Following up on Alan’s first post from the other day, I do want to make a little bit of noise around here about several good results in habeas cases in the circuit courts over the past six weeks (since around mid-September).
There have been habeas grants out of the:
Third Circuit: Garrus v. Secretary of Dep't of Corr. - Apprendi violation
Seventh Circuit: Harris v. Thompson - right to present a defense and IAC
There may have been others; these are just those that I have seen. And I am sure there will be more. But I have expressed a lot of doom and gloom around here over the past two years (ever since Richter). So I do think it’s worthwhile to acknowledge when the good things happen. And if you have time please read the Seventh Circuit’s decision. It’s looong, but it's pretty great. It kind of feels like the court was convinced of petitioner's innocence, and this belief ends up being the motivating force behind the analysis.
And the Third Circuit’s decision is pretty cool, too. It’s an en banc decision on an Apprendi issue – the scope of the “prior conviction” exception to the Apprendi rule. Two things of note (at least related to the blog): the majority has a great footnote (#8) that criticizes the dissent for reading the unreasonable application/clearly established law part of the 2254(d) standard in such a narrow way that it basically turns it into the “contrary to” clause. I have been yelling about court’s doing that since nearly the inception of this blog (that post was written in July 2009; I started the blog in April 2009). So glad to see a court say it.
At the other end, the dissent points out that the majority did not give enough deference under the standard of review and gives lists of all of the times that the Supreme Court (i) granted cert. on the issue; and (ii) reversed on this ground (both summary reversals and after merits briefing). These lists are long. The lack of deference summary reversal was the subject of my most recent article (part of my recent doomistry* and gloomery*). And it does serve as a reminder that, even with the good stuff, there are still reasons to be concerned about the future of habeas.
*Not actual words.