Bowers v. McFadden (Great Post-Martinez Order!), 2015WL9294981

 For appellate wonks like me, some non-Christmas-y days can feel like Christmas!  Even when it’s raining outside, and almost 80 degrees.  But now is not the time to complain!  On December 21, 2015 District Court Judge Richard Gergel signed an order granting habeas relief for an inmate whose counsel, back in 2004, did not object to a prior conviction being used to enhance his sentence to life without parole (that conviction was from 1976).  Without getting bogged down in the full procedural history of the case, the important take away is that Judge Gergel found the inmate succeeded in his burden of showing that his PCR counsel was ineffective under the Strickland v. Washington, 466 U.S. 668 (1984) standard and therefore excused the procedural default of trial counsel error due to trial counsel’s failure to object to the improper use of the prior conviction.  Martinez v. Ryan, 132 S.Ct. 1309 (2012).

Judge Gergel makes clear, though, proving PCR counsel’s ineffectiveness is a daunting task, and he specifically points to the Court of Appeals opinion (the Court of Appeals reviewed the PCR order of dismissal), which noted that use of the prior conviction was likely improper, and further noted it could not reach the issue because the issue was procedurally barred under state law because PCR counsel did not raise the issue.

While all of this sounds complex—because it is—the good news is that there is now at least one opinion in this district that breathes life into federal habeas practice, an area withering on the vine over the past few decades due the passage of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), and the United States Supreme Court’s increasingly restrictive interpretations of it.