By Alexandr Satanovsky
I've been meaning to post about this for a while. On December 3, 2012, the Supreme Court denied certiorari in Hodge v. Kentucky, a front-end capital case, seeking to review the Kentucky Supreme Court's denial of a penalty phase IAC claim. The underlying facts are all too common in capital practice: Hodge's trial counsel presented no mitigation during the penalty phase; the post-conviction team developed a significant amount of truly gruesome mitigation, which was presented in a state evidentiary hearing. The State even conceded that Hodge's trial counsel was objectively deficient under Strickland. However, the Kentucky Supreme Court denied relief, finding no prejudice.
The cert. petition arose from the Kentucky Supreme Court's questionable analysis underlying the conclusion that Hodge was not prejudiced. According to Hodge, the state court's conclusion rested on a legally required "nexus" between the mitigation and the facts of the crime. Now the State disagreed with this characterization. According to the State, the Kentucky Supreme Court simply found the evidence to be factually uncompelling, in light of the aggravated nature of the homicide. You can see for yourself at pages 5-11 of the short state court opinion.
Now, I suppose that it's possible for a state court to rely, in part, on a lack of nexus, without being contrary to established law. For example, if the state court explicitly acknowledges that there is no legal significance to a (lack of) nexus, it may then find that, as a matter of fact, the nexus-free mitigation was not compelling to show prejudice in light of the aggravated nature of the homicide. In other words, I don't think there's anything remarkable about the notion that, all things equal, mitigation without a direct nexus to the facts of the crime may be less compelling than that which does bear on the facts of the crime. [Obviously, all things are never equal when trying to compare the strengths of gruesome childhood mitigation, versus, e.g., crime-specific mitigation]. More importantly, as a matter of clearly established law, a fact-finder cannot give anything like a legal presumption--a legal thumb on the scales--to "nexus" mitigation versus "non-nexus" mitigation.
After placing the case for three consecutive conferences, Justice Sotomayor penned a lengthy dissent from the denial of cert (longer than the entire reasoned state court opinion). To her, Hodge was right that the Kentucky Supreme Court's prejudice inquiry involved a legal nexus requirement. She would have summarily vacated and remanded this case to apply the proper legal standard, allowing the state court to re-do its prejudice determination without giving legal (in)significance to Hodge's powerful childhood evidence.
This sleeper dissent seems noteworthy to me for another reason. We often hear of circuit dissents as amicus briefs to the Supreme Court; well, here, it is Sotomayor who is essentially writing an amicus brief to the Kentucky federal district judge (who will hear this claim next), stating that 2254(d)(1)'s "contrary to" clause is satisfied by the state court's improper prejudice standard. She really minces no words: "[t]he Kentucky Supreme Court’s opinion is plainly contrary to these precedents [rejecting the "nexus" requirement for mitgiation evidence]," (slip op. at 8). In another paragraph, she notes that the state court's view "that in cases involving 'violent and cruel murders, it does not matter that the 'malefacto[r]' had a 'terrible childhoo[d]' . . . is contrary to our cases applying Strickland’s prejudice prong." (My emphasis).
This strikes me as an unusual occurrence. The universe of claims that have satisfied the onerous post-AEDPA 2254(d)(1) standard is relatively small, and from this it follows that those claims should be the strongest at the front-end cert. stage, and so most likely to have been the chosen issues in the front-end cert petition. Still, none of the high profile 2254(d)(1) grants that I have read, to my knowledge, involved written dissents from the denial of state court cert., assessing the same legal question without the additional (d)(1) deference. Justice Sotomayor's opinion, in other words, is my first encounter with a dissent from a denial of cert. on a front-end claim that necessarily will be relitigated in federal court, but now with the the added cloak of 2254(d)(1). And her dissent may prove quite imporant if Hodge gets through this cloak, and wins penalty phase relief in the Sixth Circuit.