Habeas Corpus Blog

Metrish v. Lancaster - Has SCOTUS Imposed a Reasonable Doubt Standard on Habeas Petitioners?

Matthew Keller
May 26, 2012

         My first post in quite some time deals with the Supreme Court's decision last week in  Metrish v. Lancaster, which reversed a Sixth Circuit habeas grant.  The most disturbing thing about the opinion is that it appears to me that the Court has, as a practical matter, elevated AEDPA deference to a reasonable doubt standard in favor of "reasonably bad" state court decisions.  This is unfortunate for several reasons.  

Lancaster:  The Case of the Disappearing Defense

        In 1993, Burt Lancaster shot and killed his girlfriend in a shopping mall parking lot.  Lancaster, “a former police officer with a long history of severe mental-health problems,” presented a diminished-capacity defense to a jury.  The jury found that Lancaster had the capacity to commit willful, deliberate, and premeditated homicide and accordingly convicted him of first-degree murder. 

        Eight years later, a federal habeas court reversed the conviction on Batson grounds, holding that the prosecutor had impermissibly used race as a factor in jury selection.  Four years after that, in 2005, Michigan again tried Lancaster for the murder.  Lancaster’s plan, once again, was to go with a diminished capacity defense.  However, that was a problem this time around.  In 2001, the Michigan Supreme Court ruled that there was no diminished capacity defense under Michigan law, notwithstanding that Michigan’s lower courts had continually recognized such a defense.  The judge presiding over Lancaster’s retrial applied the new decision ("Carpenter") and excluded evidence of diminished capacity.  Lancaster and his attorney apparently did not view this ruling as a sign that they were facing a hangin’ judge:  they proceeded with a bench trial after which Lancaster was again convicted of first-degree murder and sentenced to life plus two years.  The Michigan Court of Appeals affirmed.

        Lancaster’s habeas claim was that the Michigan courts violated due process by applying Carpenter, 2001 Michigan Supreme Court decision, to a 1993 homicide.  The District Court denied the petition, but a divided panel of the Sixth Circuit reversed and granted. 

        Last week, the Supreme Court reversed the Sixth Circuit.  The core of its opinion is that there was no Supreme Court case on point – therefore the Michigan court’s decision could not be an unreasonable application of clearly established Federal law as determined by the high Court.  The closest Supreme Court precedent was Rogers v. Tennessee, a 2001 decision where the Supreme Court denied a Due Process claim stemming from a retroactive application of a state court decision abolishing another common law defense (the “year and a day” defense under which a defendant could not be convicted of murder unless the victim died within a year and a day).  In Rogers, the Court ruled that “judicial alteration of a common law doctrine of criminal law violates the principle of fair warning, and hence must not be given retroactive effect, only where it is ‘unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue.’”

 
        The Supreme Court acknowledged that Lancaster might have prevailed if the Court were to apply the Rogers rule de novo. To be sure, that acknowledgment was tepid ("Lancaster’s argument against applying Carpenter retroactively is arguably less weak than the argument opposing retroactivity we rejected in Rogers”).  But the Court did a good job acknowledging the merits of Lancaster's Due Process claim.  Unlike the year and a day rule at issue in Rogers, the diminished capacity defense was “not an ‘outdated relic of the common law’ widely rejected by modern courts and legislators.’”  To the contrary, the Model Penal Code includes a diminished capacity defense, the American Bar Association has reported that a majority of States allow presentation of diminished capacity evidence in at least some circumstances and, prior to Carpenter, the Michigan State Bar’s pattern jury instructions included an instruction on diminished capacity.  Also unlike Rogers, Michigan appellate courts had regularly acknowledged diminished capacity as a viable defense both before and after Lancaster’s first trial.

        However, the Supreme Court held that Lancaster could not rely on Rogers, “a case in which we rejected a due process claim,” to overcome AEDPA deference:
 

This Court has never found a due process violation in circumstances remotely resembling Lancaster’s case—i.e., where a state supreme court, squarely addressing a particular issue for the first time, rejected a consistent line of lower court decisions based on the supreme court’s reasonable interpretation of the language of a controlling statute.  Fair minded jurists could conclude that a state supreme court decision of that order is not ‘unexpected and indefensible by reference to [existing] law.’”

        While AEDPA deference can often result in injustice in individual cases, in this case it strikes me as particularly stark.  As Justice Breyer noted in his Rogers dissent, “the Due Process Clause asks us to consider the basic fairness or unfairness of retroactive application of the [state] court's change in the law.”  Justice Stevens' Rogers dissent criticized the majority for “undervalu[ing] the threat to liberty that is posed whenever the criminal law is changed retroactively.”  (Justice Scalia also wrote a lengthy dissent in Rogers focusing on the history of retroactive changes in common law).   In Lancaster, the majority essentially admitted that the petitioner did not have fair warning that the Michigan courts would abolish the diminished capacity defense.  In denying his claim, the Court indicated that it was willing to ignore such threats to liberty in the habeas context.

        The case was admittedly complicated by the long delay between Lancaster's first trial and the retrial.  But that delay is more properly laid at the feet of the prosecutors who violated Batson (and waited four years to retry the petitioner after the first conviction was reversed) and the courts which took ten years (including an appeal of the Batson habeas grant) to resolve that claim.  A practical consequence of the Supreme Court's decision is that Lancaster is held responsible for the delay. 

 

Inside Out Reasonable Doubt

        What disturbs me more generally is the Court’s continued ratcheting up of AEDPA deference in favor of reasonably bad state court decisions.  To describe that deference, the Court used language I first noticed in its 2011 decision in Harrington v. Richter: “To obtain habeas corpus relief from a federal court, a state prisoner must show that the challenged state-court ruling rested on ‘an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’”  When I read this "any possibility" language in 2011 it struck me that the Court had essentially imposed a “beyond a reasonable doubt” standard for habeas petitioners.  Lancaster convinces me (beyond a reasonable doubt, you might say) that this is indeed the current standard.

        I understand that AEDPA deference is grounded in important interests – comity, federalism and scarce judicial resources, to name a few.  But by further closing the door to habeas relief, I believe the Roberts court is favoring these interests too much over the judiciary’s primary interest (and core competence) of doing justice in individual cases.  If the Justices feel that other interests should weigh more heavily in the habeas context, they need to do a better job of explaining why.

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 - Supreme Court Action 2/25

By JK

Looks like Habeas Day brought out a lot of laughter at the Court today.  I counted at least six times between the two arguments where the transcript reads (Laughter.).  But all the laughter appeared to stop once Justice Kennedy shamed the other judges into taking capital cases a little more seriously.  At least, that's how I read the transcript.  Here's the relevant exchange (from pages 41-42 of the Trevino transcript):

JUSTICE BREYER: I'm being sarcastic there but I don't mean to be. I mean, you see what I'm trying to get to.

JUSTICE SCALIA: It was the nose of the camel, which is what Martinez was -- which is what the dissent said, actually.

(Laughter.)

JUSTICE BREYER: Yes, the dissent said that.

(Laughter.)

JUSTICE KENNEDY: This is very amusing in a capital case.

Here are my quick takes on the two cases from the argument (gonna use some short cuts, sorry for the lack of context):

Perkins - seems to be at least five judges willing to say that actual innocence can be used to get an untimely petition into court, but that there will be some kind of diligence requirement.  Not sure what that will eventually look like though.

Trevino - the argument was a mess.  The parties seemed to argue most over what the Texas law actually says.  The judges seemed a little exasperated by all of it.  But it does appear as if there are at least five judges that seem willing to expand Martinez (or "clarify" Martinez to include State's beyond Arizona).

The transcript for Perkins is here.  The transcript for Trevino is here.

The other big news at the Court today was cert grants in a habeas case and a front-end criminal case.  They are:

Burt v. Titlow, 12-414

(1) Whether the Sixth Circuit failed to give appropriate deference to a Michigan state court under Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) in holding that defense counsel was constitutionally ineffective for allowing respondent to maintain his claim of innocence; (2) whether a convicted defendant’s subjective testimony that he would have accepted a plea but for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable probability that defendant would have accepted the plea; and (3) whether Lafler v. Cooper always requires a state trial court to resentence a defendant who shows a reasonable probability that he would have accepted a plea offer but for ineffective assistance, and to do so in such a way as to “remedy” the violation of the defendant’s constitutional right.

Kansas v. Cheever, 12-609

(1) Whether, when a criminal defendant who affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, the state violates the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant; and (2) whether, when a criminal defendant testifies in his own defense, the state violates the Fifth Amendment by impeaching such testimony with evidence from a court-ordered mental evaluation of the defendant.

A cert. grant in a Sixth Circuit case in which habeas relief was granted probably means that a reversal is on the way.  But, even with these elements present, I am not sure whether that is automatic for this one -- Lafler is just too new.  There could be a chance that the Court just wants to give helpful guidance in those cases.  Yeah, that's probably wishful thinking. It seems more likely that a cert. grant to the State means that the Court wants to take the habeas grant away.  

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.

 

Habeas Corpus - Cert. Grant in Habeas Case

Last week, the Supreme Court granted cert. in A habeas case called Metrish v. Lancaster. It's a recipe for a reversal: it's a habeas grant coming out of the Sixth Circuit and cert. was granted to the State.

Here are the issues: 

(1) Whether the Michigan Supreme Court’s recognition that a state statute abolished the long-maligned diminished-capacity defense was an “unexpected and indefensible” change in a common-law doctrine of criminal law under this Court’s retroactivity jurisprudence, see Rogers v. Tennessee; and (2) whether the Michigan Court of Appeals’ retroactive application of the Michigan Supreme Court’s decision was “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement” so as to justify habeas relief, see Harrington v. Richter.

The first issue is a little cryptic.  I believe that the State appears to be challenging the Sixth Circuit's conclusion that there was any type of constitutional violation at all.  It is framed as it would be on direct review.  That's a little different from the all too familiar question found in issue two: a lack of deference to the state court.  Not sure why it isn't framed in habeas terms.  Either way, the cert. grant portends bad news for the habeas petitioner.

In other apparently bad news, the Supreme Court issued opinions today, but did not issue one in Johnson v. Williams.  Just as a reminder, the question presented in that case is: Whether a habeas petitioner’s claim has been “adjudicated on the merits” for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim.  From the argument, it appeared that the Court was going to avoid the question presented, which, if answered in the State's favor, will be an enormously horrible result for habeas petitioners.  

But if the Court was seeking to avoid the question presented, then it would have issued a short, simple opinion by now.  The longer it takes, the more I fear that this is going to be a split opinion with a terrible result.

Habeas Corpus - What A Relief!*

By JK

Last week, the Supreme Court announced that I don’t have to talk to my client’s anymore!*

* Anytime you see an asterisk (*) in this post, it means sarcasm. That means the title, too. Double asterisks (**) will mean footnotes.

It’s going to save all of us habeas litigators so much time and resources!*  No more travel to visit clients!* No more letter writing!* No more phone calls!*

In Ryan v. Gonzales, the Supreme Court held that a petitioner who is incompetent has no right to a stay of his habeas case during the period that he is incompetent. The Ninth Circuit had concluded that a capital habeas petitioner’s statutory right to counsel under 28 U.S.C. § 3599(a)(2) meant that he had to be competent so that he could communicate with his attorney and effectuate that relationship.**

The Supreme Court said that that's just crazy talk.  It stated that a statutory right to counsel in a habeas case did not give the habeas petitioner any right to provide input into the habeas litigation. Justice Thomas, speaking for a unanimous court, stated, “Attorneys are quite capable of reviewing the state-court record, identifying legal errors, and marshaling relevant arguments, even without their clients’ assistance.”

** The Sixth Circuit had provided a separate statutory justification for finding that incompetency compelled a stay. The Court dismissed it pretty summarily and it’s not really worth mentioning.

So there it is: once counsel is assigned to a case, the habeas case goes on with or without the petitioner. Who cares if the habeas petitioner has no capability of comprehending what’s going on? It’s not his case anymore. It’s the lawyer’s. Just because the petitioner has to face the consequences of the result does not mean he has the right to be competent to hear it.

I really have one word for this: cold. Ok, maybe two words: breathtakingly cold. I can even break out the uncommon sense meter on this one: try to explain to a layperson what this means: you are in prison on death row and you are challenging the conviction, but you don’t even have to be, essentially, a sentient human being while it all plays out in court. Even more, your attorney gets to litigate the case while you are away with absolutely no input from you.  Cold and contrary to common sense.

Of course, the result is not particularly surprising. In my mind (as I have discussed before), it flows from Jones v. Barnes (even though, surprisingly, that decision makes no appearance in Gonzales). A habeas case is record-based, like a direct appeal. So the attorney is the one who makes the decisions. Input from client would not technically be necessary.

That’s logically fine. But here is where the absence of a true liberal voice can be seen in the current Supreme Court. Justices Brennan and Marshall dissented in Jones (and Justice Blackmun agreed with Brennan and Marshall overall, but concurred in the result). Those two (+1) judges would not have found the Ninth Circuit’s reasoning to be crazy talk. Having counsel assigned to a case, even a record-based type of situation, does not mean that the defendant disappears from the case. In their eyes, the function of an assigned attorney (at least under the Sixth Amendment) should be “to protect the dignity and autonomy of” the defendant. Those judges considered these values “central to many constitutional rights,” including those under the Sixth Amendment. The right to counsel is not an “all-or-nothing right.” Counsel should be assisting the defendant, rather than doing everything on his or her own. While this view is not particularly practical, it certainly is far more empathetic and dignified.  

It’s safe to say that a true liberal judge would have seen similar concerns in Gonzales. It’s pretty depressing that not a single judge would voice any of these concerns.

Of course, no habeas practitioner would want to proceed like this. It’s both unethical and unprofessional to litigate a habeas case without input from the client. It really seems a bit shocking to me that the Supreme Court has now condoned such a practice, at least when the client is incompetent. The Court’s (apparently unanimous) disdain of habeas has now run so deep that it is willing to sacrifice some of the dignity of the legal profession** in furtherance of that contempt. 

** [insert joke here] - but, against all odds, I still believe in the dignity of the profession

I guess on the brightside the Court didn’t completely prevent federal judges from granting a stay based on incompetency. Federal judges still have the discretion to do it. But the Court indicated that this discretion really should be guided by the judges’ “docket[ ]” concerns. The Court did not suggest in any way that a judge should consider whether or not she felt comfortable with forcing a case to go forward while the petitioner has no current understanding of what’s going on.  In fact, the Court specifically precluded a stay in the extreme situation where the petitioner may never have any understanding of what’s going. And just when you thought the Court couldn’t get any colder . . .

Sotomayor Writes Amicus Brief to the District Court: Hodge v. Kentucky (front-end cert denial)

By Alexandr Satanovsky

I've been meaning to post about this for a while.  On December 3, 2012, the Supreme Court denied certiorari in Hodge v. Kentucky, a front-end capital case, seeking to review the Kentucky Supreme Court's denial of a penalty phase IAC claim. The underlying facts are all too common in capital practice: Hodge's trial counsel presented no mitigation during the penalty phase; the post-conviction team developed a significant amount of truly gruesome mitigation, which was presented in a state evidentiary hearing. The State even conceded that Hodge's trial counsel was objectively deficient under Strickland. However, the Kentucky Supreme Court denied relief, finding no prejudice.

The cert. petition arose from the Kentucky Supreme Court's questionable analysis underlying the conclusion that Hodge was not prejudiced. According to Hodge, the state court's conclusion rested on a legally required "nexus" between the mitigation and the facts of the crime. Now the State disagreed with this characterization. According to the State, the Kentucky Supreme Court simply found the evidence to be factually uncompelling, in light of the aggravated nature of the homicide. You can see for yourself at pages 5-11 of the short state court opinion.

Now, I suppose that it's possible for a state court to rely, in part, on a lack of nexus, without being contrary to established law. For example, if the state court explicitly acknowledges that there is no legal significance to a (lack of) nexus, it may then find that, as a matter of fact, the nexus-free mitigation was not compelling to show prejudice in light of the aggravated nature of the homicide.  In other words, I don't think there's anything remarkable about the notion that, all things equal, mitigation without a direct nexus to the facts of the crime may be less compelling than that which does bear on the facts of the crime. [Obviously, all things are never equal when trying to compare the strengths of gruesome childhood mitigation, versus, e.g., crime-specific mitigation]. More importantly, as a matter of clearly established law, a fact-finder cannot give anything like a legal presumption--a legal thumb on the scales--to "nexus" mitigation versus "non-nexus" mitigation.

After placing the case for three consecutive conferences, Justice Sotomayor penned a lengthy dissent from the denial of cert (longer than the entire reasoned state court opinion). To her, Hodge was right that the Kentucky Supreme Court's prejudice inquiry involved a legal nexus requirement. She would have summarily vacated and remanded this case to apply the proper legal standard, allowing the state court to re-do its prejudice determination without giving legal (in)significance to Hodge's powerful childhood evidence.

This sleeper dissent seems noteworthy to me for another reason. We often hear of circuit dissents as amicus briefs to the Supreme Court; well, here, it is Sotomayor who is essentially writing an amicus brief to the Kentucky federal district judge (who will hear this claim next), stating that 2254(d)(1)'s "contrary to" clause is satisfied by the state court's improper prejudice standard. She really minces no words: "[t]he Kentucky Supreme Court’s opinion is plainly contrary to these precedents [rejecting the "nexus" requirement for mitgiation evidence]," (slip op. at 8). In another paragraph, she notes that the state court's view "that in cases involving 'violent and cruel murders, it does not matter that the 'malefacto[r]' had a 'terrible childhoo[d]' . . . is contrary to our cases applying Strickland’s prejudice prong." (My emphasis).

This strikes me as an unusual occurrence. The universe of claims that have satisfied the onerous post-AEDPA 2254(d)(1) standard is relatively small, and from this it follows that those claims should be the strongest at the front-end cert. stage, and so most likely to have been the chosen issues in the front-end cert petition. Still, none of the high profile 2254(d)(1) grants that I have read, to my knowledge, involved written dissents from the denial of state court cert., assessing the same legal question without the additional (d)(1) deference. Justice Sotomayor's opinion, in other words, is my first encounter with a dissent from a denial of cert. on a front-end claim that necessarily will be relitigated in federal court, but now with the the added cloak of 2254(d)(1). And her dissent may prove quite imporant if Hodge gets through this cloak, and wins penalty phase relief in the Sixth Circuit.

Habeas Corpus - February Calendar

By JK

The Supreme Court released its calendar for it's February sitting.  

And there is going to be a habeas day! This time, it's February 25, 2013!  The two most recent habeas cert. grants, McQuiggin v. Perkins and Trevino v. Thaler, are both calendared for that day.

For more on those cases, please read Matt's post about McQuiggin and Alex's post about Trevino. 

Habeas Corpus - Ninth Circuit Habeas Grant

By JK

I kind of really like this Ninth Circuit stuff.

Last Thursday (12/9), the Ninth Circuit granted habeas relief to a non-capital habeas petitioner in a case called Ortiz v. Yates.  The issue in the case was whether petitioner’s right to confront the witnesses against him was violated when the court precluded petitioner from questioning the complainant, a/k/a his wife, about whether she was “afraid to deviate from her initial incriminating statement because of threats allegedly made against by the prosecutor.”

A two-judge majority concluded that the California state court’s decision upholding that curtailment of cross-examination was an objectively unreasonable application of the Supreme Court’s decision in Michigan v. Lucas.  And the error itself had a substantial and injurious effect on the verdict because the wife’s testimony was “a ‘central, indeed crucial’ witness for the prosecution.”  The majority reversed the district court’s denial of the petition.  The dissenting judge concluded that, even if error, it was nothing but harmless.

Here are some observations: always good to see a court still willing to grant a petition under the “unreasonable application” prong of the § 2254(d) standard of review, even in the face of the daunting Richter standard. 

And this particular constitutional issue – whether there was an arbitrary or disproportionate restriction on a defendant’s ability to cross-examine adverse witnesses as to their biases or motives for testifying – seems to be one that the Ninth Circuit takes particularly seriously.  In fact, this is the second habeas grant this year on this particular issue (curtailment of right to confront/violation of right to present a defense).  The other was in Jackson v. Nevada.* And, as noted in the opinion, the court has granted two other habeas petitions within the past few years on this issue (Holley v. Yarborough and Fowler v. Sacramento Cnty. Sheriff’s Dept.).  In other words, keep an eye out for that type of claim.

* D/D my office represents the petitioner in that case.

I guess, as I have written before, it's important to note that all circuit court habeas grants face the real prospect of a summary reversal.  Let's see if the State gets any traction in the Supreme Court on this one.  I am going to go out on a limb and say they won't, particularly because the dissent focuses mainly on the question of harmless error.  Or maybe we should brace ourselves for a whole new type of summary reversal -- the "all constitutional errors are harmless in habeasland" summary reversal.  Would not be surprised to see it at this point.   

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.