Smith v. McGinnis, 08-6238-pr, link here, October 1, 2009, Walker, Katzmann, Roth (3d Cir., sitting by designation)
- Denial of Habeas Affirmed
- Issue: Whether trial court violated defendant's fifth amendment right to remain silent and due process right to consult with his attorney, as established in Brooks v. Tennessee, 406 U.S. 605 (1972), when the court required the defendant to testify, if at all, as the first defense witness.
ANALYSIS: Not much to the order. But I do see an anomaly here. In denying the claim, the Second Circuit relied upon its own precedent to conclude that Brooks did not establish a general prohibition against a court regulating the order of the trial in a way that affects the timing of the defendant's testimony.
Well, the Supreme Court in Musladin stated that its irrelevant how the circuit courts have previously interpreted Supreme Court law. The only relevant "clearly established law" are the Supreme Court holdings. So, just as the Ninth Circuit cannot rely upon its own precedents in determining clearly established law when granting relief, the Second Circuit shouldn't look to its own precedents for clearly established law in denying relief. The only question is whether there there was an unreasonable application of Brooks. The Second Circuit's previous conclusion that Brooks is not a general prohibition is irrelevant. But, of course, I highly doubt that the Supreme Court will ever fault a circuit court for doing that.
The response could be that the Second Circuit was only looking at its previous decisions to determine whether this was an unreasonable application of clearly established law in Brooks.
And, of course, that spirals us into the Musladin conundrum, doesn't it? I should be happy that the Second Circuit acknowledged that Brooks is the clearly established law and was simply looking to its own prior precedents to see whether this was an unreasonable application of that legal principle. I guess I should take out the snarky paragraph beginning with "Well, the Supreme Court, blah blah blah" and -- just like Lane Pryce on Mad Men -- say, "Huzzah!" the Second Circuit applied 2254(d) in a way that I agree with! [even though it denied relief to a petitioner]. Certainly, it's better how they did it here than if they said that there was no clearly established law since the Supreme Court has never directly applied the Brooks rule to this particular fact situation. That's pretty much what they did in that summary order in Bonner v. Ercole, and what other lower courts seem to be doing.
So maybe I should just look at this as a case that did not get sucked into the troubling trend that started with Musladin and leave it at that.