Second Circuit issued a summary order today in Cortijo v. Bennett, 10-2348-pr. Mostly straightforward, but I'll note one thing in the analysis section.
Cortijo v. Bennett, 10-2348-pr
- Affirming Denial of Habeas (summary order)
- Argued: 5/2/11; Decided: 5/16/11
- Panel: Newman, Calabresi, Hall
- Lower Ct. Info: 03-CV-5102, 2010 WL 2079711 (SDNY May 17, 2010) (LAP (GWG)
- In Circuit: District Court COA
- Issues: court's response to jury note shifted burden of proof or reduced prosecution's burden of proof
ANALYSIS: Just wanted to point out that the new, nearly impossible to meet definition of "unreasonable" that the Supreme Court created in Richter is beginning to filter down into the lower courts. This is not the first time that I have seen it used, but I thought I'd mention it.
Here, the Second Circuit stated that, even if there was error here, the Appellate Division's decision was not unreasonable because:
“[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).
I haven't really discussed this too much around here, but that new definition of what makes something unreasonable silently overruled Williams v. Taylor, 529 U.S. 362, 409-11 (2000) (O'Connor, J., concurring, but writing for the majority on this part), in which the Supreme Court rejected an almost identical definition, stating that it added an unjustified subjective extra layer to the analysis. But now the Supreme Court has simply replaced the previously improper "all reasonable jurists" test set forth in Williams with the just as subjective "all fairminded judges" test. Haven't I said that this may be the worst ever Supreme Court term for habeas petitioners?
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