Thursday, October 05, 2006

habeas corpus

Lat. "you have the body"

Prisoners often seek release by filing a petition for a writ of habeas corpus.

A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully and whether or not he should be released from custody.

A habeas corpus petition is a petition filed with a court by a person who objects to his own or another's detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error. Habeas corpus petitions are usually filed by persons serving prison sentences.

In family law, a parent who has been denied custody of his child by a trial court may file a habeas corpus petition.

Also, a party may file a habeas corpus petition if a judge declares her in contempt of court and jails or threatens to jail her.

In Brown v. Vasquez, 952 F.2d 1164, 1166 (9th Cir. 1991), cert. denied, 112 S.Ct. 1778 (1992), the court observed that the Supreme Court has "recognized the fact that`[t]he writ of habeas corpus is the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action.'

Harris v. Nelson, 394 U.S. 286, 290-91 (1969). " Therefore, the writ must be "administered with the initiative and flexibility essential to insure that miscarriages of justice within its reach are surfaced and corrected." Harris, 394 U.S. at 291.

The writ of habeas corpus serves as an important check on the manner in which state courts pay respect to federal constitutional rights.

The writ is "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action."

Harris v. Nelson, 394 U.S. 286, 290-91 (1969). Because the habeas process delays the finality of a criminal case, however, the Supreme Court in recent years has attempted to police the writ to ensure that the costs of the process do not exceed its manifest benefits.

In McCleskey the Court raised barriers against successive and abusive petitions. The Court raised these barriers based on significant concerns about delay, cost, prejudice to the prosecution, frustration of the sovereign power of the States, and the "heavy burden" federal collateral litigation places on "scarce federal judicial resources," a burden that "threatens the capacity of the system to resolve primary disputes." McCleskey, 499 U.S. at 467.

The Court observed that"[t]he writ of habeas corpus is one of the centerpieces of our liberties. `But the writ has potentialities for evil as well as for good. Abuse of the writ may undermine the orderly administration of justice and therefore weaken the forces of authority that are essential for civilization.' " McCleskey, 499 U.S. at 496 (quoting Brown v. Allen, 344 U.S. 443, 512 (1952) (opinion of Frankfurter, J.))

The predominant inquiry on habeas is a legal one: whether the "petitioner's custody simpliciter" is valid as measured by the Constitution. Coleman v. Thompson, 501 U.S. 722, 730 (1991). The purpose of the great writ is not to relitigate state trials.

Dismissal of habeas petition under the "total exhaustion" rule of Rose v. Lundy, 455 U.S. 509, 520 (1982) (each claim raised by petitioner must be exhausted before district court may reach the merits of any claim in habeas petition).

Jury exposure to facts not in evidence deprives a defendant of the rights to confrontation, cross-examination and assistance of counsel embodied in the Sixth Amendment. Dickson v. Sullivan, 849 F.2d 403, 406 (9th Cir. 1988); see also Jeffries v. Blodgett, 5 F.3d 1180, 1191 (9th Cir. 1993) (introduction of extraneous prior bad acts evidence during deliberations constitutes error of constitutional proportions), cert. denied, 114 S.Ct. 1294 (1994).

However, a petitioner is entitled to habeas relief only if it can be established that the constitutional error had "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 113 S. Ct. 1710, 1722 & n.9 (1993).

Whether the constitutional error was harmless is not a factual determination entitled to the statutory presumption of correctness under 28 U.S.C. S 2254(d). Dickson, 849 F.2d at 405; Marino v. Vasquez, 812 F.2d 499, 504 (9th Cir. 1987).

In a habeas corpus proceeding, a federal court generally "will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment."

Coleman v. Thompson, 501 U.S. 722, 111 S. Ct. 2546, 2553-54 (1991). This doctrine applies to bar federal habeas review when the state court has declined to address the petitioner's federal claims because he failed to meet state procedural requirements. Id. at 2254; see also Sochor v. Florida, 504 U.S. 527, 119 L. Ed. 2d 326, 337 (1992).

Thus, the independent state grounds doctrine bars the federal courts from reconsidering the issue in the context of habeas corpus review as long as the state court explicitly invokes a state procedural bar rule as a separate basis for its decision. Harris v. Reed, 489 U.S. 255, 264 n.10 (1988).

Habeas petitioners are not entitled to habeas relief based on trial error unless they can establish that it resulted in actual prejudice. O'Neal v. McAninch, 115 S. Ct. 992, 994-95 (1995). It is the responsibility of the court, once it concludes there was error, to determine whether the error affected the judgment. If the court is left in grave doubt, the conviction cannot stand. Id.

On a petition for a writ of habeas corpus, the standard of review for a claim of prosecutorial misconduct, like the standard of review for a claim of judicial misconduct, is " 'the narrow one of due process, and not the broad exercise of supervisory power.' " Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). "The relevant question is whether the prosecutor['s] comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.' "

Id. (quoting Donnelly, 416 U.S. at 643).

A federal court has no supervisory authority over criminal proceedings in state courts. The only standards we can impose on the states are those dictated by the Constitution. Daye, 712 F.2d at 1571. Objectionable as some actions might be, when considered in the context of the trial as a whole they are not "of sufficient gravity to warrant the conclusion that fundamental fairness has been denied."

Id. at 1572. See Gayle v. Scully, 779 F.2d at 807 (trial judge's caustic, sarcastic comments and offensive conduct, although perhaps inconsistent with institutional standards of federal courts, did not violate due process); Daye, 712 F.2d at 1572 (trial judge's skeptical attitude toward defendant's testimony, and his reinforcement of identification evidence by government witnesses, "approached but did not cross the line that permits [a ruling] that the Constitution has been violated").

The fact that a jury instruction is inadequate by Federal Court direct appeal standards does not mean a petitioner who relies on such an inadequacy will be entitled to habeas relief from a state court conviction. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). In habeas proceedings challenging state court convictions, relief is available only for constitutional violations.

Whether a constitutional violation has occurred will depend upon the evidence in the case and the overall instructions given to the jury. See Cupp v. Naughten, 414 U.S. at 147 (constitutionality determined not by focusing on ailing instruction "in artificial isolation" but by considering effect of instruction "in the context of the overall charge."). See also Henderson v. Kibbe, 431 U.S. 145, 155 (1977) (recognizing that "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law" and, therefore, a habeas petitioner whose claim of error involves the failure to give a particular instruction bears an "especially heavy" burden).

Shackling, except in extreme forms, is susceptible to harmless error analysis. Castillo v. Stainer, 997 F.2d at 669. In a habeas case dealing with a state court sentence, the question is whether the shackling "had substantial and injurious effect or influence in determining the jury's verdict." Id. (quoting Brecht v. Abrahamson, 113 S. Ct. 1710, 1714 (1993)). If we are in "grave doubt" whether the error affected the verdict, the error is not harmless. O'Neal v. McAninch, 115 S. Ct. 992, 994 (1995).

The risk of doubt, however, is on the state. Id. at 996 (rejecting language in Brecht v. Abrahamson which places on defendant burden of showing prejudice). See Castillo v. Stainer, 983 F.2d at 149 (finding shackling at trial harmless error because defendant only wore waist chain that could not be seen by jury).

The above found here on the net

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U.S. Takes Low Road
October 3, 2006 GARRISON KEILLOR, printed in the Hartford Courant and other newspapers

I would not send my college kid off for a semester abroad if I were you.

We have suspended human rights in America, and what goes around comes around. Ixnay habeas corpus.

The U.S. Senate, in all its splendor and majesty, has decided that an "enemy combatant" is any non-citizen whom the president says is an enemy combatant, including your Korean greengrocer or your Swedish grandmother or your Czech au pair, and can be arrested and held for as long as authorities wish without any right of appeal to a court of law to examine the matter.

If your college kid were to be arrested in Bangkok or Cairo, suspected of "crimes against the state," and held in prison, you'd assume that an American foreign service officer would be able to speak to your kid and arrange for a lawyer, but this may not be true anymore.

Be forewarned.

The Senate also decided it's up to the president to decide whether it's OK to make these "enemy combatants"stand naked in cold rooms for a couple days in blinding light and be beaten by interrogators.

They have no right to see the evidence against them, and there is no appeal.

This was passed by 65 senators and will now be signed by Mr. Bush, put into effect, and in due course be thrown out by the courts.

It's good that Barry Goldwater is dead because this would have killed him.

Go back to the Senate of 1964 - Goldwater, Dirksen, Russell, McCarthy, Javits, Morse, Fulbright - and you won't find more than 10 votes for it.

None of the men and women who voted for this bill has any right to speak in public about the rule of law anymore, or to take a high moral view of the Third Reich, or to wax poetic about the American Ideal.

Mark their names.

Any institution of higher learning that grants honorary degrees to these people forfeits its honor.

Alexander, Allard, Allen, Bennett, Bond, Brownback, Bunning, Burns, Burr, Carper, Chambliss, Coburn, Cochran, Coleman, Collins, Cornyn, Craig, Crapo, DeMint, DeWine, Dole, Domenici, Ensign, Enzi, Frist, Graham, Grassley, Gregg, Hagel, Hatch, Hutchison, Inhofe, Isakson, Johnson, Kyl, Landrieu, Lautenberg, Lieberman, Lott, Lugar, Martinez, McCain, McConnell, Menendez, Murkowski, Nelson of Florida, Nelson of Nebraska, Pryor, Roberts, Rockefeller, Salazar, Santorum, Sessions, Shelby, Smith, Specter, Stabenow, Stevens, Sununu, Talent, Thomas, Thune, Vitter, Voinovich, Warner.

If, however, the court does not, then our country has taken a step toward totalitarianism.

If the government can round up someone and never be required to explain why, then it's no longer the United States of America as you and I always understood it.

Our enemies have succeeded beyond their wildest dreams.

They have made us become like them.I got some insight last week into who supports torture when I went down to Dallas to speak at Highland Park Methodist Church.

It was spooky. I walked in, was met by two burly security men with walkie-talkies, and within 10 minutes was told by three people that this was the Bushes' church and that it would be better if I didn't talk about politics.

I was there on a book tour for "Homegrown Democrat," but they thought it better if I didn't mention it. So I tried to make light of it: I told the audience, "I don't need to talk politics. I have no need even to be interested in politics - I'm a citizen, I have plenty of money and my grandsons are at least 12 years away from being eligible for military service."

And the audience applauded! Those were their sentiments exactly. We've got ours, and who cares?

The Methodists of Dallas can be fairly sure that none of them will be snatched off the streets, flown to Guantanamo, stripped naked, forced to stand for 48 hours in a freezing room with deafening noise, so why should they worry?

It's only the Jews who are in danger, and the homosexuals and gypsies.

The Christians are doing just fine. If you can't trust a Methodist with absolute power to arrest people and not have to say why, then whom can you trust?

Garrison Keillor's

"A Prairie Home Companion" can be heard Saturday nights on public radio stations across the country. This piece was distributed by Tribune Media Services.

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The below from a Know your Rights webpage, click here

Downloadable "Know York Rights" Flyer

Downloadable Incident Report Form

National Lawyers Guild (NLG)
National Office: (212) 627-2656,
NLG Bay Area legal hotline for police/ government harassment: (415) 285-1055 or (415)255-0796.

National Immigration Project: (617) 227-9727
Immigration law information is also available on:

American Arab Anti-Discrimination Committee (ADC)- Report hate crimes and harassment against Arab Americans and MuslimsNational Office: (202) 244-2990, ADC-SF: (415) 861-7444; American Civil Liberties Union of Northern California: (415) 621-2493.

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added Oct. 14, 2006, 4:20 AM EST:

Habeas corpus sellout
OpEd, The Washington Times
By Nat Hentoff, October 9, 2006
Having achieved much attention for insisting that the president obey the Supreme Court and provide detainees with the protections of the Geneva Conventions, the three rebel Republican senators, John McCain, John Warner and Lindsey Graham, nonetheless have voted in the 65-to-34 majority for the Military Commissions Act of 2006.

Also approved by the House, this bill has President Bush's approval.

But why do these would-be dissenters support it? Although these warriors for principle say they have now achieved their goal ("America can be proud," adds Graham) this unprecedented and far-reaching statute makes it impossible for our detainees anywhere in the world to protest in our courts that their conditions of confinement violate the humane standards of the Geneva Conventions.

The Military Commissions Act closes our federal courts to any habeas corpus petitions on those conditions of confinement. This is despite the Supreme Court's instructions this June to the president and Congress that the military commissions dealing with these prisoners provide them with "all the judicial guarantees recognized as indispensable by civilized persons."

Habeas corpus, eminently civilized, requires that the government demonstrate it is holding detainees lawfully.

But this radical new law goes much further than revoking habeas in showing the world -- most importantly, our allies -- the fragility of our vaunted rule of law, the bedrock of our constitutional republic.

This legislation not only strips the habeas rights of any alien designated as an unlawful enemy combatant, including permanent alien residents of the United States, but it also greatly and loosely expands the very definition of "enemy combatant."

Current case law defines an enemy combatant as someone engaged in armed conflict with this country, but now it also includes anyone who "purposely and materially" supports hostilities against the United States. Such alleged enemies can be picked up by the Defense Department and held without charges indefinitely -- and without recourse to our courts.

Ari Shapiro, National Public Radio's persistently astute and reliable reporter on our justice system, noted on Sept. 28, quoting concerned immigration organizations: "Imagine you're somebody who's been living in the United States for 30 years, married to an American citizen.

You give money to an Islamic charity and the United States determines that that charity supported terrorism. That's material support (in this new law). You can then be declared an unlawful enemy combatant, taken to a secret prison and...potentially never be heard from again, these (immigration rights) groups say."

Amongthose alarmed, as I am, by this further expansion of executive powers by the Bush administration, is Jumana Musa, an Amnesty International lawyer. She told the Boston Globe (Sept. 28):

"What if they had this after Sept. 11 (2001) when they picked up all kinds of folks on immigration charges and material-witness charges and tried them in secret immigration proceedings?

"Those people," she continued, "were deported. Now...they could be detained indefinitely as enemy combatants."

Also disturbed by this legislation, championed by the president, is Democratic Rep. Doris Matsui, who was born in an Arizona detention camp during the roundup of Japanese Americans during World War II -- a shameful episode in American history when the president was Franklin Roosevelt, who had insisted that it was "fear itself" to which we should not yield in time of war.

Said Mrs. Matsui on National Public Radio (Sept. 27):

"From my family's perspective, I know something about what can happen to the rights of Americans when the executive branch overreaches in a time of war."

And this new, startling overreaching, in the Military Commissions Act of 2006, could also encompass American citizens transformed into enemy combatants because of "material support" of the enemy as unilaterally defined by the executive.

Arguing on the Senate floor against the revocation of habeas corpus, Democratic Sen. Byron Dorgan of North Dakota spoke of Mitsuye Endo, who, at 22, was herded into a Japanese internment camp. Born and raised in this country, "She didn't speak Japanese, had never been to Japan and had a brother in the U.S. Army...on release, her plea to the courts (helped) lead to the unlocking of those camps and led to tens of thousands of Japanese-Americans being let out... 'With one woman's writ of habeas corpus' (and other such habeas writs), an awful chapter in our country's history soon came to an end."

Mr. McCain, after his involvement in the "compromise" with the president that led to this dangerous law, including the revocation of habeas corpus, said:

"We're all winners. I'm very proud of what we've accomplished."

When I think of the losers ahead, one person I will not support for the presidency is John McCain, a man whose principles are as flexible as Mr. Bush's pledge to protect our civil liberties.

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The death of habeas corpus
Olbermann: ‘The president has now succeeded where no one has before’

COMMENTARY, Countdown, Updated: 1:35 p.m. ET Oct 11, 2006

On “Countdown” Keith Olbermann examined the Military Commission’s Act of 2006 and what it does to something called habeas corpus.

The following is a transcript of Keith Olbermann's special report on habeas corpus, as reported on Tuesday, October 10th:

The president has now succeeded where no one has before. He’s managed to kill the writ of habeas corpus. Tonight, a special investigation, how that, in turn, kills nothing less than your Bill of Rights. Because the Mark Foley story began to break on the night of September 28, exploding the following day, many people may not have noticed the bill passed by the Senate that night.

Congress passed the Military Commission’s Act to give Mr. Bush the power to deal effectively with America’s enemies—those who seek to harm the country. He has been very clear on who he thinks that is.


GEORGE W. BUSH, PRESIDENT OF THE UNITED STATES: For people to leak that program and for a newspaper to publish it does great harm to the United States of America.

That fact that we’re discussing this program is helping the enemy.


OLBERMANN: So, the president said it was urgent that Congress send him this bill as quickly as possible, not for the politics of next month’s elections, but for America.


BUSH: The need for this legislation is urgent. We need to insure that those questioning terrorists can continue to do everything within the limits of the law to get information that can save American lives. My administration will continue to work with the Congress to get this legislation enacted, but time is of the essence. Congress is in session just for a few more weeks and passing this legislation ought to be the top priority.

The families of those murdered that day have waited patiently for justice. Some of the families of with us today, they should have to wait no longer.


OLBERMANN: Because time was of the essence and to insure that the 9/11 families would wait no longer, as soon as he got the bill, the president whipped out his pen and immediately signed a statement saying he looks forward to signing the actual law eventually.

He has not signed it yet, almost two weeks later because, of course, he has been swamped by a series of campaign swings at which he has made up quotes from unnamed Democratic leaders and because when he is actually at work he’s been signing so many other important bills, such as the Credit Rating Agency Reform Act, the Third Higher Education Extension Act, ratification requests for extradition treaties with Malta, Estonia, and Latvia; his proclamation of German-American Day, the Partners for Fish and Wildlife Act; and his proclamation of Leif Erickson Day.

Still, getting the Military Commission’s Act to the president so he could immediately mull it over for two weeks was so important, some members of Congress did not even read the bill before voting on it. Thus, as some of its minutia escaped scrutiny.

One bit of trivia that caught our eye was the elimination of habeas corpus, which apparently use to be the right of anyone who’s tossed in prison to appear in court and say “Hey, why am I in prison?”

OLBERMANN: Why does habeas corpus hate America? And how is it so bad for us? Mr. Bush says it gets in the way of him doing his job.

(BEGIN VIDEOTAPE) Olbermann makes comments between clips of speeches by different politicians below.

BUSH: This legislation passed in the House yesterday is a part of making sure that we do have the capacity to protect you. Our most solemn job is the security of this country.

OLBERMANN: It may be solemn.

BUSH: Bush, so solemnly swear.

OLBERMANN: But is that really his job? In this rarely seen footage, Mr. Bush seems to be describing a different job.

BUSH: And will to the best of my ability, preserve, protect, and defend the Constitution of the United States.

OLBERMANN: COUNTDOWN has obtained a copy of this “Constitution” of the United States, and sources tell us it was originally sneaked through the constitutional convention and state ratification in order to establish America’s fundamental legal principles.

But this so-called “Constitution” is frustratingly vague about the right to trial. In fact, there’s only one reference to habeas corpus at all, quoting:

“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.”

But even Democrats, who voted against the Military Commission’s Act, concede that it doesn’t actually suspend habeas corpus.

SEN. PATRICK LEAHY (D), VERMONT: The bill before us would not merely suspend the great writ—the great writ—the writ of habeas corpus, it just eliminates it permanently.

OLBERMANN: And there is considerable debate whether the conditions for suspending habeas corpus, rebellion or invasion, have even been met.

LEAHY: Conditions for suspending habeas corpus have not been met.

SEN. ARLEN SPECTER ®, PENNSYLVANIA: We do not have a rebellion or an invasion.

SEN. JOHN KERRY (D), MASSACHUSETTS: Well, we’re not in a rebellion nor are we being invaded.

OLBERMANN: OK, maybe the debate wasn’t that considerable. Nevertheless, COUNTDOWN has learned that habeas corpus actually predates the Constitution, meaning it’s not just pre-September 11 thinking, it’s also July 4 thinking.

In this those days, no one could have imagined that enemy combatants might one day attack Americans on native soil. In fact, COUNTDOWN has obtained a partially redacted copy of a colonial “declaration,” indicating that back then, depriving us of trial by jury was actually considered sufficient cause to start a war of independence based on the, then fashionable idea that “liberty” was an inalienable right.

But today, thanks to modern post-9/11 thinking, those rights are now fully alienable—for your protection.


OLBERMANN: The reality is without habeas corpus, a lot of other rights lose their meaning. But if you look at the actual Bill of Rights, the first 10 amendments of that pesky Constitution, you’ll see just how many remain for your protection.

OK, No. 1 is gone. I mean, if you’re detained without trial, you lose your freedom of religion and speech, press, assembly, all the rest of that. So, you don’t need that any more.

And you know, you can’t petition the government for anything.

No. 2, While you are in prison, your right to keep and bear arms just might be infringed upon even if you’re in the NRA, so that’s gone.

Three, well OK, no forced sleepovers at your house by soldiers.

Three’s all right.

Four, you’re definitely not secure against searches and seizures, as it says here, with or without probable cause. And, in prison that’s not limited to just the guards, so forget the fourth.

Five, grand juries and due process, obviously out, so forget five and the little trailer up here.

Six, well trials are gone too, let alone the right to counsel. Speedy trials? You want it when?

Seven, well this is about—I thought we just covered trials and juries earlier so forget the seventh.

Eight, well, bail’s kind of a moot point isn’t it?

And nine, other rights retained by the people. Well, you know, if you can name them during your water boarding, we’ll consider them.

Ten, powers not delegated to the United States federal government. Well, they seem to have ended up there anyway. So as you can see, even without habeas corpus, at least one tenth of the Bill of Rights, I guess that’s the Bill of Right, now—remains virtually intact. No. 3 is still safe.

We can rest easy knowing that we will never, ever have to quarter soldiers in our homes as long as the third amendment still stands strong.

The president can just take care of that with a signing statement.

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Anonymous Anonymous said...

The Oct 5 protest against Bush, will you be there?

Hartford, CT
2006-10-05 [edit]
3:30 p.m.
Hartford Capital Building
Classic protest. Signs, megaphones, chants, etc.

New Haven/CT, CT
2006-10-05 [edit]
3:30 PM
Elm and York Streets

---Come to the FOLLOW-UP AND SUMMATION Meeting (see below)---

On the corners of Elm and York Streets at 3:30 PM
Find Your Voice. Find Your Courage. Find Your Strength.

Join Us In New Haven Or Create An Event In Your Town.
Email or call 203-498-8185 for information.

New Haven, CT Chapter Meeting
7-9 PM Thursday, October 12
First Unitarian Universalist Society of New Haven
608 Whitney Avenue
New Haven, CT

Thu Oct 05, 03:23:00 PM 2006  

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