Video by Sallydarity / set to Comin' up from Behind ( Marcy Playground)

Retiring Arizona Prison Watch...


This site was originally started in July 2009 as an independent endeavor to monitor conditions in Arizona's criminal justice system, as well as offer some critical analysis of the prison industrial complex from a prison abolitionist/anarchist's perspective. It was begun in the aftermath of the death of Marcia Powell, a 48 year old AZ state prisoner who was left in an outdoor cage in the desert sun for over four hours while on a 10-minute suicide watch. That was at ASPC-Perryville, in Goodyear, AZ, in May 2009.

Marcia, a seriously mentally ill woman with a meth habit sentenced to the minimum mandatory 27 months in prison for prostitution was already deemed by society as disposable. She was therefore easily ignored by numerous prison officers as she pleaded for water and relief from the sun for four hours. She was ultimately found collapsed in her own feces, with second degree burns on her body, her organs failing, and her body exceeding the 108 degrees the thermometer would record. 16 officers and staff were disciplined for her death, but no one was ever prosecuted for her homicide. Her story is here.

Marcia's death and this blog compelled me to work for the next 5 1/2 years to document and challenge the prison industrial complex in AZ, most specifically as manifested in the Arizona Department of Corrections. I corresponded with over 1,000 prisoners in that time, as well as many of their loved ones, offering all what resources I could find for fighting the AZ DOC themselves - most regarding their health or matters of personal safety.

I also began to work with the survivors of prison violence, as I often heard from the loved ones of the dead, and learned their stories. During that time I memorialized the Ghosts of Jan Brewer - state prisoners under her regime who were lost to neglect, suicide or violence - across the city's sidewalks in large chalk murals. Some of that art is here.

In November 2014 I left Phoenix abruptly to care for my family. By early 2015 I was no longer keeping up this blog site, save occasional posts about a young prisoner in solitary confinement in Arpaio's jail, Jessie B.

I'm deeply grateful to the prisoners who educated, confided in, and encouraged me throughout the years I did this work. My life has been made all the more rich and meaningful by their engagement.

I've linked to some posts about advocating for state prisoner health and safety to the right, as well as other resources for families and friends. If you are in need of additional assistance fighting the prison industrial complex in Arizona - or if you care to offer some aid to the cause - please contact the Phoenix Anarchist Black Cross at PO Box 7241 / Tempe, AZ 85281. collective@phoenixabc.org

until all are free -

MARGARET J PLEWS (June 1, 2015)
arizonaprisonwatch@gmail.com



AZ Prison Watch BLOG POSTS:


Thursday, June 27, 2013

Deliberate indifference in AZ DOC custody continues under Corizon.


Good article today in the Tucson Weekly about the DOC's deliberate indifference to human life and their unnecessary deaths in custody.  Please go to the source and leave your comments, especially if you have personal experience with the DOC. 

This is what I had to say:

"Thank you so much for this article. As one who hears daily from prisoners and their families and fights with the DOC about health care and safety in custody, I can attest to the unconstitutional - the outright inhmane - standard of medical care in AZ prisons. From the deliberate indifference to pain and suffering of cancer patients to the brutal, degrading treatment dished out to the traumatized and mentally ill, the conditions of confinement under DOC director Charles Ryan are horrendous.

Ryan's reputation for running the cruelest system in the country actually invites some pats on the back from thick-headed legislators here, but from the junk laws and sentencing guidelines we pass to the implementation of our penal system, Arizona is exceptionally stupid on crime. What is the logic behind depriving prisoners of access to the resources they need to be rehabilitated while subjecting them to the rising violence, trauma and terror that has caused AZ prison homicide and suicide rates to double under Brewer's adminstration? We are simply inflicting further injury on already-damaged people.


Chuck Ryan seems to implement policy based on his contempt for prisoners and desire to punish rather than his duty to try to rehabilitate any of his charges so they are safe to be released back to the community. He's an embarassment to other law enforcemnt professionals in arizona, many of whom don't subscribe to his ideology. He doesn't seem to know what "evidence-based practice" is, or why it's so important to invest public resoures in corrections programs that are actually proven to increase parolee success and public safety.


For example, despite the fact that 75% of incoming prisoners are identified as having problems with addiction or alcoholism, and the growing epidemic of hepatitis c in the prison system (being spread by the obscene abundance of heroin and lack of access to clean needles behind bars) - only 4% of all state prisoners even got substance abuse treatment last year. That's unacceptable. In their 5-year plan the DOC claims not to have enough funding to increase the number of prisoners to more than 3000 a year who get treatment, either
(that's out of a total of 60,000 prisoners who cycle through there)

The problem with the AZ DOC isn't a lack of money, though - they have a billion dollar budget, and its still growing. Their problem is the failure to spend it responsibly. Instead of fully funding programs to help prisoners transition to the community again, the DOC actively convinced the legislature to take money out of an account for those kinds of services and put it into the building fund to support the construction of their new $50 million supermax to warehouse people in.

In fact, the state is facing a class action suit not only for gross medical neglect, but also for their illegal use of administrative segregation (i.e solitary confinement, which the DOC denies they ever use) to manage the symptoms of priosners with serious mental illness in the current supermax facility. If some of the folks currently filling those cells don't belong there to begin with, why build another one?


The only explanation I can see for that new supermax - other than the financial incentives all the obvious beneficiaries have to push this through - is that Chuck Ryan wants this monstrosity to stand as a monument to his brief reign as the DOC's king-baby. I think it's criminal for the public to have to pay for him to fulfill that immature fantasy, especially while other state DOC's are shutting down prisons AND bringing down crime rates by redirecting resources to supporting the reintegration of prisoners in their communities. If Jan Brewer had any real courage or common sense she would fire DOC director ryan immediately and reconstruct the entire system based on contemporary models of crime reduction and the rehabilitation of offenders."


If you are a prisoner's loved one fighting Corizon and the DOC for their access to health care, here's a link to a post that may help:

Corizon and the AZ DOC: Prisoners Families, Know Your Rights.


 please also feel free to contact Peggy Plews at 480-580-6807 or arizonaprisonwatch@gmail.com




----from the Tucson Weekly-------

Cruel, But Not Unusual


State prisoners say lousy medical care is killing them

A narrow road shadows the outer fence at Arizona's state prison in Tucson. Composed of light gravel, always raked smooth, the lane is a blank palette for the footprints of escape. Yet much of this complex holds only petty offenders—short-termers, really—for whom such capers would seem pointless.

But it seems even they can face a death sentence of sorts, delivered by a culture of medical neglect.

That's why two top dogs at the Arizona Department of Corrections are currently being sued, not only by the American Civil Liberties Union of Arizona, but also by the potent, San Quentin, Calif.-based Prison Law Office. In 2011, Prison Law scored a resounding U.S. Supreme Court victory that compelled California to reduce prison overcrowding.

The Arizona lawsuit was filed in March against Corrections Director Charles Ryan and his health services director, Richard Pratt. It alleges that "medical, mental health, and dental care" provided to inmates is "grossly inadequate and subjects all prisoners to a substantial risk of serious harm, including unnecessary pain and suffering, preventable injury, amputation, disfigurement and death...

"Critically ill prisoners," the lawsuit continues, "have begged prison officials for treatment, only to be told 'be patient,' 'it's all in your head,' or 'pray' to be cured."

Dan Pochoda is legal director for the ACLU of Arizona. He calls health care in our state prisons "the worst I've ever seen, in terms of clearly increasing harm unnecessarily because of the inadequate care, and the absence of anything except trying to save money on the backs of the prisoners."

Because of its sweeping implications, the case has since evolved into a class action lawsuit. The next step is proving in court just how dire the situation truly is, says Pochoda. "The ideal outcome would be a finding that there is clearly deliberate indifference to the serious medical and mental health needs of the inmate population, that people are dying unnecessarily, that folks who are in for sentences of a few years—not life sentences or death sentences—are coming out with permanent and serious illnesses."

Their ranks include Robert Plasa, now doing three years at the Tucson prison for violating his probation. Back in 2011, before he was sent to jail, Plasa says he was diagnosed with thyroid cancer. He was waiting to have the gland removed when he was arrested.

Today, he's still waiting. "I have been strung along for almost a year-and-a-half here without treatment," he wrote me in a letter this March.

In that time, Corrections has turned its state-run prison medical program over to one private health care provider, and then to another. But for Plasa, apparently little has changed—except that his diagnosis has grown even more grim. "I have recently had blood work done and ultrasound on the thyroid," he wrote. "This revealed that the cancer not only spread through the whole thyroid, it is now in the lymph nodes. The thyroid could have been cut out before, and isolated the cancer. Due to the lack of medical attention and negligence on the part of the Department of Corrections, I have a more serious and maybe life-threatening medical condition."

When I asked Corrections for details on Plasa's plight, spokesman Andrew Wilder referred me to the state's current prison health care provider, Corizon Inc. of Brentwood, Tenn. Citing privacy laws, Corizon also refused to comment on Plasa. But in an email, company spokesman Brian Fulton did issue this boilerplate response: "We can say that since Corizon assumed providing medical services for the Arizona Department of Corrections in March 2013, our caregivers have worked hard every day to provide quality health care services that meet and exceed national accreditation standards."

To Caroline Isaacs, however, Plasa's version sounds much closer to the truth. She heads the American Friends Service Committee's Tucson office, which has long agitated for Arizona prison reforms. "This guy's problem is not an isolated issue," Isaacs says. "There are really serious consequences to this type of incompetence. But prisoners are people that nobody cares about."

Indeed, the ACLU's Pochoda provided a stream of examples in which prison medical care was seemingly riddled with negligence. They include the inmate displaying chronic and mysterious flu symptoms that were never treated. Or the prisoner with a growth on his throat that was left untreated until it burst. Following surgery, his condition was again ignored until it worsened. Only then did the doctors decide that the growth was cancerous; the man has yet to receive standard treatment such as radiation.

Then there's the guy who did have his cancerous prostate removed, but then received no follow-up testing to ensure that the cancer had not returned. Only much later—too much later, it appears—did he receive tests showing that the cancer had not only rebounded, but was now spreading.

In response to their panicky letters, distressed relatives or partners of inmates received cavalier responses from Corizon—at least when they weren't outright ignored. "Please be assured that (your boyfriend) is not going to die," a Corizon apparatchik finally wrote to one worried woman, after she repeatedly tried to get information. "It is important to remember that (the inmate) is an adult and must take some part in his day to day health care."

This current wave of incompetence dates to 2011, when the Legislature directed Corrections to put its health services out to bid. Last summer, a three-year, $349 million contract was awarded to Pittsburgh-based Wexford Health Sources despite the company's troubled history in other states. True to form, Wexford's Arizona tenure soon hit turbulence when Corrections blamed it for poor record keeping and staffing problems. In less than a year, prison medical care had switched over to Corizon.

But for critics such as Pochoda, that's like choosing which train to ride off the rails. "Wexford has a very spotty record, after getting kicked out of other states, and it was a disaster," he says. "After nine months, they got fired or quit, and now (Corrections) has brought in Corizon, also with a spotty record. And we don't believe it will make a bit of difference because the goal is to reduce costs. For the private firms, there's a profit motive: the less they spend, the more they keep."

Ultimately, he blames state lawmakers for privatizing prison health care to save a buck, "but not uttering a peep about how it should be a better service, and not result in so many deaths, etc."

That's hardly news for guys like Robert Plasa.

"I have a good company I work for and a beautiful family waiting for me," Plasa wrote in his letter. "I wasn't figuring that paying my dues to the state of Arizona meant a life sentence from cancer."



Wednesday, June 19, 2013

AZ Death Row Deaths In Custody: Dale Hausner, 40.

UPDATED JULY 17, 2013:

The state might as well have just executed Dale Hausner when he asked them to...which I guess the DOC did oblige him on, in the end. He was suicidal and being treated with an anti-depressant, which they conveniently gave him in large enough quantities to overdose on...this isn't the first death row prisoner this year to go this way, either. Seems the CORIZON mental health team assigned to death row has been falling down on the job since day 1.

this is one piece on why some death row prisoners prefer suicide...


 


UPDATED July1, 2013 10:44am:

Most of the time, when a prisoner dies, my condolences go to his or her family.  But my thoughts are with the victims and survivors of this man's crimes, as well - even if his death is celebrated by some, such events can bring up painful memories. I still object to the death penalty, but not because I don't find violence like this to be contemptible. Still, there's some suggestion in his remarks thathe felt remorse and hoped his death would help survivors heal...that's really interesting.  


When I talk about abolishing prisons and what that future might look like, just how communities would deal with the kind of harm this man perpetrated is the sort of thing that still stumps me. That doesn't mean the project of abolition should be abandoned, though - the prison industrial complex is destroying us. I believe in holding people more accountable than I think the criminal justice system often does, anyway - not less. Letting people run amok hurting others isn't what prison abolition is about.

Here's a good lead-in to what abolition IS about, though. It makes a lot of sense...




I don't know how this man died yet - he looks pretty sickly in his DOC mug shot - but if he killed himself, he'd be the second guy on death row in just over a month to have done so. Interestingly, he recently asked the Arizona Supreme Court to hasten his execution. The article regarding that is below.

That said, I'm investigating the homicides and suicides in Arizona's state prisons - which have doubled under the current administration - and would appreciate any information anyone out there has about how Hausner died. Please contact me (Peggy Plews) at arizonaprisonwatch@gmail.com  or 480-580-6807.






Ariz. serial killer wants media kept from hearing



by Paul Davenport, Associated Press

azfamily.com

Posted on February 1, 2013 at 3:57 PM
Updated Monday, Feb 4 at 6:28 PM

PHOENIX (AP) -- An Arizona serial killer on death row wants the media barred from a hearing on whether he is mentally competent to waive further appeals so he can be executed as soon as possible, his lawyer said Friday.

Court-appointed attorney Julie Hall made the disclosure during a hearing without explaining why Dale Shawn Hausner wants reporters and cameras kept from the April proceedings in Maricopa County Superior Court.

Judge Roland Steinle will hear from Hausner and mental health experts at the hearing.

The judge intends to hold a separate hearing for media organizations to object.

Hausner was convicted of six murders and numerous other crimes in a series of random shootings in the Phoenix area in 2005 and 2006. Victims included pedestrians, bicyclists and animals.

During an automatic appeal for Hausner in July, the Arizona Supreme Court upheld the death sentence and all but out one of his 80 convictions.

Hausner then asked the justices to set his execution date. He said he wanted to forego further appeals -which could take years to resolve - and to represent himself in any court proceedings. The state high court ordered the Superior Court to determine Hausner's competency to waive appeals.

Hausner didn't acknowledge guilt during his trial but told the jury before sentencing that he should be sentenced to death "to help the victims heal."

He was allowed to not present evidence for leniency in sentencing after Steinle ruled he was competent to make that decision.

Hausner, Hall and a state prosecutor participated by phone in Friday's hearing. Hall did not immediately respond to messages later in the day.

A Phoenix crime author who wrote a book about Hausner's case said Hausner "loves the media" because of the attention it provides him. But he successfully fought to keep secret the psychological evaluation report prepared for the previous competency ruling, author Camille Kimball said.

"He did not want his childhood explored and any psychological records revealed at that time," Kimball said. "He does not want people to know what his childhood was like."

A lawyer for a group that advocates for open government said there were no compelling reasons to bar the media from the upcoming hearing.

"There's no jury to influence, or anyone, for that matter," said attorney Daniel Barr of the First Amendment Coalition. "The public's interest in Dale Hausner's fate is extremely high."

The attorney general's office said it will have no position on Hausner's request until his lawyer files a written motion.

The office's general position is that all such proceedings should be open to the public, but there could be extraordinary circumstance allowing a court to privately consider information, spokeswoman Amy Rezzonico said.

Also during Friday's hearing, Hall reiterated Hausner's desire to keep his in-person court appearances at a minimum. Hausner has expressed concern about his safety in Maricopa County jails, where he was previously assaulted.

In a letter submitted to the court, he also expressed concern about a court-appointed expert's ability to provide the judge with an honest and professional report.

Hausner said the expert needs to put aside her expressed opposition to the death penalty. Hausner also said the expert told him that his body language indicated that he's depressed, which Hausner disputed.

Steinle told Hausner that he was confident that questioning of the expert in court would detect any bias and that Hausner himself would be heard.

"I will have a colloquy with you," Steinle told Hausner.

ASPC-Lewis: Deaths in Protective Custody: John Jones, 63.

I've been hearing, of late, that the AZ DOC Protective Custody yards are as violent as the GP yards now - this guy was just murdered in PC this week, on the Bachman Unit. 

I'm currently compiling a report on the violence in the state prisons to submit to the US DOJ and ask for their intervention in the way of a federal investigation about policies and practices since Charles Ryan took over that have resulted inthe escalating level of violence and despair at the AZ DOC. If anyone has any information about this homicide or any other act of violenc ea tthe AZ DOC,  please send it my way (Peggy Plews) at arizonaprisonwatch@gmail.com.

Here's the DOC's news release. Condolences to this prisoner's family, if there's anyone left out there for him.


---------------REVISED June 21, 2013-------------

received a copy of this interesting email yesterday...


From: Middle Ground Prison Reform <middlegroundprisonreform@msn.com>
Date: Tue, Jun 18, 2013 at 6:42 PM
Subject: Death of John Jones #054741: Gross Negligence?
To: Charles Ryan <cryan@azcorrections.gov>

Mr. Ryan:

I was  sorry to learn about the apparent murder of Inmate Jones at the Lewis prison.   As you know, I recently contacted you about some serious security concerns that I noted when I visited the Lewis Prison as an agent of an attorney.  You have not responded to my email on that topic.

While my observations about lapses in security at Lewis Prison and the murder of Mr. Jones may not be connected at all,  I am especially concerned about what I consider to be a lackadaisacal attitude toward security at the Lewis Prison.

Today,  I examined Mr. Jones' inmate internet record.  I note that he had several disciplinary infractions, the most recent being just a year ago (unless there are more that are not recorded on the website) which reflect that this man apparently was given disciplinary for "refusal to house."  Often, inmates who are seeking protective custody (frrom gangs, drug or gambling debts, after having snitched on another prisoner, and for many other reasons) will be denied protective custody and issued a disciplinary ticket for refusal to house (in general population).

Is this issue one that relates to the apparent homicide of Mr. Jones?  Has he been seeking protective custody but, instead, been moved to "alternative placement" with DNHW (Do Not House With) names added to his file as the "remedy"?  If so, it would seem that this method did not suffice to protect him.

How many times has this inmate requested an 805 investigation and been denied?  How many times has this inmate been placed in an 805 investigation and subsequently denied protective custody?

Please consider this a standing request to examine the public records documents (written, electronic, video and by any other means collected)  on the investigation into this man's death.  Please have your staff notify me when the records are available for my review at the Central Office.



Donna Leone Hamm, Judge (Ret.)
Director, Middle Ground Prison Reform
Criminal Justice Consultant
(480) 966-8116
MIDDLE GROUND IS ARIZONA'S PREMIER PRISONER RIGHTS AND ADVOCACY ORGANIZATION; ESTABLISHED 1983

Sunday, June 16, 2013

AZ mortgage settlement building prisons, not communities.

Ironically, in the same session in which they took this $50 million from people victimized by forclosures, the legislature decided to invest $50 million in the building of a new Supermax prison in Buckeye. Perhaps the Legs figure that at least these families and their children can inhabit it if they are unable to recover from the recession. Some "re-investment in the community," eh? I don't recall Tom Horne being among those of us who protested that new prison down at the legislature...




 Mother's Day 2013: ASPC-Phoenix


--------from ABC15.com--------

Arizona victims of illegal foreclosures still waiting for compensation


June 11, 2013
Dave Biscobing
ABC15.com


Thousands of Arizona families have lost their homes in illegal foreclosures.

Illegal foreclosures are based on forged or phony documents manufactured to push people out of their homes.

Banks and processing companies agreed to pay billions of dollars in settlements to the states.

While they did not admit any wrongdoing, they pledged to stop using forged documents to foreclose.

The ABC15 Investigators found more than a year after that settlement, little has changed.

Victims of illegal foreclosures in Arizona have yet to be compensated—not a dime has been paid out.

And some say the use of forged documents in foreclosures continues here in our state.

THE ANATOMY OF AN ILLEGAL FORECLOSURE

With the collapse of the housing market, many homeowners asked their lenders to modify their mortgages.

Homeowners were told they could get a modification, but only if they stopped paying their mortgages for three months and fell into default.

When homeowners followed that advice—instead of a modification, the banks foreclosed.

Many Arizona homeowners who challenged the foreclosures in court discovered they were done with fraudulent documents.

IS HELP FOR VICTIMS OF ILLEGAL FORECLOSURES ON THE WAY?

On February 9, 2012, Attorney General Tom Horne held a news conference boasting that Arizona was part of a $25 billion national settlement with five of the nation’s largest banks.

Horne said, “The fact that many people who lost their homes who didn’t deserve to is a terrible tragedy.”

At the time Horne announced they had put a stop to the robo-signing and forgery of foreclosure documents.

And the Attorney General announced Arizona’s share of the settlement would be $110 million.

Horne said that money would be used to compensate the victims.

But more than a year later, the ABC15 Investigators have found Arizona victims are still waiting for help.

Attorneys Dan McCauley and Beth Findsen are two of a small handful of lawyers who go to court to fight for the victims of illegal foreclosure.

Dan McCauley said, “I’ve seen nothing go to the victims, nothing from the state of Arizona at all.”

Beth Findsen told us, “I have yet to see one dollar awarded to a homeowner."

What’s worse the lawyers say—the use of fraudulent documents in foreclosure cases hasn’t stopped.

McCauley said, “It’s not just the financial rape of the middle class. It’s a crime."

Findsen said, “The banks are getting away with murder.”

Both attorneys say they are still seeing foreclosure cases based on bogus documents.

FORECLOSURE FRAUD VICTIMS SPEAK OUT


Chances are you know somebody like the victims ABC15 spoke to.

Mike Brosnahan is a husband and father of two.

He is fighting to stay in the home he built in Sedona.

He has fought all the way up to the Arizona Supreme Court.

Brosnahan told ABC15 Investigators, “All they’re doing is breaking up the American dream and leaving it in shambles.”

Rocky Coronado served in the U.S. Air Force.

The veteran and his wife have been fighting for their home for three years while raising a teenage son.

Rocky said, “I think it demoralizes him.”

His wife Brenda said, “It consumes your waking life.”

Both the Coronados and the Brosnahans insist they are not deadbeats and are not seeking a free house--they just want a fair deal.

They say they paid their mortgages until they were told to stop so they could get a modification.

And now their lawyers say their banks are using fraudulent  documents to foreclose and take their homes.

These families are like countless other Arizona victims still waiting for help.

That’s because our state is far behind other states when it comes to distributing those millions of dollars in settlement funds meant for the victims of foreclosure fraud.

The ABC Investigators asked Arizona Attorney General Tom Horne why states like California, Nevada, Maryland, Michigan, Oregon, Florida, Hawaii, and Oklahoma have already cut checks to help out victims but not Arizona.

Horne said, “There was a year lost because of the legislature saying we have to appropriate the money.”

Horne said he had to wait until they gave him permission to use the settlement funds.

He insisted he’s working hard to get the victims help as soon as possible, but he does not have a timetable yet.

Horne also admitted it’s too late for victims who have already lost their homes.

Nobody who has already been foreclosed on and evicted is going to get their house back.

And who gets help may depend on how much money is left because last year the legislature swept $50 million of the $110 million settlement into the state budget—a budget that already had $400 million in reserves.

Horne told ABC15 he fought against the sweep but in the end he had to abide by what the legislature decided.

He points out they could have taken the entire amount of the settlement.

Horne also said he plans to spend another $30 million of the settlement on outreach and marketing.

He said he is also setting aside $4 million to provide legal assistance to homeowners fighting foreclosure.

The victims of illegal foreclosures we spoke to say every penny of the $110 million settlement should have been used to compensate them.

Rocky Coronado said, “It just blows my mind that they could have the nerve to take that money that should have gone to homeowners like us."

Friday, June 14, 2013

How the AEDPA helps keep innocent people in prison...

For folks who really still think the system of justice works for the innoenct: read how in Kinsel v Cain, the 5th Circuit Court of Appeals laments that it can't let his man go, despite clear evidence that he was wrongfully convicted. And they identify the law that's at the heart of so many problems - the Anti-Terrorism and Effective Death Penalty Act of 1996 (thanks Clinton, you jerk). 

So we all know this man is innocent and that the state, citing its rules of order, plans to let him die in prison anyway. That's sick - and unacceptable that it's being done in the name of our public safety. This is a system which serves itself, not justice or the People. It's played by lawyers and judges like it's a game, only they aren't the ones who ultimately pay if they lose...witness the execution of Troy Davis, for example.

Screw the AEDPA and please hit this petition to free Courtney Bisbee,
who has been in prison for 6 years already on maliciously fabricated charges...

------------------

JOHN KINSEL v. BURL CAIN WARDEN LOUISIANA STATE PENITENTIARY

JOHN KINSEL Petitioner–Appellant Cross–Appellee v. BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY Respondent–Appellee Cross–Appellant

No. 10–30443  -- July 19, 2011

Before SMITH, WIENER, and OWEN, Circuit Judges.



Petitioner–Appellant John Kinsel's conviction in Jefferson Parish, Louisiana district court for sexually abusing A.M., the ten-year-old daughter of his girlfriend at the time, was based primarily on A.M.'s trial testimony against him.   Eight years later, as an adult, A.M. voluntarily approached the parish district attorney's office to recant her testimony under oath.   Kinsel then filed a state postconviction petition, asking for his conviction to be vacated or, in the alternative, for a new trial in light of the newly discovered evidence of A.M.'s recantation.   After holding an evidentiary hearing at which A.M. testified, the Louisiana trial court ordered a new trial.   The Louisiana appellate court reversed, however, holding that the trial court abused its discretion and dismissing Kinsel's petition for failure to establish a constitutional violation at trial.   The Louisiana Supreme Court affirmed without opinion.   Kinsel then filed this federal habeas corpus application, which the district court dismissed.   For the reasons that follow, we affirm.

I. FACTS & PROCEEDINGS

A. Facts

On January 30, 1997, Kinsel was charged with the aggravated rape of a child—his girlfriend's daughter, A.M. The primary evidence presented against Kinsel at trial was A.M.'s testimony.   The only other family member who corroborated A.M.'s testimony was Jason Medlin, A.M.'s older brother, who was fifteen years old at the time.   Jason testified that on one occasion Kinsel had told him and his other sister to take a nap while Kinsel went into a room with A.M. Jason testified that he heard “kissing sounds” coming from the room and that A.M. became angry when he asked her about it afterwards.

Dr. Scott Benton, an expert in pediatric forensic examinations, was also proffered by the prosecution.   He had examined A.M. on October 9, 1996 and observed “abnormalities” in the area around the hymen, which were consistent with but not indicative of sexual abuse.   Dr. Benton's report also indicated that A.M. did not have any vaginal discharge or scars or bruises in the vaginal or anal areas.   It also recorded A.M.'s telling Dr. Benton that Kinsel had sexually abused her “every morning” while she lived at her grandfather's house, which was later controverted as an impossibility by the testimony of A.M.'s mother, grandfather, and Kinsel.

The defense presented numerous witnesses that undermined A.M.'s testimony.   Adrienne Medlin, A.M.'s mother and Kinsel's girlfriend, testified that she never suspected Kinsel of any sort of child sexual abuse and therefore did not call the police when A.M. first told her of the alleged abuse.   Adrienne claimed that she never saw Kinsel act inappropriately with A.M. and that, to the contrary, he acted “like a father” to and was “protective” of all of her children, namely A.M., Jason, and her other daughter from a previous marriage, and her son with Kinsel.   Adrienne also testified that, although A.M. claimed that Kinsel sexually abused her every morning at Adrienne's father's house, Kinsel never spent one single night with the family when they were living there.   Furthermore, Adrienne noted that when A.M. was two years old, she had placed a crayon in her vagina, which could have caused the slight physical abnormalities noted by Dr. Benton.   She explained that she had always suspected her daughter of lying about the sexual abuse because (1) A.M.'s friend had previously falsely accused someone of similar acts, and (2) A.M. had stated that Kinsel had black pubic hair when Adrienne knew that he had blonde pubic hair.

Earl Roberts, A.M.'s grandfather, also testified for the defense, corroborating Adrienne's testimony that Kinsel never stayed at his house when A.M. and her family lived with him.   He testified that he never saw Kinsel act in a sexually inappropriate manner.   Stacey Plaisance, A.M.'s aunt and Adrienne's sister, testified that “[A.M.] just hated [Kinsel] because he made them pick up their mess and mind their mother.  [A.M.'s] always been kind of unruly, smart mouth.   She just never had no discipline until [Kinsel] come around.   She just resented it, I guess.”   And Georgette Evans, a friend of A.M., testified that once when she was alone with A.M. she asked why A.M. had said “all that stuff” about Kinsel, and “[A.M.] said ‘Because whenever he met my mom, I didn't think my mom was happy so I said all that stuff ‘cause I never liked him and I wanted my mom to be happy and I didn't think she was happy.’ ”

Finally, Kinsel took the stand and unequivocally denied all of A.M.'s allegations of sexual abuse, threats, and physical violence.   He testified about the hours he worked and about the houses where he stayed with A.M.'s family, implying that it was physically impossible for him to have committed the alleged acts without any other adult being in the house and knowing about it.

The jury found Kinsel guilty as charged of aggravated rape, and the trial judge sentenced him to life imprisonment at hard labor without parole.   The Louisiana Fifth Circuit Court of Appeal affirmed Kinsel's conviction,1 and the Louisiana Supreme Court denied relief without opinion on March 28, 2002.2  On March 28, 2003, Kinsel filed a state postconviction petition in the Louisiana trial court, which was denied.   The Louisiana Fifth Circuit affirmed, and the Louisiana Supreme Court denied Kinsel's appeal without opinion.3  Kinsel then filed a federal habeas corpus petition, which was dismissed with prejudice by the district court on January 5, 2005.   His certificate of appealability was denied on March 15, 2006.4
 
In May 2005, when A.M. was eighteen years old and living in Colorado, she contacted Kinsel's attorney's office.   Kinsel's attorney told A.M. that she could not speak with her because she represented Kinsel but advised A.M. to contact the Jefferson Parish (Louisiana) district attorney's office.   A.M. subsequently moved back from Colorado to New Orleans, and, on October 20, 2005, she made a sworn statement to the district attorney recanting her accusations against Kinsel.

B. Proceedings

On March 14, 2006, Kinsel, acting pro se, filed his second state postconviction petition.   His counsel filed a revised petition on Kinsel's behalf on June 1, 2006, asking for his conviction to be vacated or, in the alternative, for a new trial in light of the newly discovered evidence of A.M.'s recantation.

The Louisiana trial court held an evidentiary hearing on October 4, 2006, at which A.M. and others testified.   A.M. affirmed her recantation under oath but made misleading statements on cross-examination regarding her recollection and her motivation to make perjured testimony in the first place.   The state trial judge concluded:

I'm not sure I believe [A.M.] about whether it happened or not, but I don't know at which time I'm supposed to believe her.   So, based on that ․ and also based on reviewing the rest of the evidence and the testimony, I find that in no way can one convict absent her testimony.   And, therefore, I have nothing else to hang the conviction on than her testimony.

Based on this reasoning, the trial judge granted Kinsel a new trial.

The State appealed the trial court's decision to the Louisiana Fifth Circuit Court of Appeal.   With one judge dissenting, the panel majority held that the district court had abused its discretion in granting Kinsel a new trial and therefore reversed the district court's order.5  The Louisiana Supreme Court denied Kinsel's appeal without reasons on November 9, 2007.6
 
On April 2, 2008, Kinsel filed his second federal habeas corpus application.   The district court transferred the petition under 28 U.S.C. § 1631 to a previous panel of this court to determine whether the successive habeas application should be allowed.   We “conclude[d] Kinsel's claim of witness recantation at least warrant[ed] a fuller exploration by the district court” but “note[d] that the district court may dismiss the motion if it determines that this claim does not satisfy the successive standard.” 7
 
Following our authorization, a magistrate judge first issued a report and recommended that the district judge dismiss the petition as untimely because more than one year had passed between the time that A.M. called Kinsel's attorney and Kinsel filed his federal habeas petition (notwithstanding the time that was tolled for his state postconviction proceedings).   The district court disagreed, however, finding that the petition was timely because the statute of limitations had not begun to run until A.M. actually recanted under oath.   The district court nevertheless dismissed Kinsel's petition, ruling that the Louisiana Fifth Circuit reasonably applied established federal law and reasonably determined the facts in dismissing Kinsel's postconviction petition.   The district court did not expressly consider whether Kinsel had satisfied the standard for filing a successive federal habeas application.

Kinsel timely filed a notice of appeal.

II. ANALYSIS

A. Standard of Review

“On appeal from the denial of a § 2254 petition, this court reviews a district court's findings of fact for clear error, and it reviews a district court's conclusions of law de novo, applying the same standard of review to the state court's decision as the district court.” 8  Because Kinsel filed his federal habeas application after 1996, the Anti–Terrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to his claims.9  Pursuant to the AEDPA, a federal court may grant habeas corpus relief to Kinsel only if the state court's adjudication of his claims on the merits:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States;  or

(2)  resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.10

The Supreme Court has recently made a point to explain that this standard “is a difficult to meet and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” 11  Specifically, “for a federal court to find a state court's application of [Supreme Court] precedent ‘unreasonable,’ the state court's decision must have been more than incorrect or erroneous.   The state court's application must have been ‘objectively unreasonable.’ ” 12  In addition, the AEDPA instructs that “a determination of a factual issue made by a State court shall be presumed to be correct.” 13
 
B. Kinsel's Claim Is Barred by the AEDPA's Bar on Successive Petitions

The AEDPA bars state prisoners from filing second or successive federal habeas applications with one relevant exception:

A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless ․ the factual predicate for the claim could not have been discovered previously through the exercise of due diligence;  and [ ] the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.14

This actual innocence exception thus allows a petitioner to overcome the AEDPA's bar on successive applications and pass through the “gateway” to argue the merits of his habeas claims if he establishes by clear and convincing evidence that the outcome of the trial would have been different but for constitutional error.   In the instant case, we granted Kinsel leave to file this successive federal application, noting that “the district court may dismiss the motion if it determines that this claim does not satisfy the successive standard.”   The district court, however, failed to analyze whether Kinsel's claims satisfy the successive standard and instead dismissed the claims on the merits.   This was an error,15 and we must first determine on appeal whether Kinsel has satisfied the AEDPA standard.

Kinsel asserts in his application that (1) he is “actually innocent of the crime,” i.e., he did not sexually abuse A.M., as supported by her newly discovered recantation, and (2) his rights “to a fair trial, due process of law, and his right to confront his accusers, in violation of the Fifth, Sixth and Fourteenth Amendments to the United States Constitution” were violated.   Although the newly discovered evidence of A.M.'s recantation does call her trial testimony into question, the Louisiana trial judge concluded, not that Kinsel was “actually innocent” and should therefore be exonerated because no reasonable juror could convict him in light of the recantation, but rather that Kinsel was entitled to a new trial because, if reasonable jurors should believe the recantation, none could convict “absent her testimony.”   In the end, the trial judge stated that he did not know when to believe A.M.—at trial or at the postconviction evidentiary hearing—and therefore determined that Kinsel should have a new trial.   On appeal, the Louisiana Fifth Circuit likewise found A.M.'s recantation to be “unreliable and inconsistent.”

Under the AEDPA, we must presume the correctness of the state court's factual finding that A.M.'s recantation lacked credibility,16 recognizing that credibility determinations in particular are entitled to a strong presumption of correctness.17  Although Kinsel could have rebutted this presumption,18 he has not succeeded in doing so.19  We conclude, therefore, that Kinsel's reliance on A.M.'s recantation alone does not satisfy his burden under § 2244(b)(2)(B)(ii).20
 
In addition, we agree with the district court that the Louisiana Fifth Circuit reasonably determined that Kinsel has not established that errors at trial violated his rights under the Due Process Clause, the Confrontation Clause, or the Sixth Amendment.

Initially, Kinsel asserted that the state prosecutor knew that A.M. was going to perjure her testimony before she testified at trial.   If this allegation had proved to be true, the State would have violated Kinsel's due process rights, as articulated by clearly established federal law.21  But, the Louisiana Fifth Circuit here determined that “the record as a whole does not show the prosecutors either coerced or knowingly used false testimony from the victim.” 22  The court based this finding on the prosecutors' testimony that A.M. never informed them that she was lying, and on A.M.'s own testimony that she did not tell the prosecutors that she was lying, only that she did not want to testify on the morning of trial:

Q. You never told [the district attorney] that you were lying about this defendant Mr. Kinsel representing (sic) you.   What you told him was, I don't want to do any—I don't want to do anymore.   I'm tired, I'm scared, I want to go home?   Is that right?

A. Yes—yes.

The Louisiana Fifth Circuit's factual finding that the prosecutors did not know that A.M. was lying,23 therefore, is reasonable if for no reason other than by A.M.'s own testimony.

The Supreme Court has held that the Due Process Clause is violated when the government knowingly uses perjured testimony to obtain a conviction.24  Although some circuits recognize a due process violation when perjured testimony is provided by a government witness even without the government's knowledge,25 we are limited by the AEDPA to applying only established Supreme Court precedent in our review of a state court's reasonableness.26  Consequently, given the Louisiana Fifth Circuit's reasonable factual finding that the prosecutors did not know that A.M. was lying at trial, we cannot say that the state court unreasonably applied established federal law in determining that Kinsel's due process rights were thus not violated.

Kinsel never explains how his Confrontation Clause rights were violated at trial, as his attorney did have an opportunity to cross-examine A.M. Neither does Kinsel provide any analysis of how his Sixth Amendment right to a fair trial was violated by A.M.'s perjured testimony.   Although the perjury may have made the trial “unfair,” the Supreme Court has never held that perjured testimony alone violates a defendant's Sixth Amendment right to a fair trial.

In sum, Kinsel has not established by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found him guilty of the underlying offense.   In fact, Kinsel ultimately does not allege a constitutional error at all given that the prosecutors did not knowingly present false testimony at his trial.   His successive federal application is therefore barred by the AEDPA (and would fail on the merits even if it were not barred).

C. Kinsel's Due Process Claim

Beyond our limited review of his habeas claims under the AEDPA and apart from his assertion of actual innocence, Kinsel contends that the Louisiana appellate court violated his due process rights during his state postconviction proceedings.   He asserts that the Louisiana Fifth Circuit deprived him of due process by refusing to give deference to the trial court's credibility determinations and by denying him the opportunity to present A.M.'s recantation to a jury.   The dissenting Louisiana Fifth Circuit judge aptly summed up the constitutional error allegedly made by the majority:

In the instant case, the trial judge found that the recanted testimony would materially affect the jury verdict.   The trial judge evaluated the credibility of the recanting witness and struggled to determine which testimony, the trial testimony or the testimony during the Motion for New Trial, was truthful.   In ruling the trial judge stated, “I'm not sure I believe her about whether it happened or not ․” concluding, “I find that in no way can one convict absent her testimony.”

Given the vast discretion afforded the trial court in evaluating evidence and ascertaining whether a new trial is warranted, I find in this case, where the victim of the crime, upon whose testimony the guilty verdict rests, recants that testimony, the trial court has a valid legal basis to grant a new trial.27

Undeniably, the trial court (along with the dissenting judge) and the appellate court hold Kinsel's postconviction petition to different standards:  The trial court granted Kinsel a new trial based on its determination that A.M.'s recantation undermined her trial testimony without which no reasonable juror could have convicted Kinsel.   The appellate court, in contrast, focused on the fact that Kinsel did not “establish[ ] a due process violation so as to make his post-conviction claim cognizable under [the Louisiana ]


The differing approaches could stem from the fact that the trial court and the dissenting appellate judge treat Kinsel's postconviction petition as a motion for a new trial,28 for which Louisiana law only requires the movant to show that “if the evidence had been introduced at the trial[,] it would probably have changed the verdict or judgment of guilty.” 29  If this standard were applicable to Kinsel's postconviction petition requesting a new trial, then the Louisiana Fifth Circuit might well have erred in reversing the trial court's decision.30  But, if the Louisiana Fifth Circuit were correct that Kinsel must first show that his “conviction was obtained in violation of the constitution of the United States or the state of Louisiana” 31 —regardless of his request for a new trial in the alternative to exoneration—then that court did not err in concluding that Kinsel failed to establish that a constitutional violation occurred at his trial.

The bottom line is that the proper court to review whether the Louisiana Fifth Circuit deprived Kinsel of due process during his postconviction proceedings was either the Louisiana Supreme Court, which dismissed Kinsel's direct appeal of the decision, or the U.S. Supreme Court, to which Kinsel never petitioned for certiorari review of his state postconviction proceedings.   We, as a federal appeals court entertaining a federal habeas corpus application, are without jurisdiction to review the constitutionality of Kinsel's state postconviction proceedings.   Indeed, we are barred from doing so by our “no state habeas infirmities” rule.32  It is beyond regrettable that a possibly innocent man will not receive a new trial in the face of the preposterously unreliable testimony of the victim and sole eyewitness to the crime for which he was convicted.   But, our hands are tied by the AEDPA, preventing our review of Kinsel's attack on his Louisiana postconviction proceedings, so we dutifully dismiss his claim.

CONCLUSION
For the foregoing reasons, the district court's denial of federal habeas relief to Kinsel is AFFIRMED.33
 
FOOTNOTES

1.  FN1. State v. Kinsel, 783 So.2d 532 (La.App.2001).
2.  FN2. State v. Kinsel, 812 So.2d 641 (La.2002).
3.  FN3. State v. Kinsel, 870 So.2d 267 (La.2004).
4.  FN4. Kinsel v. Cain, No. 05–30170, Order (Mar. 16, 2007).
5.  FN5. State v. Kinsel, 06–KH–858 (La.App.2006).
6.  FN6. State v. Kinsel, 967 So.2d 499 (La.2007).
7.  FN7.  (internal quotation marks omitted) (citing Reyes–Requena v. United States, 243 F.3d 893, 899 (5th Cir.2001);  28 U.S.C. § 2244(b)(4)).
8.  FN8. Robertson v. Cain, 324 F.3d 297, 301 (5th Cir.2003) (emphasis in original and citation omitted).
9.  FN9. Lindh v. Murphy, 521 U.S. 320, 324–26 (1997).
10.  FN10. 28 U.S.C. § 2254(d).
11.  FN11. Cullen v. Pinholster, 131 S.Ct. 1388, 1398 (2011) (internal quotation marks and citations omitted).
12.  FN12. Wiggins v. Smith, 539 U.S. 510, 520–21 (2003) (citations omitted).
13.  FN13. 28 U.S.C. § 2254(e)(1).
14.  FN14.  Id. § 2244(b)(2)(B)(ii).   The AEDPA provides another exception if the petitioner can show “that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable,” id. § 2244(b)(2)(B)(I), but this exception is inapplicable here.
15.  FN15.  See Brown v. Lensing, 171 F.3d 1031, 1032 (5th Cir.1999) (“Our authorization for [petitioner] to file a successive petition is not dispositive of the critical question․  [T]he trial court was obliged by the statute to dismiss [petitioner's] claim if it did not meet the requirements of § 2244.”).   See also, e.g., Jordan v. Sec'y, Dep't of Corr., 485 F.3d 1351, 1357 (11th Cir.2007) (“[T]he district court not only can, but must, determine for itself whether th[e] requirements [of § 2244(b)(2) ] are met.”);  Bennett v. United States, 119 F.3d 468, 470 (7th Cir.1997) (“[T]he district court must dismiss the motion that we have allowed the applicant to file, without reaching the merits of the motion, if the court finds that the movant has not satisfied the requirements for the filing of such a motion.”).
16.  FN16. Id. § 2254(e)(1).
17.  FN17.  See Pippin v. Dretke, 434 F.3d 782, 792 (5th Cir.2005) (“A trial court's credibility determinations made on the basis of conflicting evidence are entitled to a strong presumption of correctness and are virtually unreviewable by the federal courts.” (internal quotation marks and citations omitted)).
18.  FN18.  See Miller–El v. Cockrell, 537 U.S. 322, 340 (2003) (“A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence.”).
19.  FN19.  On this point we think it important to clarify that, although we do not consider state court credibility determinations when determining whether a petitioner has made a prima facie showing of his entitlement to bring a successive petition, In re Wilson, 442 F.3d 872, 878 (5th Cir.2006), such determinations may be relevant when, as here, we are tasked with determining whether a petitioner has actually satisfied § 2244(b)(2)(B)'s requirements.
20.  FN20.  To the extent that Kinsel asserts a freestanding actual innocence claim, i.e., that his continued imprisonment itself violates the Eighth Amendment and warrants habeas relief, see Herrera v. Collins, 506 U.S. 390, 417 (1993), we have repeatedly stated that such claims are not cognizable in the Fifth Circuit.  Graves v. Cockrell, 351 F.3d 143, 151 (5th Cir.2003) (collecting cases).   Moreover, even if we were to consider the merits of that claim, because “the threshold showing for such an assumed right would necessarily be extraordinarily high,” Herrera, 506 U.S. at 417, Kinsel would not be able to meet it for the same reasons he cannot meet the lesser AEDPA standard, i.e., recantations are suspect and A.M. is not a credible witness.   See House v. Bell, 547 U.S. 518, 554–55 (2006).
21.  FN21.  See, e.g., Durley v. Mayo, 351 U.S. 277, 290–91 (1956) (“It is well settled that to obtain a conviction by the use of testimony known by the prosecution to be perjured offends due process.”).
22.  FN22. Kinsel, 06–KH–858, at 5.
23.  FN23. The Louisiana trial court did not make a factual determination on this issue.
24.  FN24.  See Napue v. Illinois, 360 U.S. 264, 269 (1959).   See also Creel v. Johnson, 162 F.3d 385, 391 (5th Cir.1998) (“A state denies a criminal defendant due process when it knowingly uses perjured testimony at trial or allows untrue testimony to go uncorrected.   The defendant must show that (1) the testimony was false, (2) the state knew it was false, and (3) the testimony was material.” (internal citations omitted)).
25.  FN25.  See Ortega v. Duncan, 333 F.3d 102, 108 (2d Cir.2003) (“[W]hen false testimony is provided by a government witness without the prosecution's knowledge, due process is violated only if the testimony was material and the court is left with a firm belief that but for the perjured testimony, the defendant would most likely not have been convicted.” (internal quotation marks omitted)).   But see United States v. Jones, 614 F.2d 80, 82 (5th Cir.1980) (“[F]or perjury by a witness to constitute grounds for relief appellant would have to show that the Government knowingly used the perjured testimony.”).
26.  FN26.  See Schaff v. Snyder, 190 F.3d 513, 530 (7th Cir.1999):A habeas petitioner must support his claim with a Supreme Court decision that clearly establishes the proposition essential to his position.   The clearly established Supreme Court precedent demands proof that the prosecution made knowing use of perjured testimony.  [Petitioner] has admitted that, in this case, the prosecution did not;  as a consequence, he cannot make a substantial showing of the denial of his right to due process․
27.  FN27. Kinsel, 06–KH–858, at 12 (Daley, J., dissenting) (emphasis added).
28.  FN28.  Both the trial court and the appellate dissent refer to Kinsel's petition as a motion for a new trial.   See State R. at 167 (“I feel I have no other decision to make other than to grant your motion for a new trial.”);  Kinsel, 06–KH–858, at 12 (Daley, J., dissenting) (“The trial judge evaluated the credibility of the recanting witness and struggled to determine which testimony, the trial testimony or the testimony during the Motion for New Trial, was truthful.”).
29.  FN29. La.Code Crim. Proc. Ann. art 851(3).
30.  FN30.  See State v. Prudholm, 446 So.2d 729, 735 (La.1984) (“The application of [motion for a new trial] precepts to newly discovered evidence by the trial judge, although a question of law, is entitled to great weight, and his discretion should not be disturbed on review if a reasonable man could differ as to the propriety of the trial court's action.” (emphasis added)).
31.  FN31. La.Code Crim. Proc. Ann. art 930.3(1).
32.  FN32.  See, e.g., Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.1999) ( “[The petitioner] argues that he was denied due process in his state habeas proceeding․  Our circuit precedent makes clear that [the petitioner's] claim fails because infirmities in state habeas proceedings do not constitute grounds for relief in federal court.” (internal quotation marks and citations omitted));  Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir.1995):[E]rrors in a state habeas proceeding cannot serve as a basis for setting aside a valid original conviction.   An attack on a state habeas proceeding does not entitle the petitioner to habeas relief in respect to his conviction, as it is an attack on a proceeding collateral to the detention and not the detention itself.(internal quotation marks and citation omitted).
33.  FN33.  Because we determine that Kinsel's successive habeas application is barred by the AEDPA, we need not reach the issue whether his application was timely.

Trauma, children and prison: Sesame Street catches up.



Much has already been said about Sesame Street's "Incarceration Toolkit" - particularly what a shame that it's become this "normal" in America to have a parent go to prison. I want to know why they didn't do this 20 years ago, myself - this phenomenon of mass incarceration in America isn't new. Perhaps this is a sign we may be getting ready to end the madness, though. 

The best commentary I've seen so far about the project on the web actually comes out of TIME magazine - and is below. Who I really want to hear from are the kids and families this is supposed to help, though - so please go check out this project, families with children who have parents in prisn, and write to me about what you think (arizonaprisonwatch@gmail.com)

(Troubling FYI: according to COLORLINES, one of the main funders of this project is a defense contractor that uses prison labor...)










--from TIME online---

Viewpoint: What’s Missing from Sesame Street’s Parents in Prison Toolkit



The effort to aid youngsters grapple with such a traumatic situation seems admirable, but it raises bigger questions. How did we get to the point where, as Reason’s Mike Riggs recently put it in a post on the toolkit, America has made it “almost normal to have a parent in prison or jail”?  And should we really see better tips for caregivers of children with incarcerated parents as the best way to mitigate the harm?
Research shows that incarceration does incredible damage to families, doubling the odds that children will later be homeless, increasing the risk for aggressive child behavior problems by 33% and the risk for severe psychological distress such as depression or anxiety in childhood by 20%.

It can hinder school performance and induces all of the trauma of other separations like divorce, but with the added element of shame, guilt and stigma.  Not to mention the financial strain losing a parent indefinitely imposes and the massively increased odds of winding up in foster care it causes.

Moreover, having a parent in prison is listed by researchers as one of the “adverse childhood experiences [PDF]” that can add up to serious health consequences in adulthood:  the greater the number of these experiences, the higher the odds of diabetes, obesity, high blood pressure, stroke, addictions, smoking and all mental illness.

As usual, Sesame Street’s brochures and programming are well-designed and sensitive to the issues they address. Leavened by the familiar fuzzy faces of Grover, Big Bird and Cookie Monster, they offer tips for caregivers such as maintaining a reassuring routine and being sensitive to and accepting of whatever emotions the child may have. One emphasizes developmentally appropriate honesty about the situation, saying:

Talk honestly with your child. It’s important to tell your child the truth about his parent’s incarceration. It’s the best way to help him feel loved and cared for.
If you do not provide information about the incarceration, your child may come up with his own mistaken reason for his parent’s absence. Let your child know that the incarceration is not his fault.

Be patient as your child works to understand what has happened. You may need to explain the situation several times. Let him know he’s not alone.

But maybe, while we provide these band-aids for now, what we really need is a rethink of our entire criminal justice system, one that has become not only the nation’s biggest holding cell for people with addictions, but also its largest psychiatric system— albeit one that only rarely provides evidence-based treatment for either addictions or other mental illnesses.

Consider the facts. America, the world’s largest jailer—with 25% of the world’s prisoners and just 5% of global population— has a murder rate more than double that of most countries in Western Europe.  That means we incarcerate around five times more people per capita than most those countries do, with roughly half their success at cutting crime.  We also use drugs at rates that equal or exceed those of other Western democracies, while having some of the harshest laws, supposedly to prevent this.

We now lock up 10 times more people for drug offenses than we did in the early 80s; and while some drugs have gotten less popular, others have become more so, leaving us with roughly the same rate of severe addiction. Further, 48% of all state prisoners are nonviolent and at least half of their crimes are either drug crimes or directly related to drug use.  92% of all federal prisoners are nonviolent, with a full 48% sentenced to federal prison because of drug offenses.

That’s not to mention the financial costs, which include not just the obvious $6.2 billion spent annually on federal prison and $39 billion yearly on state prisons and the many further billions in policing costs (arrests for marijuana alone cost nearly $3.6 billion a year), but also costs in terms of employment opportunities missed and other investments like education deferred.

A tremendous amount of this incarceration is unnecessary and could easily be reduced by decriminalizing drug possession, legalizing marijuana, sentencing nonviolent offenders to house arrest and monitoring and only using prison to lock up those whose crimes genuinely warrant it for appropriate amounts of time.

Of course, what looks obvious from a policy perspective seems almost impossible politically. Perhaps one clue to the depth of problem can be found in the funding for the Sesame Street initiative itself.  As the Atlantic reports, one of the major funders is BAE, a major defense contractor that uses prison labor paying workers pennies an hour to cheaply manufacture some of its products.  It’s great that Sesame Street gets the support it needs and that BAE is willing to give— but the economics of the prison industry are difficult to disrupt.

If we were to try to revise this sorry situation, a great deal of money and jobs would have to be shifted away from locking people up and profiting from their incarceration.  We’d have to spend instead on healthcare, childcare and various other types of treatment. That would certainly be a big challenge— but nothing compared to the challenges faced by the children Sesame Street is targeting with its new toolkit.




Wednesday, June 12, 2013

GEO Group/ CACF corruption & retaliation: business as usual...

The following information showed up in my email box this afternoon, after Donna Hamm disseminated it to her listserve. It refers to the Central Arizona Correctional Facility (CACF) run by GEO Group under contract with the AZ Department of Corrections. It will be interesting to see how far this goes. I hear about staff corruption so often and yet they are so seldom busted or punished when they are caught - the prisoners are the ones who are always disciplined when they try to speak out about these kinds of employees, as you can see below.

Prison staff LIE all the time, just like cops like Armando Saldate do - and they seldom ever have to suffer consequences for it, while the prisoners pay and pay. Note that prisoner Josh Lunn ended up getting reclassed to a higher custody level and shipped out to the Supermax, ASPC-Eyman after his boss wrote him up for refusing to participat ein his criminal enterprise. Please remember this the next time you look at a prisoner's disciplinary record and think "yeah, look at all that bad stuff he's been up to inside -he should be in Supermax".

Remember this the next time you find yourself assuming that just becuase someone wears the uniform of the state and a badge they must be some kind of noble public servant, too, and therefore can always be trusted to tell the truth.

This guy Lewis is poison - and most of the staff working around him probably knew he was lying about those prisoners when he wrote them up, but they went along with it anyway. This infuriates me not because it's so outrageous, but because it's way too common that prisoners get treated this way by the people who hold the keys to their cages and chains...they are the far more dangerous criminals, I think - the ones who will take their power and run over whomever they want with it.

Glad you jumped on this one, Donna. Now the DOC needs to make things right for those prisoners who were so wrongfully treated in all this.

JUNE 12, 2013: The document below has been edited since the original posting to protect innocent prisoners. The main suspects need to answer to the community for this, though, for violating the public trust, so their names are out there. 

I hope the media picks this one up...



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From: middlegroundprisonreform@msn.com
To: Charles Ryan, Director
Subject: Theft, Corruption, Retaliation
Date: Wed, 12 Jun 2013 16:38:18 -0700

Mr. Ryan:

The following information has been submitted to Middle Ground.  In italics, I have quoted the information  exactly as it has been provided to me.

During the first week of May 2013, two Central Arizona College employees were fired at Florence  for their part in stealing from the college and providing gifts to corrections employees/officials in exchange for favors.  Brad Ellsworth, the former Director of Prison Programs, was arrested on Tuesday, April 30, 2013, on theft-related charges stemming from over five years of mis-appropriating tools intended for prison vocational programs and stealing materials to build furniture and other items for his personal use, and to give as gifts to Florence wardens and staff.

Chris Lewis, a former Arizona DOC ADW, hired by Ellsworth, to manage the welding program at South Unit, was terminated May 2, 2013, after CAC officials discovered him returning tools previously reported as  missing/stolen.  Lewis is apparently cooperating with authorities in their investigation.

Ellsworth was known for having fine furniture and welded goods produced in the vocational schools within the prison, then rewarding correctional staff who "looked the other way," with these items as gifts in exhange for their blind eye.  Ellsworth was fond of specialty woods such as dark walnut and he built kitchen cabinets and living room furniture using CAC-purchased materials.  Other items, such as a gun tote box for his truck, were also built using CAC purchased materials.

The investigation into Ellsworth began after CAC administrators learned of over $1,300 in purchases by Ellsworth on CAC accounts for Corvette car parts.  When questioned about these purchases, Ellsworth attempted to explain their purchase by stating that the parts were purchased for his "work vehicle." Ellsworth also purchased tools for the various prison vocational schools, often purchasing the same item twice and keeping one for his personal use.  Sometimes these tools were given as reward or gifts to corrections staff or friends or sold to them at discounted prices.

Lewis began his tenure as the welding instructor in January 2013 by making immediate changes to the school's curriculum and program design.  He spent thousands of dollars remodeling the welding area from a student-oriented teaching environment to a production line for "special projects," built by inmate workers.  Students' welding time was reduced from 5 days/week to less than 2 days in order to accommodate the building of mini-smoker grills, bumpers for off-road vehicles, and vehicle gas tanks being built by the inmate workers for Lewis' friends and family.  


The cash paid for these items went directly into Lewis' pocket.  Several of the mini-smoker grills were given as gifts to corrections administrators or employees to facilitate the changes Lewis made to the vocational program.  Lewis came to the attention of CAC administrators after numerous complaints were made by inmate-students and when stolen tools were placed back into the college's inventory at the prison.  A fellow instructor discovered the tools and learned from Lewis that these tools were given to him by Ellsworth to "hide."  The instructor...alerted his superiors at the college.

Lewis also used his position and his knowledge of internal DOC procedures to retaliate against inmates who refused to assist in the illicit activities, while rewarding those inmates who were compliant with perks -- such as food and jobs.  Prior to Lewis' tenure, only one inmate had been removed from the CAC vocational area in the previous two years, while six (6) were removed in the four months that Lewis was an instructor.  Lewis rewarded inmate-students who assisted his activities by calling in favors with staff and having the inmates assigned as workers who would receive higher pay ($.40/hour instead of $.15/hour).

Lewis used his relationship with staff to push through disciplinary actions or have inmates transferred to other prison units if they refused to aid his activities.  When inmate student AE complained about not getting enough welding time, Lewis erupted and screamed at AE to leave the class.  Lewis then wrote a disciplinary violation claiming AE was "confrontational" and that AE "threatened him."  AE is stick-thin and probably weighs 130 lbs or less.  Lewis is over 6'3" and weighs about 260 lbs.  AE was found guilty of the disciplinary, despite witnesses testimony about what really happened, and AE was removed from the welding school.

Inmate "MW" was written up by Lewis for "refusing to attend" when a Warden at "MW's" previous facility called Lewis and complained about "MW".  Despite attending every class, "MW" was removed from the welding school and reduced in privileges due to Lewis' write-up.

A third inmate, "JL", signed up as a student and was almost immediately promoted to worker status by Lewis.  When JL discovered Lewis' illicit activities and began documenting them, Lewis caught him and wrote a disciplinary violation stating that JL was writing disparaging things against him.  Lewis called in a favor with staff and the violation was handled as a Major disciplinary ticket.  JL was found guilty, lost all privileges, was removed from the welding school, and transferred to a higher custody unit.

Lewis also targeted inmate workers who refused to help him by getting them transferred.  Lewis enlisted the help of CO Gxxxxxx, who was assigned as South Unit's SSU.  SSU is tasked with identifying gang activity and illegal behavior, and thus has wide lattitude to transfer troublesome inmates between prison units in isolated moves called "one - for - ones."  The first inmate targeted was "SC".  SC is a high profile inmate who worked in the CAC carpentry program.  Lewis asked SC to produce wooden handles for the mini-smoker grills.  SC refused because the CAC carpentry program teaches general construction and SC did not want to participate in any illicit behavior.  A few days after refusing, SC was transferred to (another) Unit in a one-for-one movement.

The second inmate targeted by Lewis was SH.  SH is a high profile inmate due to an escape almost 13 years ago, and he had been working in the CAC vocational programs as a porter for over 2 years.  Lewis knew of SH's past history, including SH's involvement in facilitating staff theft of state property prior to his escape, because Lewis had worked at Eyman Complex while SH was incarcerated there and prior to his escape.  


Lewis asked SH to work for him, but SH declined, citing over 8 years of a clean record.  Lewis attempted to have SH transferred, but (SSU officer Gxxx) was unable to do so because SH's past history requires any move to be approved in advance by Central Office.  When the transfer failed, Lewis instructed Ellsworth to send an email, dated February 8, 2013, to Florence Complex Warden Lance Hetmer, targeting SH's past history of escape (emphasizing the escape). Ellsworth used his position with the college to make it seem that SH's presence in the program threatened the college's reputation, and the college did not want him there.  Reacting to this email, Hetmer removed SH from the CAC vocation program area and banned him from all good jobs in the prison.  SH was jobless for over a month before being assigned to a lower paying, less skilled position.

Lewis then approached inmate CM.  CM was asked to falsify DOC documents he had access to as the Inmate Hazmat Clerk. CM refused and a week later was transferred to (another) Unit in a one-for-one move.

The actions of Brad Ellsworth and Chris Lewis were brought to the attention of CAC President Doris Helmich.  An investigation was commenced and strong measures to end this spree of theft and unprofessional behavior.  Ellsworth and Lewis were dismissed from the college.  At this time, DOC has taken no action to rectify the harm caused to those inmates that Lewis targeted for retaliation.   Warden Hetmer seems oblivious to both his manipulation by Ellsworth and the illegal activity that occurred under his watch.  


Mr. Ryan, my question is:  Isn't it a crime of bribery or conspiracy for a contract employee to provide gifts or sell items that are the fruits of stolen property to a state employee?  What investgation, if any, has taken place regarding the above incidents as they implicate your own employees?  Please provide all investigative reports.   


What is particularly noteworthy is what happened with high-profile inmate SH.  He apparently was able to escape 13 or more years ago (I remember the intensive news coverage) by using insider-corruption and information to facilitiate his escape....  Now, after learning his lesson -- which is what we all hope he would do -- and refusing to participate in corrupt and illicit activities, he is punished for his appropriate, lawful conduct.   Do you find this ironic?  Inmates are, after all, "students of (DOC's) behavior."

There needs to be a full-scale investigation into this matter if it has not already taken place. If it has taken place, then I want to examine the entire record of the investigation pursuant to public records law.

Please advise when the investigative reports are ready for my review at the Central Office.