I have complained on here multiple times about how the decision in Pinholster has resulted in unfairness in a significant way: a state court’s decision to limit the factual record on which to analyze a constitution claim is given preclusive effect in federal court. In more practical terms, what I am saying is that, even where a state court’s decision to reject a request for an evidentiary hearing was unreasonable, there is nothing a federal court can do about it.
As it turns out, the Ninth Circuit has addressed this concern. And I actually find it quite clever. The way to go around this unfair aspect of Pinholster: go through 2254(d)(2). Here’s what that subsection says:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim:
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
After Pinholster, the Ninth Circuit held in Detrich v. Ryan that “if we make an antecedent determination – relying solely on evidence before the state court—that the state court’s adjudication . . . ‘was based on an unreasonable determination of the facts,’ . . .we proceed to evaluate the petitioner’s claim de novo and may then consider evidence that was properly presented for the first time in federal court.”*
* To note, the Ninth Circuit did order Detrich en banc on October 3 (see my en banc reheard post). As a result, "The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit." Technically, I am not citing it to any court of the Ninth Circuit, so it's okay. Also the en banc order did not say that the panel decision was vacated, so it's technically still on the books. At the same time, the dissent in Detrich did take issue with the majority considering new evidence under 2254(d)(2). So, I guess the en banc in Dietrich could end up vitiating this part of the decision.
And here’s the clever part. The Ninth Circuit has also held that one way in which a state court’s factual finding can be unreasonable is where the state court’s factual finding process was deficient. More specifically, the Ninth Circuit has “held that the state court’s failure to hold an evidentiary hearing may render its fact-finding process unreasonable under § 2254(d)(2).”*
*That’s a quote from a recent decision in Hibbler v. Benedetti. I will say nothing more about that decision as [D/D] my new office represents petitioner in that case.
Actually, this reasoning pre-dates Pinholster. Chief Judge Kozinski created it in a case called Taylor v. Maddox. It’s a must-read. In Taylor, CJK outlines the different ways in which a state court’s factual findings can be unreasonable. He describes this as an “intrinsic” analysis, as opposed to an “extrinsic” analysis. An “intrinsic” analysis is one that solely looks at the state court record. An “extrinsic” one is one that considers evidence outside of the state court record. Follow me so far?
The importance of this distinction has to do with the two different subsections in 2254 that address the level of deference to be given to state court factual findings: 2254(d)(2) and 2254(e)(1). 2254(d)(2) talks about factual findings that are unreasonable. 2254(e)(1) grants state court fact findings a presumption of correctness that may only be overcome by clear and convincing evidence. The Supreme Court has yet to address the interplay of these two subsections. They granted cert. on it a couple of years ago in Wood v. Allen, but did not end up addressing it in the opinion.
In the meantime, there is CJK's analysis in Taylor. He did his logical best to reconcile two provisions that are very difficult to reconcile. He basically said that a court should first engage in an intrinsic analysis under 2254(d)(2). If the factual finding survives the intrinsic analysis, then it gets cloaked (CJK used "dressed") with the presumption of correctness under 2254(e)(1). A petitioner can uncloak (or, I guess, undress) those findings with extrinsic evidence, i.e. new evidence outside the state court record.
I love the logic of it. But I am worried that the “extrinsic” aspect of 2254(e)(1) is inconsistent with the holding of Pinholster. If there is nothing unreasonable about what the state court did under 2254(d), I am not sure if a federal court will be allowed to consider any evidence outside the state court record in its eventual analysis under 2254(d)(1). Taylor's analysis currently does allow that.
Or maybe I should be viewing it in the reverse. If CJK was correct in his reading of the statute and this is the only way to reconcile these two provisions, then Pinholster’s interpretation of 2254(d)(1) is inconsistent with how the rest of the statute operates. Is that a way to challenge Pinholster? It’s a nice dream I guess, but that ship may have already sailed. At the same time, it's difficult to see how a petitioner can overcome a presumption of correctness without relying on all available evidence, including evidence outside the state court record. According to CJK in Taylor, that is precisely what the AEDPA allows under 2254(e)(1).
Complicated stuff, made even more complicated by the unfairness of Pinholster. But at least, for now, the Ninth Circuit does allow for a way around Pinholster when the state court unreasonably denies a request for an evidentiary hearing.
In a later post, I'll discuss another interesting post-Pinholster case that addresses new evidence presented in a federal habeas petition. That case is called Gonzalez v. Wong.