I am beginning to believe that the State simply does not want to win this case.
In my second preview of the case, I had mentioned that the State buried their strongest argument under a bunch of illogical and unnecessary arguments.
Then at the argument it got worse. During argument, the State introduced an entire new argument. They argued that the issue here wasn't the new facts, but that the new facts actually created a brand new unexhausted claim. As Justice Kennedy stated when Petitioner got up to argue, "Now, the [State], unaccountably, has told us a few minutes ago that this is a new claim, which I think changes the whole question."
Raising a brand new argument during oral argument is just not an effective way to present your case. And the whole thing does not make sense since they had a facially valid argument at the start -- whether it constitutes essentially a procedural default for petitioner to rely upon facts in federal court that were not presented to the state court, even though they could have been. In fact, not much of the State's argument focused on this question. I just find that incomprehensible.
Instead, apart from the new argument, the State advanced their illogical statutory interpretation claim. After questioning the logic of it and hearing counsel say that their position was logical, Sotomayor offered this gem: "Counsel, I can tell you the one thing you've said that makes no sense. There is nothing logical about this statute, or clear about this statute, as the legion of cases that the lower courts have addressed in trying to interpret it, and as the legion Supreme Court cases that have dealt with this statute."
Unfortunately for petitioner, despite the State's lack of desire to focus on the real issue, the Court was well aware of it. As Justice Kennedy stated, "And in that case, we go back to Justice Scalia's opening question to you: Was that the court relied on different evidence, evidence that was not in the State hearing. And that's the question, whether or not they can do that, if this evidence could have been presented."
Of course, petitioner argued that this question does not need to be addressed since the Ninth Circuit in its opinion stated that relief would be granted even without the new facts developed in federal court. Justice Breyer's response was, if that's the case then "[w]hy are we all here?" Laughter ensued. But it did eventually become a focus of the argument as Petitioner's counsel and the judges wrestled over whether the opinion could be read that way.
Overall, the procedural default question did take center stage in petitioner's argument. Counsel was asked to try and unwind the "conundrum" of how to reconcile the ineffectiveness argument (that counsel should have pursued facts at the capital sentencing) with 2254(e)(2) language that the claim could not have been developed in state court. Petitioner had a good response to this -- "The factual predicate that could not be discovered was the evolution of the mental health testimonies as it moved from affidavit to live testimony, and the state gave for the first time specific notice of how it was going to attack the presentation in state court. And all of the arguably new mental health theories were in response to the changes in the -- that the state itself had made in Federal court."
The State did not fair any better in rebuttal. The State eventually conceded that certain evidence actually was a part of the state court record -- even though, in the main argument, the State said that it was new evidence in federal court. Oh boy.
Not a good showing for the State of California. I wonder if it will have any impact on the judges' attitude towards the case. And more existentially: Should a party win a case where its lawyers were so off-the-mark? The result of this case may give us an answer.