June 18, 2011
Two notable (and one suprising!?!) recetn capital rulings from the Eleventh Circuit
This past week the Eleventh Circuit handed down two notable capital rulings, one from Alabama and one from Florida: Powell v. Thomas, No. 11-12613 (11th Cir. June 15, 2011) (available here); Johnson v. Secretary, DOC, No. 09-15344 (11th Cir. June 14, 2011) (available here).
The Powell ruling, somewhat unsurprisingly, refused to stay an execution (which went forward Thursday) based on the defendant's complaints on various grounds about Alabama's changes to its execution protocol. The Johnson ruling, somewhat surprisingly, granted habeas to a Florida capital defendant sentenced to death in 1980(!) based on an ineffective assistance of counsel claim. Here is how the Johnson opinion, per Judge Carnes, gets started:
Earlier this year the Supreme Court reminded lower federal courts that when the state courts have denied an ineffective assistance of counsel claim on the merits, the standard a petitioner must meet to obtain federal habeas relief was intended to be, and is, a difficult one. Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786 (2011). The standard is not whether an error was committed, but whether the state court decision is contrary to or an unreasonable application of federal law that has been clearly established by decisions of the Supreme Court. 28 U.S.C. § 2254(d)(1). As the Supreme Court explained, error alone is not enough, because “[f]or purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law.” Harrington, ___ U.S. at ___, 131 S.Ct. at 785 (quotation marks omitted). And “even a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id., 131 S.Ct. at 786.
When faced with an ineffective assistance of counsel claim that was denied on the merits by the state courts, a federal habeas court “must determine what arguments or theories supported or, [if none were stated], could have supported, the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court.” Id., 131 S.Ct. at 786. So long as fairminded jurists could disagree about whether the state court’s denial of the claim was inconsistent with an earlier Supreme Court decision, federal habeas relief must be denied. Id., 131 S.Ct. at 786. Stated the other way, only if “there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [the Supreme] Court’s precedents” may relief be granted. Id., 131 S.Ct. at 786.
Even without the deference due under § 2254, the Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), standard for judging the performance of counsel “is a most deferential one.” Harrington, ___ U.S. at ___, 131 S.Ct. at 788. When combined with the extra layer of deference that § 2254 provides, the result is double deference and the question becomes whether “there is any reasonable argument that counsel satisfied Strickland’s deferential standard.” Id., 131 S.Ct. at 788. Double deference is doubly difficult for a petitioner to overcome, and it will be a rare case in which an ineffective assistance of counsel claim that was denied on the merits in state court is found to merit relief in a federal habeas proceeding. This is one of those rare cases.
June 18, 2011 at 12:23 PM | Permalink
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Death penalty cases are full of surprises. I remember when these murders occurred. It was 1979. Numerous post-conviction appeals in state court and denial at the federal district court after 3 years on the docket. Then, a three judge panel at the 11th, with 2 jurists who usually vote with the state, invalidate the death sentence. I gather the main problem is that the jury voted 7-5 to recommend the death sentence and that invited "second guessing."
Posted by: DaveP | Jun 19, 2011 7:53:36 AM
"I gather the main problem is that the jury voted 7-5 to recommend the death sentence and that invited "second guessing.""
The main problem was that the defense lawyer was completely incompetent.
Posted by: The Death Penalty Sucks. | Jun 19, 2011 9:26:54 AM
Amazing that Strickland was decided 4 years after the trial, and yet provided the fodder for overturning the conviction 30 years later.
Posted by: federalist | Jun 19, 2011 12:26:16 PM
The DP Sucks.
are you implying that the state circuit court, the Florida Supreme Court and the federal district court are incompetent also for denying the claim?
Posted by: DaveP | Jun 19, 2011 3:28:31 PM
"The DP Sucks.
are you implying that the state circuit court, the Florida Supreme Court and the federal district court are incompetent also for denying the claim?"
I don't need to imply anything. The defense lawyer was incompetent, and the state court rulings finding otherwise were unreasonable.
Posted by: The Death Penalty Sucks. | Jun 19, 2011 5:07:02 PM
"[Are] the Florida Supreme Court and the federal district court are incompetent also for denying the claim?"
This is what the 11th Circuit ruled.
Posted by: ohwilleke | Jun 22, 2011 12:04:11 AM
This case is unusual because the Florida Supreme Court ruled on the ineffective counsel claim in 1992. Johnson filed several state postconviction appeals until around 2007 when they decided to finally go into federal court.
The makeup of the Florida Supreme Court in 1992 that denied the ineffectiveness claim included Gerald Kogan and Rosemary Barkett, who concurred in the result only. Barkett is of course, on the 11th Circuit now. Kogan and Barkett dissented quite often on death cases and I find it curious that they did not find merit on this claim with the majority vote of the jury being 7-5. The FSC didn't have the benefit of Williams or Wiggins or any post AEDPA cases that the 11th Circuit has granted relief on as Carnes repeatedly stressed. But, the federal district court did have access to AEDPA and the cases listed above before denying the writ. I would like to read the lower courts opinion on this case.
Due to the time lapsed between the state court holding and other cases that developed, I would not call anyone incompetent in this case.
Posted by: DaveP | Jun 22, 2011 2:23:58 PM