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Mirzayance, Part II, and Justice Stevens

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In my prior post on Knowles v. Mirzayance, I noted the unusual lineup of the Justices who did and did not join Part II of the opinion, holding that the Ninth Circuit erred in not deferring to the prior state court adjudication. Justice Stevens, who tends to be among the most defendant-friendly of the Justices, joined this part, while Justice Scalia did not. The decision could have rested simply on Part III, that Mirzayance had no case even if the issue is reviewed from scratch.

A comment I received by phone today* from an informed source suggests an alternative to the explanations bouncing around the blogosphere. Perhaps Justice Stevens wanted to cut off a theory of ยง 2254(d) he saw as potentially raising a huge barrier for petitioners in the future.
In the oral argument, at page 19, Chief Justice Roberts says to DAG Steve Mercer,

CHIEF JUSTICE ROBERTS: I don't understand why you keep talking about Strickland. We sent this case back to the Ninth Circuit for further consideration in light of Carey v. Musladin. In that case we said that the grant of relief was unreasonable because of the lack of holdings from this Court regarding the potentially prejudicial effect of spectators' courtroom conduct of the kind involved here, which seems to me a much narrower focus on the level of generality than Strickland.
I would have thought you would have said --maybe you are saying -- that because we don't have a precedent from this Court rejecting the "nothing to lose" case, that that should be the end of it.
Then we have this exchange:

JUSTICE SCALIA: Excuse me. The issue is not whether it's unreasonable or not. The issue is whether it's an unreasonable application of -- of clearly established Supreme Court law.
MR. MERCER: Yes, Your Honor.
JUSTICE SCALIA: Reasonableness or unreasonableness is out of the question. You -- you first just have to look to Supreme Court law and say, is it conceivably an unreasonable application of that. And the -- and the answer to that is we -- we haven't decided the question of whether this is reasonable or unreasonable, and therefore, it cannot possibly be an unreasonable application of Supreme Court law.
JUSTICE STEVENS: That's his argument, not the one you've been making.
JUSTICE SCALIA: That's right. That seems to me --
JUSTICE STEVENS: You say the standard is Strickland.
A good time at the high court, with the Justices arguing among themselves and the attorney hardly getting a word in edgewise.

Today's opinion, though, does not take the path that C.J. Roberts and J. Scalia suggested and that J. Stevens was concerned about. Instead, the opinion appears to preclude it. After deciding there is no clearly established law supporting an idiosyncratic "nothing to lose" rule, the opinion says the habeas court goes back to Strickland and applies the general standard. That, perhaps, is why Justice Stevens joins this part and Justice Scalia does not.

This makes more sense than any other theory I have heard.

* I get significantly more feedback by email and phone than I do via comments on the blog itself. I suspect that is an aspect of the readership of the blog.

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