"Never give in. Never surrender."
That's generally something that Winston Churchill is thought to have said. His actual quote was somewhat different. But expressed a similar thought. (That quote does come from Galaxy Quest. A dweeb movie favorite.)
I thought of that quote because it should be the new motto for Vaatausili Alaimalo. Who was convicted of importing methamphetamine into the United States and given a life sentence.
You might think that would bring someone down. As I'm sure it did. But that didn't stop Alaimalo. He filed a direct appeal, claiming that he wasn't guilty because he just "imported" meth from Guam to California, and since both of those places are in the United States, that doesn't count as "importing" the drug. But he lost on direct appeal. In 1998, the Ninth Circuit rejected this argument, in an unpublished opinion. (This was not at all surprising, since there was a Ninth Circuit case on point that said that that this still counts as importation.)
But Alaimalo isn't deterred. He files a pro se habeas petition in 1999. He loses in the district court. The Ninth Circuit affirms -- this time in a published opinion -- in 2002.
Then, in 2003, the Ninth Circuit rules en banc that shipping drugs from one U.S. location to another doesn't count as "importation," overruling several prior Ninth Circuit decisions to the contrary. Prompting, no doubt, a loud cheer from all the California prisoners with the first name of Vaatausili.
So, in 2005, Alaimalo files another habeas petition. Seeking relief based on the new Ninth Circuit case. A holding that makes him "actually innocent" of the offense for which he was convicted.
But the district court dismisses the petition because he didn't raise it in his first habeas petition, the one that the Ninth Circuit dismissed in 2002 (there, he raised only ineffective assistance of counsel claims, and didn't raise the "importation" issue, which was the subject of binding adverse Ninth Circuit precedent). Alaimalo tries to appeal this dismissal, but his appeal is untimely, and the Ninth Circuit dismisses the appeal in 2006.
But Alaimalo isn't going to let six straight adverse decisions -- three from the district court, three from the Ninth Circuit -- stop him. So later in 2006, he files another habeas petition. Raising the same "importation" claim. Seventh time's a charm?
Nope. District court dismisses it, holding that Alaimalo could have (but didn't) raise those claims in his first habeas petition. Alaimalo appeals. Eighth time's the charm, right?
Not for him. Ninth Circuit affirms in September 2008, in a three-paragraph unpublished disposition.
Some people would give up at this point. Not my man Alaimalo. Who files yet another habeas petition. Raising the same claim. District court again dismisses it (Number Nine), and then refuses to grant Alaimalo a certificate of appealability. So he's surely done at this point.
Not quite. He appeals yet again. And, this morning on Time Number Ten, prevails. The Ninth Circuit holds that he's in fact "actually innocent" of the offenses he's identified and wasn't required to raise this issue in previous habeas petitions because there would have been no point -- there was adverse controlling precedent on point, and we don't require people to bang their heads against the wall (or clog up the courts) just to preserve issues on the miniscule chance there will eventually be an en banc decision overruling that authority. So Alaimalo wins.
Prompting, no doubt, an even bigger cheer from Vaatausili. As well as reminding me of another movie line:
"Defendant: But you graduated law school six years ago. . . . What have you been doing since?
Lawyer: Studying. For the Bar.
Defendant: That's a lot of studying.
Lawayer: Well, to be honest with you, I didn't pass it on my first time out.
Defendant: That's okay, you probably passed it the second time.
Lawyer: Nope.
Defendant: Third time's a charm?
Lawyer: Not for me it wasn't. For me, six times was the charm."
But, as with Alaimalo, everything works out in the end. My Cousin Vinny obtains an acquittal.
So you can remember whichever quote you'd like. Sometimes persistence pays off. Don't necessarily take nine straight rejections as the final word on the matter. Particularly when you're serving a life sentence in prison and have very little else to do.
Don't think, however, that there's not another side to this story. There is. For one thing, there's a dissent: Judge Korman, sitting my designation from the Eastern District of New York, doesn't like the grant of relief. So even in victory, there are still some naysayers.
But even beyond this, Alaimalo doesn't exactly get everything he's looking for. Sure, he gets several life sentences for importation reversed. Which is nice. But he's a three-striker who's got other life sentences for simple distribution. Those are final and not reversed. So he gets relief after ten tries. But it's somewhat small solace.
So maybe the analogy isn't really to Churchill saying "Never give in, never surrender . . .," since that guy eventually won the war. Maybe it's more like Hitler saying the same thing as he's heading to the bunker. Uplifting, I guess, but not necessarily of much practical or normative assistance.
So learn whatever lesson you'd like from today's opinion. Like many things, it's open to interpretation.
