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Monday, July 12, 2010

Suppression of illegally obtained evidence...a recent win.

One of the attorneys I work for on a regular basis recently had a case where a client was a passenger in a car stopped by police. After citing the driver for operating without insurance, the officer advised he was having the car towed. The passenger, John, asked the officer if he could leave and walk home. The officer directed John to empty his pockets first. John complied. The officer then conducted a patdown search and reached into John's pocket, finding a 1 gram packet of marijuana. John was arrested and jailed.

On suppression counsel challenged the search as illegal based upon a lack of exigent circumstances, officer safety, or valid consent. The controlling case for suppression was State v. Chihak, No. 9-090/08-0452 (Iowa App. 3/11/2009) (Iowa App., 2009), where the Court reversed and remanded the denial of suppression based upon an illegal pat down search. The Chihak Court held:

"Warrantless searches and seizures are per se unreasonable unless they fall within one of the carefully drawn exceptions to the warrant requirement. State v. Simmons, 714 N.W .2d 264, 271 (Iowa 2006). Valid exceptions to the warrant requirement include searches based on (1) consent, (2) plain view, (3) probable cause coupled with exigent circumstances, (4) searches incident to arrest, and (5) those based on the emergency aid exception. State v. Lewis, 675 N.W.2d 516, 522 (Iowa 2004). The State has the burden of proving by a preponderance of the evidence that a warrantless search falls within one of the exceptions to the warrant requirement. Id.
It is not contested in this appeal that the officers had a right to stop the vehicle because of the loud muffler. Additionally, Chihak does not contest that the officers had a right to search the vehicle in which Chihak was a passenger based on Murley's consent, nor does Chihak dispute that the officers had the right to order him out of the car to facilitate the lawful consent search of the vehicle. Rather, the crux of the appeal is based on what occurred after the officer ordered Chihak out of the car. Specifically, we must determine whether Officer Lowrey was justified in performing a pat-down search of Chihak.
As stated above, after Chihak exited the car at the request of Officer Lowrey, the officer stated "I'm going to pat you down, make sure you don't have any bombs, guns, knives or anything that can stick me." The State argues Officer Lowrey had a right to conduct this pat-down search of Chihak prior to searching the car in order to ensure his own safety. Officer Lowrey testified he just wanted to "make sure [Chihak] didn't have a gun in his pocket or a knife in his pocket or something that [Chihak] could harm me in some way when I put him to the rear of the vehicle" while he was assisting in the search of the vehicle. Additionally, he testified "[a]ny time I have anybody to my back it tends to be an officer safety issue." The State argues the pat-down Officer Lowrey performed was justified under the officer safety exception. The issue here is controlled by the landmark decision of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), and its progeny. Under Terry, an officer has authority to conduct a reasonable search for weapons for the officer's own protection, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual. Terry, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909; see also Michigan v. Long, 463 U.S. 1032, 1047-50, (1983); Ybarra v. Illinois, 444 U.S. 85, 92-94,(1979); Pennsylvania v. Mimms, 434 U.S. 106, 112, (1977).
The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. And in determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or `hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. Terry, 392 U.S. at 27. In justifying this particular intrusion upon individuals' constitutionally protected interests the officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Id. at 21. The Fourth Amendment requires that at some point the reasonableness of a particular search or seizure can be subjected to the neutral, detached scrutiny of a judge. Id. The judge must then evaluate the reasonableness in light of the particular circumstances, and in making that assessment must employ an objective standard:

"would the facts available to the officer at the moment of the seizure or search `warrant a man of reasonable caution in the belief' that the action taken was appropriate?" Id. at 21-22.

Officer Lowrey testified he was going to conduct the pat-down search of Chihak to ensure his safety. However, he also testified that Chihak was cooperative (the driver was also cooperative), gave him his ID, made no movements and was not moving around, was not threatening, and that Chihak was not a danger to him when he asked
him to step out of the car. This testimony demonstrates that Officer Lowrey did not have the requisite "reasonable belief" that Chihak was armed and presently dangerous to justify the initiation of a pat-down search. Furthermore, not only is there no testimony from the officer that he had any belief that Chihak was armed or dangerous, we cannot find that the facts available to the officer at the time of the search would have warranted a person of reasonable caution to believe that he was.

The court ruled in favor of the defense, citing the officer's error in ordering the defendant to empty his pockets and then conducting a further search "in hopes of finding fruits of a crime." This case was won because the attorney took the time to question the legality of the search. It could have been easy to plead the client out to a misdemanor and unsupervised probation with a fine. But instead the client was cleared of the arrest and did not suffer the harm of a conviction.

Chalk a win up for the defense.


Wednesday, July 7, 2010

Sad State for ACTUAL INNOCENCE in the Ninth Circuit

On July 6, 2010, the Ninth Circuit dealt a severe blow to state habeas corpus petitioners seeking releif under 28 USC 2254.

In a lengthy opinion, the court held that 2244 does not recognize an ACTUAL INNOCENCE exception for state habeas corpus petitioners.

Following more than 9 years of litigation, Richard Lee was able to convince a federal discourt court of his actual innocence of several state felony offenses. The procedure history of the case is almost unbelievable. Back and forth through state and federal courts to finally win his freedom, only to be curtailed by a federal statute that has been admittedly enacted on the wrong basis by president Clinton, who signed the AEDPA into law in 1996.

Here is a quote from the case:

" O'SCANNLAIN, Circuit Judge.

We must decide whether to recognize a judge-made exception to the statute of limitations for federal habeas relief in the case of a state prisoner who makes a showing of actual innocence in his original petition.

An Oregon state court jury convicted Richard Lee of two counts of first-degree sexual abuse and two counts of sodomy of a four-year-old named Matthew. Lee appealed, but his counsel filed the Oregon equivalent of an Anders brief, and the Oregon Court of Appeals affirmed the conviction. Lee did not seek review in the Oregon Supreme Court, so direct review became final on September 30, 1996.

Lee timely filed for state postconviction relief. He alleged, inter alia, that he received ineffective assistance of counsel regarding the initial exclusion of evidence concerning another suspect, the appeal of the same issue, the failure to call an expert witness on the reliability of child testimony, and the calling of witnesses harmful to the defense. But his petition was denied. The Oregon Court of Appeals affirmed, and the Oregon Supreme Court denied review. State postconviction proceedings thus became final on September 24, 2001.

Lee petitioned for habeas relief in federal district court, again alleging, inter alia, ineffective assistance of counsel. Initially, the district court, relying on a magistrate judge's recommendation that Lee did not appeal the state trial court's denial of postconviction relief, dismissed his petition as untimely under the one-year federal statute of limitations for seeking federal habeas relief. 28 U.S.C. § 2244(d)(1). We reversed. Lee v. Lampert, 92 F. App'x 532 (9th Cir. 2004). Lee then filed an amended petition in 2005, which was held in abeyance pending determination of the retroactivity of Crawford v. Washington, 541 U.S. 36 (2004). After resolution of that issue, the magistrate judge again recommended denying the habeas petition.

But this time the district court disagreed. After conducting several evidentiary hearings over the fall and winter of 2008, it granted the petition for a writ of habeas corpus on March 24, 2009, finding that Lee established actual innocence and ineffective assistance of counsel and ordering Oregon to release or to retry Lee. Lee v. Lampert, 607 F. Supp. 2d 1204, 1221-22, 1226 (D. Or. 2009). The State timely appealed and a motions panel stayed the district court order, placing the case on expedited calendar for our review."

Ultimately the court ruled against Lee, finding that his petition was untimely filed and no actual innocence exception was allowed by the statute:

"We now resolve this question for our circuit for two reasons.

First, there is a widening split among the district courts of our circuit on whether there is an actual innocence exception to section 2244(d). Several district courts, including ones in the Central District of California, the Northern District of California, and the District of Oregon, have held that "actual innocence" overrides the statute of limitations. E.g., Lisker v. Knowles, 463 F. Supp. 2d 1008, 1032-38 (C.D. Cal. 2006) (Phillips, J.) ("[T]he Court concludes that AEDPA's statute of limitations must be tolled when an evidentiary showing demonstrates that its application would work a miscarriage of justice under Schlup."); Larsen v. Adams, 642 F. Supp. 2d 1124, 1131 (C.D. Cal. 2009) (Snyder, J.) (holding that "a credible actual innocence claim overcomes the statute of limitations bar"); Nickerson v. Roe, 260 F. Supp. 2d 875, 890 (N.D. Cal. 2003) (Patel, C.J.) (adhering to previous order finding actual innocence exception); O'Neal v. Lampert, 199 F. Supp. 2d 1064, 1066 (D. Or. 2002) (Aiken, J.) (finding "that creating an `actual innocence' exception to the habeas corpus statute of limitations is a logical extension of [Schlup]").

Several other district courts, including some within the Eastern District for California and the District of Oregon, have held the opposite. E.g., Chestang v. Sisto, No. CIV S-07-1173 (E.D. Cal. Sept. 30, 2009) (Karlton, J.), adopting in full, 2009 WL 2567860, *13 (E.D. Cal. Aug. 18, 2009) ("The court is persuaded by the David rationale that claims of actual innocence are required to be brought diligently the same as any other claim."); Souliotes v. Tilton, 2008 WL 782479, *8 (E.D. Cal. Mar. 20, 2008) (Wanger, J.) (rejecting actual innocence argument and ruling that "petition for writ of habeas corpus is barred by the statute of limitations"); Flemmer v. Eckland, Civ. No. 99-598-HU, at 2 (D. Or. 2000) (King, J.) (adopting magistrate judge's recommendation that there is no actual innocence exception to statute of limitations).

This split creates troubling inconsistency. The rights of state prisoners in Oregon depend on which judge hears their cases. The rights of state prisoners in California depend on the happenstance of the location of their state prison. Such chaos calls out for our resolution.

Our second reason for resolving this question at this time is that our district courts are expending vast amounts of resources under the current approach of evaluating actual innocence, on the assumption that an actual innocence exception exists. Each such evaluation requires the submission of exhibits, oral argument, evidentiary hearings, and numerous rulings, as the case before us demonstrates.[ 16 ] Here, the district court held several hearings and accepted numerous exhibits over the course of proceedings lasting several months. Lee, 607 F. Supp. 2d at 1216; see Nickerson, 260 F. Supp. 2d at 889 (recounting four days of hearings over three months, two hundred exhibits, and post-hearing briefing).

[12] A simple search, furthermore, demonstrates that every district in our circuit has faced numerous cases like this, in which they scrupulously evaluated actual innocence claims in the context of a petition time-barred by the statute of limitations, on the assumption that an actual innocence exception exists.[ 17 ] The Central District of California, by itself, has decided at least twenty-four cases in this manner between March 4, 2008 and October 5, 2009, the date of argument in this case.[ 18 ] This massive expenditure of judicial resources has affected us at the circuit level as well, as a cursory search of our cases demonstrates.[ 19 ] All of these efforts are for naught if there is no actual innocence exception to the statute of limitations. Since the text of the statute indicates there is not, the federal courts in our circuit are needlessly burdened. We decline to prolong the inevitable recognition that there is no "actual innocence" exception to the one-year statute of limitation for filing an original petition for habeas corpus relief.

Accordingly,[ 20 ] we REVERSE the judgment of the district court and REMAND with instructions to DISMISS the habeas petition as untimely."

However, it appears the Ninth Circuit framed its opinion in such a way as to give note to the US S Ct that resolution of this issue is of paramount importance.

Hopefully this petitioner will seek Supreme Court review and get this issue settled once and for all.

Good luck to you Richard.


Saturday, July 3, 2010

EQUITABLE TOLLING is real now for state applicants seeking federal relief.

Recently the Supreme Court issued a nasty opinion against states seeking dismissal of "untimely" federal habeas corpus petitions.

In HOLLAND v. FLORIDA, No. 09-5327. Argued March 1, 2010--Decided June 14, 2010, the Court held that a state petitioner seeking federal habeas corpus relief under 28 USC 2254 is entitled to equitable tolling if he satisfies two criteria: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way" and prevented timely filing.

The Holland Court explained several prior Supreme Court cases for support of their holding, citing the following: Pace v. DiGuglielmo, 544 U. S. 408, 418. Such "extraordinary circumstances" are not limited to those that satisfy the Eleventh Circuit's test. Courts must often "exercise [their] equity powers ... on a case-by-case basis," Baggett v. Bullitt, 377 U. S. 360, 375, demonstrating "flexibility" and avoiding "mechanical rules," Holmberg v. Armbrecht, 327 U. S. 392, 396, in order to "relieve hardships ... aris[ing] from a hard and fast adherence" to more absolute legal rules, Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U. S. 238, 248. The Court's cases recognize that equity courts can and do draw upon decisions made in other similar cases for guidance, exercising judgment in light of precedent, but with awareness of the fact that specific circumstances, often hard to predict, could warrant special treatment in an appropriate case.

Many state and federal habeas corpus petitioners face an uphill battle when reseraching and preparing their petitions. Most are pro-se and done wthout the benefit of counsel. Reliance is placed on prison law clerks and the limited resources available inside. Most often the habeas corpus petitioner was not informed of the timeline necessary to file a timely petition. Most attorneys withdraw from a case when an appeal is complete and at that point the petitioner is flying solo, usually with a blindfold on.

Now those petitioners have a fighting chance to have their issues heard rather than face summary dismissal on untimeliness grounds.

The full opinions is available at

Good luck.