I know I am jumping into this a little late, but thought it was a good idea to at least put something up about the current Supreme Court term. Overall, it’s not a very active term on the habeas front (unlike the past two years, which were quite memorably active). There are only three cases on the docket, two of which present the same issue. And the Court has already heard oral argument on all three cases.
There are some front-end cases out there (I’ll wait for the decisions to mention them individually) and a quasi-habeas case that could have a huge impact on the criminal justice system (that’s the Chaidez case, which asks whether Padilla v. Kentucky applies retroactively). And, of course, similar to last term, the Court could issue some summary reversals in habeas cases. And there is time for more cert. grants for the current term. But overall, slow habeas term.
Turning to the three habeas cases themselves, the two cases heard together back on October 9, 2012 – Ryan v. Gonzales and Tibbals v. Carter – garnered the most pre- and post-argument attention (you can read about them here, here, and here). The issues are whether a habeas petitioner must be “competent” during the pendency of the habeas proceeding and, if incompetent, how broad is the district court’s discretion to stay the proceedings until the petitioner becomes competent.
I think it is an interesting question, not just from a substantive point of view, but also an ethical one. It’s stuff that I used to focus on with my students (notice the past tense there, no longer an active professor after the move out West). The question is: whose appeal is it anyway? The Supreme Court has stated that appellate attorneys are the ones who get to make the ultimate call on what issues to raise. And I think that this ethical logic can get extended to the habeas post-conviction attorneys. In both situations, the substantive arguments to be raised are (typically) record-based. So input from the defendant or petitioner is not absolutely necessary. And it’s even less once the petition/appeal gets filed and the attorney is left to litigate everything. But as a matter of legal ethics and good client representation, client input should always be taken into account. Should it really be that an attorney should be allowed to make the decisions and then litigate the case in a vacuum with no client input whatsoever? That’s what the consequences would be if the Court says that habeas petitions can go on with an incompetent client. I don’t think the Supreme Court should condone such a situation as a matter of legal ethics, despite the current Court’s distaste for almost all things habeas. The transcripts of the argument in the cases can be found here and here.
The final habeas case is Johnson v. Williams. It’s got an impressive sounding AEDPA-focused issue: Whether a habeas petitioner’s claim has been “adjudicated on the merits” for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim (copied from SCOTUSblog). But from the argument, which occurred back on October 3, 2012 (transcript here), it appears that the Court is going to sidestep the issue and find the State court actually did address the federal-law basis for the claim. End result will be a remand to the Ninth Circuit for that court to apply the 2254(d) standard of review.
What’s interesting about this case is that, at the argument, the State attorney refused to take the signals from the Judges that she was going to win on the narrow issue and repeatedly pressed on her broader argument (and I’m paraphrasing here) that if a state court sneezes, it has made a merits-based decision on every federal claim before it. There were conflicting opinions over at SCOTUSblog as to whether this was an appropriate oral argument strategy. Lyle Denniston believed, and once again this is paraphrasing, that the attorney was being needlessly inflexible and/or stubborn, at best, or maybe even obtuse, at worst. But Tom Goldstein believed (written here paraphrasingly) that it was a conscious strategy – she could see she was going to win, so why not go for the broadest ruling possible. Tough to know for sure. My take: inflexibility may have simply been the strategy.