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Habeas Decisions

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Although the big Supreme Court news today is on the Baze argument, two per curiam decisions today in habeas cases are worth noting. First, there is Arave v. Hoffman, which the Court vacated and remanded, as expected. The Ninth Circuit had held that a defendant can make out a case for habeas relief for ineffective assistance of counsel at plea bargaining, even if the trial that follows is fair. Hoffman has now abandoned the claim for relief he won at the Ninth, so there is no live controversy. The citation to United States v. Munsingwear, 340 U.S. 193, 200-201 (1950) at the very end of the opinion serves the dual functions of (1) reminding everyone that the vacated Ninth Circuit decision is not precedent, and (2) enabling bad jokes about "Munsingwear briefs."

Second, on a somewhat related issue, the case of Wright v. Van Patten makes its second trip to the high court. The Seventh Circuit had held that a lawyer's appearance by speakerphone at a plea hearing was per se grounds for relief. The hearing was simply the formal acceptance of a plea deal previously worked out and thoroughly discussed between attorney and client. The state court rejected Van Patten's claim because there was no indication of any prejudice to him. The Seventh granted relief, saying no such showing was required. After the Supreme Court vacated and remanded to reconsider in light of Carey v. Musladin, 127 S.Ct. 1038 (2006), Judges Evans and Williams said, in essence, there is nothing to reconsider. Judge Coffey dissented. The high court today unanimously reversed. Application of the Strickland prejudice standard in this situation is an open question, and the Wisconsin court was reasonable to decide it the way it did.

How many times will the federal courts of appeals have to be slapped down before they understand the difference between "I disagree with that" and "That is unreasonable"?

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Quelle surprise, Clinton appointees not understanding how AEDPA is supposed to work . . . .

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