Habeas Corpus - A Troubling Trend

I wanted to follow-up on the Second Circuit's summary order in Bonner v. Ercole from last week (original post here).

The decision represents a really troubling direction in how the standard of review is applied.  I will warn you that this will be a pretty abstract discussion about how different sections of the standard of review run against one another, but it has real world consequences in habeasland, so it needs to be put out there. 

The Supreme Court's decision in Carey v. Musladin, 549 US 70 (2006), started a tug of war between the “clearly established law” and “unreasonable application” part of the standard of review (see FAQ 3).  What Musladin did was greatly restrict the meaning of clearly established law, which has greatly expanded its use in denying habeas.  Courts have interpreted Musladin broadly.  Some of these courts have concluded that, in many situations, a habeas court is no longer allowed to ask whether a state court unreasonably applied a broad legal principle to a new set of facts.  If the Supreme Court has not addressed that specific application of the broad principle, then the law cannot be considered clearly established.

As Justice Souter stated in his concurring opinion in Musladin, there is a murky area between clearly established law and an unreasonable application of that law.  But that murky area is beginning to become more "clearly established" (sorry for the pun).  Musladin has been cited 950 times since it was decided less than 3 years ago, and, according to WL, nearly every time it was followed approvingly.  As such, it certainly appears that the expansion (or restriction, it's basically both) of the clearly established law portion of the statute is swallowing up the unreasonable application portion of the statute.

But here's the real problem.  This broad application of Musladin has nearly equated clearly established law with the “contrary to” standard, essentially writing the unreasonable application part out of the statute.

Bonner is an excellent example of this.  Below the fold, I'll explain how Bonner represents a troubling trend in habeas law.  Fortunately, it is just a summary order . . .

Let’s start with some basics.  The standard of review states:

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- resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”

The Supreme Court has stated several times that clearly established federal law in § 2254(d)(1) “refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision.”  This also does include generalized standards, such as the standard for ineffective assistance of counsel.

A state court’s decision is an “unreasonable application of” federal law “if the state court identifies the correct governing legal principle from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.”  Williams v. Taylor, 529 U.S. 362, 407 (2000).  The Supreme Court left open the question as to whether “a state-court decision also involves an unreasonable application of this Court’s precedent if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.”  Id.

A state court’s decision is “contrary to . . . clearly established Federal law as determined by the Supreme Court” when “the state court applies a rule different from the governing law set forth in the [Supreme Court’s] cases, or if it decides a case differently than [the High Court] had done on a set of materially indistinguishable facts.”  Bell v. Cone, 535 U.S. 685, 694 (2002)

Now comes along Musladin.  In that case, at the trial, spectators in the crowd wore pins that had a picture of the victim on them.  Two cases from the Supreme Court had recognized that “certain courtroom practices are so inherently prejudicial that they deprive the defendant of a fair trial.”  Under this concept, the California state courts found that the pins did not deprive appellant of a fair trial.

In federal court, the Ninth Circuit granted relief.  It found that these two cases clearly established a federal rule.  The Ninth Circuit then cited its own precedent in support of its conclusion that these cases clearly established a test of inherent prejudice for spectator conduct.

The Supreme Court vacated that decision.  It concluded that its prior precedents did not clearly establish rule as to spectator conduct.  It stated that its prior cases dealt with government sponsored conduct, not conduct initiated by spectators.  This was in open question in that Court.  It had never addressed that situation, and it had never applied its prior precedent to that type of situation.  The Court showed that, when faced with spectator conduct, not all of the lower courts had even used the broad principle mentioned above.

The Court decided:

    Given the lack of holdings from this Court regarding the potentially prejudicial effect of spectators' courtroom conduct of the kind involved here, it cannot be said that the state court “unreasonabl[y] appli[ed] clearly established Federal law.” § 2254(d)(1). No holding of this Court required the California Court of Appeal to apply the test of Williams and Flynn to the spectators' conduct here. Therefore, the state court's decision was not contrary to or an unreasonable application of clearly established federal law.

Musladin, 549 US at 77.

The decision clearly has altered habeas law in a truly meaningful way.  As mentioned before, it greatly restricts the meaning of what constitutes clearly established law.  It strongly suggests that, if the Supreme Court has left a constitutional question open, then the law cannot be clearly established.  It is also important to note that the Court indirectly smacked down the Ninth Circuit for relying upon its own precedent in determining what clearly established law meant. 

And the Second Circuit has read Musladin very broadly just in this way.  They have interpreted it to mean that a circuit court cannot even look to its own precedent to interpret and flesh out Supreme Court decisions.  See Rodriguez v. Miller, 537 F.3d 102 (2d Cir. 2008).

The best way to see the impact of Musladin is to look at the summary order in Bonner v. Ercole.

I am not sure how the petitioner in this case did not get relief in state court since the law on this is pretty well-settled in the state courts, but the issue was whether his plea was voluntary since he was not advised of post-release supervision.

The district court granted habeas relief on this ground.  In my mind, it cited the relevant constitutional principle: in order for a plea to voluntary, a defendant must be advised of all of the direct consequences of the guilty plea.  This was clearly established in Brady v. United States way back in the 60's.  The district court noted that the Supreme Court has not defined what a direct consequence is.  So the court relied upon the Second Circuit’s interpretation of what constitutes a direct consequence. 

Under these principles, the court concluded that the state court unreasonably applied these clearly established constitutional norms.

Right away, we can see a problem.  As the court acknowledged, the Supreme Court has never defined the meaning of direct consequences.  After Musladin, we can’t go looking to the Second Circuit for guidance on that.  Need to go straight to the Supreme Court.  Not sure if that problem would have been entirely fatal here, but it does show one impact of Musladin.

Nevertheless, the Second Circuit vacated the grant under Musladin in a different way.  Citing Musladin, the court stated:

    Because the Supreme Court has not considered the issue of whether a trial court's failure to inform a defendant of a mandatory term of supervised release makes the subsequent plea involuntary-and, indeed, has expressly reserved the very similar question of whether a trial court must inform a defendant of a mandatory parole requirement, -we conclude that the state court has not “unreasonably applied clearly established Federal law.”

I find this to be a really troubling decision. 

Certainly, the Supreme Court specifically left this question open, but it really was a small, small question as to whether a settled constitutional principle applies to a certain set of facts.  This was not the expansion of a constitutional principle to a new context or a new setting, like the situation in Musladin.  The situation here in Bonner is really just whether the facts here state a violation under a governing constitutional principle. 

What would have happened here had the Supreme Court not specifically left the question open?  There simply is no doubt that the lower court identified the correct legal principle.  It simply would have come down to whether the state court unreasonably applied that principle.  Is it only because the Supreme Court stated (in dicta, mind you) that it was not deciding a certain question that this habeas petitioner loses?

And even more troubling, the Second Circuit's reasoning basically read unreasonable application out of the statute.  Under their reasoning, the only way that petitioner could have won here was if the Supreme Court had specifically decided that a mandatory parole term was a direct consequence.  But that is a "contrary to" question.  Go back and look at what contrary to means: 

A state court’s decision is “contrary to . . . clearly established Federal law as determined by the Supreme Court” when “the state court applies a rule different from the governing law set forth in the [Supreme Court’s] cases, or if it decides a case differently than [the High Court] had done on a set of materially indistinguishable facts.”

By expanding the meaning of clearly established law to a specific set of facts in Bonner, the Second Circuit has equated it with contrary to. 

In my mind, this situation is exactly where we should be asking whether there was an unreasonable application.  The governing law is clear - Bonner.  The question is whether the facts here violated that law.

So it is easy to see here how the expansion of what it takes to establish clearly established law now swallows up the unreasonable application part of the statute.  The wider clearly established law gets, the smaller it is for a broader constitutional provision to be applied to a set of facts.  Similarly, the greater the clearly established law gets, the more it begins to resemble the contrary to clause. 

It’s a troubling trend.