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The US Supreme Court decided the decidedly odd procedural default case of Maples v. Thomas this morning.  "The sole question this Court has taken up is whether, on the extraordinary facts of Maples' case, there is 'cause' to excuse his procedural default."  As noted in my post of July 13, the essential facts are:

Maples is a double murderer who was represented by the big-name New York law firm of Sullivan & Cromwell for his state collateral review petition.  However, the big shots blew the deadline to appeal because (1) they didn't bother to inform the state court of a change in the attorneys handling the case; (2) the firm had a strange policy of not letting the attorneys use the firm name in their appearance -- even though the firm touts the work on its web site; and (3) when notices of decision addressed to the individual, departed attorneys arrived at the firm's mail room, the mail room sent them back to the court.

On "the extraordinary facts," it is not too surprising that the Court answered the question "yes."  See my post after the oral argument.  As predicted, the resulting precedent is narrow, at least for the time being.  One aspect of the opinion that I find particularly disappointing is what it does and does not say regarding who is to blame for the mess.

First, and most importantly, is the narrowness of the opinion.  The Court does not back off from Coleman v. Thompson.  Attorney error in habeas is not "cause" for default, even something as basic as blowing an appeal deadline.  "We do not disturb that general rule."  Abandonment is distinguished from error.  Look for petitioners' briefs to push an ever-expanding definition of abandonment from this point onward.  Hopefully, the courts won't go for it and not much damage will be caused.

No opinions out of the US Supreme Court this morning, summary or otherwise.  The orders list is here.  Regrettably, the Court declined to correct the Third Circuit a second time in the Kindler case, Justice Kagan recused.

The questions the State of California asked the Supreme Court to review in Cavazos v. Williams were:

1. Whether a habeas petitioner's claim has been "adjudicated on the merits" for purposes of 28 U.S.C. § 2254(d) where the state court denied relief in an explained decision but did not expressly acknowledge a federal-law basis for the claim.

2. Whether, under § 2254, a federal habeas court (a) may grant relief on the ground that the petitioner had a Sixth Amendment right to retain a biased juror on the panel and (b) may reject a state court's finding of juror bias because it disagrees with the finding and the reasons stated for it, even where the finding was rationally supported by evidence in the state-court record.

The Court accepted Question 1 and turned down Question 2.

The Ninth Circuit opinion, by our favorite circuit judge, is here.

The Big Easy is really good at partying, but apparently not so good at disclosing exculpatory information to the defendant, as required by Brady v. Maryland, 373 U. S. 83 (1963). Last term, we had Connick v. Thompson, a civil case about failure to disclose a crime lab report.  Today we have Smith v. Cain, about failure to disclose prior inconsistent statements by the only witness who identified the defendant at trial.

This is about as pure a Brady claim as they come.  As CJ Roberts explains, the jury might have believed the witness's trial statements rather than the prior statements, but "might" is not the test.

The State and the dissent advance various reasons why the jury might have discounted Boatner's undisclosed statements. They stress, for example, that Boatner made other remarks on the night of the murder indicating that he could identify the first gunman to enter the house, but not the others. That merely leaves us to speculate about which of Boatner's contradictory declarations the jury would have believed. The State also contends that Boatner's statements made five days after the crime can be explained by fear of retaliation. Smith responds that the record contains no evidence of any such fear. Again, the State's argument offers a reason that the jury could have disbelieved Boatner's undisclosed statements, but gives us no confidence that it would have done so.

This case is a straightforward application of settled law to particular facts that makes little new law.  Why did the Supreme Court take it up?  Wouldn't Smith have been granted relief on federal habeas from the state court's unreasonable rejection of his claim?  Isn't that why Congress adopted the compromise standard of 28 U.S.C. §2254(d), rather than getting rid of federal habeas for state prisoners altogether?

Or does the Supreme Court lack confidence that the Fifth Circuit will grant habeas relief where the 2254(d) standard requires it (i.e., clearly wrong state court decisions), just as it lacks confidence that the circuits divisible by 3 will observe that standard and refrain from second-guessing state courts on close questions, as Congress has required?

The politics of federal judicial appointments, unfortunately, results in the states that need the most federal scrutiny receiving the least and vice versa.  The voters who choose the governor who appoints the state judges, or who elect the state judges directly, also choose the senators who have large influence over the appointments of the federal district and circuit judges in their states.  Less home-state-senator influence over the circuit appointments, at least, would help balance things out.  The political realities being what they are, though, I am not hopeful that can be done.

Today in Gonzalez v. Thaler, No. 10-895, the Supreme Court took up some Slack and solved a Riddle on a couple of points of habeas corpus procedure.

In the post-AEDPA procedure for appeal, the petitioner cannot appeal a denial of relief unless he gets a judge to issue a certificate of appealability, which is supposed to identify the issues on which "the applicant has made a substantial showing of a constitutional right."  In Slack v. McDaniel, 529 U.S. 473 (2000), the Court held that when the denial is on procedural grounds, the petitioner must show both a debatable claim on the merits and that the procedural ruling may be wrong.

What if a judge grants a COA but doesn't specify the substantive claim that meets the statutory requirement, and nobody objects?  That would block the appeal only if the specification requirement is jurisdictional.  The Court today held 8-1 that it is not.  (Opinion by Justice Sotomayor; dissent by Justice Scalia.)  I don't have a problem with that.  The State needs to make timely objection to errors, just as the defendant does, or else it defaults the claim.  Exceptions to the "speak now or forever hold your peace" rule are and should be rare.

On a second point, the statute of limitations clock for federal habeas begins, in most cases, on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review."  If the judgment is affirmed in the state's intermediate appellate court, and the defendant does not seek discretionary review from the state high court, does the federal clock start when the state clock runs out or when the intermediate appellate court issues its mandate? 

Answer (without dissent): when the state clock runs out.  The Eighth Circuit's contrary decision in Riddle v. Kemna, 523 F.3d 850 (2008) (en banc) is wrong.  The "conclusion" prong is for defendants who take it all the way to SCOTUS, where the usual conclusion is denial of certiorari, and the "expiration" prong is for those who do not.  In the latter case, "final" is the time limit on whatever review procedure the defendant did not seek.

The more difficult problem not squarely presented in today's case is how to handle COA problems when someone does object.

The US Supreme Court today declined to take up the case of Cash v. Maxwell, No. 10-1548, a noncapital case where the Ninth Circuit granted relief to a murder convict whose claim had been found without merit by the California state courts.  The case arises out of the L.A. jailhouse informant scandal of the 1980s, and I suspect that taint was enough to convince the swing votes to take a pass.

Notorious informant and liar Sydney Storch was one of many witnesses against Bobby Joe Maxwell.  When Maxwell filed a state habeas petition, the California Supreme Court sent the case to the trial court for an evidentiary hearing.  Justice Scalia relates, "After conducting an evidentiary hearing that extended over the course of two years and included the testimony of more than 30 witnesses and the introduction of over 50 exhibits, the Superior Court issued a 34-page opinion concluding that Storch had not lied [this time] and denying the habeas petition."  Ultimately, the Ninth Circuit found that conclusion unreasonable and granted relief.

Today, the Supreme Court decided not to take up the case, with Justices Scalia and Alito dissenting and Justice Sotomayor writing an opinion supporting that decision.  She agrees with the Ninth Circuit on the merits and also notes that the case is "fact-bound," not the kind of case the Supreme Court usually takes up.

Justice Scalia notes, in frank terms, the resistance of some federal judges to the mandate of Congress to stop second-guessing state courts on close questions.  In his view, the necessity of enforcing this mandate overrides the Court's usual aversion to fact-bound cases.

It is a regrettable reality that some federal judges like to second-guess state courts. The only way this Court can ensure observance of Congress's abridgement of their habeas power is to perform the unaccustomed task of reviewing utterly fact-bound decisions that present no disputed issues of law. We have often not shrunk from that task, which we have found particularly needful with regard to decisions of the Ninth Circuit. [Citing 8 cases.]

If the 113th Congress is fully in the control of forces friendly to the law-abiding public, we should reconsider the limits on habeas corpus.  The "Friendly filter" of a colorable claim of actual innocence is a possibility to consider.

Wetzel v. Lambert is relisted again for Friday, BTW.  The Kindler case is back on the same conference.  Previous decision is here.

Once again, the US Supreme Court has summarily and unanimously reversed a federal court of appeals for failure to observe the command of Congress that federal habeas is only to correct clearly wrong state court decisions, not to substitute the federal court's judgment for the state court's on close questions.  The case is Hardy v. Cross, No. 11-74.

Does it violate the Confrontation Clause of the Sixth Amendment when a witness testifies at a defendant's first trial, with cross-examination, but disappears before the retrial, and the prior testimony is read at the second trial?  Generally not, as long as the prosecution made a good faith effort to locate the witness.  See Ohio v. Roberts, 448 U.S. 56, 75 (1980) (overruled on other grounds in Crawford v. Washington, 541 U.S. 36 (2004).)

Comparing the efforts made in this case with those deemed sufficient in Roberts, it seems quite clear that they were more than sufficient.  The state courts so held.  The Seventh Circuit held that this decision was not only wrong but unreasonable, the AEDPA standard for overturning the state court judgment in this manner.  That decision was itself unreasonable, so clearly so that the high court did not even need to take merits briefing and hear argument.

Ruth Brown of the Post Register (Idaho Falls) reports:

After nearly a quarter-century, Junior Haddon still grieves for his son Nolan.

Nolan Haddon died at Eastern Idaho Regional Medical Center on March 17, 1987, after lying overnight in a walk-in cooler at the Idaho Falls convenience store where he worked as a clerk. He had been shot five times, and his spinal cord had been severed.

His killer, Paul Ezra Rhoades, 54, is set to die at 8 a.m. Friday by lethal injection.

Yesterday, the Ninth Circuit denied Rhoades's stay application on the lethal injection claim yesterday.  Today, the same court denied his application to hold his case for the Supreme Court's decision in Martinez v. Ryan.  Even if Martinez wins his case, his case is sufficiently different from Rhoades's that it is highly unlikely any rule established there would apply.

Update:  KPVI's live blog reports the execution is delayed 55 minutes but still on (i.e., scheduled for 8:55 a.m. MST).  Supreme Court's stay denials are here and here.  No dissent is noted.

Update 2:  Mission accomplished, 9:15 a.m. MST.  See the live blog.

Adam Liptak has this article in the NYT on the subject of law professor amicus briefs and Richard Fallon's much-discussed essay.  I have a personal interest in this part of the story:

In his essay, Professor Fallon discussed a second brief he had declined to join. It concerned "a highly complex question of federal jurisdiction over a habeas corpus petition filed by a prison inmate" and was written by Michael C. Dorf, a law professor at Cornell.

Professor Fallon said the brief was in all likelihood "exemplary in all respects." But he said he would not sign that one, either, on the refreshing ground that he had not done the required reading.

All the news coverage on today's Supreme Court orders list is, of course, on the Court taking up the health care challenges.

There is little action on criminal cases.  The three state-petition habeas cases on SCOTUSblog's Petitions to Watch list will apparently all be relisted:  Hardy v. Cross, Wetzel v. Lambert, and Cash v. Maxwell.  The defendant-petition case of Harvey v. McNeil was denied. 

Two cases, Stovall v. Miller and McEwen v. Thompson, were sent back to circuits divisible by three for reconsideration in light of Greene v. Fisher.

Update (11/16):  John Elwood notes these cases in his Relist Watch at SCOTUSblog.  Regarding Lambert, Maxwell, and Cross, he says, "After last week's per curiam in Bobby v. Dixon, 10-1540, and the prior week's in Cavazos v. Smith, 10-1115, further summary action (or perhaps a dissent from the denial of cert.) may be in the works."

After the argument in Greene v. Fisher, I wrote this post on the confusion between (1) the nonretroactivity rule of Teague v. Lane and (2) the rule of generally not relitigating in federal court issues already decided by the state court (with 2 exceptions) in 28 U.S.C. §2254(d), part of the Antiterrorism and Effective Death Penalty Act of 1996.

In Greene, the petitioner's argument, in essence, was that whether the state court decision was clearly wrong (one of the exceptions to §2254(d)) should be judged as of the same date as the date for retroactivity of new rules under Teague.  As I explained in the prior post, these two rules are entirely different in nature, even though they often point to the same result, and there is no good reason for making them turn on the same date.

Back in 2000, in Williams v. Taylor, we came within one vote of having §2254(d) minimized to little more than a codification of Teague.  Today, I am pleased to report, all of the nine Justices of Supreme Court are clear on this point.  The unanimous opinion of the Court says,

We have explained that AEDPA did not codify Teague, and that "the AEDPA and Teague inquiries are distinct." Horn v. Banks, 536 U. S. 266, 272 (2002) (per curiam). The retroactivity rules that govern federal habeas review on the merits--which include Teague--are quite separate from the relitigation bar imposed by AEDPA; neither abrogates or qualifies the other.

Note well the characterization of §2254(d) as a relitigation bar, a term first used by the Supreme Court in Harrington v. Richter last term.  See also the previous post and my law review article, Habeas Corpus, Relitigation, and the Legislative Power, 98 Colum. L. Rev. 888 (1998).  This is the key to understanding §2254(d).

Congrats to the Philadelphia DA's Office and Ron Eisenberg.

Once again, the US Supreme Court has summarily and unanimously reversed a circuit divisible by 3 in a capital case for failing to obey the mandate of Congress to respect the finality of state court decisions on debatable questions.  From Bobby v. Dixon:

Under the Antiterrorism and Effective Death Penalty Act, a state prisoner seeking a writ of habeas corpus from a federal court "must show that the state court's ruling onthe claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 13). The Court of Appeals for the Sixth Circuit purported to identify three such grievous errors in the Ohio Supreme Court's affirmance of respondent Archie Dixon's murder conviction. Because it is not clear that the Ohio Supreme Court erred at all, much less erred so transparently that no fairminded jurist could agree with that court's decision, the Sixth Circuit's judgment must be reversed.

Update:  The Toledo Blade has background on the case.

The US Supreme Court has issued its first opinion of the term.  Not surprisingly, it is a summary reversal finding, once again, that the US Court of Appeals for the Ninth Circuit has overstepped its authority to overturn a state criminal judgment.

Cavazos v. Smith, No. 10-1115, involves the second-degree murder conviction of Shirley Ree Smith for the death of her 7-week-old grandson.  The trial was a "battle of the experts," with the prosecution experts testifying little Etzel was shaken to death, and the defense experts testifying he was not.

The jury believed the prosecution experts and convicted Mrs. Smith of second-degree murder.  The state trial judge and appellate court upheld the verdict.  The federal district court concluded it had no authority to interfere.

The Ninth Circuit has granted relief to Mrs. Smith twice before and had the case sent back by the Supreme Court, only to grant relief again.  This time the high court has had enough.

At SCOTUSblog, Rory Little has this argument recap of Greene v. Fisher.  Similar to my assessment of the same argument, Little notes that "most of the hostile questioning of [defense counsel] ... came from Justices whom [he] likely hoped would be sympathetic," and that does not bode well for the defense.

However, Little is bothered by more than the likelihood his side will lose the case.  He thinks the Justices do not understand Greene's arguments.  I think that Little is the one who does not understand.  Specifically, I think he fundamentally misunderstands the nature of 28 U.S.C. §2254(d), the landmark limitation on federal-court challenges to state criminal judgments enacted in 1996.

The transcript of argument in Greene v. Fisher is here.  The involves a question of timing under AEDPA, 28 U.S.C. §2254(d).  A federal court cannot grant habeas relief on a claim rejected by a state court unless the state court's decision was contrary to or an unreasonable application of Supreme Court precedent.

But Supreme Court precedent as of what date?  The most natural way to read the statute is that the relevant date is the date of the state court decision.  What if the state court decides the case, the Supreme Court changes the law, and the time to petition the Supreme Court for review expires sometime later?

The Teague v. Lane rule on retroactivity is based on the date the conviction became final on direct appeal.  If Teague were the issue, the new rule would apply on federal habeas in a case with the above timeline.  But §2254(d) is not Teague, even though the two rules point to the same result in many cases.

Section 2254(d) is not a rule of retroactivity.  It is not a "standard of review" in the sense of a higher court reviewing the decision of a lower court.  It is, as the Court noted in Harrington v. Richter, a "bar to relitigation."  In the nature of res judicata and collateral estoppel, it is a bar to litigating an issue over again in another court that one has already litigated and lost elsewhere.  It is not an absolute bar; it has exceptions.  The exceptions involve the state court completely messing it up.  The relevant date, therefore, is the date of the state court decision.

Overall, it appears the argument went well for the State.  Defense counsel was pummeled with questions from the Justices who tend to lean to the defense side, and that is not a good sign for him.