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Deference and Summary Denials

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The transcript of the Supreme Court argument in Harrington v. Richter is available here.

In this case, the defendant made his ineffective assistance of counsel claim for the first time in state court in a habeas corpus petition filed directly in the California Supreme Court, without going to any lower courts first.  The state high court, as it sometimes does, simply denied the petition without comment.  (If Richter had filed in the Superior Court, the preferred procedure, the Rules of Court would have entitled him to an explanation.)  The Ninth Circuit granted Richter's federal habeas petition.

When this case reached the U.S. Supreme Court, the Court on its own posed the question of whether a summary denial of relief by the state court is a disposition on the merits for the purpose of 28 U.S.C. ยง2254(d), limiting the authority of a federal court to grant a claim denied on the merits in state court.

There was no argument today on the question in the terms the Supreme Court posed, summary versus explained decisions.  Instead, the discussion was on (1) whether the state court's order was a disposition on the merits at all, as opposed to on procedural default; and (2) the merits of the ineffective assistance claim, with lots of fact-intense discussion about blood pools and high velocity spatter.

It appears possible that the Supreme Court could just go straight to the merits of the underlying claim and say there was effective assistance or no prejudice and leave all the other questions for another day in a cleaner case.

Update: Snarky WaPo columnist Dana Milbank, who does not usually cover the Supreme Court beat, comments on the blood and forenics in the argument here.

Update 2: John Elwood and Douglas Geyser have this recap at SCOTUSblog. They count 5 votes to reject Richter's ineffective assistance claim on the merits even without the AEDPA standard and a sixth to say that the state court determination was on the merits.

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The problem, I think, for the murderer, is that, at the end of the day, the opinion has to write. The guy's story is so improbable. And while SCOTUS Justices have been known to "swallow a tale" (Kyles v. Whitley), that's not an everyday occurrence.

I think counsel for the murderer made a big mistake when he talked about the jury being out 14 hours. Given the evidence against the killer, it's certainly a reasonable to conclude (if one buys the idea that deliberation length is probative in this case) that the lawyer did a good job and that hiring an expert and putting him on the stand may have undermined the case if there was an effective cross. Of course, we don't know what would have happened, but that's precisely why these things aren't viewed in hindsight.

It is noteworthy to see just how far Strickland has gone. Whether one agrees with Reinhardt or not, there is no way that one can say that this lawyer was effectively "no counsel", which is the Sixth Amendment tether.

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