Habeas Corpus Updates

Now that I have some free time, I thought I’d throw up a quick post summarizing some of the recent goings-on in habeas law.

Since the beginning of the October Term 2011, the US Supreme Court has handed down a number of opinions dealing with AEDPA. Specifically, Hardy v. Cross, Greene v. Fisher, Bobby v. Dixon, and Cavazos v. Smith.

All but one (Greene) were summary reversals by the Court writing per curiam. Now, let me state up front that we don’t normally expect to find any change in precedent with such summary reversals but it happens sometimes anyway. So, I think it’s worthwhile to take a peak and see if anything is hidden in these opinions that might have some value for us down the road.

Let’s start with Smith, a case in which the 9th Circuit granted habeas based because “there was no evidence to permit an expert conclusion one way or the other . . . .” Slip Op. at 6 (internal quotation marks omitted). I bet you didn’t think a mere sufficiency argument would ever make it did ya? Well it was short-lived. The Supreme Court called the 9th Circuit’s conclusion “plainly wrong[ ]” and spent a bit of time explaining the standard for sufficiency of the evidence under Jackson v. Virginia, 443 U.S. 307 (1979).

Two things stand out about Smith. First, it has relatively little focus on the § 2254(d) deference that federal courts owe to state court adjudications. Rather, the focus is more on the underlying substantive reasons for why the writ shouldn’t have issued (i.e., the 9th Circuit got Jackson v. Virginia wrong).

The second thing that stands out is Justice Ginsburg’s dissent, which Justices Breyer and Sotomayor joined. More than just suggesting that AEDPA could allow the 9th Circuit to act as it did, Justice Ginsburg questions the Supreme Court’s decision to even decide: “By taking up the case, one may ask, what does the Court achieve other than to prolong Smith’s suffering and her separation from her family. Is this Court’s intervention really necessary? Our routine practice counsels no.” Slip op. at 2 (Ginsburg, J. dissenting). And further: “This Court . . . has no law-clarifying role to play.” Id. at 3.

Okay, so Smith was pretty fact specific – not really much to learn with respect to the Court’s position on § 2254(d). What about Dixon and Cross?

In Dixon, the Court summarily reversed a habeas grant from the 6th Circuit and pulled some Harrington language that I have to suspect is now the Court’s accepted understanding of § 2254(d)(1). That language? “[A petitioner] must show that the state court’s ruling on the claim . . . 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) (emphasis added). Wow! Doesn’t that stretch (d)(1) a bit beyond what it says? I think so. Nevertheless, Dixon seems to suggest that this language is now how the Court understands (d)(1).

The Court in Dixon went on to criticize the 6th Circuit for its interpretation of Miranda & progeny. Primarily, the reversal flowed from the Court’s belief that the 6th Circuit misinterpreted precedent, not that it applied improper deference.

Now, in Cross we turn from Fifth Amendment considerations to Sixth Amendment considerations. Specifically, we’re talking Confrontation Clause. This is actually a pretty interesting case on its merits for those who have an interest in the Confrontation Clause – especially noteworthy was the absence of any citation to Crawford v. Washington. Instead, we see reliance on Ohio v. Roberts. Signaling much? Especially after listening to the oral arguments in Williams v. Illinois you get the impression that Justice Breyer wants to get the Court back to a per-Crawford approach to the Confrontation Clause.

But we’re trying to talk about habeas and I’m getting a bit off track. The Court reversed the 7th Circuit. It’s discussion of § 2254(d) seemed almost like an afterthought. At the penultimate paragraph, the Court wrote: “And, more to the point, the deferential standard of review set out in 28 U.S.C. § 2254(d) does not permit a federal court” to over turn a state court decision unless it was unreasonable.

Are you with me? Neither Smith nor Cross have a whole lot to say about habeas law. I think Dixon indicates a shift towards even more deference than the plain text of § 2254(d)(1) demands.

Now we come to Greene. This case is a bit of a complicated one though its outcome is not surprising in light of Cullen v. Pinholster. The question at issue in Greene was “whether ‘clearly established Federal law’ includes decisions of [the Supreme Court] that are announced after the last adjudication of the merits in state court but before the defendant’s conviction becomes final.” Slip op. at 1.

I’ll tell you now, the answer to that question is ‘no.’ Justice Scalia disposed of the matter in a swift, nine-page opinion that relied heavily on Pinholster language. Particularly, the Court pointed to the comment that AEDPA’s “backward-looking language requires an examination of the state-court decision at the time it was made.” Slip op. at 4 (quoting Cullen v. Pinholster, 563 U.S. ____, ____ (2011)). Thus, a Supreme Court decision that comes down between the last adjudication and the date when the conviction becomes final (aka the twilight zone) is not to be considered “clearly established” for § 2254(d)(1) purposes.

Greene also has some discussion of Teague…one of my most hated aspects of habeas law. Teague always seems to rear its ugly head at the most inconvenient times. But I digress… The Court re-affirmed that § 2254(d) did not incorporate Teague when Congress passed AEDPA. Rather, the two are distinct mechanisms. However, the Court didn’t go any farther. There’s an open question about whether § 2254(d)(1) would bar a claim based on “a decision that came down after the last state-court adjudication on the merits, but fell within one of the exceptions recognized in Teague . . . .”  Slip op. at 5. The Court specifically notes that it’s not deciding that question in Greene.

Did you catch that? We still are left with an interesting hypothetical, aren’t we? What if a watershed decision of criminal procedure comes down after the last state court adjudication…a decision that Teague wouldn’t bar? Perhaps we’ll see a case on that in the future but as for right now, there is no decisive answer from the Court.

Lastly, let me just point out several cases which are pending in the Court right now: Maples v. Thomas, Howes v. Fields, Martinez v. Ryan, Lafler v. Cooper, and Gonzalez v. Thaler. For more information on these, see my post here.

The long and short of the opinions we have so far is that the Supreme Court is not only interested in tightening habeas law but also in policing the lower courts’ use of it. The fact that we even have three summary reversals says something. After all, as Justice Ginsburg pointed out in her Smith dissent, these are cases that need intervention. The Supreme Court is not in the business of error correction, yet that’s precisely what it’s doing with habeas. Each time a circuit court issues a writ, the Supreme Court steps in and reverses. It shows what I think can only be described as a hostility toward the writ. What, if anything, can be done about this hostility is a hard question to answer. Personally, I’d love to scrap AEDPA but I doubt that’ll happen anytime soon.

I won’t rant further. When some of the pending decisions I noted above come down, I’ll re-examine where we’re at. Hopefully the picture will be prettier then.

-Zachary Cloud

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