Fun & Games with Habeas

My vacation was supposed to start Wednesday afternoon, right after I continued a case on the 1 p.m. docket. The plan was to take a week, travel to Kentucky to hit some old stomping grounds and touch base with some folks and then go to Cincinnatti for my brother's confirmation (on Tuesday night; Who ever heard of having confirmation on a Tuesday?). Anyway, Mom told me about this about a week ago and I've been trying to get things squared away since. Luckily, the end of this week was already clear so I could extend the trip for 7 days. I don't dare go past 7 days because I have a few petitions to the Court of Appeals and at least two of them are cases in which the trial court should be overturned. Experience teaches me that this means my rejection slip from single judge of the Court of Appeals will take longer to get mailed to me and be thicker. From the date on the rejection slip I have 10 days to email a single page .pdf to the court stating the reason it's wrong and demanding to tell a 3 judge panel why the petition should actually be scheduled for argument. In that circumstance 7 days is the most I can risk away from my P.O. box.

Of course, there are still a ton of things that need to be squared away. I'd set aside Tuesday afternoon to deal with a bunch of it and planned to wrap up the rest this morning.I'll let ya'll pick which of the following fits best:

1. No plan survives contact with the enemy.

2. The great god Murphy frowned upon me.

3. The best laid plans of mice and men often go awry.

I open my P.O. box yesterday and there on the top is a manila envelope from the Attorney General's office - never a good sign.

Sure enough, a former client has filed a habeas petition against me, To make it worse, the AG office mailed it to an old address (it got forwarded) so it's getting to me late. I get to spend my afternoon up to about 8 p.m. putting together an answer and am thus thrown back at least a day for the start of vacation. Wonderful.

Anyway, the habeas is put together better than most I've seen. The writing is clear and it even includes copies of the case law and secondary sources Petitioner is relying on. And, for all its ill timedness, I can't blame Petitioner for taking her shot. Still, she did mange to irk me with some parts.

The primary complaint is that I was ineffective because I neither asserted the single larceny doctrine nor informed her about it prior to her guilty plea. This is a doctrine under Virginia law which says if you steal a key ring the prosecution cannot charge you with larceny for each key on the ring - only one larceny for the entire ring; the important factors to this limitation are that it all happens in the same time and place. Petitioner was extradited from Wyoming to face three charges: petit larceny (dad's wallet) and two charges of credit card theft (all from dad's wallet); there was never any doubt as to the facts of the case. The prosecutor dropped the petit larceny and Petitioner pled guilty to the two credit card thefts.

But wait, you think to yourself, that means Ken did screw up! Nope, while Petitioner has a good grasp on the basics of the single larceny doctrine she obviously didn't research its later development too well. Under Scott v. Commonwealth, precedent in Virginia holds that because the crime of felony credit card theft was created by the General Assembly it abrogates the common law rule that "stealing" a chose in action is not a crime. Going further it reasons that the creation of a brand new larceny by the General Assembly does not carry with it the single larceny doctrine restriction which applies to all the other larcenies. Not my favorite opinion, but it is binding precedent.

Anyway the strongest bolt in Petitioner's quiver pretty much shatters against Virginia's precedent. However, she made some other accusations which are basically downright strange.

The main reason she is upset and filing the habeas is that she got 10 years with 5 suspended on each charge (to run concurrently) and she got 3 more on a show cause from another jurisdiction. Her sentence was far above the guideline recommendation and I think it was extremely disproportionate. However, it was entirely legal. I have my theory as to how Petitioner got that much time, but I shan't air that right now. Of course, Petitioner has her own explanation for the disproportionate sentence: Ken Lammers sucks.

She makes the claim that I told her that a couple days before I had screwed up a case in front of the very same judge, that he was angry over that when he sentenced her, AND that I was shaking in fear during her sentencing hearing. Now, I don't remember talking about another case with her but it's always possible - sometimes I use general descriptions of other cases to explain how I think other actors in the court will act and react. The problem is, my calendar doesn't show me as having been before that judge for two months prior to Petitioner's sentencing date (which is fairly typical since I usually have one day per term) so there's no case I could have been talking about.

Gotta admit that my blood started to boil when I saw the accusation that I was shaking in fear. Shaking in fear??? You've got to be kidding me. How in the world do you answer that?

Then I realized that she might have merely misunderstood my trembling in anticipation of springing into battle, crushing the enemy, seeing him driven before me, and hearing the lamentation of the women. Or maybe I was just agitated because, under the terms of the guilty plea, I wasn't going to be able to join in mortal combat with the prosecutor. Or maybe there was a minor earthquake. Or maybe she made a bet with another inmate to see who could make the more ridiculous claim in her habeas petition.

Obviously, I don't know what the back story on that claim is. All I know is that it is incredibly insulting, Of course, the whole thing is a claim of ineffective assistance of counsel so I should be insulted by all of it. Still, this is the part which got under my skin.

I go now to gather and calm myself. Then I will continue prepping for my trip. I figure I can probably still get on the road by noon Thursday (God willing).