Blood beginning to boil again . . .
In the last District Court Review, I discussed a recent habeas grant in Harrison v. Cunningham. Unfortunately, upon reconsideration, the DJ has withdrawn the habeas grant. And I believe that the withdrawal was completely inappropriate.
Here's what happened: in the original decision, the DJ granted habeas on IAC grounds. The judge relied upon statements that the attorney made about his actions that were a part of the state court record.
In their reconsideration motion, the State argued that the DJ acted prematurely as it is the typical practice in the Second Circuit to hold what's known as a Sparman hearing to give an attorney a chance to explain his actions before holding the attorney ineffective. The DJ agreed with the State, withdrew the habeas grant, and ordered the trial attorney to submit an affidavit within 10 days of the order, if the attorney so desired.
That just cannot be right. As the Second Circuit acknowledged the other day in a summary order, federal courts hands are tied here. Under the restrictive decision of Pinholster, the court can only look to the factual record in the state court. A court cannot consider new evidence presented in the habeas proceeding.
As I have vociferously complained about, that rule is unfair. However, the ruling in Pinholster is broad and obviously must cut both ways. The State should not be allowed to rely on new facts to show that the state court decision was not unreasonable. If Pinholster is going to be unfair to one side, it simply has to be unfair to both.
I mean, I know the deck is stacked against habeas petitioners, but if Pinholster is read as only a restriction on petitioners, then it would be as if the State is also allowed to deal from the bottom of that stacked deck. This just cannot be right.