Smith v. La Clair, 08-4029-pr, Nov. 12, 2009, Miner, Raggi, Hall, order here
- Affirming Denial of Habeas
- Issues: Speedy Trial
- Notes: Lengthy Summary Order (8 pages)
ANALYSIS: More interesting than most summary orders. Court goes into a relatively in-depth analysis of the Speedy Trial claim. In fact, the order has three substantive footnotes two of which contain legal analysis. This may be a little harsh, but I think, as a rule of thumb, if the court feels the need to include substantive footnotes in a summary order, then maybe the matters in the order are significant enough that they really should be in a published opinion. Or else put everything in the text. Summary orders have little value, and footnotes in a summary order have even less. If it has to be in a footnote in a summary order, it's really not worth saying at all in my mind.
At the same time, it's a good thing here that one legal matter was relegated to a meaningless footnote. One of the main matters in dispute in the speedy trial claim was the issue of prejudice. There does seem to be competing standards as to whether a defendant needs to show prejudice in order to establish a speedy trial violation. It is one of the four factors that a court must weigh in determining whether there is a speedy trial violation. Technically speaking, a defendant can win on a speedy trial claim without showing prejudice if the balance of the remaining factors tip in his direction. Even though that's true, courts typically won't grant relief unless the defendant has established prejudice. Put simply: it's not necessary, but it actually is necessary.
In state court, petitioner did not argue that he was prejudiced. However, in federal court, he did make argument that he was prejudiced. According to the court in footnote 2, this is basically a novel legal situation for the court: whether a claim should be rejected as unexhausted where the habeas petitioner presents a new and different legal theory that was not presented to the state courts. The Court cited to a First Circuit case that generally stands for the proposition that a habeas court should not consider a new legal theory that was not presented to the state courts. The Second Circuit decides that it does not need to address this procedural issue since the prejudice claim fails.
I guess this is a procedural problem that could potentially render its ugly head in the future. While this footnote cannot be used as binding precedent, it's now out there. I don't think that a footnote in a summary order is the proper way to address an issue that seems to be novel.
As I wrote that, I began to remember a summary order from a few months ago that kind of did the same thing -- finding a new legal theory in federal court unexhausted. Ah ha - here it is. Somewhat similar I guess. That was a little more drastic change in legal theory -- from a Batson national-origin-based claim to a Batson race-based claim. And since it was a summary order, it can't be cited as precedent in this new summary order.
So I guess it's still open, but now out there in a more concrete way.