The U.S. Supreme Court has yet again summarily and unanimously reversed a decision of a federal court of appeals for failure to observe the limitation that Congress placed on its authority to second-guess decisions of state courts.
If two courts disagree on a question of law, which court's opinion should prevail? Within the hierarchy of appellate review, the "higher" court's opinion prevails. That is what we mean when say that questions of law are reviewed "de novo." (For questions of fact, the judge or jury at trial gets broad deference.)
When a federal court considers the decision of a state court on habeas corpus, though, the situation is different. A federal district court or court of appeals is not "higher" than the state supreme court in this sense. Congress has never placed any federal court but the Supreme Court above the state courts in the sense of appellate jurisdiction.
So what do we do when a habeas petitioner claims in federal court that he is in jail illegally, but his legal argument has already been considered and rejected by the state court on appeal or state collateral review, and the U.S. Supreme Court has either refused or not been asked to review the state court's decision directly? It's complicated.
If two courts disagree on a question of law, which court's opinion should prevail? Within the hierarchy of appellate review, the "higher" court's opinion prevails. That is what we mean when say that questions of law are reviewed "de novo." (For questions of fact, the judge or jury at trial gets broad deference.)
When a federal court considers the decision of a state court on habeas corpus, though, the situation is different. A federal district court or court of appeals is not "higher" than the state supreme court in this sense. Congress has never placed any federal court but the Supreme Court above the state courts in the sense of appellate jurisdiction.
So what do we do when a habeas petitioner claims in federal court that he is in jail illegally, but his legal argument has already been considered and rejected by the state court on appeal or state collateral review, and the U.S. Supreme Court has either refused or not been asked to review the state court's decision directly? It's complicated.
The original rule of Ex parte Watkins was that the judgment of the criminal court, if not reversed on appeal by a court with jurisdiction to do so, was absolutely conclusive. If the jailer's return showed a judgment of a court of general jurisdiction authorizing imprisonment, the habeas case was over.
From 1953 to 1996, the rule was that the federal court reconsidered the question of federal law de novo, just as it would on an appeal. That rule might have been justified at the height of the civil rights struggle, when there was "massive resistance" to federal law in many states.
By 1996, Congress decided that de novo review was no longer justified, but it wasn't ready to go back to Watkins. So the compromise was the "deference" standard.
Yet there has been "massive resistance" to the deference standard. Government officials, including judges, don't like having their power reduced. Too many federal judges continue to substitute their judgment for that of the state courts on issues that are debatable, and the Supreme Court must reverse them time and again.
In Woods v. Donald, the underlying question is whether a claim of ineffective assistance of counsel must include a showing of prejudice under the usual rule of Strickland v. Washington or whether this is one of that rare breed of cases exempt from that requirement under United States v. Cronic.
The answer is not clear. The state court's decision to go with Strickland in this case is reasonable, and the command of Congress is that the federal court respect that decision even if it would have gone the other way if deciding it de novo. The Sixth Circuit did not do so, and the high court unanimously and summarily reverses. In other words, not a single Justice of the high court thought the Sixth Circuit's position even had enough arguable merit to set the case for full briefing and argument.
Next year will be the twentieth anniversary of AEPDA. Given the continued and widespread inability or unwillingness of some federal courts to obey its mandate, Congress should at least consider scrapping the "deference" standard and going all the way back to Watkins.
Today's case is Woods v. Donald, No. 14-618.
From 1953 to 1996, the rule was that the federal court reconsidered the question of federal law de novo, just as it would on an appeal. That rule might have been justified at the height of the civil rights struggle, when there was "massive resistance" to federal law in many states.
By 1996, Congress decided that de novo review was no longer justified, but it wasn't ready to go back to Watkins. So the compromise was the "deference" standard.
Yet there has been "massive resistance" to the deference standard. Government officials, including judges, don't like having their power reduced. Too many federal judges continue to substitute their judgment for that of the state courts on issues that are debatable, and the Supreme Court must reverse them time and again.
In Woods v. Donald, the underlying question is whether a claim of ineffective assistance of counsel must include a showing of prejudice under the usual rule of Strickland v. Washington or whether this is one of that rare breed of cases exempt from that requirement under United States v. Cronic.
The answer is not clear. The state court's decision to go with Strickland in this case is reasonable, and the command of Congress is that the federal court respect that decision even if it would have gone the other way if deciding it de novo. The Sixth Circuit did not do so, and the high court unanimously and summarily reverses. In other words, not a single Justice of the high court thought the Sixth Circuit's position even had enough arguable merit to set the case for full briefing and argument.
Next year will be the twentieth anniversary of AEPDA. Given the continued and widespread inability or unwillingness of some federal courts to obey its mandate, Congress should at least consider scrapping the "deference" standard and going all the way back to Watkins.
Today's case is Woods v. Donald, No. 14-618.
Kent,
Thank you for the concise history of federal habeas law.
I do have (an off-topic) question that I hope you can answer: What is the largest gap of time that you are aware of bewteen a defendant's commission of crime(s) and a federal court's final resolution of his AEDPA-constrained habeas petition? I have found cases that exceed 32 years, but I suspect that you are aware of even greater delays?
Thanks.
Paul
Paul, I don't have an answer off the top of my head.
interestingly, this latest case was written by Judge Karen Nelson Moore, a Clinton appointee. A Bush appointee dissented. A Reagan judge concurred on an idiosyncratic ground.
The problem with AEDPA and federal judges appears to be a Democrat judge problem.