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UPDATED: Plea to delay execution in sniper case

UPDATE Wednesday p.m.  The state of Virginia urged the Court Wednesday to permit the Nov. 10 execution to go forward, and argued that Muhammad’s lawyers had made no argument for review of his challenges.  The brief in opposition is here. His claim about mental incompetency was not raised in lower courts, the state contended, and his challenge to Virginia’s rapid efforts to move capital cases along does not raise a significant issue. (NOTE: The stay application is docketed as 09A428, not 09A423 as indicated in the earlier post, below.)


Seeking to slow down the famed “rocket docket” in federal the srial courts in Virginia, at least when a death-row inmate is testing his state conviction and sentence, attorneys for John Allen Muhammad asked the Supreme Court on Tuesday to delay his execution and then hear and decide his challenges.  Muhammad faces execution in one week, on Nov. 10,  for a Manassas, Va., murder that was one of ten he and a youthful compansion allegedly carried out in a wave of 16 sniper shootings in the Washington area seven years ago.

Besides testing a practice in the Virginia federal district courts of shortening the time to file an initial federal habeas plea, Muhammad’s counsel are challenging lower courts’ rulings that he was not harmed legally by representing himself for part of his trial, even though lawyers advising him knew of evidence that would indicate he was not mentally competent to understand what was happening at the trial.

His stay application (09A423) is here.  Along with it, he filed a petition for review (Muhammad v. Kelly, 09-7328).  The papers were filed initially with Chief Justice John G. Roberts, Jr., who is the Circuit Justice for emergency orders in the federal Fourth Circuit, which includes Virginia.  He has the authority to act alone or share action with his colleages on the stay application.  The full Court will consider the certiorari petition.

In seeking to put off the Nov. 10 execution, Muhammad’s attorneys argued that “Virginia is alone in its practice of always setting an execution date just prior to the Supreme Court’s consideration of a petition for a writ of certiorari from an appeal of a first habeas petition.”  The application noted that Justices John Paul Stevens and Ruth Bader Ginsburg protested that practice two years ago.  That complaint is separate from the challenge to the federal district courts’ refusal, on first habeas petitions like Muhammad’s, to allow the full year to file that is specified under federal law.

Because the execution date would fall 20 days before Muhammad’s petition would even be due in the Supreme Court under normal scheduling, his lawyers filed it at the same time as their stay application.   The application argued that the Court should adopt as a routine practice the staying of all executions that a state schedules before the Supreme Court has a chance to complete review of a first federal habeas case.

Muhammad’s case has been at the Supreme Court once before.  Following his conviction, and initial review in Virginia’s state courts, the Supreme Court refused to hear his case on May 15, 2006.  After a failure of post-conviction challenges in state court, Muhammad’s attorneys turned to the federal courts.  His petition recites the history of that experience, showing that he at no time was allowed a full year to seek habeas relief.  The Fourth Circuit Court rejected that challenge, along with his incompetency claim.

The new petition asked the Supreme Court to review two issues.  Paraphrased, they are: whether the Fourth Circuit was wrong in the standard it used to analyze the performance of his lawyers on the incompetency issue, and whether Congress has set a one-year filing period for the first habeas plea and thus that period cannot be shortened by federal judges.

The first question is a mixture of an inquiry into counsel’s performance, and a question of the scope of prejudice that may result from a flawed performance regarding competency.  Muhammad’s petition contends that, in judging whether Muhammad’s case was harmed when his lawyers failed to bring forth evidence of his incompetence, when the judge was considering whether to let Muhammad act as his own lawyer, the test is whether there was a reasonable chance the accused would have been found incompetent to waive his rights.  The Fourth Circuit, it adds, erred in focusing only on whether there was a reasonable prospect that the trial would have ended differently if Muhammad had not been his own lawyer (for two days of the trial).

“Once counsel was aware of the compelling evidence of Muhammad’s incompetence, counsel were obligated to raise it; once the court was aware of the evidence, it was obligated to inquire into Muhammad’s competence to stand trial under both Virginia and constitutional law.”  The petition asserts that it did not take long, after the trial started, for Muhammad’s incompetence to be revealed, in “his impaired sense of reality” and “a delusional belief system,” caused in part by brain abnormalities.

The second issue focuses on what the petition says is a truly novel practice, under which federal district courts in Virginia routinely deny first-time habeas applicants a full year to prepare their habeas pleas.  Thus, the question raised is whether the one-year time provision in federal habeas law (enacted as part of the Antiterrorism and Effective Death Penalty Act) bars a federal judge from ordering an earlier filing.    Federal judges ordered Muhammad to proceed with plenty of time left in the one-year span, the petition says.

The Supreme Court, it adds, has many times ruled on the running of the one-year AEDPA filing period, but federal judges in Virginia “render all of those decisions irrelevant by artificially shortening the one year to file a first federal habeas petition…Why does it matter when the time begins to run, or what circumstances toll it, if the District Court can take it away at will?”

Among lawyers who practice in the federal courts in northern Virginia, the speedy processes in the District Courts has given rise to the name “the rocket docket.”  Few other federal trial courts in the country match their speed.