Habeas Corpus Blog

Habeas Corpus - Going Public -- A Front-End Case

Finally got around to reading the decision last week in Presley v. Georgia (available here).

In the case, the Supreme Court set forth two holdings favorable to criminal defendants: (1) a defendant's sixth amendment right to a public trial extends to jury selection; (2) trial courts are required to consider alternatives to closure even when not offered by the parties.

The second holding will seem to have a big effect in NY, as both the state Court of Appeals and the Second Circuit have held thata defendant was required to propose alternatives and the court was not obligated to consider the issue sua sponte.  See People v. Ramos, 90 NY2d 490 (1997); Ayala v. Speckard, 131 F3d 62 (1997).

So the case will definitely have an impact on those cases still in the direct appeal pipeline.

But what about cases that have already become final, for example, any pending habeas petitions?  Here is where we find some intersection between the 2254(d) standard and Teague v. Lane (the case that sets forth the rules on retroactivity in habeasland, which I have discussed here).  If Presley is a "new rule," then a petitioner cannot get any retroactive benefit of this case.  That also would mean that prior to Presley the two holdings were not clearly established law under 2254(d).

On the other hand, if Presley is not a "new rule," but simply an application or an explanation of a "clearly established" principle, then it would apply to cases that have already become final.

I think a strong argument can be made that this was not a "new rule" but simply an explanation of a clearly established rule.  First, this was a summary disposition.  No formal briefing or oral argument was ordered.  It was vacated solely based on the cert. petition.  This was because the Court felt that it was such an obvious decision: "The Supreme Court of Georgia's affirmance contravened this Court's clear precedents."  (My emphasis).  Kind of answers the question all by itself, doesn't it?

But there's more.  When discussing the Sixth Amendment issue, the Court states that the law is "well settled" that the Sixth Amendment extends to jury selection.  The Court then discusses the two cases that show that the rule has already been established.

Then, when addressing the alternatives to closure issue, the Court stated that the answer was "clear" from its precedents and that the rule had been set forth in "explicit statements." 

That's a lot of clarity and well-settledness.  Provides much ammunition for cases that have already become final.

On the other hand, there is the dissent.  In his dissent, Thomas (joined by Scalia) states that it was improper to summarily dispose of the case because these were two previously "unanswered" questions.  He then explains why the prior precedent did not show that the questions were "well-settled" or "clear."  He believes that these were extensions of the prior precedent.

When asking whether a decision is a "new rule," the fact that there was a dissent and the substance of the dissent are things to consider.  At the same time, it was only a two-person dissent, while seven of the judges felt that this was just an explanation of a well settled principle.  And that's something, too.

I'll be curious to see if this argument gets any play in the federal courts.

Final Note: It's been a long time, but I had to add a new category.  I hope that fact doesn't get used against habeas petitioners when trying to show that this was not a "new rule."

Habeas Corpus - What is the Retroactive Effect of a Judicial Change in State Law?

Second Circuit issued a published opinion in the habeas case of Henry v. Ricks (here).  The opinion was authored by Judge Cabranes and he was joined by Judge Miner and DJ Stein.

The issue in the case is whether the Due Process Clause requires the state courts to retroactively apply a new judicial interpretation of the meaning of a state law? 

The specific, underlying judicial interpretation concerns the New York Court of Appeals change in the meaning of depraved indifference murder.  I have previously discussed this change here.  In this case, petitioner's conviction became final prior to this change in law, so he could only get relief retroactively.  He argued that due process requires that the Court of Appeals' new interpretation of this kind of murder apply to his case.

The Second Circuit describes this as a question of first impression for the court.  But in the end, it does not end up being a particularly hard one for the court.   Judge Cabranes concludes that, under Supreme Court precedent, States are not required to make a judicial change in the law retroactive.  If the State courts that the change will not apply retroactively, then the federal courts must respect it.

So, the court affirmed the district court's denial of habeas relief.