Habeas Corpus Blog

Extending Martinez

By JK

Let’s turn the lights back on around here. . .

Recently, the Supreme Court granted cert. on a really interesting habeas issue:  whether Martinez extends to ineffective assistance of appellate counsel claims.  Case is called Davila v. Davis.  SCOTUSblog page here.

Let’s start with a Martinez refresher: in 2012, the Supreme Court held in Martinez v. Ryan that the ineffective assistance of post-conviction counsel can represent cause to overcome a procedural default on an ineffective assistance of trial counsel claim.  In other words, a petitioner can argue that his post-conviction counsel was ineffective for failing to raise or properly litigate a trial counsel ineffectiveness argument.  If he can establish that, then he can obtain federal review of the trial counsel ineffectiveness claim (I am going to use IAC from here on out, it’s a lot of words to keep spelling out).

That’s the law now for trial IAC claims.  But what about appellate IAC claims?  Does the reasoning of Martinez extend to those types of claims?

I am going to steal this clever framing from a colleague, but in some ways it boils down to this: It’s the Ninth Circuit vs. the rest of the country on this one.  The Ninth Circuit in a case called Nguyen v. Curry held that Martinez extends to these types of claims.  Every other court has said no. 

Based on the infamy of the Ninth Circuit, one may think that it is the kiss of death for the habeas petitioner to have the Ninth Circuit on his side.  But I wouldn’t jump to that conclusion so quick here.  The Ninth Circuit is not always wrong when it issues a pro-habeas petitioner interpretation on a procedural issue.*  That is not inconsistent with recent Supreme Court law, as the Court has actually been relatively generous in expanding habeas procedural issues under the Roberts Court (e.g. Martinez, Maples, McQuiggin). Ironically, Martinez was out of the Ninth Circuit and the Supreme Court reversed the Ninth Circuit for failing to rule in favor of the habeas petitioner.

*Of course, they do still get reversed on their pro-habeas petitioner procedural rulings as well.  This decision from last term is a good example.

Here’s why the petitioner could win.  The logic of Martinez supports its extension to IAC appellate claims looked at in broad terms.  One of the main motivating factors underlying Martinez was that the initial post-conviction review proceeding was the exclusive forum in which a petitioner was allowed to raise IAC trial claims.  A petitioner should be provided with an attorney to assist him with raising that type of constitutional claim.  Just like IAC trial claims, the initial review collateral proceeding is the first opportunity for a petitioner to raise an IAC appellate counsel claim.  Significantly, Justice Scalia in his dissent in Martinez acknowledged that the holding of Martinez would obviously apply to IAC appellate counsel claims.  He went so far as saying that the majority’s assurance that the holding was limited to the issues before it “insults the reader’s intelligence.”

But let me also advocate for the devil here.**  Is there something different between these two types of claims?  There is an argument to be made that there is.  As Justice Kennedy reasoned in Martinez, IAC trial claims often require investigation into matters outside the trial record.  Something that a habeas petitioner cannot do while incarcerated.  But appellate counsel claims don’t require that type of investigation.  Appellate issues are based exclusively on the lower court record.  Outside of having legal experience, wisdom, and skill, habeas petitioners do in theory have the issues at their disposal while incarcerated (assuming they have the trial record with them).

** No, I obviously do not believe the State is the devil.  It’s a play on words on the expression “playing devil’s advocate.” [Insert winky face emoticon here]

But I don’t find that reasoning particularly persuasive.  As I imply in that final sentence, habeas petitioners are not in a good position to raise these claims.  They don’t generally have the legal ability to identify appellate issues.  They are incarcerated.  They don’t have a lot of access to legal materials.  They don’t often have complete records from their trial.  Yet, criminal defendants have the constitutional right to the effective assistance of appellate counsel (yes, spelled it out there, but it seemed appropriate).  These claims can only be brought in the initial review collateral proceeding.  Representation by counsel in those proceedings to raise a violation of a guaranteed constitutional right seems pretty vital to me.

Martinez was 7 to 2.  If the court remains at 8, it will take a shift of four members of the majority for the Court to reject the Martinez extension.  But I guess it is more complicated than that.  If the habeas petitioner loses three, then it is 4 to 4.  The individual petitioner will lose in that situation, but at least petitioners in the Ninth Circuit would still be happy.  And the issue would remain undecided.  

If the Court gets back up to 9, the numbers game would change a little.  Assuming the new judge votes like Scalia, that will add another judge to the anti-Martinez extension crew.  In that situation, a three-judge shift will mean a lose for all habeas petitioners.

So it really boils down to whether the habeas petitioner will lose all of Roberts, Kennedy, and Alito.  Only needs to hold on to one for the win here.*

* Yes, I am assuming Ginsburg, Kagan, Breyer, and Sotomayor are reliable votes here. 

If you want to read more about this, I enjoyed this write up about the case.

Habeas Corpus - Cert. Grant in Habeas Case

BY JK

Earlier today, the Supreme Court granted cert. in a habeas case, Jennings v. Stephens, on a procedural question:

Whether the Fifth Circuit erred in holding that a federal habeas petitioner who prevailed in the district court on an ineffective assistance of counsel claim must file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected even though the Fifth Circuit acquired jurisdiction over the entire claim as a result of the respondent’s appeal.

What does this mean?  2253 requires that a petitioner obtain a COA in order to appeal to the circuit court.  The State is not required to obtain one.  If a district court grants habeas relief, the State is automatically entitled to appeal.  When the State appeals, what happens to the grounds that were denied in the district court?  Does the habeas petitioner need to get a COA to have the circuit court review any of those issues?

In this case, the petitioner raised one IAC claim with three different allegations of deficient performance.  The district court agreed with two of them, but rejected the third.  The State appealed from the grant on the two deficient performance grounds.  The Fifth Circuit agreed with the State and reversed the district court on those two grounds.  When petitioner attempted to argue, "Wait there's one other allegation of deficient performance on which to affirm the judgment," the Fifth Circuit said no chance, you didn't get a COA on that particular allegation of deficient performance.

After reading the petition, it's clear that petitioner is contending that only in this limited circumstance -- where it is a single ground in the district court -- no COA is necessary.  Because the cert. grant was to the habeas petitioner, he could see some success on this issue.

But that leaves upon the broader question of whether a COA is necessary when, in a State's appeal, the petitioner asks that the Circuit court review a separate ground that the district court denied.  I have only read the cert. petition (not the State's response), but it appears that there is a circuit split on this broader issue.  In contrast to the Second and Fifth Circuits, the Seventh Circuit does not require a habeas petitioner to seek a COA on other grounds in a State's appeal.  In Szabo v. Walls, 313 F.3d 392, 397 (7th Cir. 2002), the impure-opinion-writing Judge Easterbrook reasoned (with internal citations omitted):

Since 1996 both state and federal prisoners have needed certificates of appealability to obtain appellate review of adverse decisions in collateral attacks. 28 U.S.C. 2253. But the statute deals only with appeals by prisoners; it does not mention arguments by prisoners as appellees offered in support of relief they have obtained.  Section 2253(c)(1) begins: “Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from—”. Szabo has not taken an appeal, nor did he need to do so. An appellee may defend his judgment on any ground properly preserved in the district court. Szabo does not ask for additional relief, so he was entitled to proceed exactly as he has done. Two opinions— (ed. cites edited out, but it was one from the Ninth and one from the Fifth) —assume that a certificate of appealability is needed for a prisoner's cross-appeal, and this is a plausible understanding of 2253(c) (though neither court discussed the question). But no court has demanded that a prisoner obtain a certificate of appealability in order to present an extra issue in a case already before the court on*398 the state's appeal, and we are content to apply 2253 as it is written. It serves a gatekeeping function, and once a case is properly before the court of appeals—for state and federal governments need not obtain certificates of appealability, see Fed. R. App. P. 22(b)(3) —there are no remaining gates to be guarded.

So I guess the big question here will be whether the Supreme Court takes on the broader issue or keeps it limited.  The merit briefs may provide some indication on how broad the issue before the Court will be.

Habeas Corpus - Checking In on Sessoms

By JK

Hello again, internets.  Been a long while since I posted something.  Too long.  Let's just blame the sequester.  I hope to start posting more regularly.  Fortunately, Matt has been putting up a lot of good stuff over the past few months so the group blog remained active as I adjusted to life under sequestration.  Which looks like it will painfully continue for the foreseeable future. And don't even get me started about the likely shutdown.  Grrrr. 

Back in August 2012, the legendary Betty Fletcher wrote the 6-5 en banc decision in Sessoms v. Runnels, granting habeas relief based on the police obtaining a statement from a defendant after he had invoked his right to counsel.  

Petitioner, a 19-year-old, was taken into custody and, before he was given his Miranda rights, the following exchange occurred: 

Sessoms: There wouldn't be any possible way that I could have a — a lawyer present while we do this?

[Detective]: Well, uh, what I'll do is, um —

Sessoms: Yeah, that's what my dad asked me to ask you guys ... uh, give me a lawyer.

The California courts rejected his right to counsel claim because, in their view, he had not made an unambiguous request for an attorney.  Judge B. Fletcher* concluded that California unreasonably extended this standard to this situation.  According to Judge Fletcher, the "unambiguous" request test applies after Miranda has been given.  But before the rights are read, a request such as the one here is sufficient to assert the right to counsel under clearly established Supreme Court law that focus on pre-Miranda invocation of the right to counsel.  Beautifully reasoned opinion.

*I use "B. Fletcher" here since her son William Fletcher is also a judge on the Ninth Circuit.  So saying Judge Fletcher used to be imprecise.  At this point, if you write Judge Fletcher, you should probably be referring to W. Fletcher.

But, come on.  Let's have some real talk (NSFW due to language, I believe). In the real world, this was obviously a request for an attorney.  Breaking out, as I typically do, my uncommon sense meter, who in their right mind would not believe that this kid was asking for an attorney?  Even the police officers in this case believed that he was, as they responded to his request by convincing this young guy that having an attorney present was not in his best interest.  Feels like irony lives somewhere in there.  It rates pretty high on the meter.

Sadly, this great decision was Judge B. Fletcher's last habeas opinion.  She passed away in October 2012.

The warden sought cert. in the Supreme Court and it sat up there for the second half of the Court's term.  Then at the end of June 2013, the Supreme Court GVR'd the case based on Salinas v. Texas -- the uncommon sense case that says that you have to speak in order to remain silent.  To note, Sessoms had a different name up in the high court due to a new warden: Grounds v. Sessoms.  

Sadly again as a result of the GVR, Judge Fletcher's opinion is no longer on the books. My sense is that the GVR was a compromise among the liberal and conservative judges to avoid having to deal with a case that is not an ideal candidate for a summary reversal.  On a cynical and grisly level, it's possible that the conservative judges may also have decided to take a gamble and send it back down knowing that the lineup in a close 6 to 5 opinion was going to change now that Judge B. Fletcher could no longer participate.  But no judges would actually think that way, would they?

On remand, the Ninth Circuit ordered further briefing on whether Salinas is relevant to Sessoms. Obviously, it isn't.  And I think that's probably why the court framed the question as whether that case is "relevant" as opposed to what "impact" it had on the case.

I checked the lineup for the new en banc panel (you have to scroll down a ways on the Ninth Circuit's en banc page to find it).  The lineup remains the same, except Judge M. Margaret McKeown has now replaced B. Fletcher.  She is a Clinton appointee and has been around for awhile.  I have been told that it's a pretty good draw for the habeas petitioner.

Going be interesting to see what happens here.

 

Habeas Corpus - Supreme Court Action 2/25

By JK

Looks like Habeas Day brought out a lot of laughter at the Court today.  I counted at least six times between the two arguments where the transcript reads (Laughter.).  But all the laughter appeared to stop once Justice Kennedy shamed the other judges into taking capital cases a little more seriously.  At least, that's how I read the transcript.  Here's the relevant exchange (from pages 41-42 of the Trevino transcript):

JUSTICE BREYER: I'm being sarcastic there but I don't mean to be. I mean, you see what I'm trying to get to.

JUSTICE SCALIA: It was the nose of the camel, which is what Martinez was -- which is what the dissent said, actually.

(Laughter.)

JUSTICE BREYER: Yes, the dissent said that.

(Laughter.)

JUSTICE KENNEDY: This is very amusing in a capital case.

Here are my quick takes on the two cases from the argument (gonna use some short cuts, sorry for the lack of context):

Perkins - seems to be at least five judges willing to say that actual innocence can be used to get an untimely petition into court, but that there will be some kind of diligence requirement.  Not sure what that will eventually look like though.

Trevino - the argument was a mess.  The parties seemed to argue most over what the Texas law actually says.  The judges seemed a little exasperated by all of it.  But it does appear as if there are at least five judges that seem willing to expand Martinez (or "clarify" Martinez to include State's beyond Arizona).

The transcript for Perkins is here.  The transcript for Trevino is here.

The other big news at the Court today was cert grants in a habeas case and a front-end criminal case.  They are:

Burt v. Titlow, 12-414

(1) Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in holding that defense counsel was constitutionally ineffective for allowing respondent to maintain his claim of innocence; (2) whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea; and (3) whether Lafler v. Cooper always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.

Kansas v. Cheever, 12-609

(1) Whether, when a criminal defendant who affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, the state violates the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant; and (2) whether, when a criminal defendant testifies in his own defense, the state violates the Fifth Amendment by impeaching such testimony with evidence from a court-ordered mental evaluation of the defendant.

A cert. grant in a Sixth Circuit case in which habeas relief was granted probably means that a reversal is on the way.  But, even with these elements present, I am not sure whether that is automatic for this one -- Lafler is just too new.  There could be a chance that the Court just wants to give helpful guidance in those cases.  Yeah, that's probably wishful thinking. It seems more likely that a cert. grant to the State means that the Court wants to take the habeas grant away.  

Habeas Corpus - Cert. Grant in Habeas Case

Last week, the Supreme Court granted cert. in A habeas case called Metrish v. Lancaster. It's a recipe for a reversal: it's a habeas grant coming out of the Sixth Circuit and cert. was granted to the State.

Here are the issues: 

(1) Whether the Michigan Supreme Court’s recognition that a state statute abolished the long-maligned diminished-capacity defense was an “unexpected and indefensible” change in a common-law doctrine of criminal law under this Court’s retroactivity jurisprudence, see Rogers v. Tennessee; and (2) whether the Michigan Court of Appeals’ retroactive application of the Michigan Supreme Court’s decision was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement” so as to justify habeas relief, see Harrington v. Richter.

The first issue is a little cryptic.  I believe that the State appears to be challenging the Sixth Circuit's conclusion that there was any type of constitutional violation at all.  It is framed as it would be on direct review.  That's a little different from the all too familiar question found in issue two: a lack of deference to the state court.  Not sure why it isn't framed in habeas terms.  Either way, the cert. grant portends bad news for the habeas petitioner.

In other apparently bad news, the Supreme Court issued opinions today, but did not issue one in Johnson v. Williams.  Just as a reminder, the question presented in that case is: Whether a habeas petitioner’s claim has been “adjudicated on the merits” for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim.  From the argument, it appeared that the Court was going to avoid the question presented, which, if answered in the State's favor, will be an enormously horrible result for habeas petitioners.  

But if the Court was seeking to avoid the question presented, then it would have issued a short, simple opinion by now.  The longer it takes, the more I fear that this is going to be a split opinion with a terrible result.

Trevino Grant, Haynes Stay, and the Future of Martinez v. Ryan

By Alexandr Satanovsky

    It took the Supreme Court just seven months since handing down Martinez v. Ryan to grant cert. in Trevino v. Thaler, a case that may expand the Martinez rule beyond its most limited interpretation.

    To appreciate Trevino's possible significance, let's step back and consider the potential range of Martinez's doctrinal impact. At its most narrow and limited, Martinez applies only when two conditions are met: (1) the prisoner is raising a substantial trial IAC claim, and (2) state law requires such a claim to be initially reviewed in a collateral proceeding, not direct review. At its broadest, Martinez may apply when (1) the prisoner is asserting any substantial claim on collateral review -- IAC, Brady, jury tampering, etc., and (2) such a claim is most naturally reviewed in a collateral proceeding, determined by whether the factual basis of the claim requires development beyond the trial record. 

    The narrow view has carried the day in the lower courts, and quite understandably: Martinez limited itself to its facts, i.e., an IAC claim brought under a scheme that barred IAC from the direct appeal. But this view is doctrinally incoherent: First, there is no compelling reason to treat IAC claims as unique from other claims, like Brady, that require investigation and extra-record development, which is obviously too burdensome for an incarcerated petitioner. Second, it makes little sense to resurrect legal formalism by approving a distinction between those states (like Arizona), which impose a formal bar to the direct review of certain claims, and others (like Texas), which--although do not formally bar the claims--realistically  render them impracticable on direct review.

*    *    *

    Up until October, there was little suggestion that Martinez may mean something more than the narrow interpretation described above. But that all changed when the Supreme Court stayed a bunch of executions to consider cert. petitions re: Martinez's applicability to Texas, and eventually granted the Trevino petition. And this past Monday, Justices Scalia and Sotomayor issued brief statements concerning the Haynes v. Thaler stay issued several weeks ago.  

    This past month's developments, I think, make for a good prospect that Martinez will be expanded beyond its limited facts. For the following reasons (which, to be sure, are nothing more than my reading of the proverbial tea leaves), I think Trevino will be a stride in the direction of the broad, doctrinally coherent view of Martinez.  

1.  The Genesis of the Martinez Exception: To get some idea as to what the Court may have been thinking when it issued Martinez, consider the following:  First, there was no circuit split for the Court to address when it chose to grant cert. It was a non-capital case and the petition did not gesture toward a gross miscarriage of justice. Indeed, the thrust of the cert. petition was nothing beyond a call for a change in the law on cause-and-prejudice (well, a call for a constitutional right to collateral counsel, which the Court sidestepped), uncannily resembling a merits brief. Second, the ultimate disposition of Martinez was clean and concise: a 7-2 split, one majority opinion and one dissent.

    This "genesis" of the Martinez rule suggests to me that it was deliberately planned, possibly even prior to the cert. grant.  In other words, Martinez was not a haphazard product of untoward necessity, as may be the case when there is a flagrant circuit split (or other non-merits reason for cert.), and when the disposition involves multiple fractured opinions. And if we grant that Martinez was a delibarate decision to change the law, I find it difficult that Court sought nothing more than to carve out an uber-limited and doctrinally incoherent exception.

2. Revisiting the Rule in Trevino: Returning to Trevino, it's notable how quickly the Court chose to revisit and clarify Martinez. It has been just over seven months, with no circuit split and modest percolation. As with Martinez, the most sensible explanation for the Trevino grant, I think, is that the Court wants to change the law and correct the Fifth Circuit's unduly narrow interpretation. If the Court agreed with the Fifth Circuit's narrow approach, I doubt that it would have granted cert so early. Instead, it would have waited for another circuit (read: the Ninth) to hold that Martinez applies to a state that formally allows IAC claims on direct review, and reverse that decision.

3. Scalia's Dissent to the Haynes Stay: Finally--and this last point only little probative value--it is interesting to look at Scalia's statement, dissenting from last month's stay on the Martinez issue.  His gripe with the Stay was not that Haynes's IAC claim may not procedurally benefit from Martinez, but that his IAC claim was, in any event, meritless:

"Even if the Fifth Circuit is incorrect and Martinez does implicate Texas’s system of postconviction review, a stay is unwarranted here because Haynes presents no plausible claim for relief. His complaint is that his trial counsel was ineffective at sentencing. The absolute most to which he would be entitled under Martinez is excuse of his procedural default of this claim, enabling a federal district court to adjudicate the claim on the merits. But that is precisely what the District Court already did on federal habeas review[, finding the claim to be meritless.]" 

Neither Haynes, nor any other stay issued in anticipation of Trevino, had a noted dissent arguing, e.g., that the Court's "limited exception" in Martinez, should be allowed to percolate, before staying otherwise lawful judgments in the name of hastily clarifying the law.

Habeas Corpus - New Cert. Grants

Just last week, I mentioned that the Supreme Court doesn’t have much on its habeas plate this term. Well, that changed a little Monday.  The Court granted cert. in two habeas cases:

(1) McQuiggin v. Perkins, 12-126

Issue: Whether, under the Antiterrorism and Effective Death Penalty Act of 1996, there is an actual-innocence exception to the requirement that a petitioner show an extraordinary circumstance that “prevented timely filing” of a habeas petition, and if so, whether there is an additional actual-innocence exception to the requirement that a petitioner demonstrate that “he has been pursuing his rights diligently.

(2) Trevino v. Thaler, 11-10870

Issue: Whether Martinez v. Ryan applies when a State court system allows a defendant, in some circumstances, to bring an IAC claim on appeal as opposed to requiring all IAC claims to be brought in a post-conviction proceeding

There is a circuit split on the primary issue in McQuiggin, which truly surprises, and disappoints, me.  Seems like a no-brainer to me: it is an exception to every other procedural default.  Why treat the statute of limitations any differently?  Particularly in a situation where equitable tolling is already allowed.  While the cert. grant makes me nervous, I actually think that it could go as much as 7-2 in favor of the actual innocence exception (hope I don’t have to eat those words).  

The diligence issue is a much closer call. Oddly, the McQuiggin case only dealt with the diligence issue; the Sixth Circuit had previously held that the exception existed.  The Sixth Circuit held in McQuiggin that there was no diligence requirement, which actually makes a lot of logical sense in this context – the whole reason why the exception is necessary is because the petitioner wasn’t diligent in filing the petition.  A diligence requirement would nullify the exception in many circumstances.*  The court's language actually was: "[W]e find that such a reading [which would require reasonable diligence] would render the concept of equitable tolling nugatory."

*That's a small oversimplification.  I guess it could be that a habeas petitioner may not have been diligent in filing the habeas petition, but was diligent once he obtained new evidence.  The only problem with such a distinction is that several courts, including the Ninth Circuit, have held that "new evidence" under the actual innocence exception does not require newly discovered evidence, but simply "newly presented" evidence (i/o/w evidence that may have always been known, but was not presented at trial).  In that situation, the lack of diligence in timely filing the petition would apply equally to the actual innocence claim.  If I have to guess, I'd say that this situation has the potential to pop up much more often than a "newly discovered evidence" actual innocence claim. 

I am worried about the Trevino case.  It will either provide reinforcement and strength to the Martinez rule (hope, hope, hope) or it will painfully limit it down to a very narrow set of circumstances.  Really hard to predict at this point.  The oral argument will provide a very good indication of where this is going.  But my sense is that the Court will have to apply Martinez to this type of situation, or else it would give the States too big an out to avoid the effects of Martinez.

Habeas Corpus - Cert Grant in Habeas Case

Last Friday, the Supreme Court granted cert in another habeas case, Cavazos v. Williams. 

This is the issue:

Whether a habeas petitioner’s claim has been “adjudicated on the merits” for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim

The State had sought cert. on the underlying substantive issue, but cert. was only granted on the procedural issue quoted above.

Just to make it more clear, here is what we are talking about.  And I'll use the facts of Williams.  Petitioner raises a claim in state court based on the trial court's dismissal of a juror during deliberations.  Petitioner argues that the court's actions violated a bunch of different things, including petitioner's federal constitutional right to a jury trial.  The state court addressed nearly all of petitioner's arguments, but did not expressly rule on the federal constitutional claim.  The state court did not mention it in any way.  In other words, the state court simply did not make a specific adjudication on the merits of the federal constitutional claim, even though it was presented to the court.

As with most cert grants in habeas cases these days, this one has me worried.  Greatly worried.  This issue had been settled in the Circuits in petitioner's favor prior to Richter.  But now, at least one circuit (the 11th) has concluded that Richter's holding that summary decisions are presumptively adjudications on the merits expanded the definition of adjudication on the merits to include basically every merits based state court decision, regardless of whether the state court decision addressed the consitutional claim that is being pursued in federal court. 

Apparently, it may be that any silent denial is now presumptively on the merits.  I don't see how Richter can be read that broadly, but apparently that is the new reality.  I guess my problem is that I just don't see the Richter "presumption" anywhere in the statute.  How can it now apply to every state court decision?  In my mind, reading this presumption into 2254 for every state court decision (not just the summary kind) would not be consistent with the idea of comity upon which all of these habeas procedural rules were created.  Petitioner gave the state court the opportunity to rule on the claim, but the state court chose not to do it.  Why should there be deference?  It's not logical.

Let's just hope that I am getting worked up over nothing.  But I fear that this really is where the Court is going to go with this.   

Habeas Corpus - Cert. Grants from Yesterday

The Supreme Court issued an order list yesterday and granted cert. in two front end cases (that had previously been relisted), Jackson v. Hobbs and Miller v. Alabama, both raising the issue of whether it is cruel and unusual punishment to impose a term of life without parole on a juvenile who is convicted of murder.  The cases will be argued "in tandem."

The Supreme Court Cases - Current Term page will (eventually) get updated.

Habeas Corpus - Cert. Grant in Front End Case

Supreme Court issued an order list from last Friday's conference.  No cert grants in habeas cases, but there was a cert grant in a front-end case called Blueford v. Arkansas.  Here's the issue (from SCOTUSblog):

Whether, if a jury deadlocks on a lesser-included offense, the Double Jeopardy Clause bars the reprosecution of a greater offense after a jury announces that it has voted against guilt on the greater offense.

Just to explain a little, in Blueford, the jury was asked to consider capital murder, and, if the jury concluded that defendant was not guilty, then to consider first-degree murder and, if the jury concluded that the defendant was not guilty of that count, then to consider manslaughter.  The jury indicated to the court that it had reached a unanimous conclusion of not guilty on the top two counts but was hung on manslaughter.  The court refused to take a partial verdict on the top two counts, ordered a mistrial, and, over the defense's double jeopardy objection, granted the State permission to retry the defendant on the top counts.

This result conflicted with the other States that allow what is known as an "acquittal first" or "hard-transition" verdicts.  It does not appear that New York has specifically decided this issue, but there is a reason for that (assuming that I understand what all of this "hard-transition" stuff is all about).  The Criminal Procedure Law allows for partial verdicts.  So it is a true "hard-transition" state, which means that this issue actually won't pop up here (unless something unusual happens).

This decision from Arkansas really seems to be an outlier.  It's something that ranks relatively high on the "uncommon sense" meter.  It simply just doesn't feel right, on a gut level, to let the State retry this guy on the top counts after a jury has already unanimously concluded that he was not guilty.  Let's hope that the "good" facts in this case (i.e. the jury's unanimous findings of not guilty on the top counts) make good law.

In any event, Blueford will get added to the Supreme Court cases page soon.