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Ex Post Facto, Diminished Capacity, and AEDPA

The US Supreme Court today unanimously reversed a decision of the Sixth Circuit, overturning a Michigan murderer's conviction on habeas corpus.  The Michigan Legislature passed a reform of mental defenses in 1975, but the state Court of Appeals failed to recognize that the statute had abolished the "diminished capacity" defense.  It was not until 2001 that the Michigan Supreme Court corrected that error, and the underlying question in Metrish v. Lancaster was whether that correction could apply in the retrial for a 1993 murder.  The case is described in more detail in my post after the oral argument.

The Supreme Court's jurisprudence on retroactivity of court decisions (as opposed to statutes), is less than crystal clear, and one might make a reasonable argument on the merits that this retroactive application crosses the fuzzy line.  Under Congress's 1996 reform of federal habeas corpus (AEDPA), though, that is not the question for the federal court.  The Michigan state courts decided the merits question, adversely to Lancaster.  "To obtain habeas corpus relief from a federal court, a state prisoner must show that the challenged state-court ruling rested on 'an error well understood and comprehended in existing law beyond any possibility for fair minded disagreement.' Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 12-13)."

Where the merits question is close, the AEDPA question is easy.  The state court decision was well within the bounds of "fair minded disagreement."  The Sixth Circuit decision to the contrary was beyond wrong.  It was lawless.


Once again, Kent, you prove that you are one of the most astute Supreme Court analysts out there.

I like it how you describe Ginsburg as being "on the right track" (in her questioning during oral argument) and then, low and behold, she just happens to be the author of the unanimous opinion.

Whether or not I agree with you (and Bill Otis) on everything you state, I will continue to read your commentary as it is some of the finest available anywhere.

I am really looking forward to the Court's decision in Salinas. I will be very interested to see if the Court adopts your "volunteering to become a witness" theory. (I believe that it is the most sound ground proposed. And avoids the pitfalls of the SG's "express waiver" argument.)

Keep up the great work!


Justice Ginsburg cited the appropriate Richter language in Lancaster, but she seems to have conducted an analysis that is something like the mirror-image of the rule in Teague v. Lane. And with Teague likely in mind, Lancaster was easy even for her.

Teague, of course, focused on what "new" rule a petitioner would need to prevail. In Lancaster, though, Justice Ginsburg implicitly asked whether an "old rule" as stated in Bouie or Rogers is enough to guarantee relief under 2254(d). (See slip at 15 (citing Williams v. Taylor at 412)).

The old rule of Bouie is easy to distinguish. Bouie prevents judges from punishing people for conduct that is not mentioned in a statute. But Lancaster, by contrast, lost the windfall of a mental defense that had "no home" in the statute. So Bouie doesn't help him.

The rule of Rodgers comes closer to helping Lancaster, but it still is not enough because it permits judges to take away a defense, which is what happened to Lancaster.

Justice Ginsburg almost makes this rule-based approach to 2254(d) explicit when she describes at slip 15 the reason why Rogers's old rule is not enough: It's because Rogers is _not_ limited to circumstances involving the judicial replacement of "outdated relics." Lancaster needs Rodgers, or some other holding, to already be that limited in order to prevail under 2254(d).

Without such a rule that already exists, he needs a new rule---but that's likely barred by Teague. Lancaster loses either way.

It's a little disappointing that Justice Ginsburg worked so hard to get somewhere that Carey v. Musladin or Thaler v. Haynes reached under 2254(d) in a single step. Still, she got there in the end.

For us non-experts, can you explain a bit more about "Rogers's old rule is not enough: It's because Rogers is _not_ limited to circumstances involving the judicial replacement of "outdated relics." Lancaster needs Rodgers, or some other holding, to already be that limited in order to prevail under 2254(d)."

If Rogers is not limited to relics, what does limit it? Maybe I'm just confused, but I thought this would cut in Lancaster's favor.


In Rogers, the TN court replaced a common-law rule in a manner that hurt Rogers.

When the Supreme Court took up Rogers's case, they said lots of things about how judges should be very careful in changing rules, which I suspect is what you see that "cut[s] in Lancaster's favor." But the key point is that Rogers lost; the TN court was affirmed.

That's what I meant about the rule: All the language in Rogers isn't too important to Ginsburg under 2254(d). Only the Rogers rule, or holding, really matters.

Put differently, to win on habeas, Lancaster needs to point to someone who previously won his or her case in the Supreme Court on the same issue. He's got Bouie, but that isn't the same issue (or at least it's not close enough). Lancaster doesn't have Rogers, no matter how good Rogers sounds, because Rogers lost.

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