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USCA6 Summarily Reversed Yet Again

The "massive resistance" of some federal judges (particularly in circuits divisible by 3) continues, and today the U.S. Supreme Court found it necessary once again to summarily reverse a decision of Sixth Circuit for brazenly exceeding the limits Congress has placed on its authority.

In 1996, Congress decided that the opinion of the lower federal courts on disputed questions of federal law was really not more reliable than the opinions of the state courts.  Too many correct judgments were being wrongly overturned, and the Supreme Court could not correct all the errors.  Yet Congress was not willing to let go of the safety valve of federal habeas corpus review of state convictions altogether.  The compromise was that federal courts could overturn a state conviction based on a claim rejected on the merits by the state courts if the state court decision was clearly wrong, beyond the bounds of reasonable disagreement.  If the issue is arguable, the state court decision stands.

Many federal judges are unwilling to let go of their prerogative to substitute their opinions for those of state judges on close questions, and they regularly violate the law governing the limits of their authority in order to "correct" what they see as violations of other rules of law.  The highest-profile incidents tend to be in capital cases, but it occurs in noncapital cases as well, and that brings us to today's Supreme Court decision in Woods v. Etherton, No. 15-723.
At the root of the issue is a fairly mundane hearsay question.  In the course of describing the events leading up to the defendant's arrest on drug charges, the police testified about an anonymous tip that led them to make the stop.  Counsel objected on hearsay grounds on the third mention of the tip.  The prosecutor moved on without a ruling.  "The court instructed the jury that 'the tip was not evidence,' but was admitted 'only to show why the police did what they did.' "

Appellate counsel did not raise a Confrontation Clause issue on direct appeal.  Why not?  The state habeas court later noted that trial counsel might have had a strategic reason, described in the opinion.  Also, any error, if error it was, would not have been prejudicial given the other evidence in the case.  That is, it was a weak claim that would not have resulted in a reversal even if the appellate court had agreed that an error had been committed.

Claims of ineffective assistance of counsel were originally supposed to be a means of relief for defendants who were stuck with grossly incompetent lawyers who completely botched the case.  Now they are used to dredge up any and every issue that a prior lawyer in the case let go.  Experts in persuasion universally agree that an advocate should not make every conceivable point but should instead focus on the strong points and let the others go.  Everybody who does any kind of writing, speaking, or dramatic production knows you have to leave some things on the cutting room floor.  Yet petitioners' lawyers in federal habeas corpus routinely claim "ineffective assistance" for any failure to object to anything, despite clear Supreme Court authority to the contrary.  See Jones v. Barnes (1983).  Too many courts are willing to buy it to get around the procedural default rule.

It's bad enough when a court with de novo review authority misuses the ineffective assistance rule in this way.  Far worse is when a federal court declares a state court's decision to be "unreasonable" for its refusal to do so.  That is what the Sixth Circuit did in this case, and that is why the Supreme Court reversed summarily and with no dissents expressed.

It is cases like these that demonstrate why the "deference standard" of 28 U.S.C. ยง 2254(d) was needed.  That section remains under attack, but if any changes are to be made they should only be in the direction of strengthening it.  


One would think that the Court's "beyond the realm of possibility that a fairminded jurist" standard would require deference in almost 100% of cases where the state court rejected the federal claims on the merits.

So, beyond slapping down certain federal judges time and time again, what, if anything, can the Court do to stop the "massive resistance" once and for all?

I think the answer, paul, is that there are simply no consequences for this sort of lawlessness. The Court could censure these clown judges.

The bar and the academy have some responsibility here. If I am not mistaken, this is the second per curiam summary reversal that the learned Judge Bernice Donald has eaten. In my view, that calls into question her fitness, and one must wonder what else she has goat roped. That sort of thing needs to be ruthlessly criticized. Ruthlessly.

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