Habeas Corpus Blog

Habeas Corpus - Ninth Circuit Stays the Course

By JK

Soon after my move out here to the Ninth Circuit, I talked about a way that the Ninth Circuit has used to get around Pinholster.  Essentially, the Ninth Circuit will conclude that the highly deferential standard of review does not apply, and the court can conduct a de novo review and hear new evidence, where the state court's fact-finding was unreasonable. And one way in which a state court’s fact finding can be unreasonable is where the state court’s factual finding process was deficient.  More specifically, the Ninth Circuit has “held that the state court’s failure to hold an evidentiary hearing may render its fact-finding process unreasonable under § 2254(d)(2).” 

It's a lovely and creative way around the most problematic part of Pinholster.  But one problem with my prior post was that I did rely, in part, on a decision that subsequently went en banc, Detrich v. Ryan.  It means that the original panel decision is not binding law.  And that en banc rehearing remains sub judice.  The entire decision may end up getting completely vacated by the en banc court.

So I was pleased when the Ninth Circuit decided Hurles v. Ryan.*  In Hurles, the Ninth Circuit remanded a capital case for an evidentiary hearing on a judicial bias claim.  But to get there, the court had to find that the state court's fact finding process was deficient. Here's what the court said: "We have held repeatedly that where a state court makes factual findings without an evidentiary hearing or other opportunity for the petitioner to present evidence, the fact-finding process itself is deficient and not entitled to deference."  

* There seems to be a little bit of a convoluted history as to how this opinion got issued.  According to the summary, "The panel withdrew its opinion filed July 7, 2011, andpublished at 650 F.3d 1301 (9th Cir. 2011), filed a replacement opinion, denied a petition for rehearing and rehearing en banc as moot but allowed the parties to file a petition for rehearing and rehearing en banc with respect to the replacement opinion."  The instant opinion seems to be the one that was entered after rehearing.

Okay, it is not stated as clearly as it was in Detrich.*  But it really is the same principle: the federal courts can hear new evidence and/or hold an evidentiary hearing when the state fact-finding process was deficient.  And that includes when no evidentiary hearing was held in state court.  

* There they said that where the process was unreasonable, "we proceed to evaluate the petitioner’s claim de novo and may then consider evidence that was properly presented for the first time in federal court."

But I will point out that, I don't think it is just in the situations where a hearing was not held in state court (as the court stated in Hurles).  It must be where it was unreasonable for the state court not to have held a hearing.  In the court's defense, it's discussion in Hurles made clear that the state court was acting unreasonably throughout the fact-finding process.

Thus, the Ninth Circuit continues to offer this unreasonable-fact-finding-process as a way around Pinholster where the state court refuses to hold a hearing.  Let's hope that the en banc court in Detrich doesn't take it away.  

Habeas Corpus - Detrich En Banc Argument

By JK

I wish I had caught this before it happened, but the Ninth Circuit reheard the capital habeas case of Detrich v. Ryan en banc on Tuesday (12/11).  I discussed Detrich a little bit in this post.  The issues in the case, according to the rehearing petition, are:

1. Did the panel err by substituting its judgment for that of the state post-conviction court and concluding that the state court unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984)?

2. Did the panel err by considering evidence that was not presented in state court notwithstanding the United States Supreme Court’s directive in Cullen v. Pinholster, 131 S. Ct. 1388 (2011), that federal review of a claim addressed on the merits in state court is limited to the evidence presented in state court?

Obviously, I care more about the second question than the first.  I am guessing the en banc court will focus more on it as well.  

To note, here's the panel: Kozinski, Pregerson, Reinhardt, Graber, W Fletcher, Gould, Bea, Murguia, Christen, Nguyen, Watford.  As I have discussed before, there is no guarantee that any of the original panel members sit on the en banc panel.  And, indeed, only one of the original members, Pregerson, is sitting on the en banc panel.  He was in the majority, which granted the habeas petition. 

Here is the 55-minute video of the en banc argument.  Haven't watched it yet, but I will. And here's the audio if you just want to listen to it.  Gotta love the Ninth Circuit for making these available (yes, I am looking right at you, Second Circuit).

 

Habeas Corpus - Ninth Circuit and Pinholster

By JK

I have complained on here multiple times about how the decision in Pinholster has resulted in unfairness in a significant way: a state court’s decision to limit the factual record on which to analyze a constitution claim is given preclusive effect in federal court.  In more practical terms, what I am saying is that, even where a state court’s decision to reject a request for an evidentiary hearing was unreasonable, there is nothing a federal court can do about it. 

As it turns out, the Ninth Circuit has addressed this concern. And I actually find it quite clever.  The way to go around this unfair aspect of Pinholster: go through 2254(d)(2).  Here’s what that subsection says:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim: 

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

After Pinholster, the Ninth Circuit held in Detrich v. Ryan that “if we make an antecedent determination – relying solely on evidence before the state court—that the state court’s adjudication . . . ‘was based on an unreasonable determination of the facts,’ . . .we proceed to evaluate the petitioner’s claim de novo and may then consider evidence that was properly presented for the first time in federal court.”*

* To note, the Ninth Circuit did order Detrich en banc on October 3 (see my en banc reheard post).  As a result, "The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit."  Technically, I am not citing it to any court of the Ninth Circuit, so it's okay.  Also the en banc order did not say that the panel decision was vacated, so it's technically still on the books.  At the same time, the dissent in Detrich did take issue with the majority considering new evidence under 2254(d)(2).  So, I guess the en banc in Dietrich could end up vitiating this part of the decision. 

And here’s the clever part.  The Ninth Circuit has also held that one way in which a state court’s factual finding can be unreasonable is where the state court’s factual finding process was deficient.  More specifically, the Ninth Circuit has “held that the state court’s failure to hold an evidentiary hearing may render its fact-finding process unreasonable under § 2254(d)(2).”*

*That’s a quote from a recent decision in Hibbler v. Benedetti.  I will say nothing more about that decision as [D/D] my new office represents petitioner in that case.

Actually, this reasoning pre-dates Pinholster.  Chief Judge Kozinski created it in a case called Taylor v. Maddox.  It’s a must-read.  In Taylor, CJK outlines the different ways in which a state court’s factual findings can be unreasonable.  He describes this as an “intrinsic” analysis, as opposed to an “extrinsic” analysis.  An “intrinsic” analysis is one that solely looks at the state court record.  An “extrinsic” one is one that considers evidence outside of the state court record.  Follow me so far? 

The importance of this distinction has to do with the two different subsections in 2254 that address the level of deference to be given to state court factual findings: 2254(d)(2) and 2254(e)(1).  2254(d)(2) talks about factual findings that are unreasonable.  2254(e)(1) grants state court fact findings a presumption of correctness that may only be overcome by clear and convincing evidence.  The Supreme Court has yet to address the interplay of these two subsections.  They granted cert. on it a couple of years ago in Wood v. Allen, but did not end up addressing it in the opinion.  

In the meantime, there is CJK's analysis in Taylor.  He did his logical best to reconcile two provisions that are very difficult to reconcile.  He basically said that a court should first engage in an intrinsic analysis under 2254(d)(2).  If the factual finding survives the intrinsic analysis, then it gets cloaked (CJK used "dressed") with the presumption of correctness under 2254(e)(1).  A petitioner can uncloak (or, I guess, undress) those findings with extrinsic evidence, i.e. new evidence outside the state court record.

I love the logic of it.  But I am worried that the “extrinsic” aspect of 2254(e)(1) is inconsistent with the holding of Pinholster.  If there is nothing unreasonable about what the state court did under 2254(d), I am not sure if a federal court will be allowed to consider any evidence outside the state court record in its eventual analysis under 2254(d)(1). Taylor's analysis currently does allow that. 

Or maybe I should be viewing it in the reverse.  If CJK was correct in his reading of the statute and this is the only way to reconcile these two provisions, then Pinholster’s interpretation of 2254(d)(1) is inconsistent with how the rest of the statute operates.  Is that a way to challenge Pinholster?  It’s a nice dream I guess, but that ship may have already sailed.  At the same time, it's difficult to see how a petitioner can overcome a presumption of correctness without relying on all available evidence, including evidence outside the state court record.  According to CJK in Taylor, that is precisely what the AEDPA allows under 2254(e)(1).

Complicated stuff, made even more complicated by the unfairness of Pinholster.  But at least, for now, the Ninth Circuit does allow for a way around Pinholster when the state court unreasonably denies a request for an evidentiary hearing.

In a later post, I'll discuss another interesting post-Pinholster case that addresses new evidence presented in a federal habeas petition.  That case is called Gonzalez v. Wong.  

Habeas Corpus - Supreme Court Opinion in Cullen

The Supreme Court issued its opinion today in the final outstanding habeas case from this term, Cullen v. Pinholster.

In an opinion by Thomas, the Court, unsurprisingly, reversed a habeas grant from the Ninth Circuit. And it's a terrible opinion for habeas petitioners.

The lineup of judges is kind of a mess though.  After looking through the individual decisions, seven judges agree with Thomas on the main procedural question of the factual scope of a federal court's inquiry on a habeas claim under 2254(d).  Thomas's opinion restricts it just to the facts that were available to the state court at the time of the state court decision.  Although I am not sure about this, the decision also seems to take some steps in explaining the difference between 2254(d) and 2254(e), which both concern state court factual findings.

Sotomayor dissented from that part of the opinion.  But no one technically joined her.  Kagan and Ginsburg joined her dissent, but only on the question of whether habeas should have been granted.  They joined Thomas on the procedural question.

Except there's Alito.  He wrote a concurring opinion in which he agreed with Sotomayor's dissent on the procedural question.  But his opinion is a concurring opinion.  I don't really understand why her opinion is a complete dissent and his is a concurring opinion when he disagreed with the majority.  It may be because he does not believe the Court should have even addressed the issue.  But I am not sure.

Breyer issued a concurring opinion, but joined the majority on the procedural question.  He simply wanted to clarify when 2254(e) has relevance in a habeas case.  I think.

It's confusing.

But that doesn't change the fact that it's bad all the way around for petitioners.  When I get a chance to take a closer look, I'll give further thoughts.

Habeas Corpus - Habeas GVR

Supreme Court issued a bunch of opinions yesterday, but none of the pending habeas cases were decided.

Nevertheless, there was some habeas action.

The Court issued a GVR in a capital habeas case entitled, Jefferson v. Upton.  I believe that makes five (or is it four?) GVR's this term in habeas cases.  I wonder if that's a record? 

In this case, the Court granted, vacated and remanded a denial of habeas because the circuit court improperly presumed that the state court's factual findings were correct without first analyzing whether the statutory exceptions to the "presumption of correction" applied to petitioner's case.

As can seen from the decision, it's kind of an odd bird.  The petition was filed before the AEDPA.  That means it was filed before April 1996 -- over 14 years ago.  Goes without saying (but I''l say it anyways).  That is a long time for a habeas petition to have been pending.

More important, it also means that its impact is pretty much zero since the pre-AEDPA habeas rules apply to the case.

But as an historical document, it's interesting.  It discusses the standard for when federal courts need to presume that state court's factual findings are presumed correct.  The standards back then were, obviously, more liberal for petitioner.  The statute provided that state court factual findings were presumed correct unless one of eight statutory exceptions have been established.  So if petitioner could show that one of the exceptions applied, then federal courts reviewed the factual record de novo.  The exceptions were not easy to establish, so it wasn't the greatest thing for petitioners.  But it's definitely better than the current presumption of correction standard which essentially reduces the exception down to one.

In the Court's view, the circuit court "did not properly consider the legal status of the state court's factual findings."  It pointed out that the circuit court did not consider seven of the statutory exceptions. So the Court remanded the case to the circuit court for that court to look at the other exceptions.

But it wouldn't be a GVR without a typically nasty, but of course, clever Scalia dissent (joined by Thomas).  According to Scalia, there were numerous problems with the majority's analysis: the ground on which the Court vacates the decision was never raised below and the Court mischaracterized and misquoted the circuit court's opinion.  Reading through his dissent, I have to say that he does make it sound as if this issue wasn't raised in the petition.

That's just his problems with the merits.  He, of course, had problems with the use of the GVR here.  And, as he did in the last GVR, he creates a clever new category for this particular GVR.  This one is the "Summary Remand to Ponder a Point Raised Neither Here nor Below (SRPPRNHB)."

I have to say that Scalia's anger over the expanding use of the GVR is pretty entertaining. 

Habeas Corpus - Oh Boy

As I mentioned below, I got a lot of catching up to do on Supreme Court action this week.  The snow day today is coming in handy.

On Monday, the Supreme Court, once again, issued a per curiam opinion in a habeas case solely based on the cert. petition without any briefing or oral argument.  I believe that is the fourth one this term.  This practice seems to be increasing.  I wonder if this is a good or bad thing.  I'll have to think about that.

The decision this week was entitled, Thaler v. Haynes, and is available here.  It's an interesting little "clearly established law" decision.  The lower court concluded that Batson and its progeny had established the rule that, after a Batson challenge, a judge cannot uphold a peremptory challenge based on a demeanor-type reason where the judge did not personally observe the juror's demeanor.* 

*A demeanor-type reason is where the prosecutor will say something like, "I didn't like the juror's body language" or "the juror refused to make eye-contact with me" or "the juror seemed to sympathize with the defense as she nodded in agreement with everything that defense counsel said."  I see these all the time.

Reyling upon Musladin (and everybody around here knows how much I LOVE Musladin - that's sarcasm), the Supreme Court concluded that there is no clearly established rule that a judge has to personally observe the juror's demeanor in order to uphold a challenge on such a ground.

As much as I hate the misuse of Musladin, it's a little hard to argue with the application here.  The Court makes clear that neither Batson nor any of its progeny establish that rule.  Further, I don't even think one could argue that it would be an unreasonable application of Batson for a judge to uphold a demeanor-type reason where the judge did not personally observe the demeanor.  All that Batson requires is for a factual record to be made.  

In the end, the Court remands the case to the Circuit Court for that court to "consider whether the Texas Court of Criminal Appeals’ determination may be overcome under the federal habeas statute’s standard for reviewing a state court’s resolution of questions of fact."

Oh boy.  There's that state factual-finding standard again. 

And it begs the question, which of the two standards?  Is it 2254(e) since the Court used the term "overcome"?  Or is it the 2254(d) standard since that really is the main "standard of review" contained in the statute?

Oh boy.  Here we go again.

And since it's a snow day, I am inspired to include this video of my favorite "Oh Boy" of all time:

Habeas Corpus - Factual Findings in Summary Order

Interesting summary order today from Second Circuit.  The decision focuses on the standard for reviewing state court factual findings.  That's a timely issue; I have discussed that stuff around here recently.

Goldberg v. Tracy, 08-1683-pr, Feb. 17, 2010, available here

• Affirming Denial of Habeas
• Panel: Katzmann, Lynch, Stanceau, Ct. of Int'l Trade
• Issues: IAC and IAAC

The question here was whether counsel was ineffective for failing to inform petitioner about a plea deal.  The focus of the claim is on two factual findings made by the state court: (1) whether counsel advised petitioner of the plea; and (2) whether petitioner would have accepted the plea had he known about it.

Unlike the two most recent published opinions that completely mashed up the two standards, the court here separates them out.  That's a little clearer.  But the court is still applying both standards to every case without any explanation as to whether that's appropriate. That makes it very confusing.

And that shows up in the analysis.  Here is what the court says:

Although the reasonableness of the state court finding that Goldberg was informed of and advised on the second plea offer is perhaps open to question, we need not determine whether Goldberg has overcome the statutory presumption that the state court’s factual determination was correct on this issue. 

So what does petitioner need to show?  That the finding is unreasonable?  Or that the statutory presumption needs to be overcome?  I guess the Second Circuit means to equate unreasonableness with the presumption of correctness that can only be overcome through clear and convincing evidence.  It's an awkward equation.  The standards are not asking the same thing.  Nevertheless, that's what other circuits have explicitly done.  I am assuming that the Second Circuit intends to do that here.  But we shouldn't have to guess that.  I think the Second Circuit needs to clear all of this up because this is just confusing.

The court then drops unreasonableness altogether as to the other factual finding.  It states:

Even if we assume that Goldberg’s attorney did not communicate the plea offer, and therefore the first Strickland prong is met, Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003), we find that Goldberg has failed to demonstrate by clear and convincing evidence that there existed, under the circumstances, a reasonable probability that he would have accepted the offer had it in fact been made.

So the court only looks at the presumption of correctness, the more exacting standard.  Well, let's say that petitioner can't overcome that standard, but can show that the finding was unreasonable based on the state court record?  In other circuits that would be enough. 

The Second Circuit needs to have a more in depth discussion about how these two standards interact with each other. 

As it stands, it's a bit confusing.

Habeas Corpus - Disappearing 2254(d)(2)

Been a slow week around here.  Supreme Court is on break until February 19.  Not much habeas action in the Second Circuit lately.

So, I thought I'd go back to the recent decision in Wood v. Allen (discussed here).  In short:  Supreme Court evaded the question of how to reconcile the two provisions in 2254 that concern federal habeas review of state court factual findings.

After looking through my previous posts on the case, I realized that I never discussed the state of the law in the Second Circuit.  So I looked it up, and boy was I surprised what I found.  It's a bit wacky.

Once again, a quick review of the two provisions:  2254(d)(2) asks whether the state court's factual finding was "unreasonable," while 2254(e)(1) says that state court factual findings are "presumed to be correct" and can only be rebutted with clear and convincing evidence. 

In Wood, the Supreme Court expressed some skepticism as to whether one provision is more deferential than the other.  In my mind (and most habeas petitioners' as well), 2254(e)(1) is more deferential.  It is much more difficult to overcome a presumption of correctness by clear and convincing evidence than to merely show that a state court’s factual finding was unreasonable.  At the very least, it’s definitely true from a psychological perspective.  Having to overcome a presumption of correctness can seem almost insurmountable. 

As the Court noted in a footnote in Wood, there is a split in the Circuits as to how to read these two provisions.  In two of the Circuits (the 3rd and the Ninth), the more deferential standard only applies where the petitioner is seeking to challenge a state factual finding based on evidence outside of the state court record.  If the challenge is based solely on facts developed in the state court, then the "unreasonable" standard applies.  Obviously, this was the reading that petitioner advanced before the Court.

In contrast, in at least three Circuits, the more deferential standard applies to every habeas petition (as noted in footnote 1 of Wood – the Seventh, Eighth and Eleventh).  For example, the Eighth Circuit stated that ”);  (federal habeas relief is available only “if the state court made ‘an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,’ 28 U.S.C. § 2254(d)(2), which requires clear and convincing evidence that the state court's presumptively correct factual finding lacks evidentiary support.”  Trussell v. Bowersox, 447 F.3d 588, 591 (C.A.8 2006).*

*Bowersox is one the best last names I have seen in a long time.

This number also appears to include the Second Circuit.  And this is where things get a little wacky.  The Second Circuit has never specifically addressed the question of how to reconcile these two provisions.  Or, at least, not explicitly.  But the Second Circuit appears to have adopted the “applies to every case” formulation.  In a case from 2008, the Second Circuit stated, “under section 2254(d)(2), a state court’s findings of facts are ‘presumed correct.’  The habeas petitioner bears the burden of ‘rebutting the presumption of correctness by clear and convincing evidence.’” Brown v. Alexander, 543 F.3d 94, 100 (2d Cir. 2008). 

I don’t think this makes a lot of sense.  Do you see what they did here?  It appears that the Second Circuit has written the "unreasonable" standard right out of the statute and has fully incorporated the 2254(e)(1) presumption into the 2254(d)(2) standard.  That’s an absurd reading of the statute.  It's one thing to equate unreasonableness with rebutting with clear and convincing evidence.  But it's another to simply say that 2254(d)(2) actually has the presumption and a petitioner is required to rebut that presumption.  At the very least, this formulation makes life very confusing for petitioners.  And Brown was recently cited for the exact same proposition.  See Richard S. v. Carpinello, 589 F.3d 75, 80-81 (2d Cir. 2009). 

I should note that in a case from 2002 the Second Circuit  did use language that was more akin to the Eighth Circuit's.  In Overton v. Newton, 295 F.3d 270 (2d Cir. 2002), the Second Circuit first quoted the language under 2254(d)(2) as the standard on habeas review.  In the next sentence, it stated, "'A state court determination of a factual issue is, moreover, presumed to be correct, id. § 2254(e)(1), and is unreasonable only where the petitioner meets the burden of 'rebutting the presumption of correctness by clear and convincing evidence.'" Now, that is more logical.  I don't agree with it, but it at least acknowledges that there are actually two separate provisions here.

Despite this formulation in Overton, it now appears that Brown and Carpinello's odd formulation is the current standard in the Second Circuit.  And that's wacky.

So,habeas petitioners in the Second Circuit are now stuck with having to overcome the more deferential standard no matter the situation.  And they are forced to try and decipher the Second Circuit's absurd reading of the statute.  It certainly will be nice for the Supreme Court to settle this issue and alleviate the confusion surrounding how to reconcile these two provisions.

Habeas Corpus - Another Letdown

Going to try and play some catch up over the next couple of days.

First, I wanted to talk about the Supreme Court's opinion this week in Wood v. Allen.

My reaction: What is with the habeas cases this term?  In three of the four habeas cases for which there was full briefing (Beard, McDaniel, Wood), the Supreme Court has done little to nothing to address the question on which cert. was granted.*

* There has been some good stuff in the summary reversals, but I am putting those in a separate category

I guess it's not all the Court's fault.  In both Beard and McDaniel, the petitioner conceded that the lower court was wrong, leaving the Supreme Court with little to decide.

And now comes Wood where the Supreme Court avoids the question on which cert. was granted:  how to reconcile the two separate provisions (2254(d)(2) and 2254(e)(1)) that concern the review of state court factual findings. 

Quick review: 2254(d)(2) asks whether the state court's factual finding was "unreasonable," while 2254(e)(1) says that state court factual findings are "presumed to be correct" and can only be rebutted with clear and convincing evidence.  According to the Court, 2254(e)(1) is "arguably" more deferential.  I think it is clearly more deferential, but that's a post for a different day.

Here's what happened in Wood:  petitioner's allegation was that his counsel failed to pursue mitigating evidence of mental deficiencies.  The factual finding at issue was a little tricky in my mind.  It was a choice between (i) whether counsel made a strategic choice not to present evidence of mental deficiencies, or (ii) whether it was not a strategic choice, but just an omission.  This is separate from the question of whether, if a strategic choice was made, that choice was reasonable.  The question here was whether there was a strategic choice in the first place.  I hope I made that clear.  To be honest, it took me awhile to get this straight.

The district court concluded that it was an omission, not a strategic choice, and the state court's factual finding was unreasonable in light of clear and convincing evidence in the record.  That is basically a mash up of the two provisions.  The Eleventh Circuit reversed and, utilizing a different mashed-up version of the two provisions, concluded that the factual findings should be upheld.

The Supreme Court granted cert. on the question of how to reconcile these two provisions.  But in the opinion, the Court sidestepped the issue.  Writing for the majority, Justice Sotomayor stated that under either provision the state court's factual findings should be upheld as there was sufficient evidence to show that it was a strategic decision.  Justice Stevens (joined by Kennedy) disagreed with that conclusion, saying that this was an omission.

So a loss for the habeas petitioner in the particular battle.  And a no decision on the question presented.  That's a big letdown. Would have been nice to get some resolution on this particular question.

Habeas Corpus - Argument Day: Wood v. Allen

This morning, the Supreme Court will hear argument in the capital habeas case of Wood v. Allen.  I have previously discussed the case here.

The issue in the case is: "how a federal court should review the facts determined in a state criminal proceeding under the Antiterrorism and Effective Death Penalty Act (AEDPA)."

More specifically, the question in the case concerns the interplay between 2254(d)(2) and 2254(e)(1), which have different standards for reviewing state court factual findings.

The Second Circuit has yet to address this issue.  See Green v. Travis, 414 F.3d 288 (2d Cir. 2005) ("This Court has not yet addressed whether a petitioner seeking habeas relief must prevail under both 2254(d)(2) and 2254(e)(1).").  So no matter how the Court decides the issue it will have an impact on the state of the law in the Second Circuit.

For other coverage of Wood v. Allen, see this post at the ACS Blog.