Supreme Court issued two unanimous opinions today in habeas cases. Both losses for the habeas petitioner.
The Court unanimously reversed the habeas grants in both Harrington v. Richter (opinion here) and Premo v. Moore (opinion here). But there was more in common than just the reversal of the habeas grant. As Kennedy stated in the first paragraph in the Moore opinion:
This case calls for determinations parallel in somerespects to those discussed in today’s opinion in Harrington v. Richter, ante, p. ___. Here, as in Richter, the Court reviews a decision of the Court of Appeals for the Ninth Circuit granting federal habeas corpus relief in a challenge to a state criminal conviction. Here, too, the case turns on the proper implementation of one of the stated premises for issuance of federal habeas corpus contained in 28 U. S. C. §2254(d), the instruction that federal habeascorpus relief may not be granted with respect to any claim a state court has adjudicated on the merits unless, amongother exceptions, the state court’s decision denying relief involves “an unreasonable application” of “clearly established Federal law, as determined by the Supreme Court of the United States.” And, as in Richter, the relevant clearly established law derives from Strickland v. Wash-ington, 466 U. S. 668 (1984), which provides the standard for inadequate assistance of counsel under the Sixth Amendment. Richter involves a California conviction and addresses the adequacy of representation when counseldid not consult or use certain experts in pretrial preparation and at trial. The instant case involves an unrelated Oregon conviction and concerns the adequacy of representation in providing an assessment of a plea bargain without first seeking suppression of a confession assumed tohave been improperly obtained.
But the similarities don't end there. In each case, Kennedy concludes that it was not unreasonable for the state courts to find that counsel's performance was not deficient. And, in both cases, Ginsburg filed a very short concurring opinion in which she concluded that there was deficient performance, but there was no prejudice.
Upon a quick review, Richter appears to be the more significant of the two opinions as Kennedy seems to elucidate, for the first time, the proper steps a habeas court should take in assessing whether the state court's decision was unreasonable. This could be pretty influential. In addition, that case also answers the (relatively uncontroversial) procedural question of whether a summary decision deserves deference under 2254(d). The expected answer: yes. The Court sets up a presumption that a summary decision is on the merits and the "presumption may be overcome when there is reason to think some other explanation for the state court’s decision is more likely."
I'll read them both much closer and give some further analysis soon.