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USCA9 Chastised on AEDPA, Yet Again

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The U.S. Supreme Court issued its first two decisions of the October 2017 Term today.  As usual this early in the term, they are "per curiam" decisions reversing a lower federal court without setting the case for a new stage of briefing and oral argument and with an opinion "by the court" with no justice identified as the author.

Bill noted one of the opinions, in an Alabama capital case, earlier today.

The second case, Kernan v. Cuero, No. 16-1468, is yet another case of the Ninth Circuit failing to respect the limits Congress put on its authority to second-guess state court decisions in the Antiterrorism and Effective Death Penalty Act of 1996.
Congress has never authorized the lower federal courts to hear direct appeals from state court decisions.  Only the U.S. Supreme Court can do that.  The ancient procedure of the writ of habeas corpus has at times been pressed into service to achieve the same thing in practice.  Congress and the Supreme Court have gone back and forth on this throughout American history.

From 1953 to 1996, a federal court could order a state prisoner released or retried merely because it disagreed with a state court decision on a federal constitutional question.  As AEDPA was going through Congress in 1995, some people wanted to keep this "de novo" review (trusting the federal courts much more than the state courts), others wanted to scrap the use of habeas corpus for this purpose altogether (believing it introduced more errors than it corrected and was not worth the delay and expense), and some wanted a middle ground, not entirely trusting either federal or state courts.

The middle ground prevailed.  The compromise was that the federal courts could effectively overturn a state judgment on a ground decided by the state courts if that decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."  The compromisers hoped that this would enable federal courts to correct clearly wrong state court decisions while not committing gross errors of their own or imposing their own precedents (rather than the Supreme Court's) on the state courts.

The problem is that it takes considerable self-restraint and humility to say "I would not have decided the case that way, but it is within the limits in which reasonable people can differ."  The statute only comes into play when the federal judges have the more pro-defendant view, and the federal judges with the strongest pro-defendant views are not known for their humility and self-restraint.

The case decided today deals with a nuance of criminal procedure where the defense and prosecution come to a plea agreement but later the prosecution realizes it has made a mistake in the complex law of sentencing and prior convictions.  The remedy offered was to vacate the plea and let the defendant decide if he wanted to plead guilty again with the correction in place giving him a longer sentence.

The California courts thought that was an okay way to deal with it.  The Ninth Circuit thought that the defendant was entitled to the original, erroneous deal.

Supreme Court precedent does not clearly say that, though.  People can disagree.  This is very clearly a case where AEDPA requires the federal court to let the state court decision stand and not substitute its own judgment.

The compromise is clearly not working as intended.  The federal courts of appeal are not reining in their rogue panels and enforcing AEPDA themselves.  Error correction is taking too much of the Supreme Court's time, and too many errors go uncorrected.

Perhaps it is time to consider again the limitation proposed by Judge Henry Friendly even longer ago, back in 1970.  Collateral attack on criminal judgments should be limited to prisoners with a colorable claim of actual innocence.

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