Habeas Corpus - Summary Order

From yesterday:

Edwards v. Superintendent, 08-4107-pr, January 26, 2010, Feinberg, Katzmann, Ellis, DJ, order here

• Affirming Denial of Habeas
• Issues: (1) Whether the New York good time allowance scheme creates a sufficient liberty interest to invoke the protection of the Due Process Clause of the Fourteenth Amendment; (2) Whether the requirement that petitioner participate in the sex offender counseling program in order to receive good time credits violated his Fifth Amendment right not to incriminate oneself under clearly established Federal law as determined by the Supreme Court.

NOTES: Case was argued back on January 5 (see this Second Circuit preview).

More interesting than most summary orders.  First issue is pretty straight forward. 

But the second issue is pretty interesting.  It was rejected under a Musladin type analysis (i.e. shrinking definition of what constitues clearly established law, etc.  -- I will put together a page on this one at some point so that I can just start linking to that as a short cut).  The relevant Supreme Court case for the Fifth Amendment claim is McKune v. Like, 536 U.S. 24 (2002).  In that case, the petitioners were sexual offenders who were required to admit responsibility for their crime of conviction or else lose certain privileges.  Second Circuit noted that, while five Justices in McKune concluded that there was no Fifth Amendment violation, there was no majority opinion setting forth the appropriate analysis or rule.  The plurality concluded that a case called Sandin applied, while a concurring judge believed that it didn't, but that the claim still failed.

Second Circuit concluded that the law was not clearly established.  At most, McKune means that there is no Fifth Amendment violation when prisoners faced less restrictive sanctions than Edwards as a consequence of refusing to participate in sex offender counseling.  While there was good language for Edwards in the plurality opinion, it was not the holding of the Court.  Thus, the state court's determination was not "contrary to clearly established Federal law as determined by the Supreme Court."

I won't voice too much of an opinion on the analysis since I fear that I would say, upon close inspection, that the Second Circuit's analysis is probably correct.  However, I will note that in its concluding sentence, the Second Circuit only looked to whether the state court decision was "contrary to clearly established law."  Whatever happened to an "unreasonable application of"?  Isn't that the real question here?