On Wednesday, the Second Circuit issued a published opinion in Downs v. Lape, the oldest pending habeas case that had been argued, but not yet decided (as far as I know). Ending his streak of favorable habeas opinions, Judge Lohier wrote the opinion affirming the district court's decision that there was an independent and adequate state law ground barring review of petitioner's public trial claim. Judge Chin dissented. Media coverage here.
The specific question in the case was whether petitioner had shown that the state courts had "exorbitantly" applied the preservation rule in his case. The really troubling (and kind of confusing) aspect of the opinion was Lohier's discussion of how the Appellate Divisions in New York exercise discretion in how they apply the preservation rule. As a result, according to the judge, their often inconsistent application cannot be considered an "inadequate" state procedural ground.
So Lohier shoehorns the preservation rule into the type of so-called "discretionary" rule that was upheld as adequate in last year's depressing Supreme Court decision of Walker v. Martin, where the Court transformed a mandatory rule with a safety valve provision into a "discretionary" rule.
But even worse than Martin, the preservation rule at issue here is in no way discretionary. As you will see below, what Lohier considers to be a discretionary application of the rule is nothing more than different judges reaching different conclusions about whether a certain set of facts establish preservation. In other words -- it's what judges do in every situation where they try to apply a legal rule to a set of facts. Judges disagree on the answer to that question.* But that doesn't make the legal rule discretionary. The legal rule, specifically the preservation rule, is a rule that is supposed to be applied the same in every situation. Period. No discretion as to how to apply the rule.**
*Of course, I am not trying to justify the 2254(d) unreasonableness standard here. I am not saying that it's okay for the judges to disagree and that's life and only unreasonable decisions are unacceptable. The judges should be consistent. But inconsistent application of a rule does not make something discretionary. Now I feel that this is getting redundant.
**To note, the Appellate Divisions in New York do have discretion to review unpreserved claims. They retain interest of justice jurisdiction to review unpreserved claims. I guess in that way the preservation rule kind of resembles the one in Martin. But that is not the aspect of the preservation rule that Lohier compares to Martin. He is solely referring to the basic application of the preservation rule itself.
But, first, let me take a step back and give the details:
Downs v. Lape, 09-4723-pr
- Affirming Denial of Habeas
- Argued: 5/06/11; Decided: 9/14/11; Published Opinion By Lohier with Dissent from Chin
- Panel: Wesley, Chin, Lohier
- Lower Ct Info: 08-CV-0092, 2009 WL 3698134 (EDNY Oct. 30, 2009) (RJD)
- In Circuit: Dist Ct COA
- Issues: Procedural Default/Right to a public trial
ANALYSIS: Getting right to it, here is the offending paragraph:
Downs argues that New York courts do not regularly rely on the contemporaneous objection rule and that the state's application of the contemporaneous objection rule here is an inadequate ground for rejecting his public trial claim. See Garcia, 188 F.3d at 77 (a pre-Lee case, reviewing adequacy by reference to whether the state invokes a procedural rule that it does "`not apply evenhandedly to all similar claims") . . . . We disagree. As an initial matter, we doubt New York courts have exhibited the tendency that Downs attributes to them. As Downs acknowledges, "there is no mention of an objection being raised by defense counsel" in the cases he cites. See People v. Gomez, 685 N.Y.S.2d 448, 449 (App. Div. 2d Dep't 1998); People v. James, 645 N.Y.S.2d 300, 301 (App. Div. 1st Dep't 1996); People v. Miller, 639 N.Y.S.2d 50, 51 (App. Div. 2d Dep't 1996); People v. Cole, 615 N.Y.S.2d 393, 394 (App. Div. 1st Dep't 1994). Moreover, we expect some variation is inevitable in the application of any procedural rule. Such variation just as easily reflects at least the proper exercise of appellate court discretion as it does the lack of a firmly established and regularly followed rule. In turn, the exercise of discretion by New York courts hardly proves that they fail to regularly follow the state's contemporaneous objection rule, any more than the occasional excusal of a waiver or forfeiture by this Court proves that we do not generally require that arguments advanced on appeal be raised in the lower court. See Walker, 131 S. Ct. at 1130 ("A discretionary rule ought not be disregarded automatically upon a showing of seeming inconsistencies. Discretion enables a court to home in on case-specific considerations and to avoid the harsh results that sometimes attend consistent application of an unyielding rule." (citations omitted)). Here, the Appellate Division exercised limited discretion in finding Downs's public trial claim unpreserved for appeal.
As mentioned above, very troubling. He is mistaking an exercise of discretion for an appellate court's responsibility to accurately apply the law to the facts. They have no discretion in the latter situation. Just because different judges end up coming to different decisions does not make it an exercise of discretion. They are supposed to get the right answer. They have no discretion in that. And the citation to Martin at the end does not even support what he is saying. The preservation rule simply has never been considered a discretionary rule.
Taking what Lohier says to its logical conclusion, is every Second Circuit application of a legal rule now discretionary? If a Second Circuit panel does not follow a prior application of a legal rule to a similar set of facts, then the panel is simply exercising its appellate discretion? Is stare decisis now discretionary? All of this just seems completely wrong to me.
I have previously written about how I believe that Richter and Pinholster have shifted the balance in habeas cases. I guess I should have been more mindful of how Martin could be expanded to completely undercut a challenge to an inadequate application of a procedural rule.
In any event, Chin dissented and agreed with petitioner that the Appellate Division's application of the preservation rule was exorbitant. He did not address the "discretionary" analysis in the main opinion.