Habeas Corpus Blog

Habeas Corpus - Supreme Court Opinions Today

Supreme Court issued two unanimous opinions today in habeas cases. Both losses for the habeas petitioner. 

The Court unanimously reversed the habeas grants in both Harrington v. Richter (opinion here) and Premo v. Moore (opinion here).  But there was more in common than just the reversal of the habeas grant.  As Kennedy stated in the first paragraph in the Moore opinion:

This case calls for determinations parallel in somerespects to those discussed in today’s opinion in Harrington v. Richter, ante, p. ___. Here, as in Richter, the Court reviews a decision of the Court of Appeals for the Ninth Circuit granting federal habeas corpus relief in a challenge to a state criminal conviction. Here, too, the case turns on the proper implementation of one of the stated premises for issuance of federal habeas corpus contained in 28 U. S. C. §2254(d), the instruction that federal habeascorpus relief may not be granted with respect to any claim a state court has adjudicated on the merits unless, amongother exceptions, the state court’s decision denying relief involves “an unreasonable application” of “clearly established Federal law, as determined by the Supreme Court of the United States.” And, as in Richter, the relevant clearly established law derives from Strickland v. Wash-ington, 466 U. S. 668 (1984), which provides the standard for inadequate assistance of counsel under the Sixth Amendment. Richter involves a California conviction and addresses the adequacy of representation when counseldid not consult or use certain experts in pretrial preparation and at trial. The instant case involves an unrelated Oregon conviction and concerns the adequacy of representation in providing an assessment of a plea bargain without first seeking suppression of a confession assumed tohave been improperly obtained.

But the similarities don't end there.  In each case, Kennedy concludes that it was not unreasonable for the state courts to find that counsel's performance was not deficient. And, in both cases, Ginsburg filed a very short concurring opinion in which she concluded that there was deficient performance, but there was no prejudice. 

Upon a quick review, Richter appears to be the more significant of the two opinions as Kennedy seems to elucidate, for the first time, the proper steps a habeas court should take in assessing whether the state court's decision was unreasonable.  This could be pretty influential.  In addition, that case also answers the (relatively uncontroversial) procedural question of whether a summary decision deserves deference under 2254(d).  The expected answer: yes.  The Court sets up a presumption that a summary decision is on the merits and the "presumption may be overcome when there is reason to think some other explanation for the state court’s decision is more likely."

I'll read them both much closer and give some further analysis soon.

Habeas Corpus - Harrington v. Richter Preview

On Tuesday, the Supreme Court will be hearing arguments in the habeas case of Harrington v. Richter. 

In Richter, the Ninth Circuit had concluded that Richter's counsel was ineffective when he failed to call expert witnesses to challenge the State's blood evidence at trial.  The underlying merits of the case are debatable.  After reading the briefs, I think that the Court will probably split on the merits with the majority concluding that counsel wasn't ineffective.*

*Probably the most interesting thing about the merits is that the Ninth Circuit opened its opinion with a quote from "The Art of War" to help explain why counsel's performance was deficient.  The State made a little too much of that in its brief, saying that the court had adopted this quote as the standard for ineffectiveness.  That's an overstatement.  But it does demonstrate why relying on literature, as opposed to legal precedent, can often times leave an opinion vulnerable to attack.  It's a common judicial ethics question.

However, there is an interesting procedural aspect to this case that I have not previously discussed.  A big chunk of the briefs address the question of whether AEDPA deference applies to a state court's summary disposition of a claim. 

From a procedural stand point, I was confused as to why this was an issue in the case.  The Ninth Circuit had concluded that deference applied, but granted relief under the deferential standard.  So it wasn't as if the State -- the party seeking cert. here -- was going to be raising it.  The lower court decision was in its favor on that point.

But then I took a look at the Court's order granting cert. The Supreme Court added this additional issue to the case.  Here's the language from the order:

In addition to the question presented, the parties are directed to brief and argue the following question: Does AEDPA deference apply to a state court's summary disposition of a claim, including a claim under Strickland v. Washington, 466 U. S. 668 (1984)?

I believe that the Supreme Court can hear whatever issue it wants.  So it's now a part of the case.

And this is a tricky little issue.  In their brief, the State points out that every circuit has concluded that a summary disposition (e.g. A court summarily saying, "Motion denied" without any analysis) is entitled to deference under 2254(d) since it is an adjudication on the merits.  That's a true statement.  Indeed, that's what the Second Circuit has held.

However, it's not that simple here.  And we can thank California for that.  Petitioner points out that, in California, there are FOUR different types of summary denials.  And this one fell into a "silent denial" category which, according to caselaw, cannot be considered a denial on the merits.  In fact, a silent denial means that we can't know what grounds was used for denying the claim. Thus, it simply cannot be considered an adjudication on the merits.  It would seem that petitioner is right about that.

The best part about this is that the State has specifically taken that position in the past -- including before the Supreme Court in other habeas cases.  But the State did not even mention this inconsistency in its main brief.  Oops.

So petitioner could potentially prevail on this argument and have the Court review the claim de novo.  That would be a nice win for the habeas petitioner.  But it would be of limited value since there aren't too many states that have this somewhat sophisticated summary denial procedure.  New York does not seem to be one of them.

But of course I am feeling cynical.  I am guessing that the real motivation for granting cert. on this issue is actually anti-petitioner.  I am worried that the Court granted cert in order to blunt the impact of a couple of its prior decisions.

As everyone knows, Strickland ineffectiveness claims have two prongs: deficient performance and prejudice.  In two prior ineffective assistance of counsel cases, the Court disagreed with the state court decisions that only addressed the first prong and concluded that counsel's performance had been deficient.  Since the state court had not addressed prejudice, the Court analyzed prejudice de novo. 

It's this de novo review that I think the Court is going to seek to limit.  I fear that they will either overrule that approach (or, maybe worse, silently overrule it), or specifically limit that de novo review to situations where the State court specifically addresses one prong but not the other.  The Court will say that, when a state court summarily rejects an ineffectiveness claim, both prongs fall under the deferential standard.

The overriding fear of such a decision is that it will give a state court a disincentive to address the merits of a claim.  It could lead to more summary denials, which is not a good thing for the criminal justice system.

Nevertheless, this tricky little procedural question does make Richter a case of interest for me.

 

Habeas Corpus - New Cert. Grant in Habeas Case

There was one other big development in habeasland this week.

On Monday, the Supreme Court granted cert. in a habeas corpus that I believe could have a big impact on habeas petitioners here in New York. 

The name of the case is Harrington v. Richter.  The Ninth Circuit had granted the petition on ineffective assistance of counsel grounds.  The issue on which Respondent sought cert. in the Supreme Court is, quite honestly, a mess.  See if you can figure it out:

In granting habeas corpus relief to a state prisoner, did the Ninth Circuit deny the state court judgment the deference mandated by 28 U.S.C. section 2254(d) and impermissibly enlarge the Sixth Amendment right to effective counsel by elevating the value of expert-opinion testimony in a manner that would virtually always require defense counsel to produce such testimony rather than allowing him to rely instead on cross-examination or other methods designed to create reasonable doubt about the defendant’s guilt.

The SCOTUS wiki did a better job of identifying the issue:

Does a defense lawyer violate the Sixth Amendment right to the effective assistance of counsel when he does not investigate or present available forensic evidence supporting the theory of defense he uses during trial and instead relies on cross-examination and other methods designed to create reasonable doubt about the defendant’s guilt?

But that's not the issue that's important to petitioners in NY.  It is the additional issue on which the Court granted cert. that could have an impact.  In the order granting cert., the Supreme Court asked the parties to brief the following issue:  Does AEDPA deference apply to a state court’s summary disposition of a claim including a claim under Strickland v. Washington?

I can't cite to the exact case offhand, but the rule in the Second Circuit is that such a summary disposition is entitled to deference.  For example, if the state court does not specifically address the relevant constitutional claim, but states instead that "defendant's remaining claims have no merit," that decision is entitled to deference. All that matters is that the claim was denied "on the merits," not whether there was any reasons attached to the denial.

But should that type of decision receive deference? As a law professor on a different blog states very nicely, "How can a federal habeas court determine whether a state court's decision 'involved an unreasonable application of clearly established Federal law' if the state court never explained how it actually applied clearly established federal law?"  Nevertheless, that's how we do it here in the Second Circuit.

Now, if the Supreme Court says in Harrington that a summary disposition is not enough to obtain 2254(d) deference, well, that would be a big development.

Is there reason to get excited that this could happen?  To be honest, not sure.

My immediate reaction was: the Supreme Court must have added this additional question because the Ninth Circuit did something wrong -- as they always seem to do in the Supreme Court's eyes.  And what I mean by "wrong" is that the court did not give deference when it should have.

But then I read the opinion.  The funny thing is that the Ninth Circuit did give the state court's summary decision deference here.  It analyzed the claim through the standard of review. 

I guess the issue here arises out of a footnote in the opinion.  In the footnote, the court stated that it was not sure whether deference was appropriate where the state court decision is unreasoned.  However, the court concluded that, because the writ would be granted even under the more deferential standard, it would apply that more deferential standard to the claim.  Here's what the court stated:

Here, the California Supreme Court denied Richter’s habeas petition in one sentence, without providing any reasoning for its decision. No other state court commented on Richter’s claim that counsel provided ineffective assistance by failing to investigate the source of the pool of blood, consult expert witnesses, or call any such witnesses who could testify as to its source.

Because we would grant the writ whether we reviewed the state court’s decision de novo or for objective unreasonableness, we apply the stricter unreasonableness standard. Thus, we need not determine whether or when an unreasoned state court decision warrants AEDPA deference.

So, what does it mean that the Court added a procedural issue that had no impact on the decision below?  I guess it could be as simple as the Court felt that it was going to be necessary to address this procedural matter in order to fully resolve the main ineffectiveness question. 

But is there anything else to it?  I am going to let this question stew in my mind awhile and (hopefully) return to it at a later time.  Maybe it should wait until I get a chance to read the briefs and the transcript of the oral argument.  That will probably reveal a lot about where all of this is going. 

Habeas Corpus - Harmless Error Standards

Kind of a quirky published opinion yesterday from the Second Circuit. 

First, the central issue in the opinion is something you don't see all the time: whether the two significant constitutional errors at trial were harmless.  Having two significant constitutional violations in a single case is pretty unique.  Btw, these errors were the improper admission of a detailed confession taken after petitioner had invoked his right to remain silent and the improper admission of the complainant's grand jury testimony when the complainant refused to testify at trial.

But what's a little weirder about the opinion is that the court re-opens the question of what harmless error standard applies when the state court has engaged in its own harmless error analysis.  In my mind, that question was settled by the Supreme Court a couple of years ago. 

And then finally the court engages in an outcome-determinative harmless error analysis -- downgrading every type of harmless error analysis that looks at the impact of the evidence on the case, and basically equating harmless error analysis with solely looking at the strength of the prosecution's case.  It's a little dispiriting.  Try to explain to a layperson that a conviction can be upheld where there were two significant constitutional violations and the remaining evidence against the defendant consisted of circumstantial evidence and a shaky oral confession. 

The case is Perkins v. Herbert, opinion here, which was written by DJ Trager.  The court reversed the district court's grant of habeas.

Below the fold I'll go into a little more analysis . . .

Habeas Corpus - Disappearing 2254(d)(2)

Been a slow week around here.  Supreme Court is on break until February 19.  Not much habeas action in the Second Circuit lately.

So, I thought I'd go back to the recent decision in Wood v. Allen (discussed here).  In short:  Supreme Court evaded the question of how to reconcile the two provisions in 2254 that concern federal habeas review of state court factual findings.

After looking through my previous posts on the case, I realized that I never discussed the state of the law in the Second Circuit.  So I looked it up, and boy was I surprised what I found.  It's a bit wacky.

Once again, a quick review of the two provisions:  2254(d)(2) asks whether the state court's factual finding was "unreasonable," while 2254(e)(1) says that state court factual findings are "presumed to be correct" and can only be rebutted with clear and convincing evidence. 

In Wood, the Supreme Court expressed some skepticism as to whether one provision is more deferential than the other.  In my mind (and most habeas petitioners' as well), 2254(e)(1) is more deferential.  It is much more difficult to overcome a presumption of correctness by clear and convincing evidence than to merely show that a state court’s factual finding was unreasonable.  At the very least, it’s definitely true from a psychological perspective.  Having to overcome a presumption of correctness can seem almost insurmountable. 

As the Court noted in a footnote in Wood, there is a split in the Circuits as to how to read these two provisions.  In two of the Circuits (the 3rd and the Ninth), the more deferential standard only applies where the petitioner is seeking to challenge a state factual finding based on evidence outside of the state court record.  If the challenge is based solely on facts developed in the state court, then the "unreasonable" standard applies.  Obviously, this was the reading that petitioner advanced before the Court.

In contrast, in at least three Circuits, the more deferential standard applies to every habeas petition (as noted in footnote 1 of Wood – the Seventh, Eighth and Eleventh).  For example, the Eighth Circuit stated that ”);  (federal habeas relief is available only “if the state court made ‘an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,’ 28 U.S.C. § 2254(d)(2), which requires clear and convincing evidence that the state court's presumptively correct factual finding lacks evidentiary support.”  Trussell v. Bowersox, 447 F.3d 588, 591 (C.A.8 2006).*

*Bowersox is one the best last names I have seen in a long time.

This number also appears to include the Second Circuit.  And this is where things get a little wacky.  The Second Circuit has never specifically addressed the question of how to reconcile these two provisions.  Or, at least, not explicitly.  But the Second Circuit appears to have adopted the “applies to every case” formulation.  In a case from 2008, the Second Circuit stated, “under section 2254(d)(2), a state court’s findings of facts are ‘presumed correct.’  The habeas petitioner bears the burden of ‘rebutting the presumption of correctness by clear and convincing evidence.’” Brown v. Alexander, 543 F.3d 94, 100 (2d Cir. 2008). 

I don’t think this makes a lot of sense.  Do you see what they did here?  It appears that the Second Circuit has written the "unreasonable" standard right out of the statute and has fully incorporated the 2254(e)(1) presumption into the 2254(d)(2) standard.  That’s an absurd reading of the statute.  It's one thing to equate unreasonableness with rebutting with clear and convincing evidence.  But it's another to simply say that 2254(d)(2) actually has the presumption and a petitioner is required to rebut that presumption.  At the very least, this formulation makes life very confusing for petitioners.  And Brown was recently cited for the exact same proposition.  See Richard S. v. Carpinello, 589 F.3d 75, 80-81 (2d Cir. 2009). 

I should note that in a case from 2002 the Second Circuit  did use language that was more akin to the Eighth Circuit's.  In Overton v. Newton, 295 F.3d 270 (2d Cir. 2002), the Second Circuit first quoted the language under 2254(d)(2) as the standard on habeas review.  In the next sentence, it stated, "'A state court determination of a factual issue is, moreover, presumed to be correct, id. § 2254(e)(1), and is unreasonable only where the petitioner meets the burden of 'rebutting the presumption of correctness by clear and convincing evidence.'" Now, that is more logical.  I don't agree with it, but it at least acknowledges that there are actually two separate provisions here.

Despite this formulation in Overton, it now appears that Brown and Carpinello's odd formulation is the current standard in the Second Circuit.  And that's wacky.

So,habeas petitioners in the Second Circuit are now stuck with having to overcome the more deferential standard no matter the situation.  And they are forced to try and decipher the Second Circuit's absurd reading of the statute.  It certainly will be nice for the Supreme Court to settle this issue and alleviate the confusion surrounding how to reconcile these two provisions.

Habeas Corpus - Another Letdown

Going to try and play some catch up over the next couple of days.

First, I wanted to talk about the Supreme Court's opinion this week in Wood v. Allen.

My reaction: What is with the habeas cases this term?  In three of the four habeas cases for which there was full briefing (Beard, McDaniel, Wood), the Supreme Court has done little to nothing to address the question on which cert. was granted.*

* There has been some good stuff in the summary reversals, but I am putting those in a separate category

I guess it's not all the Court's fault.  In both Beard and McDaniel, the petitioner conceded that the lower court was wrong, leaving the Supreme Court with little to decide.

And now comes Wood where the Supreme Court avoids the question on which cert. was granted:  how to reconcile the two separate provisions (2254(d)(2) and 2254(e)(1)) that concern the review of state court factual findings. 

Quick review: 2254(d)(2) asks whether the state court's factual finding was "unreasonable," while 2254(e)(1) says that state court factual findings are "presumed to be correct" and can only be rebutted with clear and convincing evidence.  According to the Court, 2254(e)(1) is "arguably" more deferential.  I think it is clearly more deferential, but that's a post for a different day.

Here's what happened in Wood:  petitioner's allegation was that his counsel failed to pursue mitigating evidence of mental deficiencies.  The factual finding at issue was a little tricky in my mind.  It was a choice between (i) whether counsel made a strategic choice not to present evidence of mental deficiencies, or (ii) whether it was not a strategic choice, but just an omission.  This is separate from the question of whether, if a strategic choice was made, that choice was reasonable.  The question here was whether there was a strategic choice in the first place.  I hope I made that clear.  To be honest, it took me awhile to get this straight.

The district court concluded that it was an omission, not a strategic choice, and the state court's factual finding was unreasonable in light of clear and convincing evidence in the record.  That is basically a mash up of the two provisions.  The Eleventh Circuit reversed and, utilizing a different mashed-up version of the two provisions, concluded that the factual findings should be upheld.

The Supreme Court granted cert. on the question of how to reconcile these two provisions.  But in the opinion, the Court sidestepped the issue.  Writing for the majority, Justice Sotomayor stated that under either provision the state court's factual findings should be upheld as there was sufficient evidence to show that it was a strategic decision.  Justice Stevens (joined by Kennedy) disagreed with that conclusion, saying that this was an omission.

So a loss for the habeas petitioner in the particular battle.  And a no decision on the question presented.  That's a big letdown. Would have been nice to get some resolution on this particular question.

Habeas Corpus - Argument Day: Wood v. Allen

This morning, the Supreme Court will hear argument in the capital habeas case of Wood v. Allen.  I have previously discussed the case here.

The issue in the case is: "how a federal court should review the facts determined in a state criminal proceeding under the Antiterrorism and Effective Death Penalty Act (AEDPA)."

More specifically, the question in the case concerns the interplay between 2254(d)(2) and 2254(e)(1), which have different standards for reviewing state court factual findings.

The Second Circuit has yet to address this issue.  See Green v. Travis, 414 F.3d 288 (2d Cir. 2005) ("This Court has not yet addressed whether a petitioner seeking habeas relief must prevail under both 2254(d)(2) and 2254(e)(1).").  So no matter how the Court decides the issue it will have an impact on the state of the law in the Second Circuit.

For other coverage of Wood v. Allen, see this post at the ACS Blog.

Habeas Corpus - A Troubling Trend

I wanted to follow-up on the Second Circuit's summary order in Bonner v. Ercole from last week (original post here).

The decision represents a really troubling direction in how the standard of review is applied.  I will warn you that this will be a pretty abstract discussion about how different sections of the standard of review run against one another, but it has real world consequences in habeasland, so it needs to be put out there. 

The Supreme Court's decision in Carey v. Musladin, 549 US 70 (2006), started a tug of war between the “clearly established law” and “unreasonable application” part of the standard of review (see FAQ 3).  What Musladin did was greatly restrict the meaning of clearly established law, which has greatly expanded its use in denying habeas.  Courts have interpreted Musladin broadly.  Some of these courts have concluded that, in many situations, a habeas court is no longer allowed to ask whether a state court unreasonably applied a broad legal principle to a new set of facts.  If the Supreme Court has not addressed that specific application of the broad principle, then the law cannot be considered clearly established.

As Justice Souter stated in his concurring opinion in Musladin, there is a murky area between clearly established law and an unreasonable application of that law.  But that murky area is beginning to become more "clearly established" (sorry for the pun).  Musladin has been cited 950 times since it was decided less than 3 years ago, and, according to WL, nearly every time it was followed approvingly.  As such, it certainly appears that the expansion (or restriction, it's basically both) of the clearly established law portion of the statute is swallowing up the unreasonable application portion of the statute.

But here's the real problem.  This broad application of Musladin has nearly equated clearly established law with the “contrary to” standard, essentially writing the unreasonable application part out of the statute.

Bonner is an excellent example of this.  Below the fold, I'll explain how Bonner represents a troubling trend in habeas law.  Fortunately, it is just a summary order . . .

Habeas Corpus - De Novo vs. Deference - Do we have a final answer?

In my prior post about the hidden gems in Cone v. Bell, one of those gems that I discovered was that the Supreme Court seems to have settled the de novo vs. deference question that I had discussed in detail in three prior posts (here, here and here). 

If you are unfamiliar with those prior posts, the question was, in the situations where a federal claim has been fairly presented to the state courts but those courts did not decide the issue on the merits, do the federal courts need to analyze the claim under the deferential standard of review or can the federal court review the claim de novo without any deference?

This issue appeared to be front and center in the recent decision in Mirzayance.  My reading (and apparently everybody else's on the internet) was that the Court punted on this question, deciding that the claim would fail under either standard.

And then Cone v. Bell comes along, and without any fanfare, quietly settles the issue.  See for yourself in this quote:

Because the Tennessee courts did not reach the merits of Cone's Brady claim, federal habeas review is not subject to the deferential standard that applies under AEDPA to “any claim that was adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d). Instead, the claim is reviewed de novo. See, e.g., Rompilla v. Beard, 545 U.S. 374, 390, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) ( de novo review where state courts did not reach prejudice prong under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)); Wiggins v. Smith, 539 U.S. 510, 534, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (same).

Cone v. Bell, __ US __, 129 S.Ct. 1769, 1784 (April 28, 2009).

So not only does this question seem to have been definitively answered, according to Justice Stevens, it had been answered in two prior cases -- Rompilla and Wiggins. 

But looking at those cases, that's not really true.  In those cases, the state courts did address the merits of the federal claim -- ineffective assistance of counsel -- but only the first prong, deficient performance, but not the prejudice prong. 

For example, in Wiggins, the Court did not really say that a de novo standard covers the situations where the state courts did not address an entire issue.  All that the court stated was this:

In assessing prejudice, we reweigh the evidence in aggravation against the totality of available mitigating evidence. In this case, our review is not circumscribed by a state court conclusion with respect to prejudice, as neither of the state courts below reached this prong of the Strickland analysis.

Wiggins, 539 U.S. at 534.  So, technically, Wiggins does not stand for the broad proposition set out in Cone.

Rompilla goes a little bit further, but does not completely support what Stevens says it does.  Here is what it says:

Because the state courts found the representation adequate, they never reached the issue of prejudice, App. 265, 272-273, and so we examine this element of the Strickland claim de novo, Wiggins v. Smith, 539 U.S., at 534, 123 S.Ct. 2527 . . . .

Rompilla, 545 US at 390.  So it also does not specifically say that entire claims not adjudicated on the merits in state court do not fall under the deferential standard of review. 

At most, these cases provide that, where a state court does address the merits of a federal claim, but does not reach all of the relevant issues, the Court will review those unreviewed parts of the claim de novo. 

Certainly, these cases lay the groundwork for what Stevens says in Cone.  The Court is really only taking it one step further in Cone.  But the Court is taking that extra step and it did not even acknowledge it.  And this extra step is pretty big news.   Well, maybe not so much in the Second Circuit, which had already said that unadjudicated claims are reviewed de novo.  But still a big deal in habeasland overall.

So what about Mirzayance?  I re-read it as well as the cert. petitions and the briefs.  And I now see that I misread the debate in that case entirely.  The debate was not over whether deference or de novo should apply to unadjudicated claims.  It kind of appeared that way on the surface since the Ninth Circuit had addressed the claim de novo and the State had argued that reviewing the claim de novo was improper.  But the State's argument was not that de novo review in general was improper, but only that it was improper in that case because the Ninth Circuit had erroneously concluded that the state courts had not adjudicated the claim on the merits.  That is entirely different.

In fact, in footnote 2, Justice Thomas stated that petitioner had pretty much dropped the whole deference vs. de novo issue entirely (and had adopted a sliding scale approach).  He added:

[B]ecause Mirzayance has not argued that § 2254(d) is entirely inapplicable to his claim or that the state court failed to reach an adjudication on the merits, we initially evaluate his claim through the deferential lens of § 2254(d).

Knowles v. Mirzayance, __ U.S. __, 129 S. Ct. 1411, 1418 n.2 (March 24, 2009).

But what's interesting is that nowhere in the decision does Thomas imply that a de novo review would be inappropriate.  As that quote from the footnote shows, he seems to be suggesting that if Mirzayance had argued that the state court had failed to reach an adjudication on the merits, there would be a question as to whether section 2254(d) would apply. 

And then, later on in the opinion, Thomas does engage in a de novo review and frames it like this:  "Even if Mirzayance's ineffective-assistance-of-counsel claim were eligible for de novo review, it would still fail."  Mirzayance, 129 S.Ct. at 1420.  So Thomas appears to be saying here that some claims are indeed eligible for de novo review!  I really misread that.  I mean, it would be different if he had said, "assuming arguendo that the federal courts can review this claim de novo . . . ."  But he didn't phrase it like that.  So even in Mirzayance, it appeared that de novo review could have been in the cards for certain habeas claims.  And now we know that is definitively true.

And, as I discussed in this previous post, that will matter in some situations.  So, once again, this is big news in habeasland.

Habeas Corpus - Cone v. Bell - Hidden Gems

I have finally gotten around to posting an in-depth analysis of Cone v. Bell, a Supreme Court habeas decision from April.  My initial take on the decision back when it was issued was that the unusual factual scenario in the case rendered it of little value.

However, after reading it closely, I realized that it actually had some hidden gems with huge importance to habeas petitioners.  I am actually surprised that these hidden gems didn’t get more attention.

On its surface, the case is about the procedural bar known as the “independent and adequate state law ground” (“IASLG”).  An IASLG means that, if the state refused to reach the merits of a federal claim based on a state procedural ground, then this procedural ground will bar habeas review so long as it is independent of the federal question and adequate to support the judgment.  If the procedural ground is independent and adequate, the petitioner would have to show cause and prejudice for the procedural default, or that a miscarriage of justice has occurred, in order to have the claim reviewed in a habeas proceeding.

The decision in Cone v. Bell focused on what makes a procedural rule “adequate” to support the judgment.  Courts have articulated several different ways in which a procedural ground may not be adequate: was it firmly established, had it been consistently or regularly and strictly applied, does it rest on a fair or substantial basis.

An interesting question in this context is whether a misapplication of a state procedural rule represents an inadequate state law ground?

The petitioner in Cone had asked the Court to address this question.  Unfortunately, the Supreme Court did not directly address the issue.  But the Court’s analysis does strongly suggest that a federal court should indeed look to see how the state court has applied a procedural rule in determining whether it is adequate.

But to my surprise, the case went beyond this issue and I found at least two hidden gems that are really helpful to habeas petitioners.

So, follow me below the fold as I discuss the Supreme Court’s decision in Cone v. Bell . . .