In the summer of 1987, Thurgood Marshall's clerk Elena Kagan wrote a
cert. memo in the case of Pughsley v.O'Leary. The scanned
image can be found at SCOTUSReport.
Here is the text:
The comment "I'd like to reverse Strickland too" requires explanation. I wouldn't make too much of it until we get the explanation. I don't necessarily believe everything I wrote in 1987. Still, it's an issue that requires examination.
The notion that the Strickland rule leans too far in the prosecution's favor, if she really still believes that, could be a huge problem. The rule is sufficiently loose that it enables the Ninth Circuit to adopt something pretty close to a de facto rule that every capital trial lawyer whose client is sentenced to death is per se ineffective. The Supreme Court itself completely blew it in the murderer's favor in Rompilla v. Beard, 545 U.S. 374 (2005). A desire to shift this law even further in the direction of overturning judgments for a reason completely beyond the state's control would be a valid ground for opposition of her confirmation.
Petr filed for a writ of habeas corpus, raising both fourth amendment and sixth amendment (ineffective assistance of counsel) claims. The DC denied the petition and declined to issue a certificate of probable cause. The CA7 also declined to issue a certificate of probable cause, stating that the petr had failed to make a substantial showing of the denial of a federal right. In his petition for cert, petr attacks the standard set forth in Strickland v. Washinqton to govern ineffective assistance claims. I 'd like to reverse Strickland too, but something tells me this court won't buy the idea. Petr also claims that the DC ignored this court's holding in Kimmelman v. Morrison, 106 S. Ct. 2574, that Stone v. Powell's restriction on habeas review of fourth amendment claims does not extend to ineffective assistance claims founded on incompetent representation with respect to a fourth amendment issue. This argument does not fly. The DC found only that petr was precluded from raising a fourth amendment claim in habeas proceedings when he had raised this claim, within the context of a sixth amendment claim, on direct appeal. In addition, the DC found that petrns fourth amendment claim had no merit.
DENY
The comment "I'd like to reverse Strickland too" requires explanation. I wouldn't make too much of it until we get the explanation. I don't necessarily believe everything I wrote in 1987. Still, it's an issue that requires examination.
The notion that the Strickland rule leans too far in the prosecution's favor, if she really still believes that, could be a huge problem. The rule is sufficiently loose that it enables the Ninth Circuit to adopt something pretty close to a de facto rule that every capital trial lawyer whose client is sentenced to death is per se ineffective. The Supreme Court itself completely blew it in the murderer's favor in Rompilla v. Beard, 545 U.S. 374 (2005). A desire to shift this law even further in the direction of overturning judgments for a reason completely beyond the state's control would be a valid ground for opposition of her confirmation.
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