On Tuesday, the Supreme Court will be hearing arguments in the habeas case of Harrington v. Richter.
In Richter, the Ninth Circuit had concluded that Richter's counsel was ineffective when he failed to call expert witnesses to challenge the State's blood evidence at trial. The underlying merits of the case are debatable. After reading the briefs, I think that the Court will probably split on the merits with the majority concluding that counsel wasn't ineffective.*
*Probably the most interesting thing about the merits is that the Ninth Circuit opened its opinion with a quote from "The Art of War" to help explain why counsel's performance was deficient. The State made a little too much of that in its brief, saying that the court had adopted this quote as the standard for ineffectiveness. That's an overstatement. But it does demonstrate why relying on literature, as opposed to legal precedent, can often times leave an opinion vulnerable to attack. It's a common judicial ethics question.
However, there is an interesting procedural aspect to this case that I have not previously discussed. A big chunk of the briefs address the question of whether AEDPA deference applies to a state court's summary disposition of a claim.
From a procedural stand point, I was confused as to why this was an issue in the case. The Ninth Circuit had concluded that deference applied, but granted relief under the deferential standard. So it wasn't as if the State -- the party seeking cert. here -- was going to be raising it. The lower court decision was in its favor on that point.
But then I took a look at the Court's order granting cert. The Supreme Court added this additional issue to the case. Here's the language from the order:
In addition to the question presented, the parties are directed to brief and argue the following question: Does AEDPA deference apply to a state court's summary disposition of a claim, including a claim under Strickland v. Washington, 466 U. S. 668 (1984)?
I believe that the Supreme Court can hear whatever issue it wants. So it's now a part of the case.
And this is a tricky little issue. In their brief, the State points out that every circuit has concluded that a summary disposition (e.g. A court summarily saying, "Motion denied" without any analysis) is entitled to deference under 2254(d) since it is an adjudication on the merits. That's a true statement. Indeed, that's what the Second Circuit has held.
However, it's not that simple here. And we can thank California for that. Petitioner points out that, in California, there are FOUR different types of summary denials. And this one fell into a "silent denial" category which, according to caselaw, cannot be considered a denial on the merits. In fact, a silent denial means that we can't know what grounds was used for denying the claim. Thus, it simply cannot be considered an adjudication on the merits. It would seem that petitioner is right about that.
The best part about this is that the State has specifically taken that position in the past -- including before the Supreme Court in other habeas cases. But the State did not even mention this inconsistency in its main brief. Oops.
So petitioner could potentially prevail on this argument and have the Court review the claim de novo. That would be a nice win for the habeas petitioner. But it would be of limited value since there aren't too many states that have this somewhat sophisticated summary denial procedure. New York does not seem to be one of them.
But of course I am feeling cynical. I am guessing that the real motivation for granting cert. on this issue is actually anti-petitioner. I am worried that the Court granted cert in order to blunt the impact of a couple of its prior decisions.
As everyone knows, Strickland ineffectiveness claims have two prongs: deficient performance and prejudice. In two prior ineffective assistance of counsel cases, the Court disagreed with the state court decisions that only addressed the first prong and concluded that counsel's performance had been deficient. Since the state court had not addressed prejudice, the Court analyzed prejudice de novo.
It's this de novo review that I think the Court is going to seek to limit. I fear that they will either overrule that approach (or, maybe worse, silently overrule it), or specifically limit that de novo review to situations where the State court specifically addresses one prong but not the other. The Court will say that, when a state court summarily rejects an ineffectiveness claim, both prongs fall under the deferential standard.
The overriding fear of such a decision is that it will give a state court a disincentive to address the merits of a claim. It could lead to more summary denials, which is not a good thing for the criminal justice system.
Nevertheless, this tricky little procedural question does make Richter a case of interest for me.
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