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State Decisions, New Evidence, New Claims

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As so often happens, today's US Supreme Court decision in Cullen v. Pinholster resolves an important question but leaves others unanswered.

Let us take the decision first.  In the language of the statute every federal habeas lawyer knows by heart, a claim rejected on the merits by the state court cannot be the basis for federal habeas relief "unless the adjudication of the claim --

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."
The term "application" in paragraph (1) refers to application of the rule of law established in a Supreme Court precedent to particular facts.  What facts?  "It would be strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court."

Certainly this is important in terms of having the case decided with proper respect for the state court decision.  Will it also reduce the present egregious delays in capital cases?  It should.

If the claim will be denied without regard to what is heard at an evidentiary hearing, is there any point in having a hearing?   The Court held in Schriro v. Landrigan, 550 U. S. 465, 474 (2007) that a hearing is not required in that situation, and it noted that decision today (p. 11).  CJLF's brief in Pinholster asked the Court to go a step further.

Is a district court permitted to hold a hearing on such a claim?  There is no reason to hold one.  If the claim is precluded by § 2254(d) on the basis of the state record, no facts introduced in federal court can lift that bar.  A hearing would be an unnecessary delay and a waste of resources.  An unnecessary delay is an unreasonable delay and therefore a violation of the rights of the victims. See 18 U. S. C. §§ 3771(a)(7), (b)(2)(A), (b)(2)(D).
The Court did not go that far.  See footnote 20 at the very end of the opinion.  Yet the implication is there.

What about discovery?  Is there any reason to have discovery of facts in federal court on top of what has already transpired in state court when the facts discovered cannot lift the bar of §2254(d)?  Again, there is simply no reason for the delay and expense.

Anticipating the usual objections, let me clarify that in those rare cases of claims of actual innocence, the Court might find a way around this limitation.  Its transfer of the Troy Davis case to the District Court for a hearing on innocence despite procedural barriers may signal that it is prepared to find a constitutional limitation in spite of the statute.  The typical capital case, though, is like the present one with no such issues.

And what exactly is a "claim"?  In the present case, Pinholster's complaint was ineffective assistance in the penalty phase and particularly on the use and nonuse of experts.  The Court effectively treated this as one claim, dancing around the surprising assertion at oral argument by the California Attorney General that the new evidence transformed the claim into a new claim.  See footnote 11, page 15. This is a position normally taken by habeas petitioners, not by the State, and for good reason.  If ineffective assistance is one claim, and it is reasonably rejected by the state court on the evidence presented there, it is precluded from federal habeas review.  Allowing the petitioner to state new "claims" in federal court based on additional alleged shortcomings of counsel would create a gaping loophole in §2254(d).  The Court was supposed to address this in Bell v. Kelly two terms ago, but it unexpectedly dumped the case.

What about Brady claims?  Is each nondisclosure a separate claim?  Justice Sotomayor worries about additional undisclosed evidence coming to light after the state proceedings are concluded.  See dissent p. 10.  In footnote 10, the majority opinion responds,

Though we do not decide where to draw the line between new claims and claims adjudicated on the merits, see n. 11, infra, JUSTICE SOTOMAYOR's hypothetical involving new evidence of withheld exculpatory witness statements, see post, at 9-10, may well present a new claim.
Meritorious Brady claims are rarely lost to procedural default, since the same nondisclosure and materiality that establish the claim also serve to establish the cause and prejudice that get around the procedural default rule.  The best defense against such a claim popping up on federal habeas is to disclose at the state habeas stage any information that is even arguably Brady material. (It should have been disclosed before trial, of course.)

So is ineffective assistance a unitary claim, at least with respect to each phase of the trial, while Brady claims are discrete?  That is an unanswered question, for now.

For ineffective assistance in the penalty phase, at least, I suggest taking the position that it is a single claim.  If the federal court concludes that state court's rejection of the claim on the merits is reasonable based on the evidence and allegations made there, that "brings [its] analysis to an end." (Footnote 11.)  There is no need for discovery and no need for an evidentiary hearing.  That should speed things up significantly.

3 Comments

With respect to "what is a claim", shouldn't that be taken care of under the "fair presentment" precedent. Focusing on what the prisoner asked the state courts to do and whether the state courts had a fair shot at dealing with the issues, I think, is probably better than trying to determine the murkier "what is a claim" question.

Those cases are relevant, as are the pre-AEDPA successive petition cases discussed in our Bell v. Kelly brief. The law is not clear enough to say that it is "taken care of," IMHO.

I probably should have been more clear with my tense. Isn't the crux of the problem determining whether the state court had a fair shot at the prisoner's argument? The sandbag problem seems a real issue. If comity means anything, it has to mean that state courts should get a fair shot. Breyer seems to be onto this:

"I point out only that, in my view, AEDPA is not designed to take necessary remedies from a habeas petitioner but to give the State a first opportunity to consider most matters and to insist that federal courts properly respect state-court determinations."

I'd love to know what he means by "most."

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