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Pinholster: What's In a Claim?

The oral argument in Cullen v. Pinholster produced some surprises for the Court.  In particular, it raised an issue that was not briefed in this case but was briefed in a case the Court heard but dumped two years ago, Bell v. Kelly.

Both Bell and Pinholster involved the fairly common scenario of a convicted criminal who challenges his conviction or sentence in state court, loses there, and then goes to federal court with additional evidence never presented to the state court.  Is this the same "claim" for the purpose of 28 U.S.C. §2254(d)?

As we explain in our Bell brief, the word "claim" means the same thing in the so-called "deference" requirement of §2254(d) that it means in the successive petition rule of §2244(b), which in turn is the same thing that "ground" meant in the pre-AEDPA §2244.  The pre-AEDPA law was surveyed by the Ninth Circuit in Molina v. Rison, 886 F.2d 1124, 1128-1129 (1989), and that discussion is appended to the Bell brief.

In a nutshell, a claim that petitioner was denied the effective assistance of counsel in the penalty phase of the trial is one claim, regardless of how many alleged failings of counsel the petitioner adds or modifies as his case meanders from court to court.

In the Pinholster argument, the attorney for the State took the position that by altering the evidence, the claim was transformed so that it is no longer the claim adjudicated by the State court.    From pp. 20-21 of the transcript:

JUSTICE KENNEDY: But if it's a new claim, then if -- we don't look to (d) because it wasn't adjudicated on the merits.
During the argument of the habeas petitioner (certiorari respondent), Justice Kennedy said (p. 29):

Now the Petitioner [i.e., the State], unaccountably, has told us a few minutes ago that this is a new claim, which I think changes the whole question. But it seems to me the claim is whether there is ineffective assistance of counsel by reason of mitigation evidence.
That is narrower than I would classify the claim, but it will do for this case.  Justice Kennedy has it right.  Defining "claim" so narrowly that habeas petitioners can dance around §2254(d) just by altering their allegations against the trial lawyer would gut the reform, which is exactly what they were trying to do in Bell.  If it is a new claim and the window for consideration of it in State court is closed, then it is procedurally defaulted, but the procedural default rule is effectively void in the Ninth Circuit.  (We might fix that in Martin, but we can't be certain at this time.)  The Ninth could then proceed merrily to the merits de novo, relieved of the deference standard it despises.

This is an issue of great magnitude, and the Court ought not decide it without briefing.  At the very least, they can and should refer back the Bell v. Kelly briefs, where the issue was thoroughly discussed.


The Ninth Circuit has made such a hash of this case, maybe the easy solution is for the Court to simply punt on the case by reversing on the basis that the Ninth considered evidence not raised in the state courts and that it blew off the Van Hook opinion. Roberts could probably get nine votes for that.

Sotomayor's fixation with the 6.5 hours was very odd. First of all, no one seriously believes that's all they did on mitigation. And it points up some of the liberties the Ninth took. The state courts never really had a fair shot at the 6.5 hours argument, where they would have had the chance to examine whether it was a lot less than met the eye. Instead, you had Kozinski and the majority going back and forth over it in the Federal Reporter instead of in the Pacific Reporter (based on facts determined by a California trial judge), where it would have belonged in the first place. I guess she was focused on the language in Holland which looks to the record in front of the state court to determine whether the state court acted reasonably. But the state courts aren't required to search the record for facts that arguably support the theory of one litigant. Instead, it's up to litigants to tie the facts together with argument. That didn't happen here.

Perhaps SCOTUS should appoint a special master to figure out how much preparation these guys did.

Yes, the Supreme Court could reverse on grounds unique to this case, but that is not why they took the case up. The main question is whether a federal court should answer the 2254(d) question based on the evidence before the state court before any factfinding of its own. The answer is yes, and that would go a long way toward cutting down the time for federal habeas. There is no need for discovery if the facts discovered do not change the outcome.

A state court decision is a reasonable application of law to the facts or it is not, based on the facts before the state court. If it is reasonable, the modified rule of res judicata contained in 2254(d) forbids relitigation of the claim in federal court.

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