Jury issue brings new trial in slaying

This is from the Las Vegas Review-Journal dated Dec. 28th 2012, in which is shown that it can help if the defense questions the dismissal of jurors in a case. 

By Francis McCabe:

The Nevada Supreme Court has granted a new trial for Jermaine Brass, one of two brothers convicted of killing their brother-in-law in 2009.

In a decision handed down Thursday, the state’s high court ruled District Court Judge Doug Smith made an error by excusing a juror, whose dismissal from the jury pool was questioned by defense lawyers because she was black.

Juror No. 173 was dismissed by prosecutors using a peremptory challenge, meaning they didn’t have to give a reason for the dismissal. The law, however, allows for a hearing if defense lawyers believe race was the cause of the dismissal. The defense lawyers asked for a hearing because juror No. 173 was the second black juror to be dismissed by prosecutors with a peremptory challenge.

Smith sent the juror home and then held the hearing, during which prosecutors said they dismissed her because she had “Democratic views on law enforcement,” court documents show. Smith found that peremptory challenge valid.

The Supreme Court held that “dismissing this prospective juror prior to holding the (hearing) had the same effect as a racially discriminatory peremptory challenge because even if the defendants were able to prove purposeful discrimination, they would be left with limited recourse.”

All Smith had to do was delay excusing the juror until the hearing was held, according to the nine-page ruling written by Justice Michael Douglas.

Read the rest here.

Within week, 2 die at Hays State Prison in Trion, Ga.

From: Chattanooga Times Free Press, Dec 28th 2012

Dec 28, 2012 (Menafn – Chattanooga Times Free Press – McClatchy-Tribune Information Services via COMTEX) –The death of an inmate on Christmas night at Hays State Prison in Trion, Ga., was the second in a week.

State investigators say they don’t believe the deaths are related, though both died in the same cellblock at the maximum security prison.

“They weren’t tied any way together,” Georgia Bureau of Investigations Agent James Harris said. “That was the first thing on our minds.”

Damien McClain, 27, who was serving time on two armed robbery convictions, was killed in a prison cell late Christmas night after getting in a fight with another inmate, Harris said.

On Thursday, GBI agents arrested inmate Daniel Ferguson and charged him with murder in McClain’s death. Ferguson, who already is serving a life sentence for murder, was taken to the Chattooga County Jail to be booked and then likely will be returned to Hays to await a transfer, officials said.

GBI agents were at the prison Thursday investigating McClain’s death and that of 25-year-old Derrick Stubbs, who was found dead Dec. 19.

While Georgia Department of Corrections officials have been mum on Stubbs’ death, his mother, Shawn Singleton, said she was told her son was being held in protective custody after a fight when he was found dead. Stubbs had been at Hays for more than a year on two counts of armed robbery.

Singleton, who is burying her son today in Chicago, is searching for more answers to what happened, but she said corrections officials won’t return her calls.

Read the rest here: http://www.menafn.com/menafn/561d65d1-0c54-4990-a6be-e1d71789dd22/Within-week-2-die-at-Hays-State-Prison-Trion-Ga?src=main

Last inmates leave Tamms ‘supermax’ prison

One of the more contentious episodes in the history of Illinois penitentiaries ended Friday as the last inmates held at the “supermax” prison in Tamms moved out and Gov. Pat Quinn’s administration prepares to shut it down.

The final five inmates at the high-security home for the “worst of the worst” were shipped to the Pontiac Correctional Center, a prison spokeswoman said. Among the last to leave was a convict who helped lead a prison riot in 1979 and stabbed serial killer John Wayne Gacy while on death row.

Also bused out of the southern Illinois city were four dozen residents of the adjoining minimum-security work camp, packed off to Sheridan Correctional Center in north-central Illinois.

The departures mark the end of a nearly 15-year experiment with the super maximum-security prison, which supporters say the state still needs for troublemaking convicts — particularly during a time of record inmate population. But opponents contend the prison’s practice of near-total isolation was inhumane and contributed to some inmates’ deteriorating mental health.

More than 130 inmates were moved out of the prison in just nine days, after the Illinois Supreme Court ruled that legal action by a state workers’ union could no longer hold up the governor’s closure plans. The state has offered to sell the $70 million facility the federal government, but there are no solid plans for the future of the prison, often simply called Tamms.

“It’s sad for our area, but we’re never going to give up,” said Rep. Brandon Phelps, a Democrat from Harrisburg whose district includes Tamms. “We still have an overcrowding problem. That’s the deal with this. The governor has made it worse. Eventually, some of these facilities are going to have to reopen.”

But activists opposed to the prison’s isolation practices cheered Friday’s landmark moment. One organizer, Laurie Jo Reynolds, called the course to closure “a democratic process” that involved not high-priced lobbyists or powerful strategists but, “the people — truly, the people.”

Shuttering Tamms is part of Quinn’s plan to save money. The Democrat said housing an inmate at the prison cost three times what it does at general-population prisons. He has also closed three halfway houses for inmates nearing sentence completion, relocating their 159 inmates, and plans to shutter the women’s prison in Dwight. 

Read the rest here: http://www.chicagotribune.com/news/local/breaking/chi-last-inmates-leave-tamms-supermax-prison-20121228,0,1550702.story

Las Vegas Sun: Prison News in a few words, circumventing the Real Issues

On Dec. 17th 2012 this article was published by the Las Vegas Sun about a study researching the question if there are not enough guards in Nevada’s prisons:

http://www.lasvegassun.com/news/2012/dec/17/too-few-prison-guards-nevada-study-find-out/

This article is a mish-mash of news about Nevada’s prisons with just a few words, and without much research, which omits Real Issues.

For instance, towards the end of the LV Sun article, this sentence can be read:

On another subject, state Health Officer Stacy Green told the board that all the medical violations in the prison system have been corrected. The prisons are in “complete compliance” with the medical standards, she said.

Which medical standards? Those of the UN? Is this a response to the ACLU of Nevada’s Report of 2011?How can this be? Nevada Cure has expressed to its members that they still receive complaints by prisoners of the lack of medical care on a daily basis. See for instance documents 28, 29, 30 and 30a here. And documents 55, 57-58, 59-59A here. And document 60, 61 here. These are documents belonging to Nevada Cure’s ongoing project documenting abuses inside the Nevada Department of Corrections’ prisons.

Does this mean that the culture institutionalized inside Nevada’s prisons of disrespect and cruelty towards incarcerated people, of some dominant, authoritarian, unreasonable tyrant-wardens and unprofessional, revenge/retaliation-seeking staff is now over? It is simply not true!

Why are Real Issues like Solitary Confinement (two prisons are nearly completely on permanent lockdown (meaning being celled up 23/7) with no change in sight: HDSP and Ely State Prison, and other prisons like NNCC may follow), staff-to-prisoner assaults, unhealthy food, lack of programs, lack of care for mentally ill prisoners, to name but a few ills inside the prison system, not mentioned in more detail and more regularly? Why are prison deaths never investigated by journalists?

More money MUST be invested if we want to keep incarcerating people for such long times as Life Without Parole, or sentences of 20+ years. Why? Because people voted to have representatives who WANT this! The public PAYS TAX to have these long sentences inflicted on people who go to prison, whether they are guilty or not. And prisoners are still human beings! Therefore we have to review how they are being treated.

You do not have to like prisoners to treat them humanely just like any other person in a state-run or privately run institution. Because most people in prisons will one day return, and will not be reformed, if we go on like this. And crime is not being solved by building or expanding prisons.

We need a system based on prevention and reform, not revenge.

Nevada Jurisprudence and Prison Report Vol 2, No. 5 (Summer 2012), published Dec. 2012

Nevada Jurisprudence and Prison Report

Vol. 2, No 5      “Veritas in Caritatis”            
Summer Issue 2012

THEME: “Audi alterum partem”
Listen to the other side!

“Voice of the Nevada Jurisprudence and Prison Report”
E-mail:  nvjprudence@gmail.com  
http://nvjprudence.wordpress.com

Statement of Purpose:

The NJPR Newsletter reports on current prison conditions, good and bad; more importantly it looks at and evaluates the legal processes and the substantive laws which are designed to keep men in prison: Pre-trial issues, probation and parole policy, sentencing structures, post-conviction law, and most important, the philosophy underlying policy in practice.

The purpose of the NJPR Website is to provide a repository of affidavits, declarations and grievances in Web-Dossiers organized by categories of intuitional behavior. Fundamentally, this is a whistleblowing organization trying to associate with other “transparency” projects at an intrastate, national and global level. We seek to identify patterns which can be utilized by the U.S. Department of Justice.

We invite any resident, and especially judicial officers of the Courts and government Administration to write letters to the NJPR.

Index to this Issue:

Section One: Conditions

1. Civil Actions Against NNCC Law Library Closures
2. Parole News: AB 85 Committee Report, Aug. 20 2012
3. Compassionate Release DOES Exist?
4. Cop Beaten by Inmate

Section TWO: Law, Equity and Policy

1.     Ex-Con Travel Passport Policy
2.     Quis custodiet ipsos custodies? Administrative Law Loopholes

Section Three: Art, Culture, Education and Religion

1.    “Christian” Hater Habits and Correspondence Policy
2.    Inmate Intellectual Activities at Rock Bottom
3.    Call for Fast Against Injustice
4.    Thoughts on Henry David Thoreau

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Section One: Conditions

1)   Civil Actions Against NNCC Law Library Closures

The prisoners at NNCC have voiced their grievance at both the Federal District Court and the local district state court. The Federal petition was kicked to the curb  apparently. The local action taken was a writ of mandamus/alternative. The court tried to chill the inmate litigants by illegally demanding a federal level of proof of indigency.

The closure of the law library is conjectured to be a long-range plan to lock-down the last remaining medium custody yard in the Nevada system. At this writing, the plan is to create a level system here, which is usually reserved for high security situations. The administrator has just informed the Prison Industry workers they will be moved from cell-designed unit four, to a barn designed unit 10. The battle against state sovereignty begin.

2)   Parole News: AB 85 Committee Report, Aug. 20 2012

The Nevada legislature created in 1999 an Advisory Committee to study the draconian sex laws and the registration requirements. NJPR wrote to the Legislative Counsel and received the minutes of its second report. The committee is monopolized by the “criminal justice community” members and under the dominium of the Executive branch Attorney General.

The meeting minutes express with great satisfaction that their laws now conform to the Federal SORNA, which threaten individual states with a 10% loss in Federal Justice Assistance Grants. The Parole and Probation Department come into the prison to break the “happy” news about the decrease of liberties for released inmates condemned for sex crimes, leaving behind public information pamphlets on the subject. The Legislative Counsel refused to send additional documents (exhibits) of the AB 85 Committee, instructing us to contact the boss of the Committee, the Attorney General. Separation of powers issue seem to be implied.

3)   Prisoner Let Go on Compassionate Release!!

Some months back, NJPR reported on the lack of statutory authority for releasing men to families to die. Our old friend Doug died stuck on the yard we reported; but recently another very ill man was actually let go! Which is great, but what is the procedure? Is it a new procedure? Is it covered by an Administrative regulation, or by legislative statute? Or does it come under the common law of executive clemency of the executive branch chief, the Governor of the State of Nevada?
              To be continued…

4)   Cop Taken on in Fisticuffs After Taunting Inmate Complaining of Broken Property

The custody managers of the prison decided to do a deep search of a barn-like housing units at NNCC, and the staff well instructed by their supervisor to be zealous. The result was the destruction of the property (some say it was a trivial Styrofoam dinner tray) of an inmate, who went up to the unit officer in a rage, yelling about his loss.

The officer did not respond with an apology about the breakage and the inconvenience. The officer responded with aggression and a throat of immediate arrest and placement in the “hole”. The inmate apparently took the Cop’s aggressive comments to be an invitation to have a boxing match, and commenced to pummel the officer to the ground. Why taunt? Is it smart? Is it respectful? Is it prudent? Is it in accordance to the Code of Professional Conduct?

Section Two: Law, Equity and Policy

1)   Felons and Ex-Felons, and Foreign Travel

We still receive lots of inquiries about the truth of U.S. Passport policy. This is taken verbatim from a letter from San Francisco Passport Agency:

“Indeed, the information you received is correct… Felons and ex-felons are allowed to apply for and receive passports; but please note there are exceptions to this rule. In certain circumstances, felons and ex-felons are given a “namecheck hold” status (depending on the specific circumstances) by law enforcement and when we receive a namecheck hold we are required to have these applications approved by our legal department  in Washington D.C. If legal approves these, we issue the passports. If legal does not approve these, we do not issue the passport and send the applicant a letter and advise them that their passport could not be issued at this time. Please note that in these circumstances, no refunds are given.”

2)   Quis custodiet ipsos custodies? Administrative Blind spots

There used to be, among the American people, a healthy distrust of the individual states. The people were wary of the state’s disrespect and disregard for constitutional rights of the United States, and would look to the federal government for the vindication of those rights. But the states have been able to utilize the coercive power of mass media to create a unanimous identity between the American individual person and the nation-state. This identity between the “people” and its government is the hallmark of the “totalness” of a totalitarian nation-state. But this merging of identity is an extremely new phenomena, and infects both camps of the struggle between “federalists” and “state’s rightists”. The first identifies with the federal government, the second is loyal only to the local despot over the federal agent. The tension of this social conflict is perceptible in the Supreme Court of the United States, especially in the Marshall-Brennan era.

For a good illustration of the attitude creep over time, let’s look at a passage from Coleman v. Thompson 501 U.S. 702, in the dissent of Blackmun, Marshall and Stevens. This is a case that “states rights” philosophy continues the trajectory towards totalitarianism through “its crusade to erect petty procedural barriers in the path of state prisoners” seeking justice in the federal courts, by creating a “Byzantine morass of arbitrary… impediments to the vindication of federal rights” but the right being eroded, the right to come to a higher law, springs from a duty, as all rights do—the duty of the federal courts to keep a vigil over the state’s treatment of its citizens. About the source of this duty, Blackmun notes: “Indeed the duty arose out of a distinct distrust of state courts, which  this court perceived as attempting to evade federal review.”

This distrust reflects the truth of power, and the high degree of corruptibility of governments at local levels, and the higher likelihood of the breakdown of the Republican form of government that prohibits the merging of the branches into a “total” state at the local level. It is a prudent habit of caution and the intellectual virtue of circumspection to “distrust” the political seats of power in the shadows of localities. Even the federal district courts are subject to passively give in to the pressures of the various pressures of the executive and legislative branches.

This healthy intellectual distrust of local governments is evident in the Supreme Court insofar as there are judges on that bench that have not swallowed the mythology of the “states rights” doctrine. The Supreme Court is more impossible than local courts due to three things: the dignity of the institution, the extremely high public visibility, and lack of local connections that could influence its Justices. These natural political prophylactics against corruption are not present in local state courts.

And they are not present in state prison mechanisms of local “justice communities”. Normally, both state and federal executive branch agencies are constrained by the Fifth and Fourteenth Amendments (respectively) to provide due process in the formulation of agency rules and the actions these agencies carry out upon the non-governmental social agencies of the Executive branch, although authorized and funded by the legislature.

But in Nevada (and probably many other states) the prison administration is EXEMPT from normal public participation, oversight and scrutiny as provided for by it Administrative Procedure Act. Nevada Revised Statute 233B.039 (1) (b) EXEMPTS the Nevada Department of Corrections from its rulemaking guidelines. Of course, the effect of this exemption is to make its operations invisible and secret. Even though Nevada has grand jury statutes that permits them to enter into prisons, this is a very rarely, if-ever-used vehicle to draw prison officials into the light of public scrutiny. The only reliable public participation in rulemaking by prison officials has been the end-user, prisoners themselves. But since local courts are now so much under the thumb of the executive and legislative branch, very little justice comes from courts. But that is all the more reason to keep up the good fight!

Section Three: Art, Culture, Education and Religion

1) Ely Chaplain Transfers to NNCC with Hater Habits

Chaplain Stogner came to NNCC after being brainwashed into Ely-style institutional hatred of human beings called inmates. His first Jesus-loving act was to tear down the Chapel schedule and cancel all “inmate-led” services and violated AR 810.3-7A “Inmate Facilitators”. Then he disinfected the chaplain office, installed a huge stereo-system apparently so he can thump his bibles to the beat of Christian-rock (a bizarre oxymoron).

A lawsuit is pending on several issues against his acts. One issue regards a threat he issued to an inmate for writing to the Roman Catholic Bishop Randelph Calvo. To make the story short, the inmate said “Reeaally?” and wrote a letter to the U.S. Conference of Catholic Bishops, who wrote an e-mail back as follows:

“… Nevada State prison inmates corresponding to and receiving letters from ordained clergy who are also volunteers at the correctional center of the inmate, correspondence is permitted regarding religious matters of faith and morals. When this kind of communication occurs the ordained clergy is acting in the capacity of a professional for the Church and not a lay volunteer.”

As mentioned above, NRS 233B.039 (1) (b) exempts the Department of Corrections from the watchful eye of normal administrative rule-making and adjudication. This creates a dark shadow where citizens hired as staff are invited to be “role models” of the typical consumer culture I-do-what-I-want attitude!

2) Broken Record Tactics: Give Men Something to Do

The first thing Charles Dicken’s noticed about the Philadelphia experiment of mandatory solitary confinement was the amazing creative output of the inmates. The only alternative to stark raving madness was for the wardens of the … to give the inmates opportunities for intellectual stimulus and things to do with their hands.

The Nevada policy is to drive men stark raving mad so that the resulting raving madness can become propaganda that brainwashing (by mass media) the public mind into believing inmates are sub-human, the worst-of-the-worst. Many other “states” have the same policy. Any state that has such a policy has no right to the name or status of “state”. The state has turned into a “nation-state”, which is more of a civil religion than a state, according to contemporary thinkers like.

NNCC has lost its Toastmaster’s International group, the Blue Eagles Gavel Club, all of its inmate led religions programs, all college level course offerings, all of its Alcoholic Anonymous meetings led by inmates and has reduced all inmate activities to psycho-Therapeutics or “programming”. They leave open the gym, organized sports and pool (billiards). Of course also the typical prison “weight-pile” for the bodybuilder cult. But if a fellow would like to buy a Great Course college class, that seems to be excluded by the “safety and security” of the institution.

3) Fasting as Social Action and Prayer for Justice

The Nevada Prison News (NPN) ran an article in its last issue (Summer 2012, p. 5) by SAMAEL, who calls on the audience of that Zine for a fast against the terrible conditions of Ely State Prison. The editors of NJPR are in full support of this. Mahatma Gandhi kicked out British oppressors by his practice of Satyagraha. In the ancient prayer practices of the Roman Catholic, and other Eastern Christian Churches, fasting plays a major role. There are entire seasons of fasting-prayer (Advent before Christmas and Lent before Easter). Every week there is a required fast on Fridays, and the Saturday night before Sunday Mass. The word “breakfast”  refers to the nightly fast of the monastic tradition—break-fast.

The important part of the fast is the intentionality, the “giving” aspect of the suffering that accompanies a fast. There are three kinds of ends to prayer in the Christian monastic view: purgative, the illuminative and the unitire. Fasting can be used to any of these ends. By fasting for the purging of an injustice in the world, we are using petitionary prayer.

Now, there is a doctrine of equity and natural law called the doctrine of clean hands: he who asks for justice must DO justice. If we are unjust ourselves, how dare we approach the almighty Creator? So, the intention for justice must be universal—we must wash our hands of our own injustices at the same time as the purging of social injustices in a specific sense.

So, that being said, this editor will offer up and participate in fasting toward any end (if good) suggest by other Nevada prisoners.

4) The Civil Religion of Henry David Thoreau
           
In the famous essay “Civil Disobedience”, Thoreau drops numerous memorable one-liners and gnomic phrases. For example here is one that should tickle the ears of inmates: “Under a government which imprisons any unjustly, the true place for a just man is also a prison”. How about this one: “Even voting for the right is doing nothing for it”.

And this: all men recognize the right of revolution; that is, the right to refuse allegiance to, and resist, the government when its inefficiency or its tyranny are great and unendurable”. These are all reiterations, not to poorly spoken of principles of natural law Andthis is my “The mass of men serve the state thus, not as men mainly, but as machines, with their bodies… In most cases there is no free exercise whatever of the judgment or the moral sense”.

All of this secular wisdom is for naught, and completely nulled out by the following declaration: “There will never be a really free and enlightened State until the State comes to recognize theindividual as a higher and independent power, from which all its own power and authority are derived, and treats him accordingly”. It can be, and has been demonstrated that there will never be a really free and enlightened state, period! Just like there will never be a man who is an angel, or impeccable (never making error).

The American writer looks at the state from an epistemological perspective, which really is the wrong category to use as a measure (although it continues to be the measure, which explains the wholesale acceptance of modern masses on the omniscient levels of “knowing” by the Homeland Security domestic surveillance program).

The correct category to use is merely Justice, and that is harder to reach perfection in than the techniques of government surveillance. So, as ear-tickling as Thoreau’s quips are, that is all they are. His mind is an early-middle stage onset of immanentism, and this means the loss of the imagination’s power to conceive of the true Power and Authority of the universe. If one cannot do justice to that One, how will justice be done in a plurality of men?

Representatives: Continued ignoring of Five Core Demands could prompt resumption of peaceful protest

From: SF Bay View

December 28, 2012

Part 1: Open letter to CDCR and PBSP officials

To: CDCR (California Department of Corrections and Rehabilitation) Undersecretary of Operations Terri McDonald, PBSP (Pelican Bay State Prison) Warden Greg Lewis, PBSP Associate Warden P.T. Smith

From: Todd Ashker, Arturo Castellaños, Sitawa Nantambu Jamaa/Dewberry, Antonio Guillen

Subject: PBSP SHU Prisoners’ 2011 Five Core Demands

On behalf of myself and those similarly situated, I request your attention and responsive action with respect to the issues stated below relevant to our 2011 Five Core Demands.

Briefly summarized, it’s been nearly 14 months now since we suspended our non-violent, peaceful protest hunger strike actions of July and September-October 2011, wherein we presented CDCR with our Five Core Demands for reforms to be made regarding SHU and Ad Seg policies and practices – all of which your predecessor, Scott Kernan, admitted were reasonable. He made this admission during our negotiations as well as when he met with our Mediation Team and the public. Mr. Kernan promised that our demands would be meaningfully addressed, in substantive ways, in a timely fashion.

 

To date, the bulk of our Five Core Demands have not been met in meaningful, substantive ways, as per our understandings and agreements during July, August and October 2011 negotiations, some of which you were personally present at via phone conference.

This lack of good faith effort to meet our 2011 demands is a big problem and needs to be rectified in the not so distant future. In a nutshell, our first three core demands –

No. 1: individual accountability;

No. 2: policies on debriefing and denial of inactive status and related denial of release from SHU based on innocuous association and alleged intelligence without formal charges;

No. 3: an end to long term indefinite SHU and Ad Seg and related reforms recommended in 2006 by the Commission on Safety and Abuse In America’s Prisons – have not been met.

The CDCR’s Oct. 11, 2012, STG Pilot Program Instructional Memo fails to meet our first three core demands for reasons best exemplified in the included document titled, “Responsive Opposition to CDCR’s Oct. 11, 2012, STG Pilot Program.”

With respect to our core demands No. 4, Food and Nutrition, and No. 5, Programming Privileges, the following are examples of problems that continue to be unresolved. It’s important to remember one of the main principles relevant to these demands is that many of us have been in SHU for administrative reasons for 10 to 40 years. All parties acknowledged during our negotiation process that many of the restrictions were redundant and unnecessary in the content of the promised change in policy and practice to a system of individual accountability and focus on humane treatment and conditions in SHU and Ad Seg units.

To date, the bulk of our Five Core Demands have not been met in meaningful, substantive ways, as per our understandings and agreements during July, August and October 2011 negotiations.

We would like to point out that although PBSP SHU Associate Warden P.T. Smith has attempted to work together with us in keeping with the above principles, based on his nearly 30 years of experience in CDCR and with SHU prisoners, his efforts are largely futile based on CDCR headquarters and/or SHU warden’s non-recognition of the above referenced principles and continual focus on maintaining SHU and Ad Seg policies and practices that are redundant in a system based on individual accountability.
Below are examples, and in the future we will provide a more detailed list:

Re Core Demand No. 4: Food and Nutrition Issues. This issue remains a major problem at Pelican Bay State Prison, with small portions of either poorly prepared and/or inedible, rotten food items.

Re Core Demand No. 5: Programming and Privilege Issues. We presented CDCR with a list of EXAMPLES of reform measures regarding SHU and Ad Seg program and privilege issues, as follows, with notations about continued lack of meaningful progress:

A) Expand visiting, regarding amount of time and adding one day per week. This hasn’t happened yet, in spite of Scott Kernan’s July-August presentation that extra time would be permitted when visiting slots were open. PBSP IGI (Institutional Gang Investigations) insists on having three separate visit slots for SHU in order to keep Short Corridor prisoners separated from Long Corridor and C Facility prisoners. This makes extra time impossible here.

There’s no need for three visit slots when visiting is closely monitored by ICI, and a system of individual accountability means prisoners involved in prohibited actions at visiting can be sanctioned individually.
Between 1989 and 2006, PBSP SHU had two visit slots and often allowed extra time when slots were open, especially for visitors coming a long distance.

You can direct PBSP to go back to the two slots and permit extra time when slots are open, or direct the D Facility visiting room to be re-activated and used on weekends and holidays.

B) Allow a weekly phone call – hasn’t happened yet!

C) Allow two annual packages a year – hasn’t happened! We had asked in the Five Core Demands for allowance for one 30-pound package of food and beverage items and one package of non-food items, such as sweats, thermals, cosmetics, earbuds etc. For those held in SHU and Ad Seg for more than one year, who are free of any serious disciplinary notices for 12 months, these prisoners should be allowed TWO 30-pound packages of food and beverage items and one package of non-food items per year.

D) Expand canteen and package items allowed. Some new items have been allowed; however, there are more that can be added.

One of the items that we need as soon as possible, that CDCR has not given the OK for, is lotion. We were able to get lotion for years, but this year it was taken from our canteen and packages, on the excuse that it was “not on property matrix.” We need it here and medical refuses to give it out.
Another need is sweat shorts, so that we have the dignity of not being paraded about in boxer shorts while escorted to medical line or yard.

We are also seeking to be able to buy two cases of Top Ramen and woodless colored pencils, which could be added to canteen.

E) More TV channels – denied by Warden Lewis. CDCR and PBSP keep falsely claiming that we have 27 cable channels. We actually have three cable channels and five network channels, which is less than all other SHU units across the state. We’re asking for two or three more channels.

F) Allow hobby craft items: art paper, colored pens, small pieces of colored pencils, watercolors, chalk etc. We have gotten paper, pens and chalk so far, but many can’t work with the chalk. We’ve found that Walkenhorst’s sells “woodless colored pencils.” See Walkenhorst’s 2012 Fall Catalogue, page 136, item E.
We have asked Pelican Bay staff to notify Walkenhorst’s that SHU prisoners are allowed to purchase these sets of 12 and 24 woodless colored pencils for our packages. Associate Warden P.T. Smith tells us that only Sacramento CDCR headquarters can notify Walkenhorst’s about allowing us to have items.
Thus, we are asking you to notify Walkenhorst’s that we are allowed to have the woodless colored pencils in our packages.

G) Install pull-up and dip bars on SHU yards – has not happened yet!

H) Additional issues: Warden denied our request to participate in “charity bake sales” stating “Get out of the SHU!” Unfair, and no kind of security risk. And the PIA mattresses being issued now equal NO mattress at all!

Again, the above are examples of problematic issues regarding our Five Core Demands. A more detailed list dealing with issues in demands Nos. 4 and 5 will be forthcoming.

Your time, attention and assistance with the above is much appreciated.

Todd Ashker, Arturo Castellaños, Sitawa Nantambu Jamaa/Dewberry, Antonio Guillen
Nov. 28, 2012

Part 2: Responsive Opposition to CDCR’s Oct. 11, 2012, STG Pilot Program

Submitted Dec. 3, 2012, by Todd Ashker, Arturo Castellaños, Sitawa Nantambu Jamaa/Dewberry, and Antonio Guillen

To whom it may concern:

The CDCR’s Oct. 11, 2012, Security Threat Group Pilot Program Instructional Memo IS NOT ACCEPTABLE! It fails to meet our 2011 Five Core Demands and is herby rejected for reasons briefly summarized in the examples below of the problems we have with the STG Pilot Program and what the CDCR needs to do to meet our demands and thereby keep their word.

See also our related oppositions to CDCR’s March and June 2012 STG proposals. [See Pelican Bay Human Rights Movement presents counter-proposal opposing CDCR ‘Security Threat Group Strategy’ regarding the March proposal and Open letter to Gov. Jerry Brown: Stop the torture now regarding the June proposal.]

We have repeatedly made clear that the heart of our first three core demands is the requirement for substantive changes to SHU and Ad Seg policies and practices, which must include:

  1. An individualized accountability, behavior-based system when it comes to grounds for placement or retention in CDCR’s SHU or Ad Seg solitary confinement cells. This means such cells are reserved for those prisoners who are charged with and found guilty of committing a serious, felonious type of rule violation that merits a “determinate” SHU term. Individual accountability also applies to privilege restrictions when such are abused by an individual. This equates to a demand for an end to “indeterminate” SHU confinement.
  2. Related demands for an end to progressively punitive SHU and Ad Seg policies and practices for the purpose of coercing prisoners into agreeing to become state informants: This demand includes our call for an end to the “debriefing” policy.
  3. A demand for humane treatment and conditions in the SHU and Ad Seg units, with a focus upon meaningful program opportunities and ability to gain privileges, based on criteria that are realistic and reasonable – the purpose being to assist the prisoners with being able to return to the general prison population in the shortest amount of time possible; e.g., the voluntary participation in SHU programs equates to meaningful, additional privileges and the ability to earn good time off one’s sentence in order to shorten the determinate SHU term.

The CDCR’s Oct. 11, 2012, Pilot Program is not responsive to our above summarized demands, as exemplified below:

For more than 25 years the CDCR has used an alleged “gang management” policy and practice consisting of placing validated prison gang members and associates in SHU and Ad Seg solitary confinement cells – indefinitely – wherein prisoners are subjected to progressively more punitive conditions, for the purpose of coercing them into “debriefing” – becoming a state informant to gain release from solitary by providing gang unit staff (IGI, or Institutional Gang Investigations) with verifiable information that harms other gang affiliates.

Between 1986 and 1999, the only way to get out of solitary was to parole, die, go insane or debrief. In 1999, in response to a court ruling, the CDCR came up with another alleged avenue for SHU release, wherein a prisoner able to go six years with zero documented gang activity can achieve “inactive” gang status and thereby might be released to general population. The “inactive” avenue for SHU release has proven to be a sham!

Notably, most of the prisoners in SHU for the past one to 40 years based on a “current active” validation have never been found guilty of committing an illegal, gang-related act. We’re talking about decades of indefinite, punitive solitary confinement, based on alleged current active gang involvement, consisting of innocent association or political type activity and/or the unsubstantiated allegations of involvement in illegal gang activity by debriefer, confidential informants, deemed “reliable” by IGI – but no charges were filed!

IGI’s validations are rubber-stamped by the Office of Correctional Safety (OCS) and/or Special Services Unit (SSU), UCC (Unit Classification Committee) and all levels of the 602 appeals process, as per admissions by former PBSP Warden McGrath during his testimony in the 2009 Lira trial.

California prisoner hunger strike solidarity drawing by Rashid Johnson, Red Onion Prison, Va
Linked arms showing multi-racial solidarity around symbols of  hunger-striking California prisoners became the icon of the 2011 hunger strikes. At the end of this statement, the “main reps” announce their intention to call for a resumption if their almost two-year-old demands are not met. – Drawing: Rashid Johnson, then a prisoner at Red Onion State Prison in Virginia, now transferred to an Oregon prison

The Oct. 11, 2012, STG Pilot Program claims to “change” the present SHU policy and practice in the following ways: To “provide individual accountability of offenders” (Pilot Program Memo, page 1, Purpose) based on “a new behavior-based system, which will serve to enhance the existing intelligence-based validation system. The implementation of this process will include an STG behavior-based disciplinary matrix, which will provide for additional procedural due process safeguards and a system of individual accountability” (page 2, Key Revisions).

However, the truth is that the Pilot Program fails to change the present policies and practices at issue in any substantive meaningful ways, and it will actually result in a significant expansion of the numbers of prisoners kept indefinitely in SHU and Ad Seg solitary confinement torture cells. The numbers will expand to tens of thousands, because the CDCR STG Pilot Program targets not only prison gang affiliates, but OCS will now target any and all groups of three or more prisoners who are deemed to pose a “potential” threat (Pilot Program Memo, pages 1 and 9). This failure to change the present system is also demonstrated by:

A) The prisoners validated as STG-1 members (i.e., prison gang members) will continue to be subject to automatic, indefinite SHU confinement, solely based on the validation. There is no requirement that a formal charge of gang related misconduct be filed, nor any related requirement for a formal hearing to take place to determine guilt or innocence as per the preponderance of credible evidence standard, as required by CDCR’s formal rule violation hearing process. One’s only avenue for release from the SHU is to parole, die, go insane, debrief or successfully complete the four-year minimum Step Down Program (Pilot Program Memo, Sections 200.2; 500; 600.3; 700; 1200).

Additionally, any and all prisoners validated as STG affiliates will continue to be placed and/or retained in SHU and Ad Seg solitary confinement cells indefinitely, based on alleged intelligence indicating “confirmed STG behavior or activity,” defined as “STG behavior which is discovered and confirmed to have occurred.

Confirmation can be obtained through two processes:

1) a guilty finding in a STG rule violation report; and/ or
2) any document that clearly describes STG behavior/activities incorporated within the validation or continued STG behavior package, submitted to the OCS for Special Agent assessment and recommendation; and which is affirmed by an STG Unit Classification Committee” (Pilot Program, attachment A, STG definitions at “Confirmed STG Behavior.” See also definitions for Step Down Program, Steps 1 and 2, regarding use of intelligence and these steps housing prisoners based on influence.)

The above is also supported in the Pilot Program Memo at Section 600.3: Validated Affiliate with Confirmed STG Behavior Outside the Disciplinary Process:

“(a) A STG affiliate determined to have confirmed STG behavior or intelligence, … which occurred outside … formal disciplinary process shall be documented in a CDCR form 128-B, General Chrono (confidential chrono, if appropriate). The activity or behavior must have occurred within the last four years. Investigators shall establish reliability per CCR Section 3321 when confidential information is used and shall be recorded within the chrono. This confirmed STG behavior or activity shall consist of the following:

“Behavior, activity or intelligence items as indentified in Section 600.1: Validation Source Criteria totaling at least 10 additional points and identified subsequent to the validation process. This process shall only be utilized if the circumstances cannot be otherwise addressed through the disciplinary process.”

Everyone familiar with CDCR OCS, SSU and IGI’s SHU and Ad Seg policies and practices over the course of the past 10 to 40 years will recognize the above referenced Pilot Program. “Changes” to the present policy and practices equate to NO substantive changes at all.

The facts are CDCR staff have always been required to issue Rules Violation Reports to prisoners who are alleged to have violated a rule, when such is supported by credible evidence, per CCR, Title 15, Section 3312, et seq. In spite of this long standing regulation, most of the prisoners have not been charged with nor found guilty of an illegal gang related act! We’ve been subjected to decades of SHU isolation based on the criteria referenced above regarding “confirmed STG behavior outside the disciplinary process.”

With the above in mind, the only “change” to the current policy is a four-year review in the absence of being found guilty of an STG related Rules Violation Report, wherein documented and confirmed STG behavior or activity, totaling at least 10 additional points (over the course of four years) will be cause for continued indefinite SHU confinement, as compared to the present six-year review for consideration of inactive gang status, so long as there is no documented gang activity (over the course of six years).

The above process will be applied to those prisoners presently serving an indeterminate SHU term based on their validated status and they “shall be afforded a Departmental Review Board (DRB) hearing, to determine their appropriate placement and/or retention within the SHU/Step Down Program or potential release to general population … (T)he DRB will conduct an assessment of the preceding four years to determine the existence of on-going STG behavior” (Pilot Program Memo, page 3).

Based on all of the above referenced Pilot Program points, we can expect the DRB criteria used for their “assessment” of the preceding four years “to determine the existence of on-going STG behavior” will be the same criteria used for a six-year active/inactive review, with a focus on finding any alleged “documented items of current behavior or activity” occurring within the past four years totaling 10 or more points (i.e., a “continued STG behavior package” type of assessment) whereupon they will determine what step one is eligible for in the Step Down Program.

The DRB will utilize the sections of the Pilot Program referenced above because most of the validated affiliates – in SHU and Ad Seg for decades – have no STG related rule violation guilty findings. So they’ll have to utilize Pilot Program Section 600.3 (referenced above) because the CDCR and OCS have no intention of releasing certain STG affiliates to general prison population – e.g., those in PBSP Short Corridor who are there based on “influence,” which in turn is based on confidential informants’ or debriefers’ claims and/or IGI’s subjective opinion, which is impossible to disprove! See Pilot Program Memo, page 41, re SDP, Steps 1 and 2, reference to “influence.”

All of the above referenced Pilot Program points are NOT ACCEPTABLE!

What it basically boils down to is a CDCR OCS sentence enhancement of four years to life for alleged STG behavior or activity, without a requirement for any related formal charge(s) or guilt of committing any illegal, gang-related act! Remember, this sentence enhancement can be applied to STG affiliates for minor non-criminal associational activity (e.g., Pilot Program Memo, Section 600.2 (a), (b), (c) and 600.1, Disciplinary Matrix, bottom four boxes, re tattoos, roll call, group exercise, greeting cards and art work, acting in a leadership role, displaying behavior to organize and control other inmates etc.). Being deemed “guilty” of such innocuous and/or vague activity is cause for a minimum of four years of indefinite solitary confinement and inability to earn good time credits off one’s sentence, in addition to all the other punitive conditions such confinement entails.

This amounts to a minimum of four years of subjection to conditions that are psychologically and physically torturous to prisoners and their loved ones on the outside for the purpose of coercing them into becoming state informants via debriefing – without being formally charged and/or for insignificant violation(s) of minor, associational-type activity!

The truth is that the Pilot Program fails to change the present policies and practices at issue in any substantive meaningful ways, and it will actually result in a significant expansion of the numbers of prisoners kept indefinitely in SHU and Ad Seg solitary confinement torture cells.

The above points exemplify the CDCR OCS’ intent to maintain the present status quo of confining thousands of prisoners in long term solitary cells, subject to progressively punitive conditions, for coercive purposes. What is worse is they insist on doing this in spite of the fact that such practices violate U.S. constitutional and international laws and treaties, as well as state law regarding enhancements and sanctions for gang-related activity. (The applicable California Penal Code is 186.22, as interpreted by the California Supreme Court. See for instance People v. Castenada, 23 Cal. 4th 743 (2000), the leading case. See also People v. Moreno, 68 C.A. 4th 1198 (1998), and People v. Gardeley, 14 Cal. 4th 605 (1996), and People v. Gomez, 235 Cal. Rptr. 2d 957, 971.)

Again, this is not acceptable, nor is it a sensible, responsible use of the taxpayers’ money to utilize costly SHU and Ad Seg cells for an indefinite time period of at least four years for such minor infractions of CDCR OCS’ made up rules. These sorts of small infractions can be addressed in the general prison population via progressive levels of restrictions on various programs and/or privileges. SHU and Ad Seg cells are approximately $20,000 costlier than general population cells per year!

B) The Pilot Program memo also claims the change in policy will provide “additional layers of procedural due process” regarding validation(s) and continued STG behavior and related SHU placement, retention and Step Down Program issues (Pilot Program Memo, page 1, Purpose, and Sections 100 and 400-800).

For the past 25-plus years, many SHU and Ad Seg prisoners have received CDCR’s version of “procedural due process” wherein IGI’s decisions and recommendations are automatically upheld by all levels of review by OCS, committees and prisoner grievance process 602 appeals. The Pilot Program changes nothing, because each level of review will still be conducted by CDCR employees who are trained and directed by OCS, SSU or IGI.

Therefore, this part of the Pilot Program is NOT ACCEPTABLE! Real due process requires substantive as well as procedural aspects and at least one level of meaningful review by a neutral third party, a qualified monitor who conducts a thorough, substantive, procedural review.

C) The Pilot Program memo claims the four year (minimum) Step Down Program (SDP) will provide STG affiliates with a way to earn release from indefinite solitary confinement without having to debrief (Pilot Program Memo Sections 700 et seq.).

CDCR’s SDP is NOT ACCEPTABLE! Four years is too long and the proposed programs and privileges for each step are not realistic, reasonable or meaningful.

CDCR presents the SDP as “an incentive based multi-step process for the management of STG affiliates. This program will assign, transition, and monitor inmates who by their behavior have demonstrated the need for CDCR’s utilization of special strategies for their management.

“The SDP shall normally be completed in five steps and provides a process for inmates engaged in STG behavior or activities to demonstrate their ability to refrain from this type of behavior, preparing them for return to non-segregated housing and eventual release to the community” (Pilot Program Memo Section 700).

Unfortunately, the CDCR Pilot Program for an SDP is structured in a way that is demonstrative of their true intent of maintaining and greatly expanding upon the current policy and practice of keeping thousands of prisoners in punitive solitary confinement cells indefinitely, until they die, go insane or debrief.

The first three and a half years of CDCR’s SDP entails a type of solitary confinement wherein the prisoners spend virtually 24 hours a day alone in a cell on the small-cell yard. The CDCR states this will be “a period of observation” during which the prisoner will be expected to keep his bed made and complete in-cell, self-directed journals and earn incentive-based privileges (Pilot Program Memo, Sections 700 through 700.5, pages 40-50).

This makes no sense! How can you “closely observe” someone for the purpose of assessing their behavior or activity, when they are in a type of solitary confinement 24/7? How does a minimum of three and a half years of doing self-directed journals for basically trivial and insignificant privileges prepare them for return to non-segregated housing and eventual release to the community?

A Step Down Program should be a maximum of 18 months in duration for the purpose of enabling prisoners to shorten their determinate SHU terms. In today’s SHU and Ad Seg units and Level 4 general population prisons, the prisoners are closely monitored 24/7. Any SDP needs to be based on realistic, reasonable adult programming criteria and meaningful incentives for each step.

For example, Step 1 can be a maximum of 90 days of basic in-cell type of programming. Step 2 can be a maximum of six months of more meaningful, interactive type of programming, such as small group activities in cages, small group yard etc., where observations of prisoners’ behavior and activities actually mean something towards assessing one’s potential for successful transition to general population. Step 3 can be for a maximum of nine months of small group programming, larger group yard, dining together. Step 4 can be for monitored status in a general population type of setting.

The incentives for each step need to be realistic and meaningful – for example, the ability to earn good time credits, regular phone calls, contact visits, additional packages, canteen, property etc., beginning at Step 2. Once in the SDP, sanctions for STG behavior or activities must be solely based on a formal charge and guilty finding for a serious rule violation linked to a STG.

Additionally, the CDCR’s mission priority is founded upon the principle of promoting and protecting public safety and the related operation of a reasonably safe and secure prison system. CDCR presently has the opportunity to back up these catch phrases with action by creating a sensible program for the purpose of transitioning the present long term SHU prisoners to a general population prison environment in a reasonably safe and secure manner. Their presence in general population will enhance the safety and security of the prison system as a whole, which will enable CDCR to provide prisoners with meaningful rehabilitation type programs and thereby help prisoners be better prepared for achieving success upon their parole to the community (see Aug. 12, 2012, Agreement to End Hostilities).

The CDCR can do this right now, at little to no cost, via the creation of the MCU [MAX-B] type program that we detailed in our March 2012 Counter-Proposal.

It’s a simple matter, for Pilot Program start-up purposes, to review all PBSP SHU prisoners’ files. Those on indefinite SHU status for validation, who have not been found guilty of a formally charged, gang-related offense – a serious RVR (Rules Violation Report) – in the last two years, who are three to five years or less from their parole date or parole eligibility hearing are immediately released to the MCU (Management Control Unit) on PBSP B Facility, where they can still be closely observed while actually interacting with each other and staff in a less restrictive yet still controlled environment. This is a model for success!

Conclusion

It has been more than 13 months since we agreed to suspend our non-violent, peaceful protest hunger strike actions in response to CDCR’s top administrators’ admissions that all of our Five Core Demands were reasonable and would be responded to via substantively meaningful changes to the policies and practices at issue.

This has NOT HAPPENED, as summarized in the above examples. (See also our related opposition and rejection statements responding to CDCR’s March and June 2012 STG proposals.)
To date, the CDCR’s top officials have acted in bad faith, including ignoring our prior opposition points and counter-proposal.

Therefore, at this point, we request a face-to-face meeting with the top CDCR officials, authorized and able to make decisions on the spot, for the purpose of changing the Oct. 11, 2012, STG Pilot Program Memo in ways responsive to our Five Core Demands, in line with the examples set forth in this document.
This meeting can be in person or via video conference in PBSP SHU.

Let this serve as notice that failure to change the Pilot Program in ways that are responsive to our Five Core Demands, as exemplified in this document, will be deemed to be just cause for our collective resumption of our non-violent, peaceful protest action(s).
Thank you for your time and attention.

Send our brothers some love and light: Todd Ashker, C-58191, PBSP SHU D4-121, P.O. Box 7500, Crescent City CA 95532, and Sitawa Nantambu Jamaa/Dewberry, C-35671, PBSP SHU D1-117L, P.O. Box 7500, Crescent City CA 95532. Mail to Arturo Castellaños and Antonio Guillen remains severely restricted. These four men are the “main reps” for the California prison movement best known for the 2011 hunger strikes that involved 12,000 prisoners at their peak.

Mulling over Martinez: Why a Recent Supreme Court Case might get you into Federal Court in Style

Published earlier in: Florida Postconviction Legal Perspectives (FPLP),  Vol. I, Issue 10, pages 11-14, Oct. 2012

By Gray R. Proctor

Greetings! I want to talk about an issue in federal habeas corpus review, specifically procedural default. A recent Supreme Court case might have an unexpected effect: allowing defendants to choose whether to bring their claims of ineffective assistance of counsel – and perhaps other claims that cannot be brought at trial or on direct appeal – directly in federal court, without going through Florida state court in a 3.850 motion or similar device. I’ll explain the case, what it can definitely do, what I think it might do, and how that might help you. Accordingly, this month I need to open with something you might expect from an attorney: a disclaimer. This column is not legal advice. I make no prediction about how any court will apply the law to your case. Rely on the opinions I express here at your own
risk.

On March 20, 2012, the Supreme Court decided Martinez v. Ryan.1
Changing the law for most federal habeas petitioners, Martinez established that if the petitioner had no attorney or had an ineffective attorney on state postconviction review, the petitioner’s failure to bring certain claims will no longer result in procedural default (explained below). Martinez applies only to those claims that could not have been brought at an earlier stage of criminal proceedings when the petitioner did have a right to counsel. I use the example of ineffective assistance of counsel in this column, but there will be others. I may consider which other claims could benefit from Martinez in a future piece. I also do not consider the role of Martinez for federal prisoners bringing their §2255 motions, but it seems to me that it could allow them to bring new claims on appeal from the denial of their § 2255 motions.

Prior to Martinez, federal habeas courts had held that because no right to counsel exists after direct appeal, these claims were defaulted if not brought in state court even if counsel made an egregious error. To recap the events leading to the Supreme Court decision: Proceeding pro se on federal habeas review of his Arizona state conviction, Luis Martinez brought an ineffective assistance of counsel claim that had not been presented in Arizona postconviction proceedings below. The state argued that Martinez’s claim was therefore procedurally defaulted on habeas review.1

Martinez countered by arguing that his claim fell within the “cause and prejudice” exception to
procedural default because it wasn’t his own fault that the claim hadn’t been raised. The cause here: Martinez’s postconviction attorney2 failed to raise the ineffective assistance claim in state courts.
The state’s reply, well supported by existing case law, was that ineffective assistance of counsel couldn’t serve as “cause” for claims not brought on collateral review.4

Existing law provided that where a right to counsel exists, the Sixth Amendment “requires that responsibility for the [procedural] default be imputed to the State” rather than the petitioner.5
Without such a right, a petitioner was bound by the acts of the attorney, who was deemed to be his agent just as in a civil case.

Martinez lost in the district court. On appeal, he argued that he was entitled to effective assistance of counsel on collateral review, at least with respect to his claim of ineffective assistance of trial or appellate counsel, because he could not have brought that claim at trial or on direct appeal.6

Thus, he had never had any right to counsel’s assistance in bringing this particular claim. To quote from the Ninth Circuit’s opinion:

Martinez asserts that he is entitled to the effective assistance of counsel in connection with his first state petition for post-conviction relief. He asserts that a right to the assistance of counsel attaches to the presentation of a claim of error at the first tier of review, relying upon Halbert v. Michigan, 545 U.S. 605, (2005) and Douglas v. California, 372 U.S. 353 (1963). Martinez recognizes the general rule that “there is no right to counsel in state collateral proceedings,” see Coleman, 501 U.S. at 755, 111 S.Ct. 2546, but asserts that there might be an exception where “state collateral review is the first place a prisoner can present a challenge to his conviction.” 501 U.S. at 755.

…. On the one hand, the Court’s decisions in Halbert and Douglas recognized a federal
constitutional right to counsel in connection with a criminal defendant’s direct appeal from his
conviction (or the equivalent of direct appeal). On the other hand, in Ross v. Moffitt, the Court
declined to recognize a right to counsel in connection with a criminal defendant’s pursuit of secondtier review. 417 U.S. 600 (1974).8

To briefly review the relevant law: Douglas established that the Equal Protection Clause guarantees effective
assistance of counsel on direct appeal, because “where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.”9

Halbert involved Michigan’s procedure granting its courts of appeal discretion to reject appeals of guilty
pleas. Although the Supreme Court had previously refused to extend the Sixth Amendment’s guarantee of effective counsel to appeals in state supreme court or the Supreme Court, 10 it held in Halbert that the right to counsel does extend to discretionary review which is “likely the only[] direct review the defendant’s conviction and sentence will receive.”11

To return to Martinez: the Ninth Circuit decided that “there is no federal constitutional right to the assistance of counsel in connection with state collateral relief proceedings, even where those proceedings constitute the first tier of review for an ineffective assistance of counsel claim.”12

To again quote that court:

This case is more like Ross than Halbert. In Ross, the petitioner had already received direct review of his convictions, and had already received the assistance of counsel in connection with that first appeal. Likewise, here, Martinez has already received direct review of his conviction and received the assistance of counsel in connection with that appeal. In Halbert, by contrast, the petitioner sought the functional equivalent of direct review, the first appeal of his conviction. Even if collateral review presents the first tier of review for Martinez’ ineffective assistance of counsel claim, we conclude that Martinez’ action is not analogous to a direct appeal — or the first opportunity for him to obtain review of his conviction — so as to entitle him to effective counsel.13

The Martinez court adhered to the existing law on the “cause” element of the cause and prejudice exception to procedural default: that an attorney’s actions cannot serve to excuse default unless her client had a right to
counsel at the time of the error. Thus, Martinez lost again.

Martinez won in the Supreme Court, but not on the right-to-counsel issue. The Supreme Court recognized that it was still an open question, but found that “[t]his is not the case . . . to resolve whether that exception exists as a constitutional matter.” Instead, the Supreme Court changed the doctrine of procedural default:

Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.

Just as it did in Maples v. Thomas14 earlier this term, the Martinez Court decided that an attorney’s misconduct in postconviction proceedings excused a procedural default, regardless of whether a right to counsel exists.

Forget for a moment the question of whether there’s a constitutional right to counsel on collateral appeal. Your guess is as good as mine when that will be resolved or what the answer will be. Let’s talk about how Martinez can help you if you didn’t have appointed counsel on Florida postconviction review.

The obvious benefit goes to those of you who want to bring a new claim of ineffective assistance in federal court that you didn’t think of on Florida postconviction review. Most of you did not study the law until you were faced with filing your 3.850 or 3.800 motions, so you may have discovered new legal theories that didn’t occur to you during the first round of review. Or, new facts may have come to light that allow you to make claims that didn’t seem plausible before. These would have been procedurally defaulted before Martinez, but now you can probably bring them. If this describes you, you can skip the next two paragraphs and see how else this will help you obtain the benefits of fullscale de novo federal review of your claim – and possibly appointed counsel as well.

For those of you who have not yet filed a Florida postconviction motion, Martinez could also do something for you that you might not realize: if you’re not appointed an attorney on collateral review, Martinez may give you a meaningful choice between having your claims heard in state or federal court. I’ll explain why you might want to do that before, but first I want to warn you that deliberately failing to bring claims in state court is still a very risky strategy. Martinez is a new case, and federal courts haven’t decided what its limits are. Conceivably, federal courts could rule that if you “deliberately bypass” the state courts15 by failing to bring a claim that you know you could have brought, Martinez does not apply – and then your claim will never be heard at all.

That said, it seems clear to me that Martinez makes the federal court a viable forum when it applies. The reason is that if Martinez applies, there’s no lower court decision to contend with. Let me explain why that makes a big difference.

First of all, a Martinez-excused claim should be much more likely to receive an evidentiary hearing. 28 U.S.C. §2254 provides that petitioners who have “failed to develop the factual basis of a claim in State court” will not receive an evidentiary hearing unless the petitioner can show that no reasonable factfinder would have found the petitioner guilty if his constitutional rights had not been violated.16

“Failed” here doesn’t just mean that you didn’t do it; it means that it’s your own fault. A habeas petitioner “fails” to develop the factual basis of a claim when there exists “a lack of diligence, or some greater fault, attributable to the prisoner or the prisoner’s counsel.”17

Martinez holds that it’s not your fault you didn’t bring a claim if you didn’t have counsel – at least, with respect to procedural default. The reasoning seems equally applicable to evidentiary hearings. If so, evidentiary hearings on Martinez-excused claims will be governed by the more generous standard of Townsend v. Sain:

[A] federal court must grant an evidentiary hearing to a habeas applicant under the following
circumstances: If (1) the merits of the factual dispute were not resolved in the state hearing; (2) the state factual determination is not fairly supported by the record as a whole; (3) the fact-finding procedure employed by the state court was not adequate to afford a full and fair hearing; (4) there isa substantial allegation of newly discovered evidence; (5) the material facts were not adequately developed at the state-court hearing; or (6) for any reason it appears that the state trier of fact did not afford the habeas applicant a full and fair fact hearing.18

You ought to be able to meet that standard. Even better, you’ll be appointed an attorney under the rules of habeas procedure.19

It is not 100% certain that you’ll be entitled to constitutionally effective assistance from that attorney,
but I think it extremely likely, and in any event it’s not certain that you won’t enjoy the Sixth Amendment guarantee from your federal habeas attorney.20

I leave it to you to decide whether the average attorney appointed for a federal habeas case will be better than the average attorney appointed in Florida state postconviction proceedings.

The other benefit pertains to questions of law. If you bring a claim in state courts and the state court gets it wrong, you’re in trouble, because the federal court can’t just fix it. Federal habeas courts are likely to be bound by that state court decision – especially for Strickland claims. For any claim “adjudicated on the merits in State court,” the standard of relief requires federal courts to find “a decision that was contrary to, or involved an application of, clearly established Federal law, as determined by the Supreme Court of the United States.”21

So if the state court decision is wrong, but not unreasonably wrong, you still lose. Strickland already gives counsel a presumption of effectiveness, leading the Court to speak of “the doubly deferential judicial review that applies to a Strickland claim evaluated under the § 2254(d)(1) standard.”22

Because there is no state court decision to defer to, Martinez-excused claims can prevail if the district judge thinks they should. Also, if you would definitely win under Eleventh Circuit (federal court of appeals) law but might not under Florida law, avoiding the “as determined by the Supreme Court” requirement is an attractive option. If you brought your claim in state court and lost, case law from the Eleventh Circuit law would not apply.

These are my thoughts on Martinez so far. In addition to letting you bring your claim in federal court, it helps you avoid the parts of AEDPA23 that have crippled federal courts. Whether your claim is better heard in state or federal court is not possible to predict in a general sense, but you might decide that the possibility is worth the risk. As always, I wish you luck.

Notes

Note 1. 132 S.Ct. 1309 (2012).

Note 2. See, e.g., Jones v. United States, 153 F.3d 1305, 1307 (11th Cir. 1998) (applying doctrine of procedural default to claims by federal prisoners under 28 U.S.C. § 2255 that were not raised at trial or on appeal); Snowden v.
Singletary, 135 F.3d 732, 735-76 (11th Cir. 1998) (explaining that claims not “exhausted” in state court are procedurally defaulted if they could no longer be raised at the time the federal court consider a 28 U.S.C. §2255 petition).

Note 3. Arizona is one of a few states that appoint counsel for every first postconviction proceeding. Ariz. Rule Crim. Proc. 32.4(c)(2). Rule 3.111(b)(2) of the Florida Rules of Criminal Procedure allows appointment of counsel on postconviction review, but does not offer any criteria for deciding when counsel should be ppointed. Rule 3.851(b) makes appointment of counsel mandatory for postconviction proceedings in capital cases.

Note 4. Coleman v. Thompson, 501 U.S. 722, 753–754, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991).

Note 5. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) (“We have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions”).

Note 6. Murray v. Carrier, 477 U.S. 478, 488 (1986).

Note 7. Massaro v. United States, 538 U.S. 500 (2003) (explaining that “almost all jurisdictions prefer that ineffective assistance claims be presented on collateral attack”).

Note 8. Martinez v. Schriro, 623 F.3d 731, 736-37 (9th Cir. 2010). Following the quoted text is a useful review of the law
governing the right to counsel both at trial and on appeal.

Note 9. At 357.

Note 10. Ross v. Moffitt, 417 U.S. 600 (1974).

Note 11. Halbert v. Michigan, 545 U.S. 605, 609 (2005).

Note 12. 623 F.3d at 739-40.

Note 13. Id. at 740.

Note 14. Maples v. Thomas, ___ U.S. ___, 132 S.Ct. 912, 922-23, 181 L.Ed.2d 807 (2012) (finding cause and prejudice to excuse procedural default in capital case where the petitioner’s counsel destroyed the principal-agent relationship
by abandoning him without notice, but explaining that where no right to counsel exists, a petitioner is bound by the acts and omissions of his attorney under “well settled principles of agency law”) (quotation omitted).

Note 15. “Deliberate bypass” is an older standard for deciding whether a claim was procedurally defaulted. Fay v. Noia, 372 U.S. 391 (1963). This standard is no longer applied in habeas corpus. Wainwright v. Sykes, 433 U.S. 72 (1977). Nevertheless, it could be revived for petitioners who fail to bring a claim for the sole reason that they want to secure the benefits I discuss in this column.

Note 16. 28 U.S.C. § 2254(e)(2)(B) (emphasis added). In addition to this requirement, a petitioner must show that theclaim either relies on a new, retroactive rule of constitutional law or depends on facts that could not have been discovered earlier. 28 U.S.C. § 2254 (e)(2)(A).

Note 17. Williams v. Taylor, 529 U.S. 420, 432 (2000).

Note 18. 372 U.S. 293, 313 (1963)

Note 19. Rules Governing Section 2254 Cases in the United States District Court, Rule 8(c) (“§2254 Rules”) (“If an evidentiary hearing is warranted, the judge must appoint an attorney to represent a petitioner who qualifies to have counsel appointed under 18 U.S.C. § 3006A.” (governing appointment of counsel for indents)).

Note 20. McGriff v. Dep’t of Corr., 338 F.3d 1231, 1235 (“If the Supreme Court had intended a § 2254 petitioner to have a more substantial right to counsel than those provided by the Constitution, we would expect to see language to that effect in the text of the rule. We find no such language in Rule 8(c). We therefore turn to the Constitution not for authority, but instruction.”).

Note 21. 28 U.S.C. § 2254(d)(1).

Note 22. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).

Note 23. The Anti-Terrorism and Effective Death Penalty Act, passed in 1996, significantly narrowed the scope of federal habeas review.

About the Author

Gray R. Proctor is currently on the Board of Directors for the Florida Postconviction Legal Aid Organization and practices law in Orlando, Florida, representing clients in criminal appeals and state and federal habeas corpus proceedings. Gray R. Proctor’s legal career really began during his second year at Vanderbilt University Law School.

Professor Nancy King (co-author of West’s Criminal Procedure treatise and Assistant Reporter for the Advisory Committee for the Federal Rules of Criminal Procedure) had just undertaken her groundbreaking empirical study of federal habeas litigation in district courts, and Gray was lucky enough to serve as a research assistant on that project. Over the course of the habeas project, Gray reviewed over 800 non-capital habeas cases and 100 capital habeas cases throughout the country, documenting which claims and defenses were raised and the eventual ruling. This study is cited by Justice Scalia in the Martinez dissent.

Professor King also served as faculty advisor for Gray’s published senior thesis, “Ngo Excuses: Proving, Rebutting, and Excusing Exhaustion in Prisoner Suits after Woodford v. Ngo and Jones v. Bock,” 31 Hamline L. Rev. 471. Professor King would later serve as Gray’s co-author in “Post-Padilla: Padilla’s Puzzles for Review in State and Federal Courts,” 23 Fed. Sent. R. 239, an article about how Padilla’s
ruling would have to be filtered through federal postconviction rules. His particular interest in Padilla is whether it will be applied retroactively; the Supreme Court heard oral arguments on this issue in Chaidez v. United States, and those who wish to place bets on how it will be decided should contact Gray directly.

Immediately after law school, Gray served as law clerk for the Hon. Brian Owsley in the U.S. District Court for the Southern District of Texas. Gray then moved to Richmond, Virginia, serving for two years as a pro se law clerk (drafting opinions in uncounseled prisoner filings) at the U.S. District Court for the Eastern District of Virginia, which is affectionately known as “the Rocket Docket” for its unusual
speed and efficiency.

Afterward, Gray served as a Staff Attorney for the United States Court of Appeals for the Fourth Circuit, drafting memoranda and opinions for appeals of criminal cases, postconviction proceedings, prisoner civil rights suits, and the occasional miscellaneous federal suit.

Gray left the Fourth Circuit to serve as deputy director of the American Bar Association’s National Inventory of the Collateral Consequences of Conviction, a free, internet-based catalog of laws and regulations in every United States jurisdiction that impose a civil consequence due solely to a criminal conviction (think felon disenfranchisement). Gray continues to serve in that capacity under Director and former U.S. Pardon Attorney Margaret C. Love, balancing his commitment to that project with his appellate, postconviction, and civil rights law practice in Orlando, FL.

Gray R. Proctor, Esq.
1199 N. Orange Ave.
Orlando, FL 32804
phone: 321-445-1951
fax: 321-445-5484
gray@appealsandhabeas.com