Search This Blog

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.


No comments:

Post a Comment