Habeas Corpus - A Harsh Decision

Today, the Second Circuit issued a published opinion in Dunlap v. Burge in which the court affirmed the denial of a habeas petition. 

The opinion was written by Judge Timothy C. Stanceu of the United States Court of International Trade, sitting by designation.  Judges Sack and Parker joined the opinion.  You can get the decision here.

It's a somewhat harsh decision -- on both the petitioner and the district court.  The district court found a violation, but that it was harmless.  The Second Circuit rejects the district court's analysis and finds that the state court did not unreasonably apply the law.  The Second Circuit specifically criticizes the district court's analysis of the claim for failing to apply the AEDPA requirements.

Here's a quick recap of the details: the police showed robbery victims two photo arrays and petitioner was the only person to appear in both arrays, except each array had a different photo of petitioner and his photo was in different positions in the array.  The victims identified petitioner after the second array.  The state courts rejected petitioner's arguments that these procedures were unduly suggestive.

In contrast, the district court concluded that the identification procedures were unduly suggestive and that there was no independent basis for the identifications.  Despite the constitutional violation, the district court denied relief because the errors were harmless.

The Second Circuit affirmed the denial of habeas relief, but held that relief was not warranted under the 2254(d) standard of review.  The court stated that the state court's decision was neither contrary to, nor an unreasonable application of, the clearly established law set forth in Simmons v. United States, 390 U.S. 377 (1968), which concerned the suggestiveness of successive photo arrays.  The court described the Simmons rule as a general rule, giving the state court's a lot of flexibility in how to apply it.  It stated:

As the Supreme Court stated in Yarborough [v. Alvarado 541 U.S. 652 (2004)], “evaluating whether a rule application was unreasonable requires considering the rule’s specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” Yarborough, 541 U.S. at 664. In Simmons, the Supreme Court spoke in general terms in holding that suppression of in-court identification testimony will not result unless, based on the totality of the circumstances, the pre-trial photographic identification presents a very substantial likelihood of irreparable misidentification. Simmons, 390 U.S. at 384. This rule affords significant discretion to the state court.

After concluding that the state court did not unreasonably apply this rule, the court criticized the district court's analysis, which was simply an independent evaluation of whether there had been a constitutional violation:  

Instead, the district court undertook its own analysis of whether the identification procedures were impermissibly suggestive, applying New York state law and the precedent of this Court. See Dunlap v. Burge, No. 05 Civ. 7054, slip op. at 9-12. Doing so did not comport with the procedure Congress established in AEDPA, as construed by the Supreme Court.

So, a somewhat harsh decision here.  Harsh on the petitioner since not only does he lose, but the Second Circuit also takes away the satisfaction that a federal judge had declared that his rights had been violated. 

And, obviously, the decision is harsh on the district court, which gets told that it screwed up the analysis here.

My problem with the decision is that I just don't think its as simple as how the Second Circuit describes it here.  There really is nothing wrong with a district judge undertaking its "own analysis" of a claim in the first instance to determine whether there is a constitutional violation.  In fact, it happens in every single case when habeas is denied.  Federal judges do an independent analysis of the claim and find that there was no violation.  At that point, the court does not even need to ask whether it was unreasonable or even contrary to federal law.  If there is no violation, there obviously is no habeas relief.

The problem here is that the district court stopped after the independent analysis.  After concluding that there was a constitutional violation, it did not go on to ask whether the state court was not only incorrect, but unreasonably incorrect.  In other words, the question under the AEDPA is not simply whether there is a violation, but whether the state courts decision unreasonably got it wrong.  In my mind, it's hard to determine whether there has been an unreasonable application of law if you first don't determine, at a basic level, whether there has even been a violation.

But, in its opinion today, the Second Circuit doesn't quite do it that way.  It simply looks at the state court's reasons and says that they are not unreasonable.  I think that oversimplifies it a bit.  It's almost as if the court is saying that so long as the state court's reasons are reasonable on their face then there is no unreasonable application.  That's probably true in most cases, but I don't think that's necessarily true in all cases.  Facially reasonable reasons can easily become unreasonable reasons when scrutinized more closely or when they are considered in the context of the particular case.  The court does not do either of those things here.  I think that really should have been a part of the analysis.

[By the way, in the last paragraph, I used a derivation of the word "reason" nine times.  Seemed like a lot as I was writing it]

For example, the state court said that the successive photo arrays were no big deal since, even though petitioner was the only person in both arrays, he was in a different position in each array.  On its face, that certainly is a reason.  But, come on, does that really make a difference?  The same person is the same person, regardless of whether that person is in position 1 or position 3.  Any sentient human being will figure it out.  The state court also said that it was two different pictures of petitioner in the two arrays.  But in the context of the case, petitioner could have looked exactly the same in the two photos.  So a reasonable reason on its surface, but potentially unreasonable in the context of the case. 

Of course, there are many other ways that a reason that seems reasonable on its face can turn out to be unreasonable.  I still think that federal courts need to scrutinize the reasons put forth by the state courts to determine whether those reasons are reasonable.  I mean, the AEDPA is emasculating, but it's not THAT emasculating?  Is it?

In any event, I think that's done in most cases.  I think the point of this opinion was to emphasize to the district courts that they need to apply the standard of review, even if they believe that the state court got it wrong.

Comments

[Sally Wasserman]

I agree, but then again, it was my case on appeal. This case seems to be part of a disheartening (and unconstitutional) trend. The trend- to impose AEDPA in a manner that acts as a rubber-stamp of state court decisions- is most apparent in the Court's recent Brisco v. Ercole decision (another one of mine) and quite troubling. Thank you for the fine digest. I am, of course, seeking cert on behalf of Mr. Dunlap.