Although I refrained from making any puns using the word "wood" when talking about this case, I just noticed that the petitioner's full name in this case is "Holly Wood." I just don't think I can top that.
Just read the transcript of the argument. It's a little disappointing. And a bit confusing. Just as we saw in Beard, the question on which cert. was granted didn't play a huge role in petitioner's argument. In fact, it does not first come up until 15 pages into petitioner's argument when Kennedy specifically began asking counsel about the difference between "clearly erroneous" and "unreasonable determination." Kennedy does not believe that there is much of a difference. Found that interesting.
But also just as in Beard, petitioner attempts to avoid the cert. questions because petitioner's argument on other questions are stronger. Petitioner argues, and some judges seem sympathetic to the argument, that counsel may have been ineffective when the regular old 2254(d)(1) standard is applied to the state court's legal conclusion.
And that's where it gets confusing. There was much debate about what exactly were the factual findings at issue. Overall, the question is whether or not an investigation was adequate and whether a reasonable strategic decision was made. Certainly, the actions as to what a lawyer takes are factual findings: he investigated this or that and then chose such and such strategy. But the conclusion as to whether those actions are adequate and whether the strategic decisions were reasonable seem like application of legal principles to facts. But there were suggestions at the argument that these conclusions were being considered factual findings.
And it's not until Stevens asks at the end of petitioner's argument what the factual findings are that petitioner's position becomes clear:
that they did an investigation, is what the Eleventh Circuit ruled. The State in this Court on the merits brief changed its position and no longer argues that they did an investigation, but they now say: We made a decision because Kirkland report was a red light, we made a decision not to go forward. That is also unreasonable.
Stevens also asked whether the prejudice finding was a factual finding. Petitioner said that it was, but didn't elaborate. Now, that does not sound like a factual finding to me. That sounds like an application of law to fact.
As for the interaction between the two provisions, 2254(d)(2) and (e)(1), some of the debate centered around a possible formulation that Chief Judge Kozinski of the 9th Circuit formulated -- (d)(2) applies to intrinsic facts (meaning those present in the state record) and (e)(1) applies to extrinsic facts (those found outside of the state record). In the end, the Court did not seem too excited about that idea.
Overall, the Judges did seem perplexed at how to reconcile the two. Breyer could not even think of a situation where the analysis would even get to (e)(1) since he believed that (d)(2) is a threshold inquiry, making (e)(1) extraneous.
Judge Alito then posed a way: looking at (e)(1) first and then looking at (d)(2) to see whether it was an unreasonable application of the facts. But just when that seemed to get some approval, Breyer expressed concern about that formulation.
It all just felt like it was an attempt to fit a rug into a room in which it doesn't fit -- pull on one corner, the other corner comes up.*
I will be very curious to see how the Court resolves this case.
*I was searching for the precise way of saying this expression, but couldn't really find it. But on the positive side, it led me to the transcript of my favorite documentary of all time. It was an episode of NOVA entitled "The Proof" about Professor Andrew Wiles's struggle to solve Fermat's Last Theorem. It's a truly remarkable story. And the book, Fermat's Enigma: The Epic Quest to Solve the World's Greatest Mathematical Problem by Simon Singh, is even better.
UPDATE: For a similar analysis of the argument, check out the article in the New York Times from last Thursday about the case. The discussion about Wood appears in the second half of the article
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