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Bell v. Kelly: What is a "Claim"?

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In 28 U.S.C. § 2254(d), the cornerstone reform of the Antiterrorism and Effective Death Penalty Act of 1996, Congress provided that a federal court cannot grant relief on a claim denied on the merits by a state court unless certain conditions are met, essentially unless the state court decision was outside the bounds of reasonable disagreement. This measure was a compromise between those who favored giving the state court decision as much respect as federal court decisions and those who favored the status quo ante of giving them no weight at all on questions of federal law.

But what exactly is a "claim"? That question is now before the Supreme Court in Bell v. Kelly, No. 07-1223, which just may be the "sleeper" case of this term. It hasn't received much attention yet, but the potential ramifications are large, especially for capital cases.


Suppose hypothetically that a death row inmate claims on state habeas that his lawyer was ineffective for not introducing the "mitigating" evidence that he is a sociopath. The state court finds that his lawyer was not ineffective for not introducing that evidence and further there is no prejudice because it would not have made a difference, at least not in the defendant's favor. Then on federal habeas, he claims that his lawyer was ineffective for not introducing the "mitigating" evidence that he is both a sociopath and a sadist,* the latter based on evidence the lawyers discovered for the first time while preparing their federal case. Is this one claim or two claims? If it is one, is it the same claim made to the state court, subject to § 2254(d), or a new claim to be decided on the merits without that limitation?

To make a long story short, I think Judge Easterbrook is correct that "ineffective assistance of counsel is a single ground for relief no matter how many failings the lawyer may have displayed." Peoples v. United States, 403 F. 3d 844, 847-848 (CA7 2005). Peoples was a federal prisoner petition, and the prior adjudication was in federal court, but I believe that "claim" means the same thing in § 2254(d) that it means in § 2244(b), the successive petition rule, which is incorporated by reference in § 2255(h), the federal prisoner successive petition rule. For the long version of this argument, see CJLF's brief, filed today, and the State's brief, filed last Monday, Sept. 29.

Counsel for petitioner argues that his ineffective assistance claim is converted into a new claim by the addition of "significant" new evidence, and that the federal court must review the claim from scratch because no court has previously considered all the evidence.

This seems like a dry, technical dispute, but the ramifications are huge. Ineffective assistance is claimed in virtually every capital case. Given that the Supreme Court has thrown open the doors to anything and everything a defendant wants to claim as mitigating, even factors that persons of sense would consider seriously aggravating, there simply is no limit to the ability of habeas counsel to dredge up additional facts and claim the lawyer should have introduced them. If the § 2254(d) limit can be evaded this easily, it will be effectively repealed for these cases, the very cases Congress was most concerned with.

On the other hand, if the Court agrees that ineffective assistance is one claim and § 2254(d) applies whenever (1) the state court has rejected an ineffective assistance claim on the merits and (2) the decision is reasonable based on the facts before the state court (the fact limitation being plain on the face of the statute), the need for discovery and evidentiary hearings in the federal stage of the process may be dramatically reduced. If § 2254(d) bars relief regardless of what new facts the petitioner may bring in, there is no point in a hearing and no need for discovery to gather evidence for a hearing. We could finally get to the point that I believe Congress intended in the first place, where most federal habeas petitions in capital cases can be dismissed at the pleading stage, as most noncapital petitions are.

Oral argument is November 12. Stay tuned.

* Yes, people really do claim these things as mitigation. See Graham v. Collins, 506 U.S. 461, 500 (1993) (Thomas, J., concurring); Oken v. State, 327 Md. 628, 680 (1992). In Oken, at least one juror actually bought it.

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And judges buy the sociopath as mitigation too--e.g., Judge Chatigny.

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