The other summary order from today was in Martinez v. Kirkpatrick, 11-2019-pr.
This actually was a habeas win! Rare these day. And in a summary order. I can kind of see why, though. The decision kind of ends up being in the form of an interim order. It also kind of sidesteps a big hurdle. So when that is done in a summary order it means that it did not actually happen, like the sound of a tree falling in the woods in habeasland. Or something like that.
Petitioner argued that his right to counsel was violated since counsel had labored under a per se conflict of interest. Counsel had used methamphetamine during petitioner's trial and, at the time, was being investigated and later prosecuted by the same DA's office for his use of the drug. In the alternative, petitioner asked for an evidentiary hearing to determine whether there was an actual or a potential conflict of interest. The state court had mistakenly rejected the argument on a procedural ground so there was no factual record of the conflict.*
*The state court had concluded in a 440 proceeding that the conflict of interest claim had to be rejected because it had been raised and rejected previously. But that was not true.
The Second Circuit rejected the per se conflict claim, but granted the request for a remand to hold an evidentiary hearing.
That's a little problematic. Pinholster prevents such an evidentiary hearing. The Second Circuit does not mention Pinholster at all. Rather, it says that the hearing is necessary because no factual record was created in state court.
But as I have said before that's just a part of the unworkable unfairness of Pinholster. The state court's decision not to hold a hearing has preclusive effect. The factual record is the one that was before the state court, even though further factual investigation was necessary. That's the ridiculous conclusion of Pinholster. This claim also clearly does not meet the ridiculously high (and impractical) standard of the habeas statute for an evidentiary hearing. So the Second Circuit was not authorized to grant one. But summary orders don't count, so it doesn't really matter.
Silver lining: maybe the Second Circuit is saying that Pinholster only applies when the state court rejects a claim on the merits. But if the state court mistakenly rejects a claim on a procedural ground leaving no factual record, then an evidentiary hearing can be held. Not sure that squares with Pinholster, but maybe this is one out from that unfairness.
You know what, strike all of what I said before. I was mostly wrong and the Second Circuit was mostly right. I was wrong because Pinholster only applies when there has been an adjudication on the merits. That's really the holding: in order to assess the 2254(d) standard of review, the federal courts are confined to the state court record. My big bad there.
And the Second Circuit appears to be mostly right. But maybe not. I guess the question is, when the state court does not adjudicate a constitional claim on the merits, does the 2254 standard for an evidentiary hearing apply? If it does, then no hearing is authorized here. If it does not, then a hearing would be okay. I am not sure how open or closed this question is. There's Schriro v. Landrigan, which predates Pinholster. So, to the extent that it survives Pinholster (and I am not sure that it did), that decision would not stand in the way of the hearing. But it doesn't specifically authorize it either.
But I think the Second Circuit is probably right. It does not seem fair to preclude an evidentiary hearing here where the state court erroneously rejected the claim on a procedural ground. Of course, that is no more unfair than a state court refusing to hold a hearing and denying a claim on the merits when a factual hearing was necessary to fairly adjudicate the claim. But maybe when the state court erroneously refuses to even get to the merits, there is some room for a federal court to review the constitional claim based on facts developed in an evidentiary hearing in federal court. The federal court won't be restricted under the standard of review. The review will be de novo. So I guess it does make logical sense.