There was one other big development in habeasland this week.
On Monday, the Supreme Court granted cert. in a habeas corpus that I believe could have a big impact on habeas petitioners here in New York.
The name of the case is Harrington v. Richter. The Ninth Circuit had granted the petition on ineffective assistance of counsel grounds. The issue on which Respondent sought cert. in the Supreme Court is, quite honestly, a mess. See if you can figure it out:
In granting habeas corpus relief to a state prisoner, did the Ninth Circuit deny the state court judgment the deference mandated by 28 U.S.C. section 2254(d) and impermissibly enlarge the Sixth Amendment right to effective counsel by elevating the value of expert-opinion testimony in a manner that would virtually always require defense counsel to produce such testimony rather than allowing him to rely instead on cross-examination or other methods designed to create reasonable doubt about the defendant’s guilt.
The SCOTUS wiki did a better job of identifying the issue:
Does a defense lawyer violate the Sixth Amendment right to the effective assistance of counsel when he does not investigate or present available forensic evidence supporting the theory of defense he uses during trial and instead relies on cross-examination and other methods designed to create reasonable doubt about the defendant’s guilt?
But that's not the issue that's important to petitioners in NY. It is the additional issue on which the Court granted cert. that could have an impact. In the order granting cert., the Supreme Court asked the parties to brief the following issue: Does AEDPA deference apply to a state court’s summary disposition of a claim including a claim under Strickland v. Washington?
I can't cite to the exact case offhand, but the rule in the Second Circuit is that such a summary disposition is entitled to deference. For example, if the state court does not specifically address the relevant constitutional claim, but states instead that "defendant's remaining claims have no merit," that decision is entitled to deference. All that matters is that the claim was denied "on the merits," not whether there was any reasons attached to the denial.
But should that type of decision receive deference? As a law professor on a different blog states very nicely, "How can a federal habeas court determine whether a state court's decision 'involved an unreasonable application of clearly established Federal law' if the state court never explained how it actually applied clearly established federal law?" Nevertheless, that's how we do it here in the Second Circuit.
Now, if the Supreme Court says in Harrington that a summary disposition is not enough to obtain 2254(d) deference, well, that would be a big development.
Is there reason to get excited that this could happen? To be honest, not sure.
My immediate reaction was: the Supreme Court must have added this additional question because the Ninth Circuit did something wrong -- as they always seem to do in the Supreme Court's eyes. And what I mean by "wrong" is that the court did not give deference when it should have.
But then I read the opinion. The funny thing is that the Ninth Circuit did give the state court's summary decision deference here. It analyzed the claim through the standard of review.
I guess the issue here arises out of a footnote in the opinion. In the footnote, the court stated that it was not sure whether deference was appropriate where the state court decision is unreasoned. However, the court concluded that, because the writ would be granted even under the more deferential standard, it would apply that more deferential standard to the claim. Here's what the court stated:
Here, the California Supreme Court denied Richter’s habeas petition in one sentence, without providing any reasoning for its decision. No other state court commented on Richter’s claim that counsel provided ineffective assistance by failing to investigate the source of the pool of blood, consult expert witnesses, or call any such witnesses who could testify as to its source.
Because we would grant the writ whether we reviewed the state court’s decision de novo or for objective unreasonableness, we apply the stricter unreasonableness standard. Thus, we need not determine whether or when an unreasoned state court decision warrants AEDPA deference.
So, what does it mean that the Court added a procedural issue that had no impact on the decision below? I guess it could be as simple as the Court felt that it was going to be necessary to address this procedural matter in order to fully resolve the main ineffectiveness question.
But is there anything else to it? I am going to let this question stew in my mind awhile and (hopefully) return to it at a later time. Maybe it should wait until I get a chance to read the briefs and the transcript of the oral argument. That will probably reveal a lot about where all of this is going.
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