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Ninth Circuit Reversed Summarily, Unanimously, Once Again

The orders list is here.  The Supreme Court took up one civil case.  No action on the Phillips cross-petitions from California, noted here.

In Marshall v. Rogers, 12-382, the Ninth Circuit was reversed for failure to observe Congress's limitation on habeas corpus in the so-called "deference" provision.  The high court once again has reversed the Ninth summarily and unanimously, meaning not a single justice thought the Ninth was right, and this conclusion is so obvious as to not require full briefing or oral argument.  Here is the first paragraph:

Respondent Otis Lee Rodgers, challenging his state conviction, sought a writ of habeas corpus from the United States District Court for the Central District of California. He claimed the state courts violated his Sixth Amendment right to effective assistance of counsel by declining to appoint an attorney to assist in filing a motion for a new trial notwithstanding his three prior waivers of the right to counseled representation. The District Court denied respondent's petition, and he appealed to the Court of Appeals for the Ninth Circuit, which granted habeas relief. 678 F. 3d 1149, 1163 (2012). Because the Court of Appeals erred in concluding that respondent's claim is supported by "clearly established Federal law, as determined by the Supreme Court of the United States," 28 U. S. C. §2254(d)(1), its judgment must be reversed.
When Congress enacted §2254(d), it specifically provided that the reasonableness of the state court's resolution of an issue will be judged only by its conformity with U.S. Supreme Court precedents, not federal court of appeals precedents.  The federal courts of appeals are not "higher" courts over the state courts in the sense that their precedents are binding, and Congress acted decisively to prevent them from making their precedents binding in practice by granting habeas relief whenever a state court disagrees.  A study I did shortly before the law passed showed that, in capital cases in the Ninth Circuit, the Supreme Court ultimately resolved these disagreements in favor of the state court's decision most of the time.

But many federal judges still don't get it:
The Court of Appeals' contrary conclusion rested in part on the mistaken belief that circuit precedent may be used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that this Court has not announced. Parker v. Matthews, 567 U. S. ___, ___ (2012) (per curiam) (slip op., at 12-13) ("The highly generalized standard for evaluating claims of prosecutorial misconduct set forth in Darden [v. Wainwright, 477 U. S. 168 (1986)] bears scant resemblance to the elaborate, multistep test employed by the Sixth Circuit here"); see 678 F. 3d, at 1155, 1157. The error in this approach is subtle, yet substantial. Although an appellate panel may, in accordance with its usual law-of-the-circuit procedures, look to circuit precedent to ascertain whether it has already held that the particular point in issue is clearly established by Supreme Court precedent, see, e.g., Tolliver v. Sheets, 594 F. 3d 900, 916, n. 6 (CA6 2010) ("We are bound by prior Sixth Circuit determinations that a rule has been clearly established"); Chambers v. McDaniel, 549 F.3d 1191, 1199 (CA9 2008), it may not canvass circuit decisions to determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to this Court, be accepted as correct. See Parker, supra, at ___ (slip op., at 12-13); Renico v. Lett, 559 U. S. 766, 778-779 (2010). The Court of Appeals failed to abide by that limitation here. Its resulting holding was erroneous and must be reversed.

Lyle Denniston at SCOTUSblog says this is "a summary ruling that largely applies only to California...."  I do not agree.  This smackdown will be felt nationwide.  The "massive resistance" to habeas reform is ebbing as the Supreme Court repeatedly reverses these lawless decisions, often in severe terms.


Newbie here, does the federal habeas law provide review for claims of actual innocence?

Actual innocence does provide a "gateway" to review of a claim otherwise barred by procedural default.

As to whether innocence by itself is a cognizable claim in federal habeas, the Supreme Court hasn't found it necessary to resolve that question. They considered it in the case of Leonel Herrera in 1992, but upon closer examination of the case, his claim evaporated.

They considered it again in House v. Bell in 2005. They decided that House qualified for the "gateway" noted above, but wouldn't qualify for a freestanding innocence claim assuming such a claim existed.

Finally, they sent Troy Davis's case to a district court to examine his innocence claim, and after an exhaustive review the federal judge decided it was "smoke and mirrors," so again the question of whether a convincing case of innocence alone would state a claim was not presented.

BTW, since Yahoo does not provide a recognizable user name, we would appreciate it if you could "sign" your comments in the text with a name of your choice. Thanks.

Was a certificate of appealability issued here? How did it get to the COA?

The district judge issued a COA. The appeal statute does not incorporate the 2254(d) standard, so a claim can be clearly barred by 2254(d) and yet appealable.

When you examine the panels for summary and unanimous reversals, the problem is clearly the Democratic appointed judges. Why very few of the commentators note that is interesting, to say the least. And the problem is not confined to people like Judge Reinhardt.

I agree that in ordinary habeas cases, these summary reversals are having an effect (of course, SCOTUS is do as a I say not as I do, e.g., Lafler v. Cooper), but in capital litigation, the Supreme Court is unfortunately tolerant of abusive stays issued by lower federal courts and has issued its own abusive stays.

The Supreme Court tolerates the slow strangulation of the death penalty by federal courts. It is high time it stopped.

Can you explain or point me to a source that explains the gateway exception you mention?


Sally Brown

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