On November 7, 2017, the Supreme Court heard argument in Ayestas v. Davis, a case involving the extent to which 18 U.S.C. § 3599, which allows indigent defendants to obtain “reasonably necessary” investigative services in connection with issues relating to guilt or sentencing, applies in the context of procedurally defaulted habeas claims.
Manuel Ayestas was sentenced to death for murder, and his conviction and sentence were affirmed on direct appeal by the Texas Court of Criminal Appeals in 1998. Ayestas then sought state habeas relief, claiming ineffective assistance of trial counsel because his attorney had failed to bring Honduras-based family members to Texas in order to testify to Ayestas’s good character and lack of criminal record in Honduras. The Texas state district court found that Ayestas’s trial counsel, though ultimately unsuccessful, had acted with reasonable diligence, and therefore denied habeas relief. The Texas Court of Criminal Appeals affirmed in 2008.
In 2009 Ayestas sought federal habeas relief under 28 U.S.C. § 2254, claiming that his trial counsel had acted ineffectively by failing to properly investigate all potentially mitigating evidence. An effective investigation, Ayestas argued, would have uncovered his lack of a criminal record in Honduras, his schizophrenia, and his addiction to drugs and alcohol. The district court determined that Ayestas had procedurally defaulted this claim by failing to raise it in state habeas proceedings, and found no cause to excuse that default. The U.S. Court of Appeals for the Fifth Circuit denied a certificate of appealability.
In 2012, however, the U.S. Supreme Court held in Martinez v. Ryan that the ineffectiveness of state habeas counsel in failing to claim ineffective assistance of trial counsel may provide cause to excuse a procedural default. Although the Fifth Circuit denied Ayestas’s motion for a rehearing based on the Martinez ruling, the Supreme Court vacated that judgment and remanded Ayestas’s case for further consideration in light of the Supreme Court’s 2013 decision in Trevino v. Thaler, which made clear that Martinez applied in the context of Texas state procedures. The Fifth Circuit in turn remanded Ayestas’s case to the district court to reconsider his procedurally defaulted ineffective assistance claim in the first instance.
On remand Ayestas filed a motion for investigative assistance under 18 U.S.C. § 3599(f), requesting a mitigation specialist in order to develop his broader ineffective assistance of trial counsel claim. In 2014 the district court denied habeas relief, concluding that neither Ayestas’s trial nor state habeas counsel had been constitutionally ineffective, and that a mitigation specialist was therefore not “reasonably necessary.” Ayestas thereafter moved to amend his federal habeas petition to add claims relating to a recently discovered prosecution memorandum suggesting that the push for capital punishment in Ayestas’s case was improperly motivated by his national origin. He also sought a stay in federal court until he exhausted these new claims in state court. The district court denied all relief and denied a certificate of appealability. The Fifth Circuit affirmed in all respects.
The Supreme Court granted Ayestas’s subsequent certiorari petition to address whether the Fifth Circuit erred in concluding that 18 U.S.C. § 3599(f) withholds “reasonably necessary” resources to investigate and develop an ineffective assistance of counsel claim that state habeas counsel forfeited, where the claimant's existing evidence does not meet the ultimate burden of proof at the time the Section 3599(f) motion is made.
To discuss the case, we have Dominic Draye, Solicitor General of the State of Arizona.
Opening Arguments - OA126: Mick Mulvaney & The Consumer Financial Protection Bureau
Today's episode breaks down the recent kerfuffle over the simultaneous claims of Leandra English and Mick Mulvaney to be Acting Director of the Consumer Financial Protection Bureau (CFPB). First, we begin with an "Andrew Was Wrong (?)" segment that gives voice to an anti-Net Neutrality argument, a clarification on the Obama administration's antitrust policies, and a factual clarification on the Anheuser-Busch/InBev merger. After the main segment, Andrew and Thomas answer a fun question about speeding and evidence AND tease the upcoming Law'd Awful Movies #13. Finally, we end with an all-new Thomas Takes the Bar Exam Question #52 about the constitutionality of a cigarette tax and accompanying program. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! Have us on your show! Show Notes & Links
- For Jaqen and others, we recommend OA22: "Libertarianism is Bad and You Should Feel Bad."
- Here is the lawsuit filed by Leandra English; and this is the memorandum supporting her motion for TRO.
- On the other side, you can read the memorandum issued by Asst. Attorney General Steven A. Engel and the companion memo authored by CFPB Counsel Mary McLeod.
- The statutes we cited during the show are two sections of the Federal Vacancies Reform Act, 5 U.S.C. § 3345 and 5 U.S.C. § 3347, as well as a portion of Dodd-Frank, 12 U.S.C. § 5491.
SCOTUScast - Patchak v. Zinke – Post-Argument SCOTUScast
On November 7, 2017, the Supreme Court heard argument in Patchak v. Zinke, a case involving separation of powers concerns that may arise when Congress passes a statute directing federal courts to “promptly dismiss” a pending lawsuit without amending any underlying substantive or procedural laws.
In 2012, the Supreme Court held in the case Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak that David Patchak had prudential standing to bring a lawsuit under the Administrative Procedure Act against the U.S. Department of the Interior (DOI), to challenge DOI’s taking title under the Indian Reorganization Act to a certain tract of land that was then put into trust for use by the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Band or Gun Lake Tribe. Congress responded by passing the Gun Lake Trust Land Reaffirmation Act (the Gun Lake Act), reaffirming DOI’s taking of land into trust for the Gun Lake Tribe, removing jurisdiction from the federal courts over any actions relating to the land in question, and indicating that any such actions “shall be promptly dismissed.” The district court in which Patchak had filed his suit determined that its jurisdiction to resolve the suit had been stripped by the Gun Lake Act and that the act was not unconstitutional. It therefore dismissed Patchak’s case. The U.S. Court of Appeals for the District of Columbia Circuit affirmed the district court’s judgment on appeal.
The Supreme Court then granted certiorari to address whether a statute directing the federal courts to “promptly dismiss” a pending lawsuit following substantive determinations by the courts (including the Supreme Court’s determination that the “suit may proceed”) – without amending the underlying substantive or procedural laws – violates the Constitution's separation of powers principles.
To discuss the case, we have Erik Zimmerman, Attorney at Robinson Bradshaw.
In 2012, the Supreme Court held in the case Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak that David Patchak had prudential standing to bring a lawsuit under the Administrative Procedure Act against the U.S. Department of the Interior (DOI), to challenge DOI’s taking title under the Indian Reorganization Act to a certain tract of land that was then put into trust for use by the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Band or Gun Lake Tribe. Congress responded by passing the Gun Lake Trust Land Reaffirmation Act (the Gun Lake Act), reaffirming DOI’s taking of land into trust for the Gun Lake Tribe, removing jurisdiction from the federal courts over any actions relating to the land in question, and indicating that any such actions “shall be promptly dismissed.” The district court in which Patchak had filed his suit determined that its jurisdiction to resolve the suit had been stripped by the Gun Lake Act and that the act was not unconstitutional. It therefore dismissed Patchak’s case. The U.S. Court of Appeals for the District of Columbia Circuit affirmed the district court’s judgment on appeal.
The Supreme Court then granted certiorari to address whether a statute directing the federal courts to “promptly dismiss” a pending lawsuit following substantive determinations by the courts (including the Supreme Court’s determination that the “suit may proceed”) – without amending the underlying substantive or procedural laws – violates the Constitution's separation of powers principles.
To discuss the case, we have Erik Zimmerman, Attorney at Robinson Bradshaw.
Amicus With Dahlia Lithwick | Law, justice, and the courts - Slow Burn: A Podcast About Watergate | Martha
Amicus presents a preview of Slow Burn, an eight-episode miniseries about Watergate.
People called her crazy, and to be fair she must have seemed crazy. But she was onto something. How Martha Mitchell, the celebrity wife of one of Nixon’s closest henchmen, tried to blow the whistle on Watergate—and ended up ruining her life.
Find out more at slate.com/slowburn.
Learn more about your ad choices. Visit megaphone.fm/adchoices
Amicus With Dahlia Lithwick | Law, justice, and the courts - Slow Burn: A Podcast About Watergate | Martha
Amicus presents a preview of Slow Burn, an eight-episode miniseries about Watergate.
People called her crazy, and to be fair she must have seemed crazy. But she was onto something. How Martha Mitchell, the celebrity wife of one of Nixon’s closest henchmen, tried to blow the whistle on Watergate—and ended up ruining her life.
Find out more at slate.com/slowburn.
Hosted on Acast. See acast.com/privacy for more information.
Opening Arguments - OA125: Net Neutrality and Antitrust, Part One
Today's episode takes two deep dives into complicated legal issues in the news. First, we tackle the FCC's recent "Order Restoring Internet Freedom," which is being characterized as ending Net Neutrality. Is that true? The answer... probably won't surprise you, actually. Then, Andrew and Thomas discuss general principles of antitrust law with an eye towards the recent news that the Trump Department of Justice has sued to block the AT&T/Time Warner merger. Finally, we close with the answer to Thomas Takes the Bar Exam Question #51 involving class action lawsuits in Tenntucky. Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew is going to be on the Wednesday broadcast of the David Pakman show; give it a listen! Show Notes & Links
- We first discussed Net Neutrality in Episode 64 and Episode 65.
- The text of the Open Internet Order of 2015 is here.
- You can also read the Heritage Foundation's plea to have internet regulations fall under FTC rather than FCC jurisdiction.
- The interim vote to reverse the Open Internet Order of 2015 is here.
- This is the full Declaratory Ruling, Report and Order, and Order ("Restoring Internet Freedom").
- This is FTC Commissioner Clyburn's Minority Report and guide to the order.
- We first discussed antitrust laws in connection with the USFL lawsuit in Episode 57 and Episode 58.
- Here is the DOJ's lawsuit attempting to block the AT&T/Time Warner merger.
- The main citations we relied upon in the show were 15 U.S.C. § 1 (The Sherman Antitrust Act of 1890); 15 U.S.C. § 18 (The Clayton Antitrust Act of 1914), and 15 U.S.C. § 45 (the FTC Act of 1914).
SCOTUScast - Artis v. DC – Post-Argument SCOTUScast
On November 1, 2017, the Supreme Court heard argument in Artis v. District of Columbia, a case involving a dispute over the meaning of tolling as the term is used in the federal supplemental jurisdiction statute, 28 U.S.C. § 1367(d).
In April 2009, Stephanie Artis, a temporary employee for DC’s Department of Health (DOH), filed a claim with the U.S. Equal Employment Opportunity Commission (EEOC) alleging discrimination by her supervisor, Gerard Brown. Artis followed the charge with a series of grievances challenging notices of proposed infractions against her and alleging other violations of employee rights by Brown. The DOH terminated her employment in November 2010, and she lodged a final grievance in January 2011, alleging the termination was unlawful retaliation.
Artis filed suit against DC in federal district court in December 2011. She asserted a federal claim of unlawful termination in violation of Title VII of the Civil Rights Act of 1964, along with various other claims arising under DC statutes and the common law. In June 2014, the district court granted DC judgment on the pleadings and dismissed Artis’ sole federal claim under Title VII. Given the facial deficiency of that claim, the district court found no basis for exercising supplemental jurisdiction over Artis’ remaining non-federal claims. Fifty-nine days later Artis refiled those remaining claims in DC Superior Court. DC responded with a motion for dismissal on the grounds that the claims were time-barred based on the relevant statutes of limitations plus 28 U.S.C. § 1367(d) of the federal supplemental jurisdiction statute. The Superior Court agreed, concluding that § 1367(d) does not suspend state statutes of limitations at the time of an unsuccessful federal filing, but rather creates a thirty-day period for a claimant to file actions over which the U.S. District Court lacked jurisdiction.
The language of 1367(d) provides that statutes of limitations “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” On appeal to the DC Court of Appeals, Artis argued that there were nearly two years remaining on the statute of limitations when she filed her suit in the federal district court, and under the language of 1367(d) she had that period (plus thirty days) to file her claims in the Superior Court after her case was dismissed. DC countered that “tolled” should merely mean that a thirty-day “grace period” applies if the limitations period for the non-federal claims expires (as it would have in Artis’ case) while the federal claim is pending in federal court. The DC Court of Appeals found DC’s “grace period” reading more persuasive. As Artis had failed to refile her remaining claims within that grace period following dismissal, the Court of Appeals deemed them time-barred and affirmed the judgment of the Superior Court.
The U.S. Supreme Court granted certiorari to address the dueling interpretations of § 1367(d): whether that provision suspends the limitations period for a non-federal claim while the claim is pending and for 30 days after the claim is dismissed, or whether the tolling provision does not suspend the limitations period but merely provides 30 days beyond the dismissal for the plaintiff to refile.
To discuss the case, we have Misha Tseytlin, Solicitor General of Wisconsin.
In April 2009, Stephanie Artis, a temporary employee for DC’s Department of Health (DOH), filed a claim with the U.S. Equal Employment Opportunity Commission (EEOC) alleging discrimination by her supervisor, Gerard Brown. Artis followed the charge with a series of grievances challenging notices of proposed infractions against her and alleging other violations of employee rights by Brown. The DOH terminated her employment in November 2010, and she lodged a final grievance in January 2011, alleging the termination was unlawful retaliation.
Artis filed suit against DC in federal district court in December 2011. She asserted a federal claim of unlawful termination in violation of Title VII of the Civil Rights Act of 1964, along with various other claims arising under DC statutes and the common law. In June 2014, the district court granted DC judgment on the pleadings and dismissed Artis’ sole federal claim under Title VII. Given the facial deficiency of that claim, the district court found no basis for exercising supplemental jurisdiction over Artis’ remaining non-federal claims. Fifty-nine days later Artis refiled those remaining claims in DC Superior Court. DC responded with a motion for dismissal on the grounds that the claims were time-barred based on the relevant statutes of limitations plus 28 U.S.C. § 1367(d) of the federal supplemental jurisdiction statute. The Superior Court agreed, concluding that § 1367(d) does not suspend state statutes of limitations at the time of an unsuccessful federal filing, but rather creates a thirty-day period for a claimant to file actions over which the U.S. District Court lacked jurisdiction.
The language of 1367(d) provides that statutes of limitations “shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.” On appeal to the DC Court of Appeals, Artis argued that there were nearly two years remaining on the statute of limitations when she filed her suit in the federal district court, and under the language of 1367(d) she had that period (plus thirty days) to file her claims in the Superior Court after her case was dismissed. DC countered that “tolled” should merely mean that a thirty-day “grace period” applies if the limitations period for the non-federal claims expires (as it would have in Artis’ case) while the federal claim is pending in federal court. The DC Court of Appeals found DC’s “grace period” reading more persuasive. As Artis had failed to refile her remaining claims within that grace period following dismissal, the Court of Appeals deemed them time-barred and affirmed the judgment of the Superior Court.
The U.S. Supreme Court granted certiorari to address the dueling interpretations of § 1367(d): whether that provision suspends the limitations period for a non-federal claim while the claim is pending and for 30 days after the claim is dismissed, or whether the tolling provision does not suspend the limitations period but merely provides 30 days beyond the dismissal for the plaintiff to refile.
To discuss the case, we have Misha Tseytlin, Solicitor General of Wisconsin.
Amicus With Dahlia Lithwick | Law, justice, and the courts - Why the Cakeshop Case is So Delicious
As the high court continues through its unprecedented session, Dahlia speaks with Adam Liptak who covers the Supreme Court for the New York Times and knows the ins and outs of the Masterpiece Cakeshop case. And he gives his insight on what a jaw-dropping brief from the Solicitor General's office means for relations between the Court and the Trump administration. Plus, a look into how the Supreme Court Justices seem to be the last grown-ups left in Washington.
Learn more about your ad choices. Visit megaphone.fm/adchoices
Amicus With Dahlia Lithwick | Law, justice, and the courts - Why the Cakeshop Case is So Delicious
As the high court continues through its unprecedented session, Dahlia speaks with Adam Liptak who covers the Supreme Court for the New York Times and knows the ins and outs of the Masterpiece Cakeshop case. And he gives his insight on what a jaw-dropping brief from the Solicitor General's office means for relations between the Court and the Trump administration. Plus, a look into how the Supreme Court Justices seem to be the last grown-ups left in Washington.
Hosted on Acast. See acast.com/privacy for more information.
Opening Arguments - OA124: Happy Thanksgiving!
Today's episode is the Happiest Episode Ever (TM)! First, the guys discuss "the real meaning of Thanksgiving," cribbing from a blog post Andrew wrote for his old firm back in 2013. In the main segment, Andrew and Thomas break down a pending case before the U.S. District Court for the District of Columbia regarding Donald Trump's tweets and the Freedom of Information Act, as well as an update on the status of Trump's "Sanctuary Cities" executive order first discussed on OA 65. Then, Thomas answers a delightful listener question about what he likes. The answer WILL surprise you! Finally, we end with an all-new Thomas Takes the Bar Exam Question #51 about justiciability and standing. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was a return guest on the How-To Heretic Podcast; give it a listen! Show Notes & Links
- Check out "The Real Meaning of Thanksgiving" here.
- The Freedom of Information Act can be found at 5 U.S.C. § 551 et seq.
- We discussed the influential Garland opinion of ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013).
- We first discuss the "Sanctuary Cities" EO in Episode 65, and you can read the permanent injunction here.
- Finally, you can submit your show quotes here.