court to go ahead and file the claim. Now according to the statute the court of appeals has 30 days from the filing of the motion for authorization to make this claim to make this determination. Now what I'm about to say may sound absolutely ridiculous to you but it will show you the level of obstruceness that we have reached in habeas corpus practice. The courts of appeals are divided on the following question what does 30 days mean? Some courts what I call the strict 30 day courts hold that 30 days means exactly that. You just add up the days from the filing of the motion for authorization and once you hit 30 you need a decision. Other courts however are what I call flexible 30 day courts and I should point out that most of the courts of appeals on this split among the circuits fall into the category of flexible 30 day courts. These courts hold that the 30 days referred to in the statute begins to run only after the court of appeals has obtained all of the papers required for a reasoned decision and it may take a month or two months or three months or longer to get all of the papers required for due deliberation. Now on to a different issue staying within successive petitions. Because of the harshness the true harshness of the successive petitions rules. It should not be surprising that many inmates are claiming that their petitions are not successive because if they were successive they would either have to be dismissed by the federal courts or the inmate would have to show actual innocence also usually necessitating a dismissal. One good example of holding that a second petition should not be treated as a second or successive petition is a case from the Supreme Court a couple of years ago called Stuart against Martinez Villareal out of the Ninth Circuit. In this case the inmate who was on a state death row happened to be in Arizona was claiming that he was incompetent to be executed. There's a 1986 Supreme Court case holding that it's unconstitutional to execute someone who is incompetent. So the inmate raised this claim in federal court in Arizona the Ninth Circuit and the court said it is a premature claim. We can't rule on your claim yet because the state of Arizona has not yet set an execution date. Case dismissed without prejudice to refiling. Well as you might imagine soon thereafter the state of Arizona went ahead and did set an execution date. So the inmate came back into federal court. The question before the federal court raised by the respondent was should this be treated as a second or successive petition? Should this be treated as a same claim successor? The inmate indeed technically speaking was raising the identical claim that happened to be dismissed without prejudice before. The Supreme Court by a vote of 7-2 said no way we will not treat this as a same claim successive petition. In an opinion written by Chief Justice Rehnquist the court wrote to hold otherwise would mean that a dismissal of a first habeas petition for technical procedural reasons would bar the prisoner from ever obtaining federal habeas corpus review. An issue building on this one which has not yet gotten to the Supreme Court directly concerns exhaustion of state judicial remedies. Without belaboring the point there's a general rule that ordinarily before a state prisoner can get federal review of a claim the prisoner must first present the claim to the state courts. Well what happens if the prisoner presents a claim to the federal court and the federal court says this issue has not been properly exhausted so we dismiss without prejudice to refiling. The inmate goes back to the state gets the issue exhausted and comes back to federal court now. Is this a second or successive petition? Is this a same claim successor? Well note that is what some of the respondents have been arguing. In my opinion they have been pushing the envelope when a case gets dismissed without prejudice to argue that when the case comes back it's a same claim successive petition. Every single federal circuit to have ruled on the question and now there are seven, eight or nine circuits that have ruled on it have in their opinions written the equivalent of what are you kidding if we treated these as same claim successors and had to dismiss that would give to the term dismissal without prejudice it would turn justice on its head. One reason that I mention this is that a variant of this issue has made its way to the Supreme Court. On the following question what should happen if a case is dismissed, a petition is dismissed for lack of exhaustion and when the inmate goes back to the state he or she adds claims that were not present in that first petition and then comes back into federal court. This was another issue in the Slack v. McDaniel case that I mentioned before concerning certificate of appealability. On April 26th of this year the Supreme Court decided that such a petition should not be considered a successive petition. So I think what we're seeing here among other things is the federal courts and on occasion the Supreme Court looking at Congress's language and saying we really can't interpret it giving it its plain meaning because there is too much lurking under the surface. So just to conclude for now let me point out I've mentioned four Supreme Court cases. The Supreme Court reversed in three of them coming out in favor of the prisoner. In my opinion this does not mean that the pendulum that favored prisoners on habeas in the 1960s and which swung back in favor of the government for the last quarter century in favor of prisoners again. Rather to me it signifies that habeas is complex. There are many nuances. These cases are determined and these claims are determined on a case-by-case basis but all now within the relatively tight parameters of the 1996 act. But the complexity is aggravated by the fact that it's not enough to master the new habeas law that went into effect on April 24th, 1996. Because that law did not replace, did not repeal the major portion of the law that was in existence at that time. So note that we have a new habeas law that exists in tandem with the old law much of which was not superseded. The bottom line therefore for now is that we still do have the writ of habeas corpus which exists to protect individuals from unjust conviction and even execution. It may not be as vigorous a writ as it used to be but the Supreme Court has emphasized the continuing existence of the writ. So every participant in the process including judges law clerks, staff attorneys court personnel and attorneys must understand his or her respective role in order to preserve what remains of the writ and to enforce it in appropriate cases. Very brief presentation I hope you can get a sense of the doctrinal context in which you do the critically important work that you do. And now we're going to move to the question and answer portion of the session. Thank you, Ira. We are now ready for your questions by phone or fax. The phone number is 888-871-3470 and the fax number is 800-488-0397. I understand we have a call from Ohio Northern. Would you go ahead please? Sure, I will. Thank you. My question is really regarding the standard of review. I have a case in which the Ohio Supreme Court articulated no I guess federal constitutional grounds on which it based its decision. So therefore it's difficult for me to determine whether or not there was an unreasonable application of federal constitutional law and I'm wondering if there's any case law out there that would then dictate what standard we should apply. That's a really good question and I didn't give you all of the language of 2254D but if you've got a case on that then of course you've seen the language. The statute says that before we get into this difficult to satisfy standard we have to make sure that there was a state decision on the merits. The question you're asking really goes to what do we mean by a state decision on the merits just because a state decided something doesn't necessarily mean that we can decipher what they decided. There's a parallel to this under the presumption of correctness under the old habeas corpus law the old 2254D and there are enough cases that you can use for analogy that say if you can't unravel what the state court has done then you don't have to defer to it. So I think those cases would be my starting point and if you wanted to contact me sometime after the show we could talk further about it. Thank you. Thank you for your great question. Here's a question that's come in by fax. Can you explain why no states have opted into Chapter 154? That also is a really good question. I didn't have enough time to address Chapter 154 at the outset. Chapter 154 if you'll recall is special habeas corpus procedures in capital cases. It creates a quid pro quo. If the states provide a mechanism for the appointment of competent counsel and as well for the reasonable compensation of counsel and for experts to any and all death row inmates who want counsel then in return the state gets additional benefits such as shorter statute of limitations. It goes to six months from one year and there's also a limitations period on district and appellate judges deciding these cases. If we're in a Chapter 154 situation then district judges get 180 days to terminate the case and appellate judges get 120 days to terminate the case. So why haven't states opted in? It seems to me that the answer is cost in part and the generous restrictions on habeas that the states already have. Many states have stipulated that they don't satisfy the opt-in requirements. Some states have said we think the benefits that we as a state get are already good enough but there are some states that have litigated the question of whether they satisfy the opt-in requirements in particular Florida and California states that have had this issue percolating up and down between the district and circuit courts and to me it comes down to a question of cost. If the state wants certain benefits it's going to have to pay for quality counsel at the state post-conviction stage. This facts just in. This relates to the two cases that were recently decided by the Supreme Court having to do with the incorrect actions of attorneys one a defense attorney and one the prosecutor. Have we seen an increase or a decrease in these kinds of filings since the inception of adepa? That's a key question the question of the issues concerning counsel both before the new law and after the new law it seems to me clear that we get the best justice when we have highly skilled counsel on both sides for prosecution and defense and typically in death cases we don't have the best counsel in these cases for all sorts of reasons. Under the old law we were seeing in empirical studies that in about 42% of habeas cases there was a claim of ineffective assistance of counsel and to the best of my knowledge that number has not changed. We're still seeing the same sort of level of claims of ineffective assistance. But note it's hard to satisfy the test of effective assistance. Some of you may be familiar with the 1984 case called Strickland against Washington that sets the standard, sets the threshold to satisfy and it's a very high bar. The question then becomes where are we after the statute after the 1996 act? It seems to me the starting point now is no longer Strickland v. Washington. We look at the new case Terry Williams v. Taylor which marks the first time since 1984 in which the Supreme Court said that an attorney in a criminal case violated the Sixth Amendment. So I think when all is said and done we have a new starting point but the problem remains counsel is not up to par in many or most of these cases. I believe we have a caller from Tennessee western. Greg are you on the line? I am. How are you all doing? Oh we're doing great. Professor Robbins I wanted to offer a clarification. This is Gregory Krug the senior process staff attorney for the western district of Tennessee. Tennessee has actually or at least they claim that they have opted into section Chapter 154. The only difficulty is they have not yet had any cases before our court at least in which the state post-conviction procedure took place under the revised state procedures so that Chapter 154 procedures would be applicable in federal court. Nevertheless they have adopted the raw procedures that would entitle them to Chapter 154 consideration when a state court case arrives at the federal court level after going through those procedures. Well certainly you know more about what's going on in Tennessee than I do but let me just react to your question. Just because the state says that it satisfies the opt-in procedure doesn't mean that when the case gets tested or the issue of their opt-in status gets tested in federal court that the federal district court in Tennessee or the sick circuit is going to agree. So I'd say they may act as if they're an opt-in state at this point but once they go to seek some of the benefits in a particular case then we're going to see the issue get tested in the federal system. I have no opinion about whether or not they've actually complied with they yet because we don't give advisory opinions obviously but I thought the listeners ought to know that Tennessee has at least gone to the effort of trying to comply with the statute and they're attempting to put in procedures that would guarantee death row inmates adequate counsel during collateral attacks. Thank you Greg for that question and that certainly opens up something for us that we hadn't known about here at the center. This one Ira is a bit different these two previous ones have been on points around the law itself but this one says recently the Governor of Illinois declared a moratorium on executions after learning that a number of innocent people were executed. In your judgment is this the start of a trend can we assume that things will probably stay as they are? You're right this question is a little bit different this is more a political question I think than it is a judicial question. One reason I think that the Governor of Illinois and now some other states have considered the question imposed the moratorium is the fear of executing the innocent and now with DNA testing at the level it has attained maybe we can get some assurances on this. The way this plays out in habeas cases is that in many states there is a strict rule against filing an application based on newly discovered evidence in some states I think there's a 21 day limit after the conviction and sentence getting in new evidence so what happens if we have DNA evidence at a much later date can we get it in? If the answer to that is yes then it means that we're going to see some relaxation in habeas corpus standards are we going to see that relaxation it's hard to say. There are a couple of bills pending in congress on this particularly one by senator lehi called something like the innocence protection act of 2000 it's worth taking a look at that but let me just make a full circle back to where I started that focuses on actual innocence and the concern about that. habeas corpus up until recently has also focused on legal innocence even if the inmate is not actually innocent can we still get some federal court adjudication of whether the inmate was convicted or sentenced in violation of the constitution these are all questions that we're seeing played out today it's hard to know where it's going to go Ira I believe that we have a call from the 9th circuit who's are you there yes I'm here and who are you please I'm Maddie and your question okay my question is what happens where you have a state prisoner who on direct appeal the state court of appeals found federal constitutional error but found it harmless there was no state habeas corpus proceeding because the issue was fully litigated on direct and now it's before the federal court everybody's conceding error and the question is harmlessness what happens with 2254d that's the toughest question of all of these other good questions that have been asked it really goes to the intersection of the new 2254d and the rules of harmless error under Chapman v. California and Brecht against Abrahamson one circuit has ruled and I don't recall offhand which circuit it was but it was in the last month and if you need it I can get a site for you one circuit has ruled on the question of whether the new 2254d replaces pre-existing harmless error law holding that it did not so it seems to me then we have to then get into a question of whether the state court's application of the harmless error rule was an unreasonable application which is about as convoluted as you can get on habeas corpus okay can I ask a follow-up because if a state is hearing this on direct appeal they're not going to be using Chapman or Brecht necessarily and they can be using their own state harmlessness standard rather than Brecht or then Brecht or Chapman does that affect that question it affects it only in degree not in terms of type we'd have to look at the type of review and compare in the particular state system and then compare it to what was available under a Chapman type test and see whether that's enough to satisfy it under a Brecht type test there are a couple of cases I don't want to say like this so I would say not unlike this in the 8th circuit and I'll be happy to send some citations your way that great question and thank you Ira and thanks to all of you who faxed and phoned in your questions we're going to take a 5 minute break now when we return Cynthia Rapp will share her perspectives on ADEPA and death penalty cases with Judy Roberts welcome back I'm talking with Cynthia Rapp and we're delighted that you're joining us again please send in your faxes and call during this program and we'll answer your questions at the end of this segment Cynthia thank you for joining us on our capital case update first question for you what changes has the supreme court seen as a result of ADEPA well as Ira had mentioned during his segment now in order to file successive habeas petition you have to first request permission from the court of appeal so obviously the supreme court is not seen as many successive petitions on the other hand what we are seeing is that the court has filed with the supreme court though I have to mention that in the last 75 years the court has not granted such an original writ and could you clarify that how many votes does it take for an original writ well the court has never really publicly stated specifically how many votes it takes this discussion has come up because in the tarver case that was issued in February of this year there was an original writ filed in that case and the court denied to vote to set the case for oral argument so there was a lot of speculation that obviously it must take five votes to set the case for oral argument that's really the only thing that the court has come out with that would give that type of indication okay thank you from the clerk's office perspective could you tell us what decisions court staff need to be ready to make when it comes to filings in last minute cases the biggest thing probably is to try to decide ahead of time what rules you are going to enforce is that when you are getting a last minute petition or filing in your court the problem becomes is that do you want to be the one that's going to not accept the filing because of a technicality for example we had a case recently out of Texas in which the petition was filed the day of the execution they faxed the petition into me and it was clearly over our page limitation but at that point I don't feel comfortable in saying I'm not going to accept this for filing because it violates our rules and redo your whole petition because at that point whether or not they get it in in time at all is going to be a question so I'd rather have the court make that decision than the clerk's office so that's just one of them and there's other things as far as table contents the font, the print size there's other things you need to think in advance what is it that you're going to be the stickler for and what other things are you not going to be so it sounds like some strategic thinking and planning beforehand really makes it much easier for all staff now what happens when a filing comes in and the court staff know that the court doesn't have jurisdiction that's along the same lines as the rules and then that has happened as I stated before in order to file a successive petition you have to first request permission from the circuit court now if the circuit court denies permission to file a successive petition that ruling of itself is not you cannot be the subject of a petition for certiorari that's with the statute of depostates so if we get a petition from that or they're basically applying for cert from that decision I know clearly we do not have jurisdiction over it and the court has let the clerk's office know that we don't have to file those but again in the last minute situation a day of the execution or hours before an execution is someone attempts to file a petition for certiorari on that issue I'm not going to be the one that does not accept it I'll let the court instead take the case and then they can dismiss it for lack of jurisdiction which is what they have done on a couple of occasions but at least it's coming from the court and not from the clerk's office Is there anything else that clerk's office need to be making a priority? One of the things especially in the last minute cases or when you're dealing with things after hours is it's really important to know where everyone is and that includes the judges on the lower courts especially you need to know how to get in touch with them and when they want to be contacted for example do they want to be contacted when the Supreme Court finally finishes and that they know it's totally over or do they just want to be contacted when something is filed in their court so you need to have after-hour numbers or beepers, whatever it's going to be and also for the attorneys that are working on the cases if you're going to be issuing an order after hours you want to make sure you can get in touch with those attorneys to let them know what your court's decision is Right, it sounds like communication is central to having a contingency plan that's going to be working well and I know you're a big advocate for those plans there are many districts that are now facing death penalty cases for the first time in a long time or for the first time what advice do you have for them as they begin to make their plans They really need to have set procedures in effect before anything happens what exactly as I spoke before as far as what rules are you going to enforce who's going to handle things how are you going to handle things what hours are you going to be open are you going to accept things by facts what are your filings you make sure you have backups in case somebody who's going to be handling it's not going to be there another thing would be is to make sure you have contacts with all the other courts that are going to be involved know who it is that you need to contact in the other courts to let them know what you've done or to find out what it is that they're doing so that you have everything all prepared before it happens for one example from the Supreme Court level and set for a specific time say 6 o'clock in the evening we get filings in a couple of hours before the execution time I need to know in advance what is the state going to do if we haven't ruled are they going to hold off the execution do they need an order from the court or will a phone call from me saying court has instructed me to ask you to hold off and those are things that need to be decided before so that you're not faced with this 20 minutes before the execution and no one's really sure what you're going to do if it's the court it helps you out and it just makes the process much more efficient I've heard you compliment the courts many times I know you think they do many things very well could you tell us some of the things that you've been very pleased with their work one thing is tracking the cases the lower courts track them very well and let me know what's going on which is very helpful another thing is they will send copies of what's been filed in their court usually I like to rely on the attorneys to do that they don't always do that so the lower courts have always been extremely receptive to faxing or overnighting me copies of whatever's been filed in their court because what we do with those is we circulate those to all of the justices in our court which helps us when we have to make a decision within a couple of hours at least they've seen the lower court filing so they have some sense of what the issues are what hasn't worked so well some practices that you would not recommend really the only one that comes to mind is the passwords and that's kind of always been a pet peeve of mine I'm just not a big believer in them the people I deal with I usually deal with all the time so I know who they are and I've never seen a case where there's been any confusion about whether or not a court has actually issued an order I've never seen someone try to fake it and say that they're from a court or something like that so to me that's something a little bit I don't want to use the term overkill but it really is to use passwords so any communication the other communication styles are much better going with the password Cynthia whenever I travel throughout the courts your name is the one that comes up when people said I had this question I had this problem but I was able to call Cynthia Rapp so they know that your communication style works and you're recommending increasing communication on their part what tips can you offer them what do you do that works so well probably the two biggest things are sharing information and being proactive and by being proactive what I mean is I about two or three weeks before I know there's a scheduled execution I get on the phone and I start calling the attorneys I call the lower courts and I try to find out what's going on what are they going to be doing what are they going to be filing and that is very helpful the other thing is I always will share my information with the other courts and with both parties I don't keep any secrets unless a party asks me you know the state may say you know what's going on or something I'm not going to share confidence is that an attorney gives me and I try to be very upfront with people about what's going on if I don't know something I'll let them know I'll say I don't know anything now but if you call me back in a couple of hours I may have better information for you those are some good points for all of us especially letting people know what you don't know now you've been working with the death penalty process for quite a while I'm sure there is some changes you might like to see made in the process could you talk about this one of the biggest things I think is the timing most of the states have routinely done their executions in the middle of the night typically midnight which makes for late hours for all the court staff and for the attorneys that are involved in it and there really isn't from what I can see a real good reason for doing that some of the prisons are the ones that are most resistant because they say people are locked down in things but a couple of the states that do the most executions for example Texas used to do them at midnight and about five or six years ago changed and now does them at least have been having no problems whatsoever with doing that so I would say that would probably be the biggest thing and you have to look at it in the full scope too last year there were 98 executions so far this year and we're not even through June there have been 44 so each year the number of executions increases and if you have all the people involved in these things working until midnight every night it gets extremely difficult I can see your concern for the staff involved also what challenges do you have in working with attorneys during these long hours well sometimes attorneys for I'm not sure what the reason is they feel if they don't share information with the courts it's going to help them or they're leery of sharing information with us and that's happened on occasion and it can make it difficult we had a case in which the attorneys kept saying yes we're going to file we're going to file and then they never did file and I really think that they knew all along they weren't but they weren't either had them say to me I'm not sure what we're going to do and I can understand that these are stressful things for the attorneys also but just be up front and be honest with us instead of trying to pretend you're going to do something you're not if you don't know just say we don't know but it had two courts the court of appeals and myself stayed at the courts respectively until one in the morning and then they never filed and we all went home so that seems to me that's something that doesn't need to happen what about judges what about their communication it would be helpful if the judges would communicate with their court staff for example when you start out the district court level and they get something filed the judge knows that he or she is not going to make a ruling on it for a day or a couple hours or something like that share that with their court staff so their court staff in return can share it with me so I can say okay we know that the district court is not going to rule for five hours so if people want to go get something for dinner or need to go home in fact they can do so otherwise we're all sitting there kind of waiting for that order to come out so that we can immediately circulate it to all the chambers so things like that would be helpful so any advance notice no matter how small can definitely be an asset to the management of the process what else do we need to keep in mind I think as far as the lower courts need you know again it's the big picture kind of idea as to when is the execution scheduled and then how much time do we have when things are filed if something is filed in a lower court and they take two or three days to rule on it then it goes up to the court of appeals and they spend a day or two that often leaves the supreme court with three or four hours to deal with it so I mean the courts need to be mindful if they can of the time crunch that everyone's in and try to spread out the time so that everyone has an adequate amount of hours to actually give due consideration to the filings just like everything else today Cynthia you now have technology added into the process how has the supreme court used technology and death penalty appeals and is it a help? it is a help and what we have done the supreme court does not accept fax filings for anything except capital cases and this is the only instance in which we will accept a fax and in prior to faxing the parties have to talk to me first to make sure that it's okay because if there are two weeks out from an execution often the knot will ask them to overnight it as opposed to faxing but we will accept the faxes and that obviously has helped though you wonder sometimes if in some ways it hasn't helped because now they can file an hour before the execution and we do get that but it does make things a little easier is email a factor? it is and it's becoming more and more a factor I have a stand alone computer in which I can accept emails over the internet and then I have to do a clumsy process scanning them and then putting it into my other computer but it's still faster than getting a fax and making nine copies of the fax and circulating it to online chambers and in the last couple of days there have been a few executions and we have gotten the brief and oppositions and the petition all by email and it was much quicker and cleaner than getting a fax so it can be an asset as you progress now we understand the supreme court has a website finally there what do we need to know about it? well it basically it's a very very good website it's got a lot of things on it probably one of the things it's lacking which a lot of the attorneys and staff would find helpful is the docket system unfortunately that's not on it yet but they are working on that but the court calendars on there the opinions which is probably one of the bigger helpful things is you can there are links to all the opinions and they're normally up there within an hour or two after the court has released them very good I know that we've already received some faxes in today for you what I would like to do is to ask you one more question of my own though because as we've been talking about communication I thought what is your preferred method how would you like people to to approach you to let you know they're now the death penalty clerk or in whatever position that they would need to be talking with you people who are going to be handling this at their courts level if they've actually got some cases coming or they think they are it'd be best if they just called me and kind of introduced themselves and then if they had any questions about how we want to work together we could do it over the telephone great so that personal touch and then you'll be able to to work with them effectively through the year very good well we are pleased to be here and we're looking forward to your phone calls for Cynthia Rapp I know I was buzzed that we have first so I'll start with this while we're waiting for phone calls Cynthia the first question is the court what if the court does not have time to rule our court has a very practice really that we always will rule in a case I can't recall an occasion where we don't and as I spoke before about processes and procedures one of the things is we will ask the state to hold off the execution we will issue a temporary stay our court can rule very quickly we had an execution last night in which the court ruled in about an hour and a half on a petition that had been filed so that's not normally an issue and I usually try to assure the parties that their case will be acted upon prior to the execution date okay very good we're still waiting on our phone calls but we do have another fact coming right in thank you alright we have a fax from the eastern district of Oklahoma and it says will you accept calls from the district courts as to whether you have ruled on an original petition within the last few days before an execution if so can you give us a telephone number where we can reach you the answer is yes I would accept phone calls on that and I think you said you're going to put up on the screen and you could either ask for me or actually anyone in the clerk's office should be able to look that up on our docket system as long as you know the petitioner's name we can find them in the docket system so anyone would be able to help you answer that question so you should be seeing that on your screen at the present time you should be seeing the phone number on your screen and as I said Cynthia is very accessible to everyone that needs to speak with her I also have another fax just a moment the phones are working we do want to let you know we have ten lines this is an interesting question what if the attorney will not tell me what they are planning to do unfortunately that does happen sometimes and what you want to do in that case what I would do is try to stress the attorney that it's only going to help their client and the courts go through the whole procedure if they let you know in advance what they're going to do because if they don't tell you that they plan to file they may find that the court is closed when they finally get there at six o'clock because you didn't know anything was coming another thing you can do is call the other courts that are going to be involved and call me, call the circuit court or the district court and ask them if they've spoken with the attorney and what do they know because sometimes for whatever reason the attorney may have told someone else so that's another way do you ever intervene by calling the attorney in that case when someone's called you I can't call specifically if I have but I've always called the attorneys myself in addition so if I've learned anything I certainly would share it with the lower courts and I've got some weight behind me because I can say I'm calling from the Supreme Court and the justices would like to know because we've got nine that are going to rule the lower courts, the district court there's only going to be one and the circuit court normally it's just going to be a panel and need to be contacted so we really do need to know in advance and it helps to say I'm with the Supreme Court Yes it does. Very good I believe we have one more fact too they're still still here this one says how do you know there is going to be an execution how do you find out all the information you need I have contacts in all of the states that routinely do executions and even those that have one or two a year and I've always gotten contacted in advance about the executions I keep a list for the justices for the court staff which is done once a week and it's circulated throughout the court listing all the upcoming executions for the month and I have my own list which I keep which probably runs about two or three months out so I'm always aware of when they're going to occur and if the states don't contact me the courts of appeals are also very good and we know what executions are coming up in their circuit so there usually is not a problem at all in keeping track of all of the capital cases that are coming up and again that communication factor is critical for it working for everyone do we have any phone calls it appears we do not but we appreciate your facts these were excellent questions and I'd like to thank Cynthia for sharing her expertise and now I will be turning the program back to Fran Toller thank you Judy and Cynthia for such an enlightening interview we're coming to our towards the end of our broadcast now and I have a question that I have to ask Professor Robbins here with all the restrictions that you previously described is this the end of the road for habeas corpus of course Fran that's the ultimate question in a sense it really is not if we look at the language in some of these opinions for example in Slack v McDaniel one of the cases I mentioned before Justice Kennedy who is not really a proponent of an expansive writ of habeas corpus wrote that the writ of habeas corpus plays a vital role in constitutional rights protection now is this a way of just paying lip service to the writ while continuing to narrow it maybe not in fact probably not look at what they did not just at what they said the prisoner won in three out of the four habeas cases in the supreme court so I would say admittedly habeas corpus is not as vigorous a remedy as it has been in recent years it's hard to say is this like rearranging deck chairs on the Titanic we're not at that point or we're not yet at that point at which we would say that review of state court convictions only in the state courts not in the federal courts habeas corpus has always operated as a safety valve judges would look to see whether there was a degree of comfort in terms of being comfortable with the justice that was promulgated in that case I would say it remains to be seen how comfortable the federal judges are with the restrictions imposed on them by the 1996 anti-terrorism act and on what's going on in the state courts in terms of fair review of convictions and sentences thanks Ira that certainly is enlightening to me I was wondering as we were summing up we've heard from Cynthia and Judy if you had any final thoughts for our audience today well I would say the work that you do is as important as it gets in the judicial system and in the legal system I would say don't worry about what you read about habeas corpus and about death penalty in the media just do your jobs and do it well habeas corpus is still available can be applied can protect constitutional rights in appropriate cases your judges will decide for you what's appropriate and you should understand habeas corpus law and practice well enough to help the judges get to where they want to go in these cases thanks Ira we've covered a lot of ground today and we want to thank everyone who's participated in the broadcast from Ira, Cynthia and Judy and especially to all of you who viewed it today and faxed in your questions and your wonderful phone calls let me remind you that all the material related to the broadcast today is on our website and we would encourage you to get those materials if you have not done so one final thing at the center it's very important to us to know exactly how we're doing and we also like to know just as more than for just curiosity's sake who watches our broadcast so we do want to remind you that we would like you to fax in our class roster an evaluation sheet and because we do care about who attends and we're very interested in what you think for those of you who are applying for CLE credits the information on that is also found on our website we should know by the first week in July which states have agreed to give credit for this program thanks again you do very important work as professor Robin said and we at the center are proud to serve you thanks for being with us