Last Tuesday, the Supreme Court heard argument in Smith v. Spisak, a capital habeas case on the issue of whether a jury must find unanimity on a mitigating factors before deciding whether to impose a death penalty. The transcript of the oral argument is here (courtesy of SCOTUSblog).
Since the core of the case focuses on capital sentencing issues, it won't have much application to habeas petitions in New York. But I have previously noted around here that Musladin (i.e. the diminishing range of what constitutes "clearly established law") may rear its ugly head in this case so it was worthwhile to pay some attention to it.
Over the weekend (and again this morning), I read the transcript of the oral argument. The State of Ohio did make the Musladin argument, but no judge really followed up on it. Instead, a more fundamental issue concerning clearly established law came up. The substantive argument in Spisak relies upon the Supreme Court decision of Mills v. Maryland. Apparently, that case was decided by the Supreme Court after the State Supreme Court decision (and the state court's denial of reargument) and before cert. was denied. At the argument, Judge's Sotomayor, Alito and Scalia questioned both sides as to whether Mills should even be considered clearly established law in the case as it was decided after the state court could act in the case. Essentially, the point, which has its logic, is that how can Mills apply if the state court was never given an opportunity to apply it.
The question caught the State attorney off guard a little, even though it was favorable, since it seems as if it had always been all parties belief that Mills applied to the case. In response, counsel for habeas did make the important point that Teague set the point in time for when Supreme Court cases apply on collateral review, which was when review by the Supreme Court had ended. And Justice O'Connor stated in Williams v. Taylor, the first real significant case interpreting the meaning of the AEDPA, that the meaning of clearly established law will be set using the same rules as those in Teague.
The issue kind of petered out after counsel made this point. But could the Supreme Court be pulling back on the meaning of clearly established law again? Are they going to conclude that clearly established law is the law in place at the final moment that the state court can act in the case, as opposed to the conclusion of review by the Supreme Court?
If I had to guess I'd say no. But it certainly is something that bears watching.
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