I can't imagine that there has ever been a worse Supreme Court term for habeas petitioners than the current one. I have not gone into great depth about the twin horrors that the Court unleashed this term in Richter and Pinholster. But those cases have, in my mind, significantly shifted the playing field against habeas petitioners.
Richter did it in both a practical and policy-oriented way. Richter will have two practical impacts: (1) summary dispositions fall under the 2254(d) standard of review; and (2) it established a nearly impossible standard for determining whether a state court decision is unreasonable. From a policy point of view, Richter has truly altered the concept of habeas, shifting it away from it's heralded position as the protector of liberty and the constitutional rights of all citizens and towards an extremely limited role as a safety valve for "extreme error correction."
Pinholster built on the work that the Court started in Richter and has pretty much cut off a federal court's ability to hold an evidentiary hearing in a habeas case.
In Pinholster, the Court held that "review under 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." What this means is that the factual development of a case is frozen at the time that the state court makes a decision on the merits of the case. It's a very broad holding that, if taken to its natural, logical extreme, means that a federal judge cannot order a factual hearing to explore the underlying factual allegations in support of a constitutional violation advanced in a habeas petition that was adjudicated on the merits in state court.*
* Despite the holding, I can think of three situations where a hearing could happen. First, as the Court stated in Pinholster, it can happen where the state court did not adjudicate the claim on the merits. But, as the Court clarified, a hearing in that situation would be strictly limited under 2254(e)(2), which severely restricts the situations where a hearing can be held.
It would also seem that a federal judge could potentially order a hearing to explore a gateway innocence claim to overcome a procedural default or a claim that the failure to address a claim would result in a manifest injustice. But it would appear that Pinholster has created a logical conundrum in such a situation. The gateway innocence claim could easily rely on the same factual allegations that support the constitutional violation (a Brady claim is a good example). So it could be that a federal court can rely upon facts established at a hearing to find that a petitioner has made a sufficient showing of innocence for the court to review the underlying constitutional claim, but then be restricted from relying upon those same facts when considering there has been a constitutional violation. It's a bit insane.
I also think that 2254(e)(1), which places the burden on petitioner to rebut a state court factual finding with clear and convincing evidence, also would require a hearing. But the Court's holding in Pinholster would also seem to apply 2254(d)(2) -- the unreasonable factual finding part of the standard of review. So, similar to the other type of hearing mentioned in the preceding paragraph in this footnote, the federal court can consider this new evidence to allow a petitioner to rebut a factual finding, but then must disregard this evidence when evaluating the claim under 2254(d)(2). That's even more insane.
Of course, the decision in Pinholster was much broader than it had to be. The State was only arguing that the federal court cannot consider facts that petitioner unjustifiably failed to present to the state court. Indeed, at one point in Pinholster, the Court stated that "petitioners may sometimes submit new evidence in federal court" and the Court did mention that "federal courts sitting in habeas are not an alternative forum for trying facts and issues which a prisoner made insufficient effort to pursue in state proceedings." So, there could conceivably be a way to read Pinholster narrowly and limit it to the situations where petitioner did not adequately try to present a factual claim to the state court.
But I don't think any court is going to read Pinholster that way. Instead, they will read it broadly to cut off a federal judge's ability to pursue a hearing into factual allegations underlying a constitutional violation, regardless of whether petitioner diligently pursued those factual allegations in state court.*
*It's important to note that Pinholster also seemed to change the analysis on IAC claims as well. But I'll get to that in a separate post.
This is precisely how an SDNY judge interpreted Pinholster in Reyes v. Ercole, 06-CV-5525, 2011 WL 1560800 (SDNY April 25, 2001) (SHS). In that case, the Second Circuit had issued a GVR COA in which it vacated a denial of habeas and remanded the case for further consideration of a Brady claim and a claim that perjury at trial violated the petitioners right to a fair trial. The court ordered the district court to make "factual findings" on remand as to:
1) whether the prosecution knew or should have known of the evidence suggesting perjury at trial; (2) whether [Reyes] waived the claim by failing to uncover, through due diligence, the evidence in time for trial or direct appeal . . .; and (3) whether the alleged inconsistencies were likely the result of perjury or, alternatively, could have resulted from [Reyes'] and the victim's differing memories of the relevant events, the victim's incorrect, but not perjured, recollection, or a difference of opinion as to the information requested. . . .
In a brief analysis, the DJ held that Pinholster barred an evidentiary hearing on these issues. He concluded that the factual record was restricted to the one before the state court. A federal court must close its eyes to any "new evidence." End of story.
As can be seen in Reyes, there is a fundamental problem with the Court's decision in Pinholster. And I am not just talking sour grapes that it is an unfavorable decision to habeas petitioners. Rather, the holding in Pinholster now gives preclusive effect to a state court decision that no further evidentiary exploration of an issue is necessary, even if that decision is completely arbitrary, irrational, or unjustifiable.
I mean, let's look at Reyes. The Second Circuit's remand order would seem to indicate that there were some highly critical evidentiary issues that the state courts refused to explore. In fact, it would seem that it would be nearly impossible to judge the reasonableness of the state court decision without knowing these facts.
Thus, Reyes shows the full-on impact of Pinholster. A state court can now deny a claim without further exploration of the facts -- even where fair judges would conclude that a hearing should be held. But the failure to hold the hearing and give the petitioner a chance to show that the facts establish a constitutional violation makes it impossbile for petitioner to show that the state court's decision is unreasonable. A state court's decision will invariably be considered reasonable when there is an insufficient factual record to show that it was unreasonable.
I will put it more plainly -- state courts now have unlimited power to restrict the factual record upon which a petitioner can show that the state court's decision is unreasonable.
This is a gaping, illogical, and completely inequitable hole in the habeas statute. Under the AEDPA, a petitioner can argue that a state court decision is an unreasonable application of federal law. A petitioner can argue that the factual findings in a decision are unreasonable based on the evidentiary record. But a petitioner cannot argue that the state court failed to make the necessary factual findings in order to properly analyze the constitutional claim. That is completely unfair. Any fairminded person can see that.
This needs to get corrected. But how? Here are some non-exhaustive suggestions:
First, petitioners can try and argue that Pinholster should be limited. But, as I said earlier, I doubt petitioners will get much traction with that.
Second, petitioners can try and get another case up to the Supreme Court and try to get Pinholster limited in some way. That's going to be tough.
Third, the habeas statute should be amended to address this unfairness. The statute has to allow for a federal court to address a situation where it believes that the state court acted unreasonably in failing to develop a more complete factual record on the claim. Either allow the federal court to hold a hearing under certain limited situations or grant the federal courts the opportunity to kick the case back to state court for that court to hold a hearing. The habeas case can be held in abeyance while that happens. The state court can hold the hearing and then reconsider its prior decision after the hearing. That would allow the state court to issue a new ruling that can get deference under the AEDPA.*
I don't know if this is a realistic approach. It's not a politically appetizing suggestion. But it is the most certain and complete way to resolve this unfairness.
UPDATE: Or, while we wait for the statute to get amended, petitioners could ask for the same relief that I propose above - a remand to the state court for a hearing. Under 28 USC 2243, habeas courts do have broad powers to "dispose of the matter as law and justice require." It could be argued that such powers include this type af action.
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