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Spisak, New Rules, and Justice Sotomayor

Now here is a hopeful sign. On Tuesday, the US Supreme Court heard oral argument in the Ohio capital case of Smith v. Spisak, No. 08-724. The question, once again, is whether the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States...." 28 U.S.C. §2254(d)(1). The precedent at issue in Question 1 is the dubious 5-4 decision in Mills v. Maryland, 486 U.S. 367 (1988), the source of many needless reversals.

Right out of the gate, Justice Sotomayor asks if everyone has been asking the wrong question. Does it make sense to ask if the Ohio Supreme Court's decision of April 13, 1988 is contrary to or an unreasonable application of a US Supreme Court decision issued two months later? Does it matter that the US Supreme Court denied certiorari the following year, after Mills? It appears that Justice Sotomayor raised the issue on her own. I did not see it in Ohio's brief or in the amicus brief for Pennsylvania and other states.
The question involves the different timing requirements of two rules of law that limit the ability of federal courts to overturn state court decisions based on subsequent changes in case law. The complementary court-made rules of Griffith v. Kentucky, 479 U.S. 314 (1987) and Teague v. Lane, 489 U.S. 288 (1989) provide that new constitutional rules of criminal procedure made by the Supreme Court do apply retroactively to all cases not yet final on direct review when the rule is announced, but they seldom-to-never apply to cases where the direct review process has been completed before the date of announcement. Footnote 6 in Griffith says, "By 'final,' we mean a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied."

"Clearly established" law in §2254(d)(1) is pretty much the inverse of "new rule." "With one caveat, whatever would qualify as an old rule under our Teague jurisprudence will constitute 'clearly established Federal law, as determined by the Supreme Court of the United States' under § 2254(d)(1)." Williams v. Taylor, 529 U.S. 362, 412 (2000). Well, maybe more than one caveat. The timing is different.

In the Banks case (Horn v. Banks, 536 U.S. 266 (2002) and Beard v. Banks, 542 U.S. 406 (2004)), the sequence was:

1987: direct review ends with denial of certiorari
1988: Mills decided
1995: Penn. Supreme denies Mills claim on the merits on state postconviction motion
2001: USCA3 accepts Mills claim on federal habeas
Wrong, says the US Supreme Court. Teague remains an independent limitation on habeas review even after AEPDA and is not supplanted by it. Whether Penn. Supreme unreasonably applied Mills (it didn't, IMHO) need not be addressed because Mills was a new rule created after finality on direct review and doesn't apply in federal habeas at all. 542 U.S., at 410. Teague is a "threshold" issue. 536 U.S., at 272.

Spisak presents the opposite scenario, where a rule is not "new" for Teague but is also not "clearly established" for AEDPA as a result of the different timing rules for the two limits. Banks implies that AEDPA looks to the time of the state court decision on the merits, regardless of where in the state's process that decision occurs. The fact that review in the US Supreme Court on certiorari remained available has no bearing on whether the state courts reasonably applied "clearly established Federal law" existing on the date they finished with the case.

This particular timing issue will only affect cases where a new rule is announced in the gap of a few months to a year between the time state courts finish with a case and the US Supreme Court denies certiorari. It is not all that important in itself. What I find intriguing is that Justice Sotomayor appears willing to enforce AEDPA vigorously and not grudgingly. If so, this is a sharp contrast with Justice Souter, who in the Williams case above endorsed a preposterous misconstruction of §2254(d)(1), one that would have amounted to a judicial repeal of the key reform of the Act if one more Justice had joined it.

This willingness is not entirely unexpected. When Justice Sotomayor was first nominated, I did a review of her AEDPA cases and found:

On the whole, these are well-considered, well-written opinions that apply the language of the statute and the precedents of higher courts, easily within the limits in which reasonable people may differ. The big question mark, as I noted earlier, is capital cases.

Unlike the cases in that review, Spisak is a capital case. This may answer the big question.

PS: You really have to empathize with Spisak's trial counsel, who is now being publicly bashed in the high court and in the press. Counsel's job is to make the best case he can for sparing the client's life. What do you say when the client himself makes that damn near impossible by sporting a Hitler mustache, giving a "Heil Hitler" salute to the jury, freely admitting he has killed multiple people, and declaring he would like to kill more? Well, you say these are obviously the words and actions of a man with a few wires crossed in the grey matter. Even though not McNaughton insane, he is still a nut job, and we should spare him for our own humanity, not because he deserves sympathy. That is not a great argument, but it was the best available, and that is pretty much what the lawyer did.


Isn't there another wrinkle here too? If the defendant didn't fairly apprise the state court of the argument, then the claim should be barred on habeas.

The timing issue seems to be resolved by 2254(d). Since the denial of cert. is quintessentially NOT "on the merits", I think it very awkward to read subsection (d) as encompassing anything beyond what the state courts did.

The other issue is what a state court did with the claim on post-conviction review.

I guess we get half a loaf--Sotomayor will keep them locked up, but thinks they should get the franchise.

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