Been a slow week around here. Supreme Court is on break until February 19. Not much habeas action in the Second Circuit lately.
So, I thought I'd go back to the recent decision in Wood v. Allen (discussed here). In short: Supreme Court evaded the question of how to reconcile the two provisions in 2254 that concern federal habeas review of state court factual findings.
After looking through my previous posts on the case, I realized that I never discussed the state of the law in the Second Circuit. So I looked it up, and boy was I surprised what I found. It's a bit wacky.
Once again, a quick review of the two provisions: 2254(d)(2) asks whether the state court's factual finding was "unreasonable," while 2254(e)(1) says that state court factual findings are "presumed to be correct" and can only be rebutted with clear and convincing evidence.
In Wood, the Supreme Court expressed some skepticism as to whether one provision is more deferential than the other. In my mind (and most habeas petitioners' as well), 2254(e)(1) is more deferential. It is much more difficult to overcome a presumption of correctness by clear and convincing evidence than to merely show that a state court’s factual finding was unreasonable. At the very least, it’s definitely true from a psychological perspective. Having to overcome a presumption of correctness can seem almost insurmountable.
As the Court noted in a footnote in Wood, there is a split in the Circuits as to how to read these two provisions. In two of the Circuits (the 3rd and the Ninth), the more deferential standard only applies where the petitioner is seeking to challenge a state factual finding based on evidence outside of the state court record. If the challenge is based solely on facts developed in the state court, then the "unreasonable" standard applies. Obviously, this was the reading that petitioner advanced before the Court.
In contrast, in at least three Circuits, the more deferential standard applies to every habeas petition (as noted in footnote 1 of Wood – the Seventh, Eighth and Eleventh). For example, the Eighth Circuit stated that ”); (federal habeas relief is available only “if the state court made ‘an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,’ 28 U.S.C. § 2254(d)(2), which requires clear and convincing evidence that the state court's presumptively correct factual finding lacks evidentiary support.” Trussell v. Bowersox, 447 F.3d 588, 591 (C.A.8 2006).*
*Bowersox is one the best last names I have seen in a long time.
This number also appears to include the Second Circuit. And this is where things get a little wacky. The Second Circuit has never specifically addressed the question of how to reconcile these two provisions. Or, at least, not explicitly. But the Second Circuit appears to have adopted the “applies to every case” formulation. In a case from 2008, the Second Circuit stated, “under section 2254(d)(2), a state court’s findings of facts are ‘presumed correct.’ The habeas petitioner bears the burden of ‘rebutting the presumption of correctness by clear and convincing evidence.’” Brown v. Alexander, 543 F.3d 94, 100 (2d Cir. 2008).
I don’t think this makes a lot of sense. Do you see what they did here? It appears that the Second Circuit has written the "unreasonable" standard right out of the statute and has fully incorporated the 2254(e)(1) presumption into the 2254(d)(2) standard. That’s an absurd reading of the statute. It's one thing to equate unreasonableness with rebutting with clear and convincing evidence. But it's another to simply say that 2254(d)(2) actually has the presumption and a petitioner is required to rebut that presumption. At the very least, this formulation makes life very confusing for petitioners. And Brown was recently cited for the exact same proposition. See Richard S. v. Carpinello, 589 F.3d 75, 80-81 (2d Cir. 2009).
I should note that in a case from 2002 the Second Circuit did use language that was more akin to the Eighth Circuit's. In Overton v. Newton, 295 F.3d 270 (2d Cir. 2002), the Second Circuit first quoted the language under 2254(d)(2) as the standard on habeas review. In the next sentence, it stated, "'A state court determination of a factual issue is, moreover, presumed to be correct, id. § 2254(e)(1), and is unreasonable only where the petitioner meets the burden of 'rebutting the presumption of correctness by clear and convincing evidence.'" Now, that is more logical. I don't agree with it, but it at least acknowledges that there are actually two separate provisions here.
Despite this formulation in Overton, it now appears that Brown and Carpinello's odd formulation is the current standard in the Second Circuit. And that's wacky.
So,habeas petitioners in the Second Circuit are now stuck with having to overcome the more deferential standard no matter the situation. And they are forced to try and decipher the Second Circuit's absurd reading of the statute. It certainly will be nice for the Supreme Court to settle this issue and alleviate the confusion surrounding how to reconcile these two provisions.
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