Habeas Corpus Blog

Habeas Corpus - Every Legal Rule is Now Discretionary

On Wednesday, the Second Circuit issued a published opinion in Downs v. Lape, the oldest pending habeas case that had been argued, but not yet decided (as far as I know).  Ending his streak of favorable habeas opinions, Judge Lohier wrote the opinion affirming the district court's decision that there was an independent and adequate state law ground barring review of petitioner's public trial claim.  Judge Chin dissented.  Media coverage here.

The specific question in the case was whether petitioner had shown that the state courts had "exorbitantly" applied the preservation rule in his case.  The really troubling (and kind of confusing) aspect of the opinion was Lohier's discussion of how the Appellate Divisions in New York exercise discretion in how they apply the preservation rule.  As a result, according to the judge, their often inconsistent application cannot be considered an "inadequate" state procedural ground. 

So Lohier shoehorns the preservation rule into the type of so-called "discretionary" rule that was upheld as adequate in last year's depressing Supreme Court decision of Walker v. Martin, where the Court transformed a mandatory rule with a safety valve provision into a "discretionary" rule. 

But even worse than Martin, the preservation rule at issue here is in no way discretionary.  As you will see below, what Lohier considers to be a discretionary application of the rule is nothing more than different judges reaching different conclusions about whether a certain set of facts establish preservation.  In other words -- it's what judges do in every situation where they try to apply a legal rule to a set of facts.  Judges disagree on the answer to that question.*  But that doesn't make the legal rule discretionary.  The legal rule, specifically the preservation rule, is a rule that is supposed to be applied the same in every situation.  Period.  No discretion as to how to apply the rule.**

*Of course, I am not trying to justify the 2254(d) unreasonableness standard here.  I am not saying that it's okay for the judges to disagree and that's life and only unreasonable decisions are unacceptable.  The judges should be consistent.  But inconsistent application of a rule does not make something discretionary.  Now I feel that this is getting redundant.

**To note, the Appellate Divisions in New York do have discretion to review unpreserved claims.  They retain interest of justice jurisdiction to review unpreserved claims.  I guess in that way the preservation rule kind of resembles the one in Martin.  But that is not the aspect of the preservation rule that Lohier compares to Martin.  He is solely referring to the basic application of the preservation rule itself.

But, first, let me take a step back and give the details:

Downs v. Lape, 09-4723-pr

• Affirming Denial of Habeas
• Argued: 5/06/11; Decided: 9/14/11; Published Opinion By Lohier with Dissent from Chin
• Panel: Wesley, Chin, Lohier
• Lower Ct Info: 08-CV-0092, 2009 WL 3698134 (EDNY Oct. 30, 2009) (RJD)
• In Circuit: Dist Ct COA
• Issues: Procedural Default/Right to a public trial

ANALYSIS: Getting right to it, here is the offending paragraph:

Downs argues that New York courts do not regularly rely on the contemporaneous objection rule and that the state's application of the contemporaneous objection rule here is an inadequate ground for rejecting his public trial claim. See Garcia, 188 F.3d at 77 (a pre-Lee case, reviewing adequacy by reference to whether the state invokes a procedural rule that it does "`not apply evenhandedly to all similar claims") . . . . We disagree. As an initial matter, we doubt New York courts have exhibited the tendency that Downs attributes to them. As Downs acknowledges, "there is no mention of an objection being raised by defense counsel" in the cases he cites. See People v. Gomez, 685 N.Y.S.2d 448, 449 (App. Div. 2d Dep't 1998); People v. James, 645 N.Y.S.2d 300, 301 (App. Div. 1st Dep't 1996); People v. Miller, 639 N.Y.S.2d 50, 51 (App. Div. 2d Dep't 1996); People v. Cole, 615 N.Y.S.2d 393, 394 (App. Div. 1st Dep't 1994). Moreover, we expect some variation is inevitable in the application of any procedural rule. Such variation just as easily reflects at least the proper exercise of appellate court discretion as it does the lack of a firmly established and regularly followed rule. In turn, the exercise of discretion by New York courts hardly proves that they fail to regularly follow the state's contemporaneous objection rule, any more than the occasional excusal of a waiver or forfeiture by this Court proves that we do not generally require that arguments advanced on appeal be raised in the lower court. See Walker, 131 S. Ct. at 1130 ("A discretionary rule ought not be disregarded automatically upon a showing of seeming inconsistencies. Discretion enables a court to home in on case-specific considerations and to avoid the harsh results that sometimes attend consistent application of an unyielding rule." (citations omitted)). Here, the Appellate Division exercised limited discretion in finding Downs's public trial claim unpreserved for appeal.

As mentioned above, very troubling.  He is mistaking an exercise of discretion for an appellate court's responsibility to accurately apply the law to the facts.  They have no discretion in the latter situation.  Just because different judges end up coming to different decisions does not make it an exercise of discretion.  They are supposed to get the right answer.  They have no discretion in that. And the citation to Martin at the end does not even support what he is saying.  The preservation rule simply has never been considered a discretionary rule.

Taking what Lohier says to its logical conclusion, is every Second Circuit application of a legal rule now discretionary?  If a Second Circuit panel does not follow a prior application of a legal rule to a similar set of facts, then the panel is simply exercising its appellate discretion?  Is stare decisis now discretionary? All of this just seems completely wrong to me.

I have previously written about how I believe that Richter and Pinholster have shifted the balance in habeas cases.  I guess I should have been more mindful of how Martin could be expanded to completely undercut a challenge to an inadequate application of a procedural rule.

In any event, Chin dissented and agreed with petitioner that the Appellate Division's application of the preservation rule was exorbitant.  He did not address the "discretionary" analysis in the main opinion.

Habeas Corpus - Second Circuit Opinion Reversing Grant of Habeas

For the second time in the past few weeks, the Second Circuit has reversed a lower court's habeas grant.  A tad disappointing.  The name of the case is Whitley v. Ercole.

Here are the details:

Whitley v. Ercole, 10-3119-pr 

• Argued: 12/2/10; Decided: 6/8/11; Opinion by Livinston
• Panel: Raggi, Livingston, Chin
• Lower Ct. Info: 06-CV-10198, 2010 WL 2889124 (SDNY July 22, 2010) (AHK)
• Issues: admission of witness's prior testimony deprived prisoner of his due process and Confrontation Clause rights

ANALYSIS: In an opinion by Judge Livingston, he court reverses the grant of habeas concluding that the claim was procedurally defaulted in state court.  The Appellate Division had concluded that the specific claim was unpreserved.  Petitioner argued that the application of the state procedural rule in his case was not adequate.  More specifically, he argued that the finding that the claim was unpreserved was an "exorbitant" application of the contemporaneous objection rule.  The district court agreed.  The Second Circuit disagreed.  Petitioner loses.

After finding that the claim was procedurally defaulted, the court notes that it disagreed with aspects of the DJ's analysis that the error was harmful.  At least one comment in this section is a bit troubling.  The DJ had concluded that the evidence against petitioner was not substantial.  He had pointed out that there was no physical evidence and that most of the evidence against petitioner were statements from people with criminal records.  Judge Livingston concluded that the evidence against petitioner was not insubstantial.  She stated, "Government cases are frequently built on the testimony of those with criminal histories, and the absence of physical evidence is hardly atypical."

That is not a persuasive argument.  It is actually quite disturbing.  Simply because many prosecutions are based on this type of evidence does not improve the quality of the evidence or mean that this type of evidence is any more substantial.  It simply means that it's typical.  Notably, a good percentage of wrongful convictions are based on jailhouse confessions, a type of evidence that falls squarely into this category of evidence.

One final note, Livingston was also the judge who wrote the dissent in the most recent Second Circuit habeas grant.  That dissent argued that the constitutional violation in that case was harmless.  She seems to be creating a small body of work discussing harmless error analysis. 

Habeas Corpus - Good Summary Order Today

Second Circuit issued a favorable summary order today in Byrd v. Alexander, 09-5309-pr. Order available here.

This case was actually argued back in January.  Kind of get the sense that the court was considering a published opinion here, but then decided against it.  I wish it had issued a published opinion since there is good stuff in here, even though petitioner ultimately lost the case.

Details:

Byrd v. Alexander, 09-5309-pr 

• Habeas Denied
• Argued: 1/14/11
• Panel: Jacobs, Wesley, Chin
• Lower Ct. Info: 08-CV-70 (SDNY Dec. 7, 2009) (LAK) (THK) (unpublished order)
• In Circuit: Circuit Ct. COA
• Issues: IAC

ANALYSIS: Subtitle of this case: state courts acting illogically.

And, if you have read my other posts today, this case continues with the independent and adequate theme.  And I will also pull the uncommon sense meter out of hibernation.  But at least in that regard the federal courts were on the same wavelength here.

Petitioner argued that his counsel was ineffective for failing to seek, in a sexual assault case, independent testing of a biological sample recovered from the victim.  The State's expert had concluded that semen was present, but that there was no genetic material to be analyzed.  Of course, that was a double positive for the State: we got you on the semen, but sorry you can't prove that it's not your's.  Obviously, this kind of finding just doesn't make much sense from a real world perspective.  Seems like a completely partial analysis.  But this evidence went unchallenged.

Petitioner brought a 440 motion raising IAC.  The State court denied the motion on the ground that petitioner, who is trying to show that his attorney was ineffective, did not submit an affirmation from that attorney.  Yep, you read that correctly.  We have seen this ridiculousness before.  This is so obviously unfair that I feel like I shouldn't need to even say it.  But, of course, state courts keep doing it.

Petitioner then came to federal court.  And the federal judge granted a request to get the independent testing.  Thank you, federal court.  Another example of why habeas review remains important.  It just seems so objectively obvious that further testing should have been done here.  It should not have taken a federal court to have granted the request.  But, of course, it was the federal court that had to do it.

And, lo and behold, the independent expert concluded that the biological substance was not semen and the substance did not contain any male DNA.

After getting these favorable results, petitioner went back to state court, raising IAC.  The state court concluded that the claim was procedurally barred because petitioner did not raise it on direct appeal.  You have to be kidding me, right?  How could he have brought this claim on direct appeal when the claim is based on NEW evidence that was necessarily outside the record on appeal.  Just totally insane.  It's scoring pretty high on the uncommon sense meter.

Nevertheless, the state court went on to say that petitioner was not prejudiced by the error.

Thankfully, the Second Circuit concluded that neither of the procedural rulings were adequate.  The language is not as strong as it could be, but it's still good. 

As for the attorney affirmation issue, the court stated, "We conclude this failure does not bar our review of the claim, as 'New York courts do not inflexibly require that defendants claiming ineffective assistance must present a supporting affidavit from the challenged attorney.' Jenkins v. Greene, 630 F.3d 298, 303 (2d Cir. 2010). We decline to rely on this procedural issue as a basis for our disposition of Byrd’s application for habeas relief."  That's a nice result.

As for the other procedural decision, I wish the court's language was a little stronger.  But it still implies some good things.  It stated, "Likewise, this procedural failure does not bar our reaching the merits. Respondents do not argue that Byrd’s failure to raise his ineffective assistance challenge on direct appeal bars our review of his claim. Cf. Clark v. Perez, 510 F.3d 382, 392 (2d Cir. 2008) (noting "that a motion to vacate based on facts visible on the trial record must be dismissed where the defendant unjustifiably failed to raise the issue on direct appeal")."  So it is saying, without saying, that the state court decision was unjustifiable, as even the State acknowledges, so it can't be considered adequate.

I'll note that the Second Circuit also mentioned that it was appropriate to hurdle over the procedural issue since the merits were easy resolvable.  And it finds that, on the merits, the state court's decision that there was no prejudice was not unreasonable.

So a loss for the habeas petitioner, but not a bad decision on the procedural questions.

Habeas Corpus - Relist Revisited

In my last post about the relists, I stated that I thought that the case in Maples would end up as a GVR in light of the supreme Court's decision in Walker v. Martin as both cases concerned the question of whether a state rule represented an independent and adquate state law ground.

A reader pointed out to me that this outcome does not seem likely since the lower court in Maples actually ruled against Maples and concluded that the State rule, which in some ways resembles the California rule at issue in Martin, was adequate.  So there would be no reason to reverse since it would seem to be consistent with Martin.

That makes sense, so I would like to take back my statement about the GVR.  I guess what I really should have said was that the result in Maples on the adequacy of the procedural rule, whatever it should end up being, seems to be dictated by the Martin decision.  So it makes sense that the Court would hold the case in light of Martin.

But then I starting looking into it some more and realized that Maples had the additional issue of cause for the procedural default.  I completely forgot that this was the case that got all of the media attention focusing on how a mailroom in a big New York City law firm screwed up the case.  And I can't believe that I forgot that, as it was the case in which I instituted the "uncommon sense meter" (which I guess has been in hibernation for awhile).

Which means that it could still be a GVR, but on this other ground.  However, I think that it is more likely to be a dissent from cert. denial.  I can't see the Supreme Court deciding to review this case on the "cause" ground.  But I am guessing that the facts in this death penalty case make at least one judge a little bit* uncomfortable.

*In my relist post yesterday, I also used the "a little bit" phrase.  It's because I had that great line from Goodfellas stuck in my mind: "No, no, no, no, no. You insulted him a little bit. You got a little bit out of order yourself."  I happened to watch Goodfellas again on Monday night.  I worry that it's a little cliche to refer to Goodfellas.  Who hasn't seen Goodfellas a million and a half times?   But it's such a ridiculously rewatchable movie.  So for your viewing pleasure, I've included the entire "Billy Batts" scene from Goodfellas.  It's obviously NSFW. The quote mentioned above is at 3:07 if you want to skip ahead:

 

 

 

Habeas Corpus - Supreme Court Opinion Today

The Supreme Court issued its opinion today in Walker v. Martin.  The Court (once again) reversed the Ninth Circuit's conclusion that a California procedural rule did not represent and independent and adequate state law ground barring habeas review.  The unanimous opinion, written by Ginsburg, is here.

Essentially, the Court concluded that this was a discretionary rule, and as the Court concluded last term in Beard v. Kindler, a discretionary rule can represent an adequate state law ground to bar habeas review.

I believed that a reversal was the likely outcome, but I thought there would be some split here on whether or not this was actually a discretionary rule, since it really isn't.  It's a mandatory rule, with some exceptions to its mandatory nature.   The burden is on the petitioner to establish one of those exceptions.  That is not a discrecionary rule.  The only discretionary part of the rule is that the California Supreme Court, who hears a large number of cases, has unofficial, common-law discretion to ignore the mandatory rule without any required explanation as to why they decided to ignore it. But once again, that does not turn a mandatory rule into a discretionary rule.  It creates an ambiguous and undefined safety valve to a mandatory rule.  In my mind, it's the essence of an inconsistently applied rule.  Or maybe I am just reading too much into it.

Nevertheless, I worry that, as a result of this decision, inconsistently applied mandatory rules will now be viewed as "discretionary".  I guess there is a fine line there that has now been moved a little in a bad direction for habeas petitioners.  Actually, it may have moved a lot.  We'll see.

One thing to note, this was the case where I came down hard on the State's attorneys, who seemed to do as much as they could to try and lose the case.  I guess that bad lawyering doesn't always result in a loss, particularly when the Supreme Court is reviewing a Ninth Circuit decision. 

Habeas Corpus - District Court Review - Habeas Grant Recommended - Edited

In District Court Review Number Two, I am going to briefly discuss a recent R&R recommending a grant of habeas relief based on the ground of insufficient evidence to establish depraved indifference.

[EDIT - In the original post I never included the name of the case.  It's Wells v. Perez, 10-CV-1107 (SDNY) (DC)(JCF)]

While the R&R was covered at length in the New York Law Journal (as I have said before, I will not provide a link to a subscription only site -- so here's one to the New York Post's brief article on the case), the R&R does not seem to be published anywhere.  I had to print it off PACER.  But it was worth the $2.40.  It's a really fascinating decision.

The case itself is quite infamous.  In fact, you can watch a Dateline NBC video about the case here.  It concerns a drunk driver who struck and killed a mother of three.  Petitioner, a popular party promoter, was, according to Dateline, one of the "worst kind of drunk drivers," namely someone who had been a repeat drunk driver. 

I have previously talked at length about the changes to the depraved indifference laws.  This was a case where all of the changes to the law applied to the case.  Although the conviction occurred before Feingold, the case was still pending on appeal when Feingold (the case that actually altered the depraved indifference law) was decided.  This meant that, for the appeals courts to uphold the conviction, it was necessary for the trial evidence to establish that petitioner had a depraved state of mind.  Relying on a New York Court of Appeals decision that discussed the relationship between intoxication and a depraved state of mind, the MJ concluded that the facts did not rise to the level of depravity.

The more interesting part of the decision, though, is how the MJ navigates the habeas corpus procedural issues.  At trial, counsel argued that the evidence was legally insufficient to established depraved indifference.  It was about as preserved as it could have been under the law as it stood at the time.  However, counsel did not make the Feingold argument -- that depraved indifference was its own culpable mental state that needed to be evaluated from the defendant's subjective perspective.

For this reason, the New York appellate court concluded that the claim was unpreserved.  Seems illogical, right?  How can a claim of law be unpreserved when it did not even exist at the time of the trial?  The MJ acknowledges the illogic of this, but nevertheless concludes that New York law requires it.  Thus, the appellate court's state procedural bar was independent and adequate. 

However, the MJ says that there is cause for the procedural default.  In fact, he flips around the illogic of New York's preservation rule.  He says, "Because New York's law on depraved indifference changed markedly while Mr. Wells' case was on direct appeal, the legal bases for his sufficiency claim was not reasonably available to his attorney at the time of trial."  R&R at 30-31.  Due to the drastic change in law, he later adds, "It would therefore be unreasonable to hold the petitioner's counsel to a standard of performance that would have required him to make multiple legal sufficiency objections based on hypothetical future changes in the law."  Id. at 31.

One problem: this sounds like a futility argument, which the Second Circuit rejected in an unpublished depraved indifference decision called Brown v. Ercole (discussed here).  The MJ provides the following explanation as to why that case does not control:

New York courts prior to Feingold had never applied the standard subsequently adopted in that decision.  Thus, it was not until after Feingold that defense attorneys generally started making objections based on the prosecution's failute to prove "culpability."

Unfortunately, that doesn't completely persuade me.  It's what the MJ said plus this -- this case is distinguishable from Brown.  In that case, the defense attorney did not raise any challenge to the sufficiency of the evidence.  None at all.  Here counsel made the one that was available to him at the time.  It was only unpreserved because he did not make the hypothetical argument based on a change in law.  To me, that's a big difference and completely distinguishes it from the previous futility case.

The MJ here noted that other DJ's had followed similar paths in depraved indifference cases, citing to Petronio (discussed around here before) and Fernandez v. Smith (discussed in the Petronio post).

Before we get too excited about this, it still needs to go through the DJ.  But even if the DJ disagrees with the R&R, let's hope that the DJ grants a COA. 

Habeas Corpus - Argument Preview - Walker v. Martin

On Monday, the Supreme Court will be hearing argument in the habeas case of Walker v. Martin.

Here's the issue: Whether a state procedural bar that prevents collateral relief for a “substantially delayed” filing does not represent an “independent and adequate state law ground" because (1) the rule is vague, and (2) the courts did not “consistently” apply the rule

This case could have a big impact.  Federal courts rely upon the independent and adequate state law doctrine to deny relief on a great number of habeas claims.  I am not saying that there's anything wrong with that -- it is what it is.  I am just pointing out that it really is one of the big obstacles facing habeas petitioners.

The main argument to rebut this is to say that the procedural bar is either not "independent" of the federal issue (don't see that argument very often -- I also find it hard to conceptualize) or is not "adequate" to support the judgment.

This case is going to focus on the adequacy question.  And to be honest, the standard for what makes a procedural bar inadequate is a bit all over the place.  I guess that's what the Supreme Court could potentially clarify here.  Of course, when something in habeas law gets clarified, that doesn't always work out too well for habeas petitioners. 

Here, the procedural bar is that a state court habeas petition will be denied if its filing was "substantially delayed."  The Ninth Circuit concluded that the rule was vague and inconsistently applied.  Both descriptions are probably accurate.  But are they grounds to find inadequacy?

The State, obviously, argues that they aren't.  The State decided to go for broke.  (And we have seen California do this in other cases -- see here)  Rather than just argue that the inadequacy doctrine never looked to vagueness or inconsistent application or that the rule itself was neither of those things, the State asks the Court to adopt a new rule for inadequacy.  They argue that all State procedural rules are okay if they give "fair notice" to the petitioner and the rule furthers a legitimate State interest.  Then they take it one step further.  They argue that the Court should create the rule that a procedural bar is presumptively valid and it should be petitioner's burden to overcome that presumption of validity.  As you can see, they are really shooting for the moon.  I guess a conservative court can give a State in a habeas case confidence like that.

In response, petitioner* points out that the independent and adequate doctrine is an affirmative defense that the State must assert.  If they don't use it, they lose it.  And the burdens on affirmative defenses are basically set in stone under the federal rules of civil procedure.  So the State would be seeking a radical realignment of civil procedure rules. 

*When I say petitioner, I mean the habeas petitioner.  In the Supreme Court, the habeas petitioner is actually Respondent and the State, who is Respondent in the habeas case, is actually petitioner.  Confusing, no?  It's why I stick to the original designations.

As for the "fair notice" argument, petitioner argues that the Court has looked in the past at whether a rule was regularly followed.  And consistent application is a hallmark (or better yet, a synonym) of whether a rule has been "clearly established and regularly followed" -- terms found in prior Supreme Court cases. 

I think petitioner has the better argument (as I usually do). Which is what gets me worried.  The more I think about it, the more I begin to understand the State's strategy here: if the law is not on your side, then ask that the law be changed!  It's simplicity is pretty ingenious.

And the reason why that's a real concern here is that the adequacy rules do remain somewhat vague.  I can easily see a conservative court reading the Court's prior cases in such a way to settle on the State's suggested rule.

So this case is definitely one worth watching closely.

Once again, argument is on Monday.

Habeas Corpus - GVR me

This Supreme Court term has been quite notable for its GVR's.*  There has been a bunch of them in habeas cases.  This has resulted in some highly critical (and, I admit, clever) dissents from Scalia.  

*GVR= grant, vacate, remand

The latest edition to this continuing drama happened last week in Wellons v. Hall (opinion here).  The GVR was granted on the basis of Cone v. Bell, a case from last term in which the Court concluded that a state court decision that rejected a claim because it had been previously decided did not represent an independent and adequate state law ground to bar habeas review.

But it wasn't a pure GVR on that ground.  The Circuit Court did not just reject the claim based on the procedural bar.  The court went on to address the merits of the claim in the alternative.

That was not good enough for the Supreme Court.  "The disturbing facts of this case raise serious questions concerning the conduct of the trial, and this petition raises a serious question about whether the Court of Appeals carefully reviewed those facts before addressing petitioner’s constitutional claims."

What were the disturbing facts?  Most notably, the jury sending a chocolate cake in the same of a penis to the judge and a chocolate cake in the shape of a woman's breasts to the lead court officer.  As you would expect, that part of the case got the media's attention.  I have seen a lot of bad puns about it.

The Court concluded that, even though the lower court did address the merits, it actually didn't really address them since it had initially found a procedural bar.  Thus, the court had "no need to address whether petitioner was otherwise entitled to an evidentiary hearing" and it only gave the merits a "perfunctory consideration."  The Court went out of its way to point out that the Eleventh Circuit only discussed whether Wellons was entitled to relief on the petition, rather than whether he should have had an evidentiary hearing.  The Court also stated that, even if the Eleventh Circuit had addressed the evidentiary hearing claim, it could not be sure that the lower court's analysis was independent of the Cone error.

Alito and Scalia dissented in two separate opinions.  Alito argued that the lower court had adequately addressed the merits. 

And Scalia criticized the way that the Court used the GVR saying that it had "outdo[ne] itself." He said that the Court has altered the GVR power to send back for a "redo."  He complained that the GVR's of late had resulted in a "systematic degradation" of that power, resulting in a bunch of new uses:

the GVR so the government can try a less extravagant argument on remand . . ., the GVR in light of nothing . . ., and the newly-minted Summary Remand for More Extensive Opinion than Petitioner Requested(SRMEOPR) . . . . Today the Court adds another beast to our growing menagerie: the SRIE, Summary Remandfor Inconsequential Error—or, as the Court would have it, the SRTAEH, Summary Remand to Think About an Evi-dentiary Hearing.

It's a pretty entertaining paragraph.  Is Scalia making too much of this?  Yep.  But who cares?  It's fun to watch him inconsequentially rip on the Court in this way.  I hope that it continues.

But I do think that there could be more to Wellons.  From a practical perspective, there is a chance that Wellons could have an impact.  There are countless times where an appellate court affirms a lower court decision on the ground that the lower court had addressed the merits in the alternative after rejecting a claim on a procedural ground.  This case provides ammunition for litigants to say that an affirmance is insufficient where the lower court got the procedural ground incorrect and a remand is the more appropriate remedy.  I know that I am sure to use it for that reason. 

Habeas Corpus - Sup. Ct. Decision in Beard

UPDATED BELOW

The Supreme Court issued its opinion in Beard v. Kindler today.  The opinion is available here and was written by Chief Judge Roberts.

Here's the holding:

We hold that a discretionary state procedural rule canserve as an adequate ground to bar federal habeas review.Nothing inherent in such a rule renders it inadequate for purposes of the adequate state ground doctrine. To the contrary, a discretionary rule can be “firmly established”and “regularly followed”—even if the appropriate exerciseof discretion may permit consideration of a federal claimin some cases but not others. See Meltzer, State Court Forfeitures of Federal Rights, 99 Harv. L. Rev. 1128, 1140(1986) (“[R]efusals to exercise discretion do not form animportant independent category under the inadequatestate ground doctrine”).

Based on what we learned from the argument, the opinion is not surprising.  Petitioner conceded this at the argument and the Court noted that in the opinion -- "We take our holding in this case to be uncontroversial—so uncontroversial, in fact, that both parties agreed to the point before this Court."

The Court also declined a request from Respondent, which was joined in an amicus brief by a conservative legal organization, to alter the law on inadequacy to make it worse for petitioners.  The reasoning why is a bit ambiguous though.  Roberts states, "The procedural default at issue here—escape from prison—is hardly a typical procedural default, making this case an unsuitable vehicle for providing broad guidance on the adequate state ground doctrine."

This could be read as a suggestion that, in an appropriate case, the Supreme Court would agree to entertain such a request.   Do the conservative members of the Court have an unstated agenda here?  Could be.  I mean, why even put it in the opinion if the Court was not entertaining the idea.  Pretty scary.  Not sure why the "liberal" members of the Court would sign on to such a suggestion.

UPDATE: In my original post, I neglected to mention that there was a concurring opinion from Kennedy, joined by Thomas.  After reading it, I guess the agenda is not so secret after all.  In the opinion, Kennedy would like to restrict the review of whether a state rule was adequate to only two situations:  (1) whether a rule was novel that had not been applied before; and (2) whether a rule was applied in order to "evad[e] compliance with a federal standard."

That would be a severe restriction of what constitutes adequacy.  As Roberts acknowledged in the main opinion, "We have framed the adequacy inquiry by asking whether the state rule in question was '"firmly established and regularly followed."'"  Adequacy is not just about "novelty" and whether there was some bad faith on the part of the state.

For now, the rules remain the same.  However, the future does not look good.  If the only right-leaning Kennedy is willing to take this position, this could very well be the law some day.

Habeas Corpus - What just happened?

I read through the oral argument in Beard last night.  It was pretty tragic.  The transcript of the argument is available here.

Why do I describe it as tragic?  Well, as I mentioned yesterday, the Court granted cert. on the issue of "Is a state procedural rule automatically “inadequate” under the adequate-state-grounds doctrine - and therefore unenforceable on federal habeas corpus review - because the state rule is discretionary rather than mandatory?"

During petitioner's argument, counsel for petitioner CONCEDED that, if this is what the circuit court held, then the circuit court was wrong and the decision needed to be vacated.  That's tragic. 

So the debate ended up being about the far more mundane question of whether the circuit court had really held that the state court's change from a discretionary to a mandatory procedural bar during the pendency of petitioner's criminal case rendered the procedural bar not "firmly established."  Boring.

I guess it's a good lesson in lawyering.  Counsel for petitioner did not waste time fighting on an issue that he probably had no chance of winning and instead went straight for the best argument to preserve the lower court victory.  Can't blame him for that. 

But I do wonder how the Supreme Court is going to handle the main issue.  If they agree with the State (or, as referred to in the argument, "The Commonwealth") about how to read the circuit court's decision, then the analysis will only need to be one paragraph long.  Actually, it only needs to be one sentence long -- Because both sides agrees that the circuit court was wrong, we are vacating that decision.  Obviously, some guidance beyond that will be required.  It seems that everybody agreed that a discretionary rule may not necessarily represent a procedural bar if it is not consistently applied.  So the circuit court will have to decide upon that question.

On the other hand, if the Court agrees with petitioner as to how to read the circuit court's opinion, then the question on which cert. was granted becomes dicta.  Tragic.