Habeas Hints: Staring Down the Two-Headed Monster: Richter-Pinholster

By Kent Russell

This column provides “habeas hints” to prisoners who are considering or handling habeas corpus petitions as their own attorneys (“in pro per”). The focus of the column is on the Antiterrorism and Effective Death Penalty Act (AEDPA), the federal habeas corpus law which now governs habeas corpus practice in courts throughout the United States.

Part Two of Two

Harrington v. Richter,
131 S.Ct. 770 (2011)

Cullen v. Pinholster,
131 S.Ct. 1388 (2011

In Richter, the U.S. Supreme Court (SCOTUS) made ineffective assistance of counsel (IAC) claims – heretofore the staple of habeas corpus litigation – even harder to win on federal habeas corpus than they were before; and in Pinholster the Court all but eliminated federal evidentiary hearings as an aid to satisfying AEDPA’s requirement that a state court’s denial of habeas relief be shown to be “unreasonable.” The decisions in Richter and Pinholster represent a two-headed monster that habeas petitioners will frequently face and have to stare down.

In this two-part column, I discuss these two important cases and suggest some Habeas Hints for how to make the best of them. In Part One we focused on Richter. [See: PLN, Nov. 2013, p.12]. Here, in Part Two, we will zero in on Pinholster.

Pinholster concerned a defendant charged with capital murder in California after he solicited friends to rob local drug dealers and, when the dealers tried to prevent the robbers’ escape, beat and stabbed them to death. After his arrest, Pinholster threatened to kill a cooperating witness unless he kept quiet. At the guilt phase of the trial Pinholster stupidly testified in his own defense – boasting that he had committed hundreds of robberies while insisting that he always used a gun, even though he had a history of having kidnapped a person while using a knife. The jury found him guilty of two counts of first-degree murder, triggering the penalty phase of the trial.

Shortly before the penalty phase started, the defense moved to exclude any aggravating evidence on the ground that the prosecution had not provided notice to use such evidence as required under California law. The motion was denied on the basis that Pinholster had represented himself at a previous stage of the case, during which the required notice had been given. Defense counsel then stated that, having banked on the court’s grant of the motion to exclude, he was not prepared to offer any mitigating evidence. The court inquired whether a continuance might be helpful but counsel declined, saying that because he couldn’t think of any mitigation witness other than Pinholster’s mother, having more time wouldn’t matter.

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Why Funding Needs to be Reinstated for Prison Education Programs

By Christopher Zoukis

“We must accept the reality that to confine offenders behind walls without trying to change them is an expensive folly with short term benefits — winning battles while losing the war.  It is wrong, it is expensive, it is stupid.” — United States Supreme Court Chief Justice Warren Burger

Prison education is the most cost-effective method of reducing recidivism — the percentage of inmates that fall back into a life of crime, are rearrested, and re-imprisoned.  Recidivism has been draining the economy, overcrowding the prison systems, and causing more people to become victims of crime.  It’s a problem, and prisoner education is the most cost-effective solution, infinitely more than incarceration alone.  Image courtesy

Inmates, however, rarely have access to any kind of education because there is simply no meaningful source of funding for such in-prison programming.  Pell Grants — need-based educational grants provided to low-income students — were the only systematized funding source since 1965, but in 1994, when the Violent Crime Control and Law Enforcement Act and the Higher Education Reauthorization Act were passed by Congress and signed into law by the Clinton Administration, prisoners were restricted from all federal financial aid.  As a result, most in-prison educational programs were forced to shut their doors.  This resulted in a correlating increase in recidivism rates due to incarcerated students being shut out of the classroom.  The record 350+ in-prison college programs simply ceased to exist without a sustainable funding source.

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