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Justice Kennedy Hits One Out of the Park

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Harrington v. Richter, No. 09-587, decided 7-1-0 today by the US Supreme Court, is a landmark decision in the law of federal habeas corpus. The opinion is as rich with nuggets as any I have seen from the Court in some time.  One in particular makes the opinion stand out, though.  The Court has finally comes to grips with the true nature of the most controversial provision of the habeas reforms in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA): 28 U.S.C. §2254(d).
The case itself is not particularly remarkable.  A murderer claims his lawyer was ineffective.  The state courts reject the claim.  The Ninth Circuit accepts the claim and brushes aside the state court's judgment as a mere inconvenient trifle.  Not a single Justice of the Supreme Court thinks the Ninth is correct.  Nothing new there.  See, e.g., Woodford v. Visciotti, 537 U.S. 19 (2002); Knowles v. Mirzayance, No. 07-1315 (2009).

In Richter, the defendant filed his state habeas petition in the state supreme court, bypassing the trial and intermediate appellate courts.  He had a right to an explanation of the reason for rejection of his petition if he filed in superior court, but he chose not to.  The California Supreme Court rejected the claim summarily, as it usually does, a necessary practice given the volume of petitions it receives.

The U.S. Supreme Court asked for briefing on the question of whether such a summary disposition counts as a decision "on the merits," a prerequisite for §2254(d) to apply.  The answer to that question is yes.  The Court applied the same presumption it adopted (to the benefit of petitioners) in the pre-AEDPA days of de novo review of decisions on the merits.

The most remarkable portion of the opinion, though, is its characterization of §2254(d).  This provision emerged from intense negotiations between Senators Hatch and Specter.  The compromise wording did not entirely satisfy anyone and has been a source of some interpretative difficulty.

On the floor of the Senate, the clearest analysis of the language actually came from its principal opponent, now-Vice President Biden.  He noted that the language at the top generally precluded relief on any claim decided on the merits by the state court, and the numbered paragraphs are two exceptions to that general rule.  Right.

While it is often said that the doctrine of res judicata does not apply in habeas corpus, Congress can and has enacted limits to give greater finality to criminal judgments.  Promptly after enactment of AEDPA, the Court recognized the beefed-up successive petition rule as a "modified rule of res judicata" in Felker v. Turpin, 518 U. S. 651, 664 (1996).

Today's opinion, for the first time, gives a similar characterization to §2254(d).  The opinion refers to it as a "relitigation bar" and quotes Felker with a "cf." cite.  This has been a long time coming.  To see it in a nearly unanimous opinion is particularly gratifying.

There is joy in Mudville.  Mighty Casey has hit it out of the park.

More nuggets:

The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ, a commitment that entails substantial judicial resources. Those resources are diminished and misspent, however, and confidence in the writ and the law it vindicates undermined, if there is judicial disregard for the sound and established principles that inform its proper issuance.

Over at Volokh Conspiracy, commenter Dave N. (who works in the AG office of a western State) is undecided on only one point -- whether to quote this at the beginning or the end of his Ninth Circuit briefs.

§2254(d) applies when a "claim," not a component of one, has been adjudicated.
Federal habeas courts are often confronted with the Puzzle of the Morphing Claim.  The claim that the defendant presents to the federal court may be significantly different from the one he presented to the state court.  For ineffective assistance, he may say to the state court, "My lawyer should have done A, B, and C."  The state court says that is not ineffective or didn't cause prejudice.  Then he gets to federal court and says, "My lawyer should have done A, B, C, D, E, F, and G."  Is that a different claim?  I have been arguing since Bell v. Kelly that ineffective assistance of counsel is one "claim," regardless of how many failings are alleged.  Perhaps IAC in the guilt phase is a different claim from IAC in the penalty phase, but that's it.  This nugget potentially provides some ammunition for that argument.

How does this passage affect the rule that when the state court has expressly denied an IAC claim on prejudice without deciding performance, the federal court reviews the state court decision deferentially on the prejudice prong and then, if necessary, decides the performance prong de novo?  That remains to be seen.

A state court's determination that a claim lacks merit precludes federal habeas relief so long as "fairminded jurists could disagree" on the correctness of the state court's decision. Yarborough v. Alvarado, 541 U. S. 652, 664 (2004).

We will probably see that quoted in more than a few briefs.

The opinion of the Court of Appeals all but ignored "the only question that matters under §2254(d)(1)." Lockyer v. Andrade, 538 U. S. 63, 71 (2003).

It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable. See Lockyer, supra, at 75.
How many times must it be repeated before the Ninth Circuit gets it?

If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, §2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U. S. 651, 664 (1996) (discussing AEDPA's "modified res judicata rule" under §2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U. S. 307, 332, n. 5 (1979) (Stevens, J.,concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.
[We now pause for a standing ovation.]

Section 2254(d) is part of the basic structure of federal habeas jurisdiction, designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions. Under the exhaustion requirement, a habeas petitioner challenging a state conviction must first attempt to present his claim in state court.28 U. S. C. §2254(b). If the state court rejects the claim on procedural grounds, the claim is barred in federal court unless one of the exceptions to the doctrine of Wainwright v. Sykes, 433 U. S. 72, 82-84 (1977), applies. And if the state court denies the claim on the merits, the claim is barred in federal court unless one of the exceptions to §2254(d) set out in §§2254(d)(1) and (2) applies. Section 2254(d) thus complements the exhaustion requirement and the doctrine of procedural bar to ensure that state proceedings are the central process, not just a preliminary step for a later federal habeas proceeding, see id., at 90.

The Unified Field Theory.  It all ties together.

The standards created by Strickland and §2254(d) are both "highly deferential," id., at 689; Lindh v. Murphy, 521 U. S. 320, 333, n. 7 (1997), and when the two apply in tandem, review is "doubly" so, Knowles, 556 U. S., at ___ (slip op., at 11). . . . When §2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.
Deference squared = damn near never.  So when does the Court overrule Rompilla v. Beard?

An attorney can avoid activities that appear "distractive from more important duties." Bobby v. Van Hook, 558 U. S. ___, ___ (2009) (per curiam) (slip op., at 8). Counsel was entitled to formulate a strategy that was reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies.
Realistically, some stones will be unturned.  Resources are always limited.  Choices must be made.

The Court of Appeals erred in suggesting counsel had to be prepared for "any contingency," 578 F. 3d, at 946 (internal quotation marks omitted). Strickland does not guarantee perfect representation, only a "'reasonably competent attorney.'"
It's all well and good to make ringing statements from the ivory tower about zealous advocates being prepared for any contingency, but realistically it is simply impossible to be prepared for any contingency. Stuff happens.

But Strickland does not enact Newton's third law for the presentation of evidence, requiring for every prosecution expert an equal and opposite expert from the defense.
As a physics major, I especially like that one.

And while in some instances "even an isolated error" can support an ineffective-assistance claim if it is "sufficiently egregious and prejudicial," Murray v. Carrier, 477 U. S. 478, 496 (1986), it is difficult to establish ineffective assistance when counsel's overall performance indicates active and capable advocacy.
So when does the Court overrule Rompilla v. Beard?

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There is a bit of blogospheric discussion of yesterday’s unanimous SCOTUS reversal in Harrington v. Richter, and the general tone of the discussion is that Harrington could make things more challenging for federal habeas petitioners. The prosecut... Read More


For those of us laboring away in the state courts, I would also note that this decision (as well as the other case decided today, Premo v. Moore) contains some fantastic language reiterating that Strickland is an extremely deferential standard, and only cases of obvious incompetence with equally obvious adverse consequences will meet that deferential standard.

At least in my state, we have seen some appellate decisions that seem to cast aside Strickland in favor of Monday-morning quarterbacking, just as the Ninth Circuit engaged in in both of these cases. It's nice to have some strong language rejecting that kind of 20-20 hindsight as well.

With Premo, the lawyer seemed to have been more than competent. How they came to the conclusion that the state court was unreasonable in its conclusion that the defendant got minimally competent counsel is simply beyond comprehension.

I wonder if these cases will make it less likely that Judge Reinhardt will remain part of the three-judge court.

Finally, I note that Judge Paez was part of the Ninth Circuit majority in Richter. His record is as bad as Reinhardt's.

Shouldn't the riddle of the morphing claim be resolved by reference to the requirement of "fair presentment?"

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