Looks like Habeas Day brought out a lot of laughter at the Court today. I counted at least six times between the two arguments where the transcript reads (Laughter.). But all the laughter appeared to stop once Justice Kennedy shamed the other judges into taking capital cases a little more seriously. At least, that's how I read the transcript. Here's the relevant exchange (from pages 41-42 of the Trevino transcript):
JUSTICE BREYER: I'm being sarcastic there but I don't mean to be. I mean, you see what I'm trying to get to.
JUSTICE SCALIA: It was the nose of the camel, which is what Martinez was -- which is what the dissent said, actually.
JUSTICE BREYER: Yes, the dissent said that.
JUSTICE KENNEDY: This is very amusing in a capital case.
Here are my quick takes on the two cases from the argument (gonna use some short cuts, sorry for the lack of context):
Perkins - seems to be at least five judges willing to say that actual innocence can be used to get an untimely petition into court, but that there will be some kind of diligence requirement. Not sure what that will eventually look like though.
Trevino - the argument was a mess. The parties seemed to argue most over what the Texas law actually says. The judges seemed a little exasperated by all of it. But it does appear as if there are at least five judges that seem willing to expand Martinez (or "clarify" Martinez to include State's beyond Arizona).
The other big news at the Court today was cert grants in a habeas case and a front-end criminal case. They are:
Burt v. Titlow, 12-414
(1) Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in holding that defense counsel was constitutionally ineffective for allowing respondent to maintain his claim of innocence; (2) whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea; and (3) whether Lafler v. Cooper always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.
Kansas v. Cheever, 12-609
(1) Whether, when a criminal defendant who affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, the state violates the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant; and (2) whether, when a criminal defendant testifies in his own defense, the state violates the Fifth Amendment by impeaching such testimony with evidence from a court-ordered mental evaluation of the defendant.
A cert. grant in a Sixth Circuit case in which habeas relief was granted probably means that a reversal is on the way. But, even with these elements present, I am not sure whether that is automatic for this one -- Lafler is just too new. There could be a chance that the Court just wants to give helpful guidance in those cases. Yeah, that's probably wishful thinking. It seems more likely that a cert. grant to the State means that the Court wants to take the habeas grant away.