Habeas Corpus - The Really, Really Bad

As I mentioned in my return post, there was some good and bad during my absence.  And I'd register one recent Second Circuit decision as really, really bad.  I thought I'd start with that since a reader asked about it in a comment to my return post.

Last Friday, in an opinion that left me absolutely speechless, the Second Circuit reversed itself on the habeas grant in Rivera v. Cuomo. The original opinion in Rivera granted habeas based on insufficient evidence of depraved indifference.  It really was one of those situations where the lack of evidence to establish that crime was clear.  While a habeas grant, the court wasn't really going out on a limb in making that conclusion.  I have just re-read it.  It was a point-blank shooting!  There is no way, particularly under the facts of Rivera, that such an act can constitute depraved indifference.  It was just one of those cases where the state courts refused to do what was right legally, probably because of the disproportionately favorable consequences of such a decision for the criminal defendant.

But now the Second Circuit has reversed itself.  And the court did it in a really troubling fashion.  In an exceedingly brief opinion, the court does not even acknowledge it got anything wrong about the analysis. No, here's the entire reasoning why they are reversing itself:

Respondents filed a petition for panel rehearing or rehearing en banc, and the United States Supreme Court decided Cavazos v. Smith, which strongly reasserted "the necessity of deference to state courts in § 2254(d) habeas cases." 132 S. Ct. 2, 5 (2011). In light of Respondents' petition and the Supreme Court's guidance in Cavazos, we have revisited our original decision to ensure that we had afforded the state courts and the jury the full extent of the deference they are owed under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 112 Stat. 1214. See Cavazos, 132 S. Ct. at 3 (emphasizing the double deference owed in § 2254(d) habeas cases). After much reflection, we now reverse course. Applying the law as it existed after Rivera's conviction became final in July 2004, we find that although evidence of "significantly heightened recklessness," People v. Sanchez, 98 N.Y.2d 373, 380 (2002), was slim, at best, giving the state courts and the jury the utmost deference, we cannot find that the evidence was so completely lacking that no rational jury could have found Rivera guilty of depraved indifference murder. See Cavazos, 132 S. Ct. at 1-5; Renico v. Lett, 130 S. Ct. 1855, 1862 (2010).

I have absolutely no connection to this case, but even I felt that proverbial punch to the stomach.

Sorry, but this just doesn't smell right.  There is nothing in Cavazos that has an impact on this case.  Sure, Cavazos was a legal insufficiency case.  But the facts of that case were completely different.  That had to do with a federal court wrongly evaluating the impact of expert testimony.  The stuff about deference for a legal insufficiency claim was well established before that case.  I just re-read the Second Circuit's opinion (again) and I think the court made perfectly clear that the facts in Rivera's case, no matter how they could possibly be interpreted, cannot support a depraved indifference conviction.  It was legally impossible.  That was the court's point.

So there is something weird going on here.  But I really don't know what it is.  Clearly, the panel lost the confidence of their conviction that appeared in the original opinion.  But the reasons they give don't explain it.  Not even close.  Were they worried that the decision in Rivera would open the floodgates in other depraved indifference cases? (I am guessing no).  Were there whispers among the judges that an en banc was going to happen, and these judges did not want to be embarrassed by a reversal? (Slightly more likely). Has the Supreme Court's philosophical change on habeas that began last term and has continued into this term with a string of condescending summary reversals that directly insults the lower court panel scared the circuit courts? (Also, slightly more likely).

No matter what the explanation, this is a real nadir for habeas in the Second Circuit.

Comments

[Jonathan Edelstein]

It can't possibly be floodgates. There are maybe three other defendants in the state, if that, whose convictions became final during the "gap" period and whose petitions are still working their way through the pipeline. I'm guessing that there was some kind of pressure put on the panel by their fellow judges, or else that they thought something even worse might happen on en banc review (such as a decision explicitly finding that Hafeez and Gonzalez didn't change the law) and wanted to fight another day. I guess only they know, and I really wish they'd tell us.

[Jonathan Edelstein]

And I also thought "double deference" applied only to ineffective assistance claims, and that all other claims got plain old deference.

[Alex]

Exactly -- "the double deference owed in § 2254(d) habeas cases" is technically incorrect; rather, only a subset of 2254(d) cases get "double deference" -- those where the underlying issue requires initial deference even on direct review.

But even if technically incorrect, I think it would be sensible to read "double deference" as along the lines of "uber deference." That is consistent with some modern English usage of "double," and doing so would be a fair characterization of what the Supreme Court's 2254(d) jurisprudence has become.