You know something unusual is up when the three-judge panel of a U.S. Court of Appeals decides that a case is so mundane that it is not worth a published opinion, but the U.S. Supreme Court considers the case "certworthy," i.e., one of the very few cases that it takes for full review. That's what happened today in Knowles v. Mirzayance, No. 07-1315. In terms of the precedential value of a case, the hurdle for publication should be a fraction of the hurdle for certiorari.
The Ninth decided, 2-1, that Mirzayance's lawyer was ineffective in dropping the insanity gambit. After the Supreme Court sent it back for another look in light of Ninth's spanking in Carey v. Musladin, 549 U.S. 70 (2006) (unanimous in the judgment), a divided panel decided that Musladin didn't matter. That's waving a red flag. District Judge Suko, the third member of the panel sitting by designation, thought the other two showed insufficient deference to both the district judge's factual findings and the state court's decision under AEDPA.
The fact that this case was relisted twice is a little curious. (That is, the Supreme Court scheduled it for consideration at a conference, took no action, and scheduled it again for a later conference. Twice.) I suspect they were pondering whether to summarily reverse or whether to take the case for full briefing and argument.
Is it possible a majority of the current Court recognizes that ineffective assistance claims have gotten out of hand since Wiggins v. Smith, 539 U. S. 510 (2003) and Rompilla v. Beard, 545 U. S. 374 (2005)? I hope so.
Questions presented are after the jump.
1. Did the Ninth Circuit again exceed its authority under § 2254(d) by granting habeas relief without considering whether the state-court adjudication of the claim was "unreasonable" under "clearly established Federal law" based on its previous conclusion that trial counsel was required to proceed with an affirmative insanity defense because it was the only defense available and despite the absence of a Supreme Court decision addressing the point?
2. May a federal appellate court substitute its own factual findings and credibility determinations for those of a district court without determining whether the district court’s findings were "clearly erroneous?"