Category Archives: Habeas Corpus

Interesting SCOTUS Forensics Case….

Today, in Hinton v. Alabama, the U.S. Supreme Court found the trial attorney’s failure to request funding for a sufficient expert to challenge the State’s ballistics experts constituted ineffective assistance of counsel.  Opinion here.

Holiday Quick Clicks…

  • clickIn Wisconsin, the governor says he’ll issue no “innocence pardons” because it is too hard to pick and choose who deserves attention and who doesn’t
  • Why is a Texas prosecutor still practicing law after having been found to have committed egregious misconduct to wrongfully convict Anthony Graves?
  • Philly police to implement sweeping interrogation reforms January 1, 2014
  • Virginia man Jonathan Montgomery says exoneration is “best Christmas present ever.
  • Details about the Little Rascals Daycare case in North Carolina, another of the alleged daycare hysteria wrongful conviction cases
  • Nora Wall, wrongfully convicted Irish nun, in talks with Irish government about compensation
  • Connecticut federal judge finds that Scott Lewis was wrongfully convicted as a result of Brady violations

Tuesday’s Quick Clicks…


Thursday’s Quick Clicks…

  • Exoneree says arrestee names should remain confidential
  • Murder conviction tossed in Georgia
  • An epidemic of prosecutor misconduct
  • Exoneree Fernando Bermudez to kick off ‘Dilemmas of Justice’ lecture series Sept. 24th
  • On Monday, the 9th U.S. Circuit Court of Appeals upheld a lower court ruling that freed a California man who was wrongfully convicted in 1999 of being in possession of a concealed knife under California’s Three Strikes Law.  Daniel Larsen was convicted based largely on eyewitness identification. Two officers testified that they saw Larsen throw a knife under a car located in the parking lot of the Golden Apple Bar in Los Angeles. Because he had prior felony convictions, Larson was sentenced to serve 28 years to life in prison.  Larsen spent nearly 14 years in prison before his conviction was reversed by a U. S. District Court judge in 2010 after the California Innocence Project, which began representing Larson in 2002, found witnesses who testified seeing a different man holding the knife.

New Scholarship Spotlight: Missing the Forest for the Trees: Federal Habeas Corpus and the Piecemeal Problem in Actual Innocence Cases

Professor Stephanie Roberts Hartung has posted the above-titled article on SSRN.  Download here.  This article is on an important issue that causes serious problems for innocent habeas petitioners.  The abstract states:

The DNA exoneration data stemming from the Innocence Movement exposes a harsh reality in our criminal justice system: existing post-conviction review procedures fail to accurately identify and remedy wrongful convictions of the innocent. While the layers of review available upon conviction are seemingly exhaustive, in fact, the factually innocent prisoner is confronted with little more than a façade of protection. At the federal habeas stage, several provisions of the Anti-Terrorism and Effective Death Penalty Act [AEDPA] operate to foreclose viable claims of innocence. Further, the federal courts entertain second or successive habeas petitions in a piecemeal fashion, if they do so at all. This “piecemeal approach” negatively impacts prisoners raising claims of factual innocence, in light of their typically pro se status and incarceration. In reviewing each successive habeas petition in isolation, without regard to previous claims, the courts often miss the forest for the trees, allowing innocent prisoners to remain in custody.

This Article discusses the piecemeal problem inherent in federal habeas review procedures, provides a case illustration, and advocates for a broader reading of the “evidence as a whole” language in AEDPA’s 28 U.S.C. Section 2244(b)(2). This broader interpretation, already adopted by the Fourth Circuit, would allow courts to review a petitioner’s successive habeas claims in the aggregate, and thus, more readily identify cognizable claims of factual innocence. This Article contributes to the ongoing debate as to how the competing post-conviction interests of finality and fairness should be recalibrated in light of the DNA exoneration data brought forth by the Innocence Movement.


Friday’s Quick Clicks…

  • In Vermont, an aggravated murder charge against John Grega, a Long Island, N.Y., man charged with killing his wife in 1995, has been dismissed, because of difficulties with additional DNA testing. The dismissal of the second murder charge against Grega comes a year after his 1996 conviction was dismissed, and a new trial ordered, because of new DNA evidence. Windham County State’s Attorney Tracy Shriver announced late Wednesday that murder charges against Grega would be dismissed without prejudice because of difficulties finding a lab to do necessary DNA matching of evidence taken from Christine Grega’s body.
    Shriver, in a joint statement with Vermont Assistant Attorney General Cindy Maguire, said they “remain committed to continuing this investigation to seek justice for Christine Grega and her family.”  In 2012, new DNA testing had revealed the presence of an unknown man’s DNA in her body, the discovery of which resulted in a judge ordering a new trial.
  • A U.S. judge ordered a new trial Wednesday for a Philadelphia man sentenced to death in 1992 for killing a high school student for her gold earrings.  U.S. District Judge Anita Brody found that James Dennis’ conviction was based on dubious eyewitness testimony, bad police work and a poor defense by his lawyer, The Philadelphia Inquirer reported. She said he must be freed if he is not retried within six months.
  • In India, Supreme Court limits right of intermediate courts to overturn acquittals

Justice Scalia: Ensuring Innocent People Get Out Of Prison Is A ‘Faustian Bargain’


A man who may be locked up for a murder he did not commit should not be allowed to challenge his conviction, according to Justice Antonin Scalia and his three most conservative colleagues. And three members of the Supreme Court seem to believe that most people jailed due to unconstitutional convictions should have no recourse to the federal courts. At least, that’s what emerges from a four justice dissenting opinion written by Scalia in a case dealing with the rights of state prisoners who may be “actually innocent” of the crime they were convicted of committing.

McQuiggin v. Perkins is a fairly unusual case. After being sentenced to life in prison for murder, Floyd Perkins spent years gathering three affidavits from witnesses corroborating his claim that another man committed the crime. Yet he sat on this new evidence for nearly six years before presenting it to a federal court. Justice Scalia’s dissent claims that a one year statute of limitations prevents Perkins from presenting six year-old evidence that he may be innocent. Justice Ruth Bader Ginsburg’s majority opinion holds that “actual innocence” may overcome this one year time limit, although she also requires prisoners in Perkins’ shoes to overcome a very high bar before their claims of innocence may succeed in federal court.

Beyond the narrow issue presented by this case, however, the final paragraphs of Scalia’s opinion — three paragraphs that conservative Justice Samuel Alito pointedly chooses not to endorse — suggest a massive contraction of prisoners’ rights. Earlier in his opinion, Scalia claims that state prisoners’ right to challenge their conviction in federal court was “radically expanded in the early or mid-20th century to include review of the merits of conviction and not merely jurisdiction of the convicting court.” This is likely a reference to a controversial theory, championed by a young future Chief Justice William Rehnquist and later promoted by a conservative law professor named Paul Bator, that federal courts traditionally could not overrule state convictions so long as the defendant enjoyed minimal safeguards such as “counsel to argue all his points to the trial court, [access to] the state appellate courts” and the ability to seek Supreme Court review.

Scalia’s final paragraphs claim that the practice of allowing broad challenges to unconstitutional state convictions, including cases where a state prisoner may in fact be innocent, was a “Faustian bargain that traded the simple elegance of the common-law writ of habeas corpus for federal-court power to probe the substantive merits of state-court convictions.” As Scalia warns, permitting state prisoners to challenge their conviction in federal court leads to “floods of stale, frivolous and repetitious petitions [which] inundate the docket of the lower courts and swell our own.”

Justice Scalia is correct that judges have to do more work if potential innocents are allowed to seek vindication. Unlike prisoners locked up for crimes they did not commit, however, those judges will also get to go home every day.

Cook County Prosecutors Drop All Charges Against Nicole Harris

The Center on Wrongful Convictions (CWC) at Northwestern Law reports today that Cook County prosecutors have dropped all charges against Nicole Harris, who was wrongfully convicted of the May 2005 strangulation murder of her 4-year-old son, Jaquari Dancy. Harris served seven years of a 30-year sentence before a federal appeals court reversed the conviction. As reported last February on this blog (here) and (here) the court opined that Jaquari’s older brother, Dante—five at the time—should have been permitted to testify. Dante had told police that his brother accidentally strangled himself with a bed sheet while playing and that his brother’s death was an accident. Continue reading

Monday’s Quick Clicks…

  • Exoneree Brian Banks at rookie camp of the NFL’s Atlanta Falcons
  • Although most in the Czech Republic are in favor of reinstating capital punishment, risk of wrongful convictions is the leading factor citing against it
  • More on last week’s Perkins decision by SCOTUS

Why is Scalia So Angry About Protecting the Innocent?


In 1996, Congress cracked down on defendants who repeatedly try to go to court to overturn their convictions. The Antiterrorism and Effective Death Penalty Act (AEDPA), signed by President Bill Clinton, created a thicket of new requirements for people in prison who file last-ditch appeals—called habeas corpus petitions. The idea was that once you’ve lost your first and only direct appeal, you should only get a single try at habeas corpus (the “great writ,” dating from the 14th century, that allows a prisoner to sue his warden for release). And you were supposed to get moving quickly: The law generally imposed a new deadline of one year from the date on which you lost your direct appeal.

Congress made an exception, however: If you say you have new evidence, then you have one year from the day you could have discovered it through “the exercise of due diligence.” But what if you miss the deadline without any good excuse—and yet the new evidence could show that you are innocent? On Tuesday, the Supreme Court widened what it called the “gateway”to reviewing claims of actual innocence that are made long after the one-year deadline expires. It’s a 5-4 decision, split between liberals-plus-Kennedy and conservatives. The opinions, by Justice Ruth Bader Ginsburg and Justice Antonin Scalia, read like a pitched battle in a long-simmering war. At the end, Ginsburg succeeds in opening what she calls a “gateway” to court for innocence claims that blow by the one-year deadline. But it’s probably not wide enough forFloyd Perkins, the prisoner at the center of this case, to get his own habeas petition heard.

In 1993, Perkins left a party in Flint, Mich., with two other men, Rodney Henderson and Damarr Jones. Henderson was found later, on a trail in the woods, stabbed to death. Jones said Perkins did it. Perkins said Jones did it. Two other witnesses implicated Perkins, and he was convicted and sentenced to life in prison in 1993. He lost his direct appeal a few years later, and his conviction became final in 1997.

In 2008, Perkins filed a habeas appeal, with evidence he said could prove his innocence. It included a witness saying that Jones had blood on his clothes on the night of the murder and an employee from a dry cleaner saying that around the same date, a man looking like Jones brought in pants and a shirt heavily stained with blood.

Since we are in AEDPA land, the lower courts couldn’t just decide whether this evidence gave them enough doubt about Perkins’ conviction to order a new trial. They had to first determine whether they could excuse Perkins for missing the law’s one-year deadline. Perkins didn’t argue that he’d been exercising due diligence and couldn’t help having taken 11 years to go back to court. He said that because he had evidence of actual innocence, he should get an exception to the one-year cutoff.

In theory, a majority of the Supreme Court has now agreed to such an exception. “Actual innocence, if proved, serves as a gateway through which a petitioner may pass,” Ginsburg wrote. But she also warned that “the exception applies to a severely confined category.” It is not enough for Perkins to assert that he has evidence of his innocence. He also has to show that “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.”

That’s a high bar. In effect, it means that to figure out if people like Perkins are entitled to a hearing about whether they have strong evidence of innocence, judges will have to first hold a hearing to figure out whether there is strong evidence of innocence. If you’re a judge whose attention is caught by a habeas petition because you’re concerned that an innocent person may be in prison, AEDPA’s one-year deadline won’t stop you from taking a close look. That’s a victory for defendants and for the growing cadre of Innocence Projects around the country.

 But it’s a pretty minor one. Justice Ginsburg makes clear that waiting around to file a habeas petition is still a bad idea because an “unexplained delay” is a strike Continue reading

SCOTUS says actual innocence gets around statute of limitations for habeas petitions….

In the Perkins decision today, SCOTUS said that actual innocence, if proved, provides a gateway through which a federal habeas corpus petitioner may pass to overcome a failure to file within the one-year statute of limitations.   Opinion here.

Miami ‘injustice system’ gets international attention

The release this week of Amanda Knox’s book, Waiting to be Heard, and her hour-long interview on ABC last night puts the focus on the growing problem of citizens of one country being convicted in the unfamiliar court system of another country.

Knox has gained strong sympathy in her native United States. But feelings toward her in Italy, where her murder conviction occurred before being overturned, and in Great Britain, where murdered roommate Meredith Kercher was from, are less favorable.

The shoe is on the other foot in the murder conviction in the United States of a British citizen of Indian descent, Kris Maharaj, who grew up in Trinidad and made a fortune in Britain before moving to Florida. Maharaj has gained lots of support and media exposure in Britain, but relatively little in the U.S.

Maharaj got a rude introduction to the American justice system when two business rivals were killed in a Miami hotel room in 1986 and he was convicted of their murders and sentenced to death. Maharaj’s case had many sordid aspects, including a judge who was arrested mid-trial on bribery charges, a lackadaisical attorney (who is now a judge), police and prosecutors who withheld evidence, Caribbean con-artists and Columbian cocaine dealers.

Clive Stafford Smith bares these facts in his compelling book, The Injustice System: A Murder in Miami and a Trial Gone Wrong, which was previously published in Britain as Injustice.

Stafford Smith has an interesting perspective. The British citizen attended the University of North Carolina and graduated from Columbia Law School. He then spent two decades representing death-row clients in the United States before returning to Britain, where he is founder and director of Reprieve, a nonprofit legal defense firm. One of his American clients was Maharaj. In his book, Stafford Smith recounts how he developed convincing evidence that the murders for which Maharaj was sentenced to death were really committed by a Columbian hit man to exact revenge for the victims’ theft of a drug cartel’s profits.

Stafford Smith tells how he got Maharaj’s death sentence overturned with some regret. Why? Because, Stafford Smith says, American courts are far less likely to consider evidence of innocence if the defendant isn’t on death row. As a result, Maharaj, now in his 70s, languishes in prison with little chance of having the evidence Stafford Smith has developed ever considered. You can read more about the case here and here.

Friday’s Quick Clicks…

  • Texas moves one step closer to establishing an exoneration review commission
  • Kevin Curtis, the Elvis impersonator falsely accused of mailing letters laced with ricin to Barack Obama and U.S. Senator Roger Wicker, was released Tuesday night and gave an exclusive, and bizarre, interview to CNN’s Piers Morgan.
  • In Canada, man wrongfully convicted of rape sues government 43 years later
  • California Innocence Project supporters soon to begin their 600 mile walk for justice
  • Great DNA access decision by Kentucky Supreme Court
  • Spotlight on new West Virginia Innocence Project
  • The U.S. Court of Appeals for the Second Circuit has refused to hear en banc a 2012 decision affirming a grant of habeas corpus where the panel referenced scientific literature submitted by amicus curiae, The Innocence Project, on ways in which in-court identifications can be tainted by the facts of the crime, prior identification procedures and other factors.

Northern California Innocence Project Wins Release for Innocent Man Wrongly Convicted of Arson and Triple Murder Based on Faulty Fire Science

George Souliotes and his legal team (from left): Orrick Attorney Shannon Leong, NCIP Legal Director Linda Starr, George Souliotes, Orrick Attorney Jimmy McBirney and former Orrick Attorney Megan Crane

George Souliotes and his legal team (from left): Orrick Attorney Shannon Leong, NCIP Legal Director Linda Starr, George Souliotes, Orrick Attorney Jimmy McBirney and former Orrick Attorney Megan Crane

SANTA CLARA, Calif., April 15, 2013 –The Northern California Innocence Project (NCIP) at Santa Clara University School of Law and Orrick, Herrington, & Sutcliffe, LLP announced that on April 12, a California federal district court judge overturned the wrongful conviction of George Souliotes for arson and triple murder.  Souliotes, 72, has served 16 years of his sentence of three life terms without parole.

 In granting his release, District Judge Anthony W. Ishii found Souliotes had received ineffective assistance of counsel at trial.  That finding came a year after his attorneys persuaded the judge of Souliotes’ “actual innocence,” successfully arguing his conviction was based on faulty fire science and that no reasonable juror today would convict him.

The judge ordered his release unless the State of California not only notifies the court that it intends to retry Souliotes, but also takes concrete and substantial steps to do so within 30 days.  The order does not specify when he is to be released, but his attorneys expect it to be within 30 days.

“After more than 10 years of fighting for Mr. Souliotes’ freedom we are gratified that the court has found him innocent and ordered his release,” said Linda Starr, NCIP’s legal director.  “Mr. Souliotes’ conviction was a tragedy, and we now know it was based on faulty fire science that has since been discredited.  We hope the California Attorney General will honor the judge’s ruling and not take any further action that might needlessly delay Mr. Souliotes’ long overdue return home. ”


On January 15, 1997, a rental property owned by Souliotes in Modesto, Calif., burned to the ground in the middle of the night and three tenants died in the fire.

The prosecution’s case against Souliotes was based almost entirely on two forensic pieces of evidence that new developments in fire science have since discredited:  First, investigators based their arson determination on certain indicators that were long believed to be evidence of arson — but developments in modern fire science have shown these indicators are just as consistent with accidental fires or any fire where the temperature reaches “flashover” conditions.

Second, forensic tests revealed a chemical compound known as a medium petroleum distillate, or “MPD,” was found at the fire scene and on Souliotes’ shoes.  MPDs are a chemical compound that exist in some ignitable liquids such Continue reading

California Innocence Project Succeeds in Freeing Daniel Larsen After a Decade


Daniel Larson spent 13 years in prison for a crime he did not commit.  He was a victim of California’s “three strikes” law, and was sentenced to 27 years to life.

A federal judge has declared him “actually innocent”, and he is free on bail while the prosecutor’s appeal in underway.

Read the full story here.

Federal Magistrate Recommends Granting the Petition in NCIP Arson Case

From the NCIP….

This case has been covered previously here.  Yesterday, the Northern California Innocence Prorjct receive the Report and Recommendation of Magistrate Michael Seng of the U.S. District Court for the Eastern District of California.  The Magistrate recommended that the habeas petition be granted on three of the seven claims:  ineffective assistance of trial counsel for failure to present a fire expert at petitioner’s retrial, ineffective assistance of trial counsel for failure to call additional defense witnesses—after promising the jury in opening statements that he would do so—and cumulative error.  The court did not grant the petition on the ground that false evidence of arson was admitted (all of the “scientific” evidence has been conceded by the state to be unfounded), but noted that it had already found [in its ruling on Schlup—see earlier posting] that if that unreliable evidence had not been admitted at trial, Souliotes would have been acquitted.  The Magistrate really presents a bullet-proof analysis under Strickland.  Now, the AG has two weeks to file objections before the District Court either adopts, rejects, or revises this recommendation.

Notably, the Magistrate recommended that Mr. Souliotes, who is now 71 years old, be released within 30 days if the State does not decide to retry him.  Such a retrial, in light of the stipulated lack of evidence of arson, is pretty much unthinkable.

Michael Hash Sues Current and Former Public Officials after Wrongful Conviction

Michael Hash, who served nearly 12 years in prison before U.S. District Court Judge James C. Turk granted his release on a Habeas Corpus ruling, has filed a lawsuit in federal district court in which he is seeking damages to be awarded—as reported in The Free Lance-Star of Fredricksburg (here)—“in such amounts as the Court and jury find fair and reasonably supported by the evidence and that will deter such conduct by defendants in the future.” Hash has asked for a jury trial.

The defendants named in the lawsuit are former Culpeper (VA) County Commonwealth’s Attorney Gary Close; three Culpeper Sheriff Continue reading

Missouri Judge Throws Out Rape/Murder Conviction After 29 Years

Cole County (MO) Circuit Judge Dan Green has thrown out the 1983 conviction of George Allen Jr., 56, who has served 29 years of a 95-year sentence for the rape/murder of Mary Bell of St. Louis.

The Innocence Project accepted Allen’s case in 2010. A diagnosed schizophrenic, Allen had confessed but Innocence Project lawyers argued the confession was Continue reading

Eyewitness Scientific Research Persuasive in Federal Court Ruling

In a ruling that may influence other courts in evaluating eyewitness testimony, the U.S. Court of Appeals for the Second Circuit unanimously upheld Western District U.S. Magistrate Judge Victor Bianchini’s decision to grant defendant Rudolf Young’s petition for a writ of habeas corpus and vacate his conviction of robbery and burglary.

According to Joel Stashenko writing in the New York Law Journal (here), the Circuit ruled in Young v. Conway (here) that prosecutors could not use the eyewitness testimony of Lisa Sykes, whose home was broken into in March 1991. While Continue reading

Sixth Circuit Finds Evidence of Actual Innocence in Ohio Murder Case

Ohio inmate Al Cleveland, convicted of murder in 1996, has been a client of Jennifer Bergeron of the Ohio Innocence Project for many years.  His case has also been investigated at various points in time by the Center on Wrongful Convictions at Northwestern University and private investigator Martin Yant.

Today, the 6th Circuit Court of Appeals ruled that the evidence compiled over the years is sufficient to meet the “actual innocence” Shlup exception, and overturned the lower court’s decision and remanded the case for further proceedings.  The fantastic opinion is here.  All the details of the case are contained in the opinion.   News report here and in WSJ here

This the type of victory that reflects determination and persistence.  Bergeron worked against great odds for years to get to this point.  It is a sweet victory for Al, and a sweet victory for Jennifer.

Below is a painting that Al created in prison, entitled Flood of Lies, which reflects his feelings about his plight.  About the painting, Al wrote:

I don’t have many words to describe this piece, but it represents the end of the artistic confines to which I have been bound for years, and marks the beginning of an inward journey of truth-telling in art and the expression of such by all means despite the look.  No beauty right now, just a soul under pressure and an able hand in need, coming to grips with a few dreams it must let go.  Upon further thought, this represents the feeling of many of us wrongfully incarcerated, serving Life sentences.

Flood of Lies