Habeas Corpus Blog

Habeas Corpus - Good News

By JK

I am happy to report that my powers of prediction were off!  And this is good news for habeas petitioners.

Last week, in my post about Johnson v. Williams, I stated that a likely casualty of Williams would be Pearson v. Winston.  As I mentioned previously, in that case, the Fourth Circuit concluded that, where the state court failed to develop the factual record with respect to petitioner's claims, there was no adjudication on the merits.  In that situation, there would be de novo review and the federal courts could consider new evidence.  It seemed like a likely candidate for a GVR after Williams.

But the good news is that the Court denied the State's cert. petition on Monday.  Here's a link to the order list.  Thank you relist watch on SCOTUSblog for pointing that out.

So Winston remains good law and, for now, offers a potential path around Pinholster.

Habeas Corpus - Undeserved Deference

By JK

Yesterday, the Supreme Court issued its long awaited decision in Johnson v. Williams.  The Court held that, for purposes of §2254(d), when a state court rules against a defendant in an opinion that rejects some of the defendant’s claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits.

I have to say that this decision has left me a little perplexed and a lot upset.  My inflammatory opinion is that the Court's current antipathy towards habeas has led it to issue an opinion that is simply divorced from any conceivable purpose of habeas corpus review.  While inflammatory, I believe that it is compltely justified.

Here's what I mean:  For various reasons, state courts often fail to address constitutional claims in their decisions even though defendants specifically raise them. To me, the whole point of the "adjudicated on the merits" language was a check on the state courts. It basically said to them, "you can have a tremendous amount of deference, but you need to actually adjudicate the claim to get it."  It encouraged the state courts to address constitutional claims.  It took some of the harshness out of the restrictions on habeas review wrought by the AEDPA because it was saying that you don't need habeas review because your constitutional rights will be protected in state courts.

Now, that's not true. The state courts have permission now to ignore the constitutional issue and still get deference. I think this is going to have a deleterious effect on constitutional rights. It creates an incentive for state courts to ignore them, knowing that a critical check in the system has been loosened.  It's not controversial to say that the original purpose of habeas review was to be a check on the state courts to make sure that constitutional rights were being adequately protected.  This decision is clearly contrary to what habeas was originally meant to be.

But it's not even consistent with the new purported purposes of habeas under the AEDPA.  This current Court has repeatedly stated that the purpose of the AEDPA was to make the state courts the primary forum for litigating constitutional claims and that habeas was just to prevent extreme malfunctions in that process.  Well, how is this decision consistent with that?  Under Williams, state courts don't even have to address constitutional claims and now there is a presumption that they are entitled to the super-high, "difficult to meet" deference of 2254(d).  What about that logic is consistent with having the state courts as the primary forum for litigating constitutional claims?  And, shouldn't the fact that the state courts failed to address a constitutional claim be evidence of a malfunction in the system?  Isn't that consistent with giving the federal courts more power to step in?  It's not logical.  It should be the opposite.

It's nothing more than antipathy for habeas guiding the result.

Oh wait, there's the irrebutable presumption.  Doesn't that make it better?  The most I can say for it is that it gives petitioner's a chance.  But I really have no idea how that's going to play out.  I mean, why isn't that overcome when the state specifically fails to address the constitutional issue? I really have no clue at this point what else the Court is asking a petitioner to do to overcome the presumption.

At this point, I think I'd like to break out the uncommon sense meter.  Try explaining to a layman that in habeas law there is a presumption that an issue was decided on the merits even though there was no actual decision on the merits on that issue.  Just try.  I dare you.  You are going to sound pretty crazy.  I think this may be a new high score on the meter.  And that says a lot.

But what's most depressing about all of this is that every judge on the Court agrees with the notion that silence=adjudicated on the merits.*  There is not a single judge on the Court right now that is willing to take a principled stand that federal courts should be stepping in when the state courts fail in their responsibility to address constitutional claims.  It's really, really sad.

*To note, Scalia would have gone even further and not had the presumption. 

One other likely casaulty of Williams is the Fourth Circuit's decision in Pearson v. Winston.  In that case, the Fourth Circuit concluded that, where the state court failed to develop the factual record with respect to petitioner's claims, there was no adjudication on the merits.  In that situation, there would be de novo review and the federal courts could consider new evidence.  It was a logical path around the unfairness of Pinholster.  I am not sure if this logic will be upheld after Williams.  The cert. petition in that case was being held by the Court.* I am guessing that it's going to be GVR'd after the next conference. 

*Actually, the hold in that case was what had originally gotten me worried about what was going to happen in Williams.  As I originally discussed, it did not appear from the argument in Williams that the Court was going to go this far with its opinion.  But there really wasn't a reason to hold Winston unless the Court was going to go in the direction that it did.  Now that it has gone this far, it has an impact on what happened in that case.

 

COA Grant in Umali: Second Circuit To Consider Remedy for Burden-Shifting Jury Instruction

By Matthew B. Keller

Last week, HCB’s own Alan Lewis received a COA grant from the Second Circuit in Umali v. Heath, No. 12-3243 (2d Cir. COA granted Dec. 18, 2012).  Not one to toot his own horn, I will trumpet for him – a Circuit COA grant is rare enough these days that it’s important to keep track of all of them.  This one is particularly noteworthy  because it gives the Second Circuit a chance to consider one important, but largely ignored aspect of the Supreme Court’s Lafler v. Cooper opinion from last term – the boundary between the contrary to and unreasonable application clauses of AEDPA.

The case began as a New York State murder prosecution against Isaias Umali for killing Dana Blake during a 2003 fight at an East Village club.  Blake, a bouncer, was in the process of violently removing Umali’s friend, Jonathan Chan, from the club when Umali stabbed Blake in the thigh/groin, severing Blake’s femoral artery.  Surgery to repair the artery failed and Blake died the following day.

Following a trial, Umali was convicted of First Degree Manslaughter and sentenced to 17 years in prison.  In his state court appeals he raised several issues relating to his right to present a defense, the trial court’s exclusion of lay and expert witness testimony, as well as the issue on which the Second Circuit granted a COA – the court’s burden shifting instruction on justification. 

The Trial Court’s Justification Instruction

Umali ’s defense was that, at the time of the stabbing, he believed that Blake was using deadly physical force against Chan.  Both defense and prosecution witnesses testified that Blake (a much larger man than Chan) held Chan by the neck or throat and that Chan unsuccessfully tried to free himself from Blake’s grasp.  The defense argued that Chan could not breathe and was therefore in grave danger. 

In New York, deadly force can be justified where someone reasonably believes that another person is using or is about to use deadly physical force.  For those who haven’t cracked a NY Penal Law since the Bar Exam, you’ll recall that this defense has both  “subjective” and “objective” components: the defendant must subjectively believe at the time that he is acting to stop deadly physical force upon himself or another, and that belief must be objectively reasonable under the circumstances. 

Where this gets tricky is in the burden of proof.  Even though justification is raised by the defendant, in New York it remains the prosecutor’s burden to prove that a defendant was NOT justified in using deadly physical force.  And indeed, in Umali’s case, the court began by correctly instructing the jury that it was, “the burden of the prosecution to disprove [justification] beyond a reasonable doubt.”  (The court also mentioned that, in general, “the defendant has no burden of proof”).  However, the court ran into trouble when it broke down the burden of proof as to each prong (subjective and objective) of justification, stating:

If the evidence convinces you beyond a reasonable doubt that deadly force was necessary to prevent the imminent use – that the defendant believed that deadly physical force was necessary to prevent the imminent use of deadly physical force you must still find the second test, which is the objective test, were defendant’s beliefs reasonable under an objective standard.

If you didn’t catch it, the problem with this explanation is that, by suggesting that the jury had to be “convince[d] beyond a reasonable doubt that . . . the defendant believed that deadly physical force was necessary,” the court shifted the burden of proof on the subjective prong to the defendant.  Umali’s trial attorney (HCB’s Alan Lewis) caught it, and asked the judge to re-charge the jury and explain its previous error.  The court refused, maintaining that it “correctly said” the justification charge. 

A burden-shifting charging error is a big deal.  The criminal justice system relies on juries to give effect to major constitutional rights, including the one at issue here: the requirement that the State prove guilt beyond a reasonable doubt.  Rights don’t get much more fundamental to American justice than that.  Therefore, when a court gives a constitutionally defective instruction, the Supreme Court has held that it is not enough that other parts of the jury charge may have instructed correctly on the same subject.  Instead, the court is required to “explain” the defective instruction: “Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.” Francis v. Franklin, 471 U.S. 307, 322 (1985). 

Appellate Court and District Court Habeas Review

Umali took this argument to New York’s appellate courts, which rejected it.  The NY Court of Appeals agreed with Umali that the instruction on the subjective element of justification had impermissibly shifted the burden of proof onto him.  However, it also held that the trial court corrected its mistake by repeatedly referring to the correct burden of proof in reference to the overall justification defense and to the case in general.  “In light of these repeated references to the correct legal standard,” the Court of Appeals concluded, “the instructions as a whole could not have misled the jury regarding the applicable burden of proof. Thus, a supplemental charge explicitly disavowing the court’s single misstatement of law was not required in this case, although it certainly would have been preferable had the court realized that it misspoke.”

If you’re reading closely you might be asking yourself, “what about that Franklin case he just mentioned?  Doesn’t that require an explanation of the error?”  It sure seems to me that it does.  But you wouldn’t know that from reading the Court of Appeals’ decision.  Even though Umali emphasized the Franklin holding – it is literally the first case cited in Umali’s Court of Appeals’ brief – the opinion refers to Franklin ZERO times.  And neither of the two cases the Court of Appeals relied upon for its expression of the legal standard refers to Franklin. See People v Drake, 7 N.Y.3d 28 (2006); People v Fields, 87 N.Y.2d 821 (1995). 

Umali petitioned the SDNY for habeas review.  The petition was referred to a federal Magistrate Judge, who recommended that District Judge Rakoff deny it.  See Umali v. Heath, No. 10 Civ. 1787 (S.D.N.Y. Report & Recommendation filed Oct. 13, 2011) (Gorenstein, M.J.) (“R & R”).  Judge Rakoff adopted the R & R and also denied a COA. 

To answer the jury instruction question, the R & R applied a modified form of the three-part test of Jackson v. Edwards, 404 F.3d 612, 621 (2d Cir. 2005), asking the following three questions: (1) was the charge incorrect under state law?; (2) if so, was the giving of the faulty charge a denial of due process?; and (3) if so, did the state court’s contrary conclusion constitute an unreasonable application of clear Supreme Court law? 

Before getting to the answers, you have to wonder whether the Magistrate asked the right questions – particularly the third, applying AEDPA’s deferential standard of review under the unreasonable application prong.  Last term in Cooper, the Supreme Court held that state court decisions that fail to apply controlling Supreme Court precedent to a constitutional claim do not get AEDPA deference because they are “contrary to” clearly established federal law as opposed to an unreasonable application of that law. 132 S. Ct. 1376, 1390.  The state court decision at issue in Cooper failed to apply Strickland v. Washington to assess an ineffective assistance of counsel claim.  Here, there is no doubt that the New York Court of Appeals failed to apply Franklin to Umali’s jury instruction claim, because the court never mentioned the case.  So, whence AEDPA deference?  By asking the third question above, the district court simply assumed that AEDPA deference would apply.  A threshold question for the Circuit will be how to deal with the lower court’s unconsidered application of AEDPA deference in light of Cooper.

As for the first two questions, the Magistrate Judge answered yes and no, respectively.  The subjective prong language was incorrect under state law because it incorrectly shifted the burden on to the defendant.  However, the faulty charge did not result in a denial of due process because in the context of the entire charge it did not deny Umali of a fair trial.

Unlike the NY Court of Appeals, the Magistrate Judge applied Franklin; but then he distinguished it from Umali’s case.  Sure, the court said, under Franklin you cannot correct an erroneous burden-shifting instruction merely by using more “general [correct] instructions” on burden of proof to “contradict” the bad instruction on the subjective prong of justification.  But according to the district court, that’s not what happened here: the measures taken by Umali’s judge were much more thorough and “direct” than those taken in Francis. After parsing the language of the jury charge and the trial judge’s responses to jury questions, the Magistrate Judge found that the trial court, “twice made clear that it was the prosecution’s responsibility to prove the absence of [a justification] defense, which necessarily included both the subjective and objective prongs.”  Therefore, the Magistrate concluded, “[t]hese instructions thus constituted a far more direct correction of the incorrectly-given instruction than had occurred in Francis.”   

I’m not sure what Judge Rakoff – an excellent and thoughtful judge – was thinking when he denied COA on this.  It is a fair reading of Franklin that a trial court must correct an unconstitutional instruction by, at a minimum, referencing the bad instruction and then explaining why it is incorrect.  Clearly that did not happen here.  In addition, none of the judge’s correct instructions were as specific as the burden-shifting one.  That is, the burden shifting occurred in the only instruction in which the trial judge dealt specifically with the subjective element of justification. 

The reasoning behind the R & R seems to be that Umali’s case is different from Franklin because here the correct instructions on burden of proof related to a specific claim or defense (i.e. justification) and therefore it’s okay to expect a lay jury to reason that the correct instruction should override an erroneous instruction applying to an element of that claim or defense.  In Franklin, the correct instructions were given only in the abstract, and therefore it was not fair to expect a jury to apply them to override a contradictory instruction as to an element of a claim or defense.

I’m dubious.  As a legal matter, Franklin says that abstract or global instructions cannot override contradictory specific instructions.  Yet both the NY Court of Appeals and the Magistrate Judge specifically relied on such global instructions (as well as the “more specific” ones relating to justification) to defend the legitimacy of the overall charge.  That reliance was misplaced under any reading of Franklin. 

But even on a more basic level, the Magistrate’s reasoning makes an unwarranted assumption about the legal reasoning skills of lay jurors.  Trial judges should charge each jury as if it knows nothing about the law.  If a jury were made up entirely of lawyers (or even law students) it might be reasonable to assume that such a jury could easily reason from a defense to an element of that defense.  These are precisely the sort of reasoning skills that those in (or training for) the legal profession regularly employ.  But I’m not sure why this level of deductive reasoning is any easier for a lay jury than that deemed too difficult for a jury by the Supreme Court's Franklin opinion.

The Second Circuit did the right thing by granting COA.  That will enable it to consider the merits as well as the application of AEDPA deference in light of Cooper.  I’m hoping that Cooper begins a shift away from the sometimes unexamined assumption that every state court decision receives deference under AEDPA.  State court decisions that fail to apply the correct federal standard should not receive that (or any) level of deference.

Habeas Corpus - Ninth Circuit and Pinholster

By JK

I have complained on here multiple times about how the decision in Pinholster has resulted in unfairness in a significant way: a state court’s decision to limit the factual record on which to analyze a constitution claim is given preclusive effect in federal court.  In more practical terms, what I am saying is that, even where a state court’s decision to reject a request for an evidentiary hearing was unreasonable, there is nothing a federal court can do about it. 

As it turns out, the Ninth Circuit has addressed this concern. And I actually find it quite clever.  The way to go around this unfair aspect of Pinholster: go through 2254(d)(2).  Here’s what that subsection says:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim: 

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

After Pinholster, the Ninth Circuit held in Detrich v. Ryan that “if we make an antecedent determination – relying solely on evidence before the state court—that the state court’s adjudication . . . ‘was based on an unreasonable determination of the facts,’ . . .we proceed to evaluate the petitioner’s claim de novo and may then consider evidence that was properly presented for the first time in federal court.”*

* To note, the Ninth Circuit did order Detrich en banc on October 3 (see my en banc reheard post).  As a result, "The three-judge panel opinion shall not be cited as precedent by or to any court of the Ninth Circuit."  Technically, I am not citing it to any court of the Ninth Circuit, so it's okay.  Also the en banc order did not say that the panel decision was vacated, so it's technically still on the books.  At the same time, the dissent in Detrich did take issue with the majority considering new evidence under 2254(d)(2).  So, I guess the en banc in Dietrich could end up vitiating this part of the decision. 

And here’s the clever part.  The Ninth Circuit has also held that one way in which a state court’s factual finding can be unreasonable is where the state court’s factual finding process was deficient.  More specifically, the Ninth Circuit has “held that the state court’s failure to hold an evidentiary hearing may render its fact-finding process unreasonable under § 2254(d)(2).”*

*That’s a quote from a recent decision in Hibbler v. Benedetti.  I will say nothing more about that decision as [D/D] my new office represents petitioner in that case.

Actually, this reasoning pre-dates Pinholster.  Chief Judge Kozinski created it in a case called Taylor v. Maddox.  It’s a must-read.  In Taylor, CJK outlines the different ways in which a state court’s factual findings can be unreasonable.  He describes this as an “intrinsic” analysis, as opposed to an “extrinsic” analysis.  An “intrinsic” analysis is one that solely looks at the state court record.  An “extrinsic” one is one that considers evidence outside of the state court record.  Follow me so far? 

The importance of this distinction has to do with the two different subsections in 2254 that address the level of deference to be given to state court factual findings: 2254(d)(2) and 2254(e)(1).  2254(d)(2) talks about factual findings that are unreasonable.  2254(e)(1) grants state court fact findings a presumption of correctness that may only be overcome by clear and convincing evidence.  The Supreme Court has yet to address the interplay of these two subsections.  They granted cert. on it a couple of years ago in Wood v. Allen, but did not end up addressing it in the opinion.  

In the meantime, there is CJK's analysis in Taylor.  He did his logical best to reconcile two provisions that are very difficult to reconcile.  He basically said that a court should first engage in an intrinsic analysis under 2254(d)(2).  If the factual finding survives the intrinsic analysis, then it gets cloaked (CJK used "dressed") with the presumption of correctness under 2254(e)(1).  A petitioner can uncloak (or, I guess, undress) those findings with extrinsic evidence, i.e. new evidence outside the state court record.

I love the logic of it.  But I am worried that the “extrinsic” aspect of 2254(e)(1) is inconsistent with the holding of Pinholster.  If there is nothing unreasonable about what the state court did under 2254(d), I am not sure if a federal court will be allowed to consider any evidence outside the state court record in its eventual analysis under 2254(d)(1). Taylor's analysis currently does allow that. 

Or maybe I should be viewing it in the reverse.  If CJK was correct in his reading of the statute and this is the only way to reconcile these two provisions, then Pinholster’s interpretation of 2254(d)(1) is inconsistent with how the rest of the statute operates.  Is that a way to challenge Pinholster?  It’s a nice dream I guess, but that ship may have already sailed.  At the same time, it's difficult to see how a petitioner can overcome a presumption of correctness without relying on all available evidence, including evidence outside the state court record.  According to CJK in Taylor, that is precisely what the AEDPA allows under 2254(e)(1).

Complicated stuff, made even more complicated by the unfairness of Pinholster.  But at least, for now, the Ninth Circuit does allow for a way around Pinholster when the state court unreasonably denies a request for an evidentiary hearing.

In a later post, I'll discuss another interesting post-Pinholster case that addresses new evidence presented in a federal habeas petition.  That case is called Gonzalez v. Wong.  

Habeas Corpus - The Rumors of Habeas's Demise Have Been Greatly Exaggerated (By Me)

By JK

Following up on Alan’s first post from the other day, I do want to make a little bit of noise around here about several good results in habeas cases in the circuit courts over the past six weeks (since around mid-September).

There have been habeas grants out of the:

Second Circuit: Young v. Conway (see Alan's post for details)

Third Circuit: Garrus v. Secretary of Dep't of Corr. - Apprendi violation

Seventh Circuit: Harris v. Thompson - right to present a defense and IAC

Ninth Circuit: Cudjo v. Ayers - violation of right to present a defense; Stankewitz v. Wong - IAC during sentencing phase of death penalty case

There may have been others; these are just those that I have seen.  And I am sure there will be more.  But I have expressed a lot of doom and gloom around here over the past two years (ever since Richter).  So I do think it’s worthwhile to acknowledge when the good things happen.  And if you have time please read the Seventh Circuit’s decision.  It’s looong, but it's pretty great.  It kind of feels like the court was convinced of petitioner's innocence, and this belief ends up being the motivating force behind the analysis. 

And the Third Circuit’s decision is pretty cool, too.  It’s an en banc decision on an Apprendi issue – the scope of the “prior conviction” exception to the Apprendi rule.  Two things of note (at least related to the blog): the majority has a great footnote (#8) that criticizes the dissent for reading the unreasonable application/clearly established law part of the 2254(d) standard in such a narrow way that it basically turns it into the “contrary to” clause.  I have been yelling about court’s doing that since nearly the inception of this blog (that post was written in July 2009; I started the blog in April 2009).  So glad to see a court say it.

At the other end, the dissent points out that the majority did not give enough deference under the standard of review and gives lists of all of the times that the Supreme Court (i) granted cert. on the issue; and (ii) reversed on this ground (both summary reversals and after merits briefing).  These lists are long.  The lack of deference summary reversal was the subject of my most recent article (part of my recent doomistry* and gloomery*).  And it does serve as a reminder that, even with the good stuff, there are still reasons to be concerned about the future of habeas.  

*Not actual words.

Habeas Corpus - Summary Reversals

Back in June, I had an article published in the Criminal Law Reporter that focused on the numerous (what I call) lack-of-deference summary reversals from the Supreme Court in habeas cases over the preceding 14 months. 

The thesis of the article is essentially that the Supreme Court has been increasing its use of the summary reversal in habeas cases to send a message to the lower courts that the Court was keeping a close eye on every habeas grant to make sure that the federal courts were engaging in the appropriate amount of deference to the state courts under the 2254(d) standard of review or else face the public embarrassment of a summary reversal.

I then applied that thesis to the Second Circuit's highly unusual about face in Rivera v. Cuomo.  The Second Circuit obviously received the Court's message.  I argue that the circuit court's fear of a Supreme Court summary reversal was the main motivation for reversing its own prior habeas grant.

Want to read more?  You can access it here --> Summary Reversal Article

Enjoy!

Habeas Corpus - Legal Insufficiency No More?

In one of my more recent posts (meaning one of the few that have appeared this calendar year), I mentioned that it was a pretty good term for habeas in the Supreme Court.

But that's not entirely true.  There was the early opinion in Greene that was pretty horrible. 

And then there was the Court's treatment of legal insufficiency claims.  Based on how hard the Court came down on some circuit courts that had granted habeas on legal insufficiency claims, it is a legitimate question to consider whether this type of claim really is no longer viable on habeas review.

It started with the first opinion of the Term back in October 2011, Cavazos v. Smith.  The Court summarily reversed a Ninth Circuit opinion which had granted habeas on legal insufficiency grounds.  The Court spent most of the opinion detailing the ways in which the Ninth Circuit messed up the legal insufficiency analysis.  But the Court stated something that ended up being something new.  It stated: "When the deference to state court decisions required by § 2254(d) is applied to the state court's already deferential review, there can be no doubt of the Ninth Circuit's error below." 

In later cases, this became the "double deference" standard for legal insufficiency claims.  We have seen the "double deference" standard before, notably in IAC claims.  Essentially, it means that deference must rise to the level of near preclusion.  In the real word, I am not sure how this type of double deference actually works.  A reader has mentioned this to me before, but no matter what it is, it's not technically double deference, i.e. deference layered upon deference.  That's kind of silly and not really possible.  It is really heightened deference.  But even that is hard to quantify (or would it be qualify? I guess it could be either, or maybe it's both? see what I mean?).

In any event, there is now a great, great deal of deference when a federal court is reviewing legal insufficiency claims on habeas review.  And the Court followed up Cavazos with two recent summary reversals that emphasized this double deference standard.  Those were Parker v. Matthews and Coleman v. Johnson.  In the former, the Supreme Court went to town on the Sixth Circuit.  In the later, the Court upset a Third Circuit habeas grant.

Reading through all three, I can't say that there is a consistent theme as to how to apply a double deference standard.  Most of the Court's complaints in all three cases really focused on the lower court's misapplication of the regular old legal insufficiency standard, not an insufficiently deferential application of the legal insufficiency standard (whatever that may be). 

For example, here's the main complaint in Johnson:

Under the deferential federal standard, the approach taken by the Court of Appeals was flawed because it unduly impinged on the jury’s role as factfinder. Jackson leaves juries broad discretion in deciding what inferences to draw from the evidence presented at trial, requiring only that jurors “draw reasonable inferences from basic facts to ultimate facts.” This deferential standard does not permit the type of fine-grained factual parsing in which the Court of Appeals engaged.

One can find examples of this type of garden-variety problem with the insufficiency analysis in each of the summary reversals.  And while the analysis in those cases obviously looked at other factors, none of them really focused on a problem of double deference.

Nevertheless, double deference is now the rule.  And, on legal insufficiency, this means deference to both the juries and the state courts.  It's a pretty heavy burden on a habeas petitioner to succeed on this type of claim.  I am worried that it will be the exceedingly rare case where that burden can be met.

Habeas Corpus - Today's Summary Orders - Montstream

Dusting Off the Old Blogging Machine . . .

Thought that today would be a good day to jump back into some habeas corpus blogging due to the two very interesting summary orders out of the Second Circuit today.

This post will cover Montstream v. Superintendent, 11-802-pr. 

Petitioner pled guilty to, among other things, manslaughter and possession of a weapon and was given consecutive sentences.  Petitioner argued that this was illegal/unconstitutional because sentences for  crime A committed with a weapon and the possession of that same weapon with the intent to use it unlawfully cannot run consecutively when the intent to use the weapon was solely based on the commission of crime A.  Very recently, the New York Court of Appeals confirmed that this was true.  Hence, petitioner's consecutive sentences are, at the very least, illegal under state law.  The  question though for habeas is: are they unconstitutional under the Double Jeopardy Clause?  Or more relevant for habeas purposes: is it an unreasonable application of clearly established double jeopardy principles for the state courts to uphold the sentences?

All of that is very interesting.  But what makes the summary order so fascinating, for me at least, is that it really is the first one I've seen from the Second Circuit that really digs deep into the post-Richter world of extreme deference.  The court does cite to Richter in the forefront of its analysis as to what petitioner must show to get relief -- the state court error must be “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”

The Second Circuit concludes that petitioner has not met this standard.  The court frames the issue as: whether a state court's erroneous application of a state concurrent sentence statute violates double jeopardy?  Relying upon some Supreme Court precedent, petitioner argued that the only sentences that the Legislature authorizes can survive double jeopardy.

This is where the deference comes in.  The Second Circuit states, "Reasonable judges may well find that argument persuasive were the issue presented for de novo review."  However, the rejection of that argument would not be unreasonable.  It pointed out that there was no Supreme Court precedent that dictated that conclusion, particularly where the NY statute limiting consecutive sentences gives broader protection than the double jeopardy clause.  The Supreme Court has never held that state legislatures have the power to expand double jeopardy protections in that way.  The Second Circuit concluded that it is "at least a debatable question whether the Court would extend its [prior] holdings" in the manner that petitioner suggests.  Because it is debatable, then it cannot win on habeas. 

And, in a conclusion that does not quite follow from the rest of the opinion, the Second Circuit says: "There can be no dispute, however, that the Supreme Court itself has never clearly answered the question.  It follows, therefore, that we must dismiss [the] petition." 

Odd ending.  Use the entire opinion to show why it cannot be an unreasonable application of federal law; conclude that petition must be denied for lack of clearly established law.  If you can't tell, I am kind of obsessed with the whole internet meme image macro.  It would look something like this:

Pretty geeky.  Don't expect an image macro in ever post from now on.

 

Habeas Corpus - Another Summary Reversal- Oh Boy - Updated

Update: I edited this a little for clarity.  And I completely forgot to include the "Oh Boy" video.  I can't believe I neglected to do that, considering that's why I used "Oh Boy" in the title.  That's now at the bottom of the post.

Today, the Supreme Court issued another per curiam summary reversal.  It was in the previous relisted case of Bobby v. Dixon.  Unlike last week's, this one is unanimous. 

But this one is causing me a great deal of concern.  I have previously written how I believe that the decision from last term in Harrington v. Richter was a game changer.  Here is where we see just how profound that impact is.  But it's not necessarily in the result in this case.  It's hard to say that Richter was outcome determinative in this summary reversal.  It looks as if the Sixth Circuit didn't do a great job justifying their opinion.

But the language that the Court uses here builds upon Richter in a really troubling way.  As we all know by now, in order to get relief under 2254(d)(1), a petitioner must show that the state court's decision was an "unreasonable" application of clearly established law.  Although the Court had previously stated that "unreasonable" was difficult to quantify and qualify, the Court last term in Richter changed that and gave it a precise meaning.  To show that something is "unreasonable" a petitioner must show "that the state court’s ruling onthe claim being presented in federal court was so lackingin justification that there was an error well understoodand comprehended in existing law beyond any possibility for fairminded disagreement."  When I read this, it felt to me like this standard was nearly impossible to meet.

And now the entire Supreme Court -- and I mean all 9 judges -- is saying just that.  The Court says that, to meet this standard, the state court's error must be "grievous." 

Definition of grievous: flagrant; outrageous; atrocious.

Synonyms (from same link): deplorable, lamentable, calamitous, heinous, flagitious, dreadful, shameful, iniquitous.

Later, the Court says that the state court's error must be "egregious."

Definition of egregious:  extraordinary in some bad way; glaring; flagrant.

Synonyms (from same link): gross, outrageous, notorious.

I wish I was making a joke here, but what happened to "unreasonable"?  Grievous and egregious?  They are not even synonyms for unreasonable.  It's a step up from unreasonable.

That's the impact of that new standard in Richter.  It has moved the needle so far to the right that the showing is no longer "unreasonable."  The burdensome Richter standard has created the space for the Court to use descriptive words that go beyond "unreasonable."  Now, a petitioner must show that the state court's decision was extraordinarily or outrageously bad.  Of course, that is not what the statute says.  But, unfortunately, that is now the test.  Just mindblowing to me. 

Really, here is the new standard:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted  . . . unless the adjudication of the claim -

(1) resulted in a decision that was an outrageously or extraordinarily wrong application of clearly established Federal law as determined by the Supreme Court of the United States . . .

Not quire sure what comes next.  Seriously, what adjective is worse than "grievous" or "egregious"?  Actually, wait, don't answer that question.  I am worred that the Court will consider using it in the next summary reversal.

Update: Here's the "Oh Boy" video.  It captures my sentiments here:

 

Habeas Corpus - Summary Order

Second Circuit issued a summary order today in Cortijo v. Bennett, 10-2348-pr.  Mostly straightforward, but I'll note one thing in the analysis section.

Cortijo v. Bennett, 10-2348-pr 

• Affirming Denial of Habeas (summary order)
• Argued: 5/2/11; Decided: 5/16/11
• Panel: Newman, Calabresi, Hall
• Lower Ct. Info: 03-CV-5102, 2010 WL 2079711 (SDNY May 17, 2010) (LAP (GWG) 
• In Circuit: District Court COA
• Issues: court's response to jury note shifted burden of proof or reduced prosecution's burden of proof

ANALYSIS: Just wanted to point out that the new, nearly impossible to meet definition of "unreasonable" that the Supreme Court created in Richter is beginning to filter down into the lower courts.  This is not the first time that I have seen it used, but I thought I'd mention it. 

Here, the Second Circuit stated that, even if there was error here, the Appellate Division's decision was not unreasonable because:

“[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).

I haven't really discussed this too much around here, but that new definition of what makes something unreasonable silently overruled Williams v. Taylor, 529 U.S. 362, 409-11 (2000) (O'Connor, J., concurring, but writing for the majority on this part), in which the Supreme Court rejected an almost identical definition, stating that it added an unjustified subjective extra layer to the analysis.  But now the Supreme Court has simply replaced the previously improper "all reasonable jurists" test set forth in Williams with the just as subjective "all fairminded judges" test.  Haven't I said that this may be the worst ever Supreme Court term for habeas petitioners?