Actually, going to be a lot of loose ends to pull together around here for awhile.
One of those is recent Supreme Court action. Seems timely now that I have updated the Supreme Court page.
First, I wanted to mention Sotomayor's dissent from the denial of cert. in Fairey v. Tucker. The issue in the case was petitioner's right to be present at the trial. Reading between the lines of her dissent, it appears that the lower court denied the petition based on the lack of clearly established law covering the particular situation. Or maybe it was simply not an unreasonable application of clearly established law. Overall, doesn't matter.
Before I get to the specifics of the dissent, it is important to mention two unusual aspects to the case. First, petitioner was pro se. Rare to see a pro se case get a lot of attention. Second, Sotomayor's dissent really is about whether a COA should have been granted, not necessarily whether the district court was wrong in denying the petition.
And Sotomayor makes a convincing case that there was enough established law to, at the very least, justify a COA on the issue. What happened was petitioner was representing himself in the trial court. He showed up at all of his pre-trial court dates but then did not show up at the trial. Notice was sent to him about his trial date, but it was sent to old addresses in California and South Carolina. But he had moved to Florida. He had let the court know about this. Petitioner had signed a bond saying that he understood that if he did not appear in court, the trial would proceed without him. But that bond did not advise him of his trial date.
Sotomayor concludes that, in upholding the conviction, the state created a new exception to the right to be present -- a defendant's actions before the trial began. She did not believe that the law or the facts here justified such a step. Rather, the trial should not have begun until the defendant had actually waived his right to be present. She believed that, based on the facts here and the importance of the right, there should have been more review of the case. Here's her powerful summary:
A trial conducted without actual notice to a defendant and in his absence makes a mockeryof fair process and the constitutional right to be present attrial. That is particularly true where, as here, the defendant participated actively in his defense and kept the Stateinformed of his whereabouts.
It's too bad that no other Justice decided to join her.
One other Supreme Court thing to note. In the most recent SCOTUSblog relist post, it is noted that a habeas case is among one of the three new relists: Williams v. Wetzel. The issues are:
(1) Does Harrington v. Richter, which interpreted 28 U.S.C. § 2254(d)(1) as requiring federal habeas courts to determine what arguments or theories could have supported the state court judgment when the state court ruling is unexplained, also apply when the state court has explained the basis for its ruling, a question that has divided the Courts of Appeals?; (2) Should this Court grant certiorari, vacate, and remand for reconsideration in light of Cullen v. Pinholster – which was decided after the Third Circuit issued its opinion — where the Third Circuit assessed reasonableness under § 2254(d)(1) in the light of evidence that was presented for the first time in federal court?
Both really fascinating issues. Both very technical, but it does appear, based on Greene v. Fisher and the habeas case currently on the Court's docket (Cavazos v. Williams), that the Court is very interested in getting down into the nitty gritty on how to apply the standard of review. And these two issues are really interesting ones in light of Richter and Pinholster, cases that dramatically altered habeas law.
On the Richter issue, I'll put it in plain English (to borrow a SCOTUSblog concept). What they are saying is that, on habeas review, are the federal courts constrained to the state court's reasons in determining whether or not the state court acted reasonably or can they consider any reason in existence for finding the state court's decision reasonable. I think that Richter said something like "all possible reasons" for a state court decision. My interpretation was that it could be any reason, even if not mentioned in the decision. But maybe I was just being overly cynical. There does seem to be a split on the issue. While technical, this is a really important practical question.
On Pinholster, plain English: what's good for the goose must be good for the gander. I.e., if petitioner cannot rely on new facts established at a hearing in federal court, then neither can the State. Logic says that petitioner is right. But don't forget the mantra: habeas is different. Logic doesn't always apply.
Final conference, I believe, is today. We will get a better sense of what's going on with this case when the order list is issued.
UPDATE: Cert. was denied in Williams (order list here).