The Supreme Court's October 2011 Term begins this week. And it's going to be a very active one for habeas cases. There are already eight cases on the Court's docket. I am really excited about a couple of those. I also dread what the outcome is going to be in a couple others. And at least one I don't really have much of an idea as to what it's all about. There are also a couple front-end criminal cases of note. So it's going to be a big term in habeasland.
And remember, Habeas Day at the Court will be this Tuesday, when the Court intends to hear three (Maples, Martinez, Howe) of the eight.
Since I love lists, here is a list, in descending order, of this Term's habeas cases on the scale of "what I find most interesting" (in other words, 1=most interesting; 8=least interesting) I'll note my feeling about the outcome of the case as either (a) excited; (b) dread; or (c) uninterested.
(1) Martinez v. Ryan (to be argued on 10/4)- Excited
Issue: whether a criminal defendant has the right to counsel at a state post-conviction proceeding in order to raise claims (mainly IAC) that can't be raised on appeal
I hate to swim with the current on this one, but it's hard to argue that this isn't the most interesting (and important) habeas case on the Court's docket this year. It certainly has the greatest potential impact on criminal law. Not as big as something like Gideon v. Wainwright (right to counsel in criminal cases) or Douglas v. California (right to counsel on appeal if indigent), but it will be the next biggest thing. No matter which way it goes, it's going to be a fun opinion. I'd love to see a split court here as the question may come down to how each individual Justice views the role of counsel in the criminal justice system. Fun, fun, fun.
(2) Greene v. Fisher (to be argued on 10/11) - Dread/Excited
Issue: when is the temporal cut-off for clearly established law under 2254(d)(1)
For such a simple issue, it does seem odd that I would rank it so high. But this case is going to have the biggest day-to-day impact on habeas cases. And it raises abstract questions about the interplay between the AEDPA and the retroactivity rules of Teague v. Lane (i.e., whether those latter rules still exist or will the Court's interpretation of 2254(d)(1) in Greene supersede them). Which makes me excited for this case. But I have larger feelings of dread about it as I expect a very anti-petitioner decision here. And you can read more about my feelings of dread about this case in this article that I wrote over the summer.
(3) Maples v. Thomas (to be argued on 10/4) - Excited
Issue: whether there was cause for petitioner's procedural default based on (essentially) attorney and state court negligence
The issue in this case is not really that interesting, but the underlying facts are. This is the case where the Big City law firm dropped the ball on petitioner's case and the state courts did absolutely nothing to straighten out the problem. And there was so much unfairness to petitioner that it led multiple national news outlets to take up his cause. And, around here, it led me to create (the little used, but still enjoyable) "uncommon sense meter" -- the rates cases on the scale of whether it defies common sense that some ridiculous procedural rule can allow a court to overlook an obviously unfair result. This is a case where good facts could chip away at what otherwise is bad law for petitioners.
(4) Lafler v. Cooper (to be argued on 10/31; being heard with Missouri v. Frye)- Dread
Issue: whether a petitioner who was convicted after a trial can argue IAC based on counsel's failure to give proper advice during the plea bargaining stage of the case
This is also a case with a big potential impact on the criminal justice system. There is plea bargaining in every case and in almost every case that eventually goes to trial, a plea offer was made at some point in the case. Counsel is supposed to both communicate that offer to the defendant and give advice on it. The question here is whether petitioner should be able to get any relief when counsel messes that up. And, if so, whether any relief is available after the defendant is convicted after trial or does that conviction somehow moot out the deficient performance in the plea bargaining stage. The fairest result here would be that a petitioner should still be able to raise the claim even after a jury verdict. But, based on the Court sua sponte adding this particular issue to the Frye case, I have a bad feeling about where this is going.
(5) Howes v. Fields (to be argued on 10/4) - Excited
Issue: whether a prisoner, who is excluded from the prison population and questioned, is always "in custody" for Miranda purposes
I am excited about this case since it is a real substantive law habeas case. Lafler is too, but that substantive law could be extinguished based on where the case goes. Not this case. It is a basic up or down vote. I have searched my memory and I simply can't remember the last up vote on a habeas case in the Supreme Court where the final decision ended up as a grant for the petitioner. I don't see that as the most likely outcome here. But there is a chance for that, which gets me excited. On the other hand, it is a cert. grant from the Sixth Circuit, and that typically means . . . bad news for the Sixth Circuit.*
*I forced my wife to watch the original Bad News Bears again the other day. I think that is my second favorite movie of all time.
(6) Gonzlez v. Thaler (to be argued on 11/2) - Dread/Uninterested
Issue: (i) was a COA appropriate on a habeas procedural issue? and (ii) something about what date to use to determine when a petition is timely under the statute of limitations
This case kind of scares me a little. The Court sua sponte added the COA question. I am not sure why since the Court has already held that a COA would be appropriate in this situation. Maybe the Court was not satisfied that the circuit court properly followed the rule in determining whether to issue a COA on a procedural issue. I should probably look at the briefs for some guidance on that. But there is a potential that this case could place a further restriction on habeas law. As for the other issue, I re-read the lower court decision and I still don't get it. It seems very state-specific as to what date should be used as the end date of the appeal. And each one is a totally legitimate way of looking at it. Does the Supreme Court need to step into that mess and say that it needs to be the same date in all cases, regardless of the state's individual procedure? It seems like a waste of time. State law should control on that question in my mind. States' rights! (That's tongue in cheek -- secessionist talk is best left to southern governors with presidential aspirations)
(7) Wood v. Milyard (recent cert. grant) - Dread
Issue: can a circuit court raise statute of limitations defense sua sponte*
*There's those words again. I talk about how much I love the term sua sponte about midway through this post.
I really dislike the statute of limitations. To be fair, a statute of limitations isn't the worst thing ever. But the one-year one is truly oppressive. I wish it would go away or get ameliorated (like turned into a two or three year limitations period). But my personal feelings aren't relevant. I don't think the federal courts dislike it too much. And, even though it is a defense that the State can use and not a jurisdictional bar, I worry (in the extreme) that the Supreme Court will uphold a circuit court's power to do this. In a fair world, they won't. I mean it's typically frowned upon for an appellate court to go around raising defenses sua sponte where a litigant hasn't relied on it below. But, of course, everything is skewed in habeasland.
(8) Martel v. Clair (to be argued 12/6) - Uninterested/Excited(?)
Issue: can court-appointed habeas counsel be replaced in a capital habeas proceeding
This case appears to boil down to a statutory interpretation issue. And it's a statute that I am not too familiar with. So my interest level is not high. But maybe, just maybe, the opinion could branch out into issues that I am more interested in. If the Court's opinion could potentially be applicable to the question of replacement of court-appointed counsel in a non-capital case (i.e. when a court grants a petitioner's motion for assignment of counsel under the "likely merit" standard), I'd be interested in that. And, because the issue presented seems broad (although I don't think in the end that it is), there is a small chance that the Justices could once again veer off into the more abstract concept of an attorney's role in the criminal justice system. Which could be fun. But I won't get my hopes up.
[edited the Gonzalez paragraph for clarity]