In a previous post (using the prior Font), I discussed de novo review of constitutional claims on habeas corpus vs. deferring to the state court decision under the 2254(d) standard of review (see FAQ 3) created in the AEDPA (see FAQ 2). The question in the prior post was whether a state court's silence on a constitutional claim would allow the federal court to review the claim de novo (a favorable outcome to petitioners) or would the analysis of the claim still require application of the deferential 2254(d) standard of review (unfavorable to petitioners).
At the end of the prior post, I suggested that it would make a difference in some cases. I stated:
Today, the Ninth Circuit gives a real good example of a situation where de novo vs. deferential standard of review would make a difference.
In Kessee v. Mendoza-Powers, the Ninth Circuit addressed the question of whether a certain type of factual finding falls under the "prior conviction" exception to the Apprendi rule, which states that any fact, except for the fact of a prior conviction, used to enhance a punishment beyond the otherwise applicable maximum sentence must be submitted to a jury and proven beyond a reasonable doubt.
The state court found that the factual finding at issue in that case -- the fact that the defendant committed a crime while on parole -- fell within the prior conviction exception to the Apprendi rule.
In a prior decision called Butler, the Ninth Circuit squarely held that this type of factual finding did not fall under the prior conviction exception.
The court in Kessee noted that, if it was allowed to review the claim directly on direct appeal, it would simply apply its prior precedent in Butler and find the sentence unconstitutional.
However, Kessee was a habeas case. This meant that the court was required to apply the deferential standard of review (n.b. the state court addressed the merits of the claim). Under the standard of review, the court was required to determine whether the state court's decision was an unreasonable application of federal law. According to the Ninth Circuit, just because the state court came to a different result than it had in its decision in Butler did not mean that the state court acted unreasonably.
Instead, the court looked to see how other courts around the country had decided the issue and, if other courts had agreed with the state court's conclusion, then it cannot be stated that the state court's decision was unreasonable. Other courts had, so habeas corpus was denied.
As can be seen, this decision really shows the emasculating effect of the AEDPA standard of review. The Ninth Circuit had previously reached a reasoned conclusion on this very issue. However, the standard of review does not allow the court to apply it directly on habeas. Rather, the standard of review requires it to set its own judgment aside and give full equality to a position that the court has already rejected, simply because, as the Ninth Circuit sees it, other courts have adopted it.
I guess a deeper question is whether the Ninth Circuit needed to be this deferential. This really is taking deference to the extreme here. Taking this reasoning to its logical conclusion, the only way something would be unreasonable would be if no court had ever decided it in the same manner as the state court. Otherwise, so long as one other court had agreed with the state court, then it could not be unreasonable.
Fortunately, the Supreme Court rejected that extreme approach in Williams v. Taylor, 529 U.S. 362 (2000). They rejected the Fourth Circuit's approach that a state-court decision involves an “unreasonable application of ... clearly established Federal law” only if the state court has applied federal law “in a manner that reasonable jurists would all agree is unreasonable.” That comes dangerously close to what the Ninth Circuit was suggesting in Kessee.
I guess the saving grace for the Ninth Circuit in Kessee is that several other courts had disagreed with Butler. I personally agree with Butler and disagree with those other decisions. But where there are several courts that have come out the same way as the state court, it certainly is an important factor to consider as to whether the state court decision is reasonable. While the AEDPA forces the habeas court to be deferential, it does not completely strip them of independent judgment as to whether something is unreasonable. I would think that if the Ninth Circuit is absolutely, 100% certain that its decision in Butler was correct, then this would also provide a reasonable ground for the court to conclude that the state court's decision was unreasonable.
At the end of the prior post, I suggested that it would make a difference in some cases. I stated:
In the end, I would love to say that the different types of review do
not matter. But I fear that they do. As mentioned before, 2254(d) is
oppressive. While there have been plenty of cases where habeas has
been granted under 2254(d), I would guess that plenty more potentially
meritorious claims have fallen victim to the required deference.
In Kessee v. Mendoza-Powers, the Ninth Circuit addressed the question of whether a certain type of factual finding falls under the "prior conviction" exception to the Apprendi rule, which states that any fact, except for the fact of a prior conviction, used to enhance a punishment beyond the otherwise applicable maximum sentence must be submitted to a jury and proven beyond a reasonable doubt.
The state court found that the factual finding at issue in that case -- the fact that the defendant committed a crime while on parole -- fell within the prior conviction exception to the Apprendi rule.
In a prior decision called Butler, the Ninth Circuit squarely held that this type of factual finding did not fall under the prior conviction exception.
The court in Kessee noted that, if it was allowed to review the claim directly on direct appeal, it would simply apply its prior precedent in Butler and find the sentence unconstitutional.
However, Kessee was a habeas case. This meant that the court was required to apply the deferential standard of review (n.b. the state court addressed the merits of the claim). Under the standard of review, the court was required to determine whether the state court's decision was an unreasonable application of federal law. According to the Ninth Circuit, just because the state court came to a different result than it had in its decision in Butler did not mean that the state court acted unreasonably.
Instead, the court looked to see how other courts around the country had decided the issue and, if other courts had agreed with the state court's conclusion, then it cannot be stated that the state court's decision was unreasonable. Other courts had, so habeas corpus was denied.
As can be seen, this decision really shows the emasculating effect of the AEDPA standard of review. The Ninth Circuit had previously reached a reasoned conclusion on this very issue. However, the standard of review does not allow the court to apply it directly on habeas. Rather, the standard of review requires it to set its own judgment aside and give full equality to a position that the court has already rejected, simply because, as the Ninth Circuit sees it, other courts have adopted it.
I guess a deeper question is whether the Ninth Circuit needed to be this deferential. This really is taking deference to the extreme here. Taking this reasoning to its logical conclusion, the only way something would be unreasonable would be if no court had ever decided it in the same manner as the state court. Otherwise, so long as one other court had agreed with the state court, then it could not be unreasonable.
Fortunately, the Supreme Court rejected that extreme approach in Williams v. Taylor, 529 U.S. 362 (2000). They rejected the Fourth Circuit's approach that a state-court decision involves an “unreasonable application of ... clearly established Federal law” only if the state court has applied federal law “in a manner that reasonable jurists would all agree is unreasonable.” That comes dangerously close to what the Ninth Circuit was suggesting in Kessee.
I guess the saving grace for the Ninth Circuit in Kessee is that several other courts had disagreed with Butler. I personally agree with Butler and disagree with those other decisions. But where there are several courts that have come out the same way as the state court, it certainly is an important factor to consider as to whether the state court decision is reasonable. While the AEDPA forces the habeas court to be deferential, it does not completely strip them of independent judgment as to whether something is unreasonable. I would think that if the Ninth Circuit is absolutely, 100% certain that its decision in Butler was correct, then this would also provide a reasonable ground for the court to conclude that the state court's decision was unreasonable.
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