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Which Case Are We Arguing?

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This is shaping up to be a strange term for habeas corpus cases. In today's argument in Knowles v. Mirzayance, for the third time, much of the discussion was on a question other than the official Question Presented, and the discussion also wandered to another case on the docket this term.

When the Court took up the case, it appeared to be a routine "Ninth Circuit wrongly overturns another murder conviction" case. Such cases are to the Supreme Court's docket what "dog bites man" is to journalism generally -- not news. In this case, the trial lawyer was castigated for abandoning an insanity defense he had concluded was hopeless. Stanford student Ruthie Zemel has this well-written summary of the case and arguments on SCOTUSblog.

Right out of the gate, Justice Kennedy and DAG Steve Mercer get into a discussion of the relationship between the federal court evidentiary hearing and the rule of 28 U.S.C. § 2254(d), which says that habeas relief cannot be granted unless the state court decision was contrary to Supreme Court precedent, an unreasonable application of it, or an unreasonable determination of the facts based on the evidence presented to the state court. How can evidence presented for the first time in federal court have any relevance to that question? That was an issue in Bell v. Kelly, argued November 12 and dumped November 17. It is not one of the questions presented in this case.
No matter. It is an important question, and it would be good if all the effort briefing it in Bell does not go to waste. The issue comes up again during the defendant's argument, page 31.

JUSTICE BREYER: But there is no hole in the statute. What it says to do, quite explicitly, is it says that you have to see whether the State court decision was unreasonable in light of the evidence presented in the State court. So it tells us what to do. It says, look at the evidence in the State court, and like any other instance where there is no hearing, every day of the week, judges refuse to give a hearing. Now, when they do that, they have to assume the facts in favor of the losing party. So the question is, assuming the facts in favor of your client, was the decision that he loses unreasonable?
MR. SEVILLA: We argued yes.
JUSTICE BREYER: And you said yes. Is there any finding on that in the Federal court? No.
Justice Scalia challenges Justice Breyer's statement of the "assuming the facts" rule, and he backs off a bit.

JUSTICE BREYER: That's my fault. I'm referring by shorthand to a Rule 56 summary judgment type standard. All those facts are assumed on your side in which they're material, and there has to be in the evidence a reasonable basis for dispute.
A state court may quite reasonably deny a claim without an evidentiary hearing when the facts on which there is no material dispute, applied to the governing law as the court sees it, result in a decision for the state. As long as that application is reasonable and not contrary to clearly established law, Congress has forbidden the lower federal courts to interfere with that judgment on habeas corpus. (The Supreme Court can review de novo, of course, on certiorari.)

So, back to the first question, what is the function of an evidentiary hearing in federal district court when the threshold question is whether habeas is barred by 28 U.S.C. § 2254(d)? None whatsoever. The habeas court should decide that question first. If habeas is barred, not only is there no need for a hearing, there is no need for discovery. See part IV of our Bell brief.

We hear a lot about how the capital cases are such a burden on the courts, and how they legitimately need years and years to decide. If the courts applied the winnowing tools Congress has already given them, the burden would be much reduced.

1 Comment

I would think that the federal courts on habeas would have to take the record as they find it, unless independent federal law required a post-conviction factual hearing.

It seemed like some justices were troubled by the actions of the lawyer here and wanted more than the record as it currently stands. They also didn't seem to like the idea of a federal court factual hearing that gets ignored because of how AEDPA works (i.e., relief only if unreasonable application).

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