In one of my more recent posts (meaning one of the few that have appeared this calendar year), I mentioned that it was a pretty good term for habeas in the Supreme Court.
But that's not entirely true. There was the early opinion in Greene that was pretty horrible.
And then there was the Court's treatment of legal insufficiency claims. Based on how hard the Court came down on some circuit courts that had granted habeas on legal insufficiency claims, it is a legitimate question to consider whether this type of claim really is no longer viable on habeas review.
It started with the first opinion of the Term back in October 2011, Cavazos v. Smith. The Court summarily reversed a Ninth Circuit opinion which had granted habeas on legal insufficiency grounds. The Court spent most of the opinion detailing the ways in which the Ninth Circuit messed up the legal insufficiency analysis. But the Court stated something that ended up being something new. It stated: "When the deference to state court decisions required by § 2254(d) is applied to the state court's already deferential review, there can be no doubt of the Ninth Circuit's error below."
In later cases, this became the "double deference" standard for legal insufficiency claims. We have seen the "double deference" standard before, notably in IAC claims. Essentially, it means that deference must rise to the level of near preclusion. In the real word, I am not sure how this type of double deference actually works. A reader has mentioned this to me before, but no matter what it is, it's not technically double deference, i.e. deference layered upon deference. That's kind of silly and not really possible. It is really heightened deference. But even that is hard to quantify (or would it be qualify? I guess it could be either, or maybe it's both? see what I mean?).
In any event, there is now a great, great deal of deference when a federal court is reviewing legal insufficiency claims on habeas review. And the Court followed up Cavazos with two recent summary reversals that emphasized this double deference standard. Those were Parker v. Matthews and Coleman v. Johnson. In the former, the Supreme Court went to town on the Sixth Circuit. In the later, the Court upset a Third Circuit habeas grant.
Reading through all three, I can't say that there is a consistent theme as to how to apply a double deference standard. Most of the Court's complaints in all three cases really focused on the lower court's misapplication of the regular old legal insufficiency standard, not an insufficiently deferential application of the legal insufficiency standard (whatever that may be).
For example, here's the main complaint in Johnson:
Under the deferential federal standard, the approach taken by the Court of Appeals was flawed because it unduly impinged on the jury’s role as factfinder. Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors “draw reasonable inferences from basic facts to ultimate facts.” This deferential standard does not permit the type of fine-grained factual parsing in which the Court of Appeals engaged.
One can find examples of this type of garden-variety problem with the insufficiency analysis in each of the summary reversals. And while the analysis in those cases obviously looked at other factors, none of them really focused on a problem of double deference.
Nevertheless, double deference is now the rule. And, on legal insufficiency, this means deference to both the juries and the state courts. It's a pretty heavy burden on a habeas petitioner to succeed on this type of claim. I am worried that it will be the exceedingly rare case where that burden can be met.
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