Habeas Corpus Blog

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.

Habeas Corpus - Wood v. Allen

The capital habeas case of Wood v. Allen will be argued next Wednesday, Nov. 4, before the Supreme Court.

SCOTUSblog has its preview up today.

According to the preview, the issue is "how a federal court should review the facts determined in a state criminal proceeding under the Antiterrorism and Effective Death Penalty Act (AEDPA)."

To cut to the chase, the AEDPA has two different subsections that discuss the level of deference that should be given to state court factual findings: 2254(d)(2) and 2254(e)(1).  Here is how the preview describes it:

Section 2254 contains two subsections that relate to state court factual findings:  subsection (d)(2), which precludes relief unless the state court proceeding “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”; and subsection (e)(1), which creates a presumption that “a determination of a factual issue made by a state court” is correct unless rebutted by clear and convincing evidence.

The question is which section applies when.  Both sides acknowledge a split between the circuits on when to apply the two.  Some say that both apply to every petition; others hold that "subsection (d)(2)’s 'reasonableness determination' applies to challenges . . . based solely on evidence within the state record, while the 'clear and convincing evidence' standard applies when a challenge relies on extrinsic evidence."

It is not clear whether the Supreme Court will answer that question here as petitioner has argued that, even if the state court's factual findings are accepted, it was still an unreasonable application of clearly established law.  It wasn't the issue on which cert. was granted, but I guess it could go that way.

At bottom, it does appear to be a case that is worth watching for New York habeas petitioners.