Two Opinions on Federal Habeas and Ineffective Assistance of Counsel

As astute followers of the U.S. Supreme Court already know, two opinions were released yesterday dealing with the properness of federal habeas reviews. The first case is Harrington v. Ricther and the second is Premo v. Moore. Both cases involve prisoners brining ineffective assistance claims: Richter for his trial attorney’s choice not to hire experts for blood analysis; Moore for his attorney’s decision to push an early plea deal. There were no dissenting opinions in either case although Justice Ginsburg authored brief concurring opinions in both indicating that she agreed with the judgement and suggesting she might be more receptive to the substantive ineffective assistance claims than the rest of the Court.

I have read both of the opinions and I’ll probably write up a proper summary of these two cases in a day or so. For right now, here are the basic points I took away:

(1) The Supreme Court is fed up with the 9th cir. willingness to grant federal habeas review.

(2) The Court is similarly fed up with every unhappy prisoner bringing an ineffective assistance claim just so he can sneak his way into federal court.

(3) The Court is not willing to infringe upon the sovereignty of states’ rights to prosecute and punish. Justice Kennedy (the author of both opinions) made a point of this in both cases. He undeniably is less than comfortable with the power of federal habeas to overstep or second-guess the states.

(4) Criminal defense attorneys probably should feel relieved. I’m still on the fence about this point. On the one hand, the Court has made it difficult for someone pushing a federal habeas review. On the other, what trial attorney wants to be easily found to have rendered ineffective assistance? That’s an attorney’s worst nightmare— now it will be a less salient one.

-Zachary Cloud

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