By JK
If there is one judge who has been viewed as the poster child for the Ninth Circuit run amok in habeas cases, it's Judge Stephen Reinhardt. His name has become nearly synonymous with summary habeas reversals from the Supreme Court.
However, I have great admiration for the judge's work in habeas cases. Despite some nasty reversals from the Supreme Court, he refuses to relent in his pursuit of fairness in habeas cases.
In two recent opinions, he has done great work in showing that the Supreme Court's recent attempts to restrict habeas corpus can be navigated around to reach the fair result. I'll talk about the first one in this post, and the second one in a later post.
Back in 2011, the Supreme Court in Harrington v. Richter defined unreasonable under 2254(d)(1) in a ridiculously harsh way using a multi-layered "fairminded judge" standard. If taken literally, the "fairminded judge" standard would mean that a habeas petitioner would have to essentially show judicial incompetence or bad faith in order to get habeas relief. And both the States and federal judges have used it this way. I have bemoaned this standard, criticizing it for its harshness and for the fact that it silently overruled Williams v. Taylor's rejection of nearly the exact same standard. In fact, the Court in Williams stated that the term "unreasonable" could not be defined.
But nothing like this can deter Reinhardt from getting to the fair result. Back on September 5, 2013, Reinhardt authored the decision in Dow v. Virga. He granted habeas relief based on a Napue claim.* And he grants it under the Richter "fairminded judge" standard.**
*A Napue claim is where the prosecutor knowingly elicits false testimony and fails to correct it.
**Actually, it's a little more complicated than that. He first finds that the state courts used the wrong legal standard making its decision contrary to federal law. But he said that, in the alternative, even if the state used proper standard, it was an unreasonable application of Napue.
But the best part is how Reinhardt dismisses my complaint that Richter changed the unreasonableness standard under 2254(d)(1). And I am happy to have Reinhardt show me that I am wrong. Reinhardt explains that "fairminded" really is not that important and that the crux of the matter is whether the state court decision was "unreasonable." In other words, his take is that Richter did not change the word "unreasonable" to mean anything other than "unreasonable." Here's what he said:
The “fairminded jurist” standard is an objective standard of law, not a reference to the quality of the judge making the decision. The standard, therefore, does not require us to evaluate whether the individual jurists are “fairminded” in the sense that they are generally impartial and honest adjudicators, but rather whether there could objectively be fairminded disagreement as to the outcome dictated by the Supreme Court’s clearly established law. Fairminded jurists can make mistakes in legal reasoning or judgment, and if such a mistake is beyond reasonable legal disagreement, the “fairminded jurist” standard is satisfied. Were we to apply a fairminded jurist standard literally, a federal court could never reverse a state court’s habeas decision. For every state appellate court contains at least one fairminded jurist, if not a majority of its supreme court or appellate court members who voted to reject the petitioner’s arguments. When we reverse a state court’s habeas decision we are surely not saying that all the state court justices whom we are reversing are not fairminded jurists, but rather that objectively the answer is one that a fairminded jurist should reach.
So habeas practioners take note: Reinhardt has shown the way around Richter. At least temporarily.
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