Akhil Amar, Lawrence Tribe and Gun Control

Here’s the question:

Marc Poulin ‏@Methos2010

@m10001 Bob what do you think of Akhil Amar's 2nd and 14th Amendment jurisprudence views and Laurence Tribe's vacillations?

Here's the answer:

The Second Amendment is very poorly drafted: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." It doesn't say whether a right to keep and bear arms is a right of individual persons or a corporate right of the citizenry of the particular states. One cannot resolve this conundrum with pure originalism and some other principle or principles must be used to solve the problem. Now this is a blog post instead of a law review article or book, but I was taught in law school that individuals asserting their Second Amendment rights to keep and bear their individual arms lost their cases. That's turned out to be less true than I was taught, but District of Columbia v. Heller, 554 U.S. 570 (2008) surprisingly upheld Heller against the District and was confirmed and expanded in McDonald v. Chicago, 561 US 3025 (2010) by enforcing the Second Amendment against the states through the Fourteenth. Insofar that Amar is arguing that "other principle or principles" exist, I agree with him, though I may not agree with his specific principles.

As for Tribe, his problem is that he needs seven pages in a textbook to explain his views. It's not weird that even a lefty like Tribe would  find a federal confiscation of all firearms unconstitutional. How close to that line would be acceptable is unclear to him. He appears to me to be intellectually honest not to be supportive of absolutely any gun control.

I speak about law here, not about what policy would be prudent. It appears to me that not all federal or state weapons regulation would offend the Second Amendment (federal) or the Second Amendment through the Fourteenth (state). If the feds confiscated a homemade nuke, I don't think a Second Amendment defense would work, not even here in Texas.

CCA Says Prisoner's Prior Habeas Application Bars Relief for Trial Court's Lack of Jurisdiction

This is what happened to Casey Tyrone Sledge. He agrees to a plea bargain in the 181st District Court in Amarillo, Texas: deferred adjudication for sexual assault of a child. Three days after his probation term is up, the trial court issues a capias for him, because the state claims he has committed two more crimes. The district court adjudicates him guilty, sentencing him for five years. Sledge doesn't appeal, but he does apply for a writ of habeas corpus to the Court of Criminal Appeals for insufficient evidence. The CCA pours him out. After that, he files another writ application showing that the trial court had lost jurisdiction over his case by waiting after his probation period was over to call him back into court. Judge Tom Price, writing for a majority that included Presiding Judge Sharon Keller, and Judges Paul Womack, Michael E. Keasler, Barbara Parker Hervey ruled that the CCA did not have jurisdiction over the second writ application because Texas Code of Criminal Procedure article 11.07's requirements for a second writ application were not satisfied. Generally, a writ seeker is only supposed to have one application.
Judge Elsa Alcala wrote a dissent joined by Judge Cathy Cochran arguing that 11.07 did not apply since the trial court lacked jurisdiction. 11.07 is for convicts. A judgment of a court lacking jurisdiction is not a conviction. Judge Cheryl Johnson dissented without opinion, and Judge Lawrence E. Meyers did not participate in the case.
I think the CCA is using the prior application as an excuse for keeping a sex offender in prison.
Ex parte Casey Tyrone Sledge, No. AP-76,947 (Tex. Crim. App., Jan. 16, 2013) (orig. proceeding).

He's Been Waiting More than 29 Years for His New Trial

What if Texas's highest criminal court, the Court of Criminal Appeals, ordered a new trial for somebody and more than 32 years passed and the new trial was never held? This appears to have been what happened to Jerry Hartfield, creating embarrassment and legal puzzlement for lawyers and judges in Texas, Louisiana and Mississippi.
Jerry Hartfield's IQ is supposed to be 51. He has only recently come to be able to read and write. He was convicted of the savage capital murder of Eunice Lowe in Bay City, Matagorda County, Texas (Bay City in Matagorda County was where I was a prosecutor- super nice people, a great place for a nature vacation) in 1977. The Court of Criminal Appeals overturned his conviction in 1980.
Now this is where it starts to get hinky. Now today if there was a problem with a sentence, but no problem with the adjudication of guilt, a case could be remanded for punishment only, but back then it was all or nothing. The State asked for the CCA to reform the sentence to life, but the court said it could not. In the alternative, the State asked for leave to ask the governor to commute the sentence. In the end, after having been asked by the Matagorda County Sheriff, the district attorney, the trial judge, and the Board of Pardons and Parole, the governor did so March 14, 1983. At that point, Hartfield's appointed counsel stopped working on the case.
On November 14, 2006, Hartfield applied for a writ of habeas corpus in the Matagorda County trial court. Thirteen days later, see supplemented his petition with request for a speedy trial, which the trial court forwarded to the CCA. On January 4, 2007, Hartfield sought a writ of mandamus from the CCA to get his trial. On January 31, 2007, the CCA denied all.
October 22, 2007, Hartfield filed a habeas application in the federal Southern District of Texas court in Houston. The prison system's counsel moved for summary judgment because Hartfield's application was more than a year after the judgment against him which was purportedly contrary to the Anti-Terrorism and Effective Death Penalty Act. The Houston magistrate judge demurred, ruling that Hartfield was not being held pursuant to a state judgment;  it had been reversed so that AEDPA didn't apply. The magistrate also held that Hatfield had not exhausted his state remedies- a state application for a pretrial writ of habeas corpus. Furthermore, the magistrate held that as a pretrial writ application it was in the wrong location. A non-judgment application like Hartfield's is supposed to be where the person is being detained which in this case was the Eastern District of Texas. Prison counsel appealed the ruling that Hartfield's application was not time-barred. Hartfield appealed the ruling that he had not exhausted state remedies. The Fifth Circuit affirmed. Now prison counsel appears to be trying to get the Fifth Circuit to reconsider.
 It is very, very hard to represent capital defendants on appeal. A near-obsessive focus on deadlines is required and constantly keeping in mind the procedural posture of the case. Back in 1983, nobody wanted this case retried and it appears now that unless the Fifth Circuit changes its mind, Texas is going to have to retry and re-convict and re-sentence Hartfield or let him go.

Jerry Hartfield v. Rick Thaler, Director, Texas Department of Criminal Justice, Correctional Institutions Division; No. 11-40572 (5th Cir. Oct. 9, 2012) 

Texas's Court of Criminal Appeals Tells Dallas State Appeals Court Dallas Has Jurisdiction over Discovery Mandamus

What do you do if the Texas state trial court that convicts you won't let you see the Reporter's Record in your trial, so that you can't make a proper habeas corpus application? Your application is very unlikely to be granted if you can't point to the exact place in the record where the law was violated to hold you. Philippe Padieu couldn't get his, so he sought a writ of mandamus against the trial court from the justices above that trial court-- in this case, they were in Dallas. The Dallas justices told him that they did not have the power to help him, that they didn't have jurisdiction. It appears that they said it because the point of Padieu's looking at the record was to make a habeas application, but for a person with a final felony conviction, the only court with jurisdiction over the application would be the Court of Criminal Appeals. Since Padieu's mandamus was, in their view, related to a habeas application, it was a CCA matter and not for them.
In a per curiam opinion, that is, an unsigned opinion, the CCA required the Fifth Court of Appeals in Dallas (Don't confuse this with the federal Fifth Circuit in New Orleans.) to consider Padieu's mandamus petition. The CCA noted that no habeas petition had yet been made for Padieu, and said his situation was like a person who was seeking post-conviction DNA testing. Under the DNA testing statute, trial courts continue to have jurisdiction over such matters, even if the point of them generally was to generate evidence for a habeas application over which the CCA alone would have jurisdiction.
Philippe Padieu v. Court of Appeals of Texas, Fifth District, No. AP-76,727 (Tex. Crim. App., Jan. 9, 2013) (orig. proceeding) (per curiam).

The Appeals Court Was Not Going to Allow This New Trial

Houston First Court of Appeals Justice Evelyn V. Keyes, writing for a panel including Justices Michael C. Massengale and Harvey G. Brown, overturned former District Court judge Kevin Fine's granting of a new trial in a murder case.
The testimony of four witnesses are important at the trial:

• Lusk, who saw an unidentified man with a gun leaving the scene,
• Coronado, who saw defendant Thomas and another man leave the area after the shots were fired,
• Johnson, who saw defendant Thomas shoot at the victim, and
• Reliford, who saw defendant Thomas shoot the victim in the head.

Now Vallery appears to have been at the scene and was available at trial, but did not testify (Thomas's trial counsel said in a news report that to explain why their side didn't call Vallery to the stand would violate attorney-client privilege.). Vallery had given a statement to police, which the defense team had seen.

Thomas was convicted and got a 40-year sentence.

A co-defendant was convicted in a separate proceeding and got ten years.

Thomas moved for a new trial, at least on punishment on the ground that the court should have heard Vallery's testimony (It appears that she would have testified that Mr. "Ten Years," instead of Thomas, was the actual shooter.). He was quite firm that he was alleging neither that trial counsel had been ineffective for not calling Vallery at guilt-innocence nor that Vallery's testimony was newly discovered evidence. The trial court granted the motion and the State appealed: it said that the new trial was an abuse of discretion, and that  if the appeals court agreed that a new trial was warranted, it should not be just a punishment-only retrial. The appeals court held that there was no good legal reason to have another trial.

It appears the real-world fight was that Judge Fine was inclined to shorten Thomas's 40-year sentence in light of the other bad actor's ten-year sentence, and the prosecutors and appeals justices were inclined to deny him. Defense counsel, in Houston, you need more than an alleged disproportionality between defendants to get a new trial. You need a law error or an ineffectiveness claim or newly discovered evidence or credible ignored evidence of actual innocence.

Judge Fine, a tattooed, snuff-dipping Democrat long successful in drug addiction recovery, was disliked by Republican prosecutors and jurists at Harris County's Criminal Justice Center and the Court of Criminal Appeals and now the First Court at 301 Fannin has gotten to take a swipe at him. Fine was best known for having held that Texas's death penalty statute, as applied, was unconstitutional, which decision was quickly overturned and withdrawn.
State v. Thomas, No. 01-11-00500-CR (Tex. App.--Houston [1st Dist.], Dec. 20, 2012, no pet. h.).

Habeas Corpus Process Different for TDCJ-ID Inmates Starting Sentences as Juveniles

Even though Zahir Querishi is serving a 40-year sentence on the Ramsey Unit of the Texas Department of Criminal Justice Institutional Division for capital murder and attempted capital murder, his habeas corpus rights don't arise under Texas Code of Criminal Procedure article 11.07, like the vast majority of other inmates. His rights are not statutory because he was not originally convicted in a Texas criminal court, but was instead adjudicated a juvenile delinquent, given his sentence, started serving it with the Texas Youth Commission and then, as a adult, was transferred to the prison system.
He can apply for habeas relief to the juvenile court, and if he is improperly denied it, he can appeal that denial to a higher court.
Querishi applied for relief in the juvenile court, was denied, and appealed, then he sought a writ of mandamus to force the Harris County District Clerk to transfer his notice of appeal to one of the appeals courts. While that mandamus was pending, the clerk went ahead and transferred the document to Houston's Fourteenth Court of Appeals and the appellate court dismissed the mandamus application as  moot.
Querishi got impatient with Harris County's District Clerk's office again and sought to mandamus them again, this time, to issue a citation in relation to his denied habeas writ application that was and is still pending in the Fourteenth.
Yesterday-- January 3, 2013-- the Fourteenth dismissed this second mandamus application on the ground that they could only mandamus a District Clerk to enforce their jurisdiction. They held that mandamus was not necessary to enforce their jurisdiction-- the matter was already pending before them-- so they didn't have the power to issue the mandamus whether they wanted to or not. So they dismissed the second mandamus application.
So far there have three proceedings as to this single appeal.
In re Z.Q., No. 14-12-01109-CV (Tex. App.--Houston [14th Dist.], Jan. 3, 2013) (orig. proceeding) (mem. op.) (per curiam, Hedges, C.J., Brown and Busby, JJ.).