Dusting Off the Old Blogging Machine . . .
Thought that today would be a good day to jump back into some habeas corpus blogging due to the two very interesting summary orders out of the Second Circuit today.
This post will cover Montstream v. Superintendent, 11-802-pr.
Petitioner pled guilty to, among other things, manslaughter and possession of a weapon and was given consecutive sentences. Petitioner argued that this was illegal/unconstitutional because sentences for crime A committed with a weapon and the possession of that same weapon with the intent to use it unlawfully cannot run consecutively when the intent to use the weapon was solely based on the commission of crime A. Very recently, the New York Court of Appeals confirmed that this was true. Hence, petitioner's consecutive sentences are, at the very least, illegal under state law. The question though for habeas is: are they unconstitutional under the Double Jeopardy Clause? Or more relevant for habeas purposes: is it an unreasonable application of clearly established double jeopardy principles for the state courts to uphold the sentences?
All of that is very interesting. But what makes the summary order so fascinating, for me at least, is that it really is the first one I've seen from the Second Circuit that really digs deep into the post-Richter world of extreme deference. The court does cite to Richter in the forefront of its analysis as to what petitioner must show to get relief -- the state court error must be “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”
The Second Circuit concludes that petitioner has not met this standard. The court frames the issue as: whether a state court's erroneous application of a state concurrent sentence statute violates double jeopardy? Relying upon some Supreme Court precedent, petitioner argued that the only sentences that the Legislature authorizes can survive double jeopardy.
This is where the deference comes in. The Second Circuit states, "Reasonable judges may well find that argument persuasive were the issue presented for de novo review." However, the rejection of that argument would not be unreasonable. It pointed out that there was no Supreme Court precedent that dictated that conclusion, particularly where the NY statute limiting consecutive sentences gives broader protection than the double jeopardy clause. The Supreme Court has never held that state legislatures have the power to expand double jeopardy protections in that way. The Second Circuit concluded that it is "at least a debatable question whether the Court would extend its [prior] holdings" in the manner that petitioner suggests. Because it is debatable, then it cannot win on habeas.
And, in a conclusion that does not quite follow from the rest of the opinion, the Second Circuit says: "There can be no dispute, however, that the Supreme Court itself has never clearly answered the question. It follows, therefore, that we must dismiss [the] petition."
Odd ending. Use the entire opinion to show why it cannot be an unreasonable application of federal law; conclude that petition must be denied for lack of clearly established law. If you can't tell, I am kind of obsessed with the whole internet meme image macro. It would look something like this:
Pretty geeky. Don't expect an image macro in ever post from now on.