By Alexandr Satanovsky
[Reposted from 6/28 with stylistic edits, and updated below]
On Monday, the Supreme Court summarily reversed an evidentiary hearing order in Ryan v. Schad. Notably, the Supreme Court did not reach the merits of Ninth Circuit's order remand: that an evidentiary hearing is appropriate to consider the impact of Martinez on a maldeveloped claim that was not procedurally defaulted.
The Supreme Court avoided two of the Warden's three questions presented, which also echo the chief legal grief expressed by the judges dissenting from the denial of en banc rehearing.
Instead, the Supreme Court reversed the Ninth Circuit on a legal technically that was made available by the happenstance of Schad's procedural posture. That is -- and this is somewhat complicated -- by the procedural background behind the merits of the remand order: (1) the adjudication was completed by February 28, 2012,* (2) Schad’s motion take advantage of the intervening case of Martinez came months after it could have been filed, and was ultimately denied, and (3) the Ninth Circuit seemed to sua sponte decide to reconsider that motion by means of construing another motion as a re-urging of the prior Martinez motion. Bizarre. All the while, the Ninth Cirucit refused to issue the mandate in light of what obviously seemed like a final judgment in the § 2254 proceedings. The Supreme Court found that this ran afoul of its precedents on withdrawing (or withholding) the mandate after the completion of federal habeas proceedings in Bell v. Thompson, and Thompson v. Calderon.
* The PC opinion's procedural history indicates that Schad filed a rehearing petition on that date, after the three judge panel refused to grant relief on the basis of Pinholster. There is no notation of a cert. off of that decision.
What this really means is that the Supreme Court chose to punt yet another** substantive and difficult legal question: whether a Martinez-type cause (an incompetent state collateral lawyer) may provide relief from the Pinholster limitation of federal fact development, and/or the § 2254(d) deferential review, in the same way as it provides relief from a procedural default.
** See also Fisher v. University of Texas (punting the question of the legal availability of explicit affirmative action in education); Hollingsworth v. Perry (punting the question of the extent of the Fourteenth Amendment's limitation on exclusion of same-sex marriage)
Denying cert. in Gallow v. Cooper, the Supreme Court indicated that the Martinez-Pinholster issue is not quite ripe for its determination. The denial was accompanied by a two-page statement of Justice Breyer (joined by Justice Sotomayor).
Justice Breyer endorses balancing the Martinez-Pinholster equities by construing the procedural default doctrine in a broader, more functional and less formalistic manner. Under this approach, a claim is procedurally defaulted when a petitioner, although technically pleads the claim, "fail[s] to obtain a hearing on the merits . . . because state habeas counsel neglected to 'properly presen[t]' the . . . claim in state court."
It seems to me, this will require the Supreme Court to revisit yet again the scope of an "adjudicat[ion] on the merits" for purposes of § 2254(d), as well as the issue of what judicial actor gets to decide whether a claim was adjudicated on the merits..
For example, consider a situation involving a claim "pled" in state court, but so poorly that the it is doomed for all intents and purposes. If the state court says it is denying the claim "on the merits," does it really? Does that statement automatically bind federal courts to § 2254(d) and Pinholster limits on review? The most equitable answer is surely no. A state court should not have unfettered authority to say magic words to invoke the cloak of § 2254(d) and Pinholster. Instead, whether there was a merits adjudication of a claim, within the definition of the federal statute--§ 2254(d)--should ultimately be an objective question of federal law, to be decided by a federal court. If--in light of the state court habeas rules, pleadings and evidence proferred--the claim is insufficiently pled to warrant relief, a federal court should not conclude that it was adjudicated on the merits, no matter what the state court says. To be sure, state courts often deny claims on the merits in the alternative to an obvious procedural bar such as abusiveness or untimeliness. But that is unremarkable, so long as the defaulted claim was sufficiently pled for genuine merits determination.On the other hand, Justice Breyer's statement makes no pass at the notion that, if there is no doubt as to an adjudication on the merits under § 2254(d), a federal court may use Martinez to bypass the required deferential review. As I discussed previously, because § 2254(d)--unlike the procedural default doctrine--is a statutory command, a federal court has very limited ability to recognize equitable exceptions.