Posted by Jonathan Adler:
Two More Habeas Cases Split Sixth:
http://volokh.com/archives/archive_2007_01_14-2007_01_20.shtml#1169045259
I don't follow other circuit courts of appeal closely enough to know
for sure whether the U. S. Court of Appeals for the Sixth Circuit is
particularly divided over the handling of habeas corpus petitions, but
it sure seems that way. The latest evidence are two opinions issued by
two different divided panels yesterday.
In [1]Van v. Jones, a panel addressed the question of first impression
whether a Michigan defendant's consolidation hearing is a "critical
stage" of the criminal proceedings against him, such that the absence
of counsel requires the issuance of a writ of habeas corpus. Chief
Judge Danny Boggs, writing for the majority, answered the question in
the negative, after an extensive review of the "critical stage
doctrine" and how it could apply to a consolidation hearing.
It is settled that a complete absence of counsel at a critical
stage of a criminal proceding is a per se Sixth Amendment violation
warranting reversal of a conviction, a sentence, or both, as
applciable, without analysis for prejudice for harmless error. . .
. But what is a critical stage?
If the consolidation hearing was a critical stage because Van's
counsel was entirely absent, there is no need to make a showing of
prejudcie. Whether it was a critical stage depends on whether there
was a reasonable probability that Van's case could suffer
significant consequences from his total denial of counsel at this
stage Perhaps the best way of reaching an answer to that query is
to ask whether Van had any opportunity, subsequent to the
consolidation hearing, to recover or exercise whatever privilege he
lost at the hearing.
Here, it seems that the balance tiips on the side of this being a
procedural step where counsel's absence would, as a structural
matter, be unliklely to be necessary to prevent incurable
prejudice. This is not to say, howver that counsel's action in not
appearing for a noticed hearing on the motion to consolidate was
professional or excusable, nor that, in an appropriate case, a
claim for ineffective assistance of counsel might succeed. However,
Van's claim here is not couched in terms of ineffective assistance
of counsel, nor, on this record, is it likely that he could
demkonstrate prejudice.
Judge Cook wrote a concurring opinion noting that "in the abstract,
consolidation surely could expose a defendant to a risk of prejudice,"
but that such prejudice was not possible in this case because, "under
Michigan law, Van could not have avoided consolidation."
Judge Moore dissented, arguing that "a defendant who is unrepresented
by counsel at a consolidation hearing is exposed to a serious risk of
prejudice." Judge Moore noted that, because "joint trials are often
favored at law," counsel is necessary to counterbalance a trial
judge's potential tendency to favor consolidation. Thus, Moore would
have held that a consolidation hearing is always a critical stage of
the pretial process, and the absence of counsel at such a hearing is
per se reversible error.
In [2]Benge v. Johnson, the court considered Michael Benge's habeas
petition challenging his conviction and death sentence for aggravated
murder and aggravated robbery. The panel easily disposed of six of
Benge's claims, but divided on the seventh, "whether a jury
instruction incorrectly precluded the jury from considering the
affirmative defense of voluntary manslaughter."
Judge Gilman, joined by Judge Rogers, rejected Benge's claim.
In attempting to excuse his procedural default, Benge must
demonstrate �that there was cause for the default and prejudice
resulting from the default, or that a miscarriage of justice will
result from enforcing the procedural default in the petitioner�s
case.� [citation omitted]. Because we conclude that Benge has
failed to show the actual prejudice necessary to excuse his
procedural default, we will assume without deciding that the
district court correctly determined that the first prong of
Strickland was satisfied. . . .
The dissent correctly notes that the erroneous jury instruction
effectively foreclosed the possibility that the jury could have
found Benge guilty of the robbery but not guilty of the murder. We
also recognize, as the dissent emphasizes and as the district court
itself acknowledged, that �[a] conviction for aggravated robbery
does not as a matter of law preclude an affirmative defense of
provocation with regard to a related murder charge.� . . But the
dissent fails to persuade us that there is a reasonable probability
that a properly instructed jury would have concluded that Benge met
this affirmative burden. . . .
What Benge could have done, however, is irrelevant at this stage in
the proceedings. We must be able to say that a reasonable
probability exists that a properly instructed jury would have
concluded that Benge had shown provocation by a preponderance of
the evidence. Given that Benge�s provocation defense rested almost
exclusively on his own extremely dubious and at times inconsistent
testimony, we are unable to so conclude.
Judge Martin dissented.
Although I agree with the bulk of the majority�s analysis, I
believe that Benge has presented one meritorious claim that should
entitle him to a writ of habeas corpus. When Benge�s attorney
failed to object to the jury instructions regarding the lesser
included offense of voluntary manslaughter, resulting in a jury
charge that the Ohio Supreme Court later acknowledged was
erroneous, he failed to provide Benge effective assistance of
counsel. Because I believe a habeas writ should issue regarding
that claim under Strickland v. Washington, 466 U.S. 668 (1984), I
respectfully dissent.
References
1. http://www.ca6.uscourts.gov/opinions.pdf/07a0019p-06.pdf
2. http://www.ca6.uscourts.gov/opinions.pdf/07a0017p-06.pdf
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