The argument transcript in Jennings v. Stephens is now available.
On page 27 counsel for the petitioner (i.e., the prisoner) seeks to refute an argument that I made initially and the state picked up on. If the petitioner prevails in district court and there is no filter at all, then a petitioner who filed a potload of arguments, most of them frivolous, can argue them all on appeal as long as he prevails on one. See pages 9 and 14 of CJLF's brief. He seeks to assure the Supreme Court this scenario would be rare. I don't know about Texas, but it is certainly not rare in capital cases in California. Burying the courts in a mass of arguments, most patently meritless, defaulted, or both, is standard procedure here, as the California Supreme Court described in In re Reno. It's all part of the strategy to throw as much sand in the gears as possible.
Much of the discussion in this case involves the effect of a decision granting habeas relief in U.S. District Court when the case goes back to the state court. The state's position is that the district court decision settles every issue decided between the parties for the purpose of retrial, so if that court says the prisoner is right on claim A but wrong on B, C, D, E, and F, he has to appeal a decision he won if he doesn't want what he believes to be errors on B through F repeated at the retrial. The whole idea of prisoner who won his new trial in the federal district court's decision appealing that decision strikes me as very strange.
The general rule in litigation is that a decision of a court on an issue settles that issue between the parties unless that decision is appealed and reversed on appeal. This is called issue preclusion or collateral estoppel. A better answer to the problem the state poses in this case is to simply to say that this rule does not apply in habeas corpus. In olden times, a decision on habeas corpus did not have res judicata effect, so a prisoner could go from one judge to another asking relief, and none would be bound by the denial of relief by the others. The Supreme Court could, and in my view should, partially revive this rule for federal habeas for state prisoners and say that the federal district court's authority in issuing a conditional release order is limited to saying "either release him or give him a new trial," period. Whether the state courts want to respect the federal judge's conclusions in the opinion that went into that order should be up to them. Whether the federal courts would overturn the judgment on habeas again if they do not would be a new case, with the AEDPA deference standard playing a large role.
Another big issue is whether ineffective assistance of counsel is one claim or a separate claim for each alleged error of counsel. I think there is one legal right to have an effective attorney, and a claimed violation of that right is one claim, at least as to each phase of the case. That would simplify things considerably, and Justice Breyer notes our brief to that effect at pages 48-49.
Update, 10/17: Rory Little has this analysis of the argument at SCOTUSblog.
On page 27 counsel for the petitioner (i.e., the prisoner) seeks to refute an argument that I made initially and the state picked up on. If the petitioner prevails in district court and there is no filter at all, then a petitioner who filed a potload of arguments, most of them frivolous, can argue them all on appeal as long as he prevails on one. See pages 9 and 14 of CJLF's brief. He seeks to assure the Supreme Court this scenario would be rare. I don't know about Texas, but it is certainly not rare in capital cases in California. Burying the courts in a mass of arguments, most patently meritless, defaulted, or both, is standard procedure here, as the California Supreme Court described in In re Reno. It's all part of the strategy to throw as much sand in the gears as possible.
Much of the discussion in this case involves the effect of a decision granting habeas relief in U.S. District Court when the case goes back to the state court. The state's position is that the district court decision settles every issue decided between the parties for the purpose of retrial, so if that court says the prisoner is right on claim A but wrong on B, C, D, E, and F, he has to appeal a decision he won if he doesn't want what he believes to be errors on B through F repeated at the retrial. The whole idea of prisoner who won his new trial in the federal district court's decision appealing that decision strikes me as very strange.
The general rule in litigation is that a decision of a court on an issue settles that issue between the parties unless that decision is appealed and reversed on appeal. This is called issue preclusion or collateral estoppel. A better answer to the problem the state poses in this case is to simply to say that this rule does not apply in habeas corpus. In olden times, a decision on habeas corpus did not have res judicata effect, so a prisoner could go from one judge to another asking relief, and none would be bound by the denial of relief by the others. The Supreme Court could, and in my view should, partially revive this rule for federal habeas for state prisoners and say that the federal district court's authority in issuing a conditional release order is limited to saying "either release him or give him a new trial," period. Whether the state courts want to respect the federal judge's conclusions in the opinion that went into that order should be up to them. Whether the federal courts would overturn the judgment on habeas again if they do not would be a new case, with the AEDPA deference standard playing a large role.
Another big issue is whether ineffective assistance of counsel is one claim or a separate claim for each alleged error of counsel. I think there is one legal right to have an effective attorney, and a claimed violation of that right is one claim, at least as to each phase of the case. That would simplify things considerably, and Justice Breyer notes our brief to that effect at pages 48-49.
Update, 10/17: Rory Little has this analysis of the argument at SCOTUSblog.
It's a good thing that the prisoner's lawyer was not under oath when he claimed that people like his client will only "rarely" take up in the court of appeals the boatload of arguments they lost or waived below.
What complete tripe. And the defense lawyer knew it was tripe when he said it.
Is it any wonder lawyers have the reputation they do?