May 29, 2012
Quiet SCOTUS return from the long weekend, except for murder defendant Lorenzo Johnson
I was expecting (or at least hoping for) some notable criminal justice Supreme Court action this morning as the Justices returned to action after the long weekend. In addition to the three big sentencing issue still pending — Apprendi's application to fines, mandatory LWOP for young juve murderers, the FSA's application to pipeline cases — we still await a ruling in a long-pending Confrontation Clause case and in a pair of First Amendment cases with potential criminal justice implications. In addition, the buzz from the folks at SCOTUSblog was that the Justices were reasonably likely to grant cert this morning on one of a number of cases concerning whether and when use of a Taser is excessive force under the Fourth Amendments.
But, as detailed via the always interesting SCOTUSblog live-blogging report, the only opinion in an argued case handed down this morning came in a bankruptcy case (yawn) and the only cert grant came in a case dealing with civil litigation under a federal debt collection statute (double yawn). Cert was denied in the Taser cases, and it remains unclear whether any new big criminal justice cases will be added to the SCOTUS docket before the Justices head out for summer vacation in about a month.
That all said, there is at least one person (as well as his lawyers) who wish the Justices did even less on the criminal justice front this morning: Lorenzo Johnson. That is because Mr. Johnson managed to convince the Third Circuit to reverse his state murder conviction via a habeas action. But today the Supreme Court, via this per curiam opinion (which I suspect was authored by former Third Circuit judge and now Justice Samuel Alito), summarily reversed the Third Circuit's reversal. Here is how the SCOTUS opinion starts in Coleman v. Johnson:
Respondent Lorenzo Johnson was convicted as an accomplice and co-conspirator in the murder of Taraja Williams, who was killed by a shotgun blast to the chest in the early morning hours of December 15, 1995, in Harrisburg, Pennsylvania. After his conviction was affirmed in state court, Johnson exhausted his state remedies and sought a writ of habeas corpus in Federal District Court pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254. The District Court denied habeas relief but the U.S. Court of Appeals for the Third Circuit reversed, holding that the evidence at trial was insufficient to support Johnson’s conviction under the standard set forth in Jackson v. Virginia, 443 U.S. 307 (1979).
We have made clear that Jackson claims face a high bar in federal habeas proceedings because they are subject to two layers of judicial deference. First, on direct appeal, “it is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may set aside the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Cavazos v. Smith, 565 U. S. 1, ___ (2011) (per curiam) (slip op., at 1). And second, on habeas review, “a federal court may not overturn a state court decision rejecting a sufficiency ofthe evidence challenge simply because the federal court disagrees with the state court. The federal court instead may do so only if the state court decision was ‘objectively unreasonable.’” Ibid. (quoting Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 5)).
Because the Court of Appeals failed to afford due respect to the role of the jury and the state courts of Pennsylvania, we now grant certiorari and reverse the judgment below.
May 29, 2012 at 10:44 AM | Permalink
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Easy case. Why can't federal judges seem to get AEDPA? And how many other bad AEDPA decisions are left on the books?
Looks like the Third Circuit has gotten some negative attention.
Posted by: federalist | May 29, 2012 2:01:18 PM
some of the federal appeals courts get it, but don't follow it.
The 11th Circuit has for at least the third time in several months granted relief finding the Florida Supreme Court "unreasonable" with Strickland issues.
Posted by: DaveP | May 29, 2012 5:48:29 PM
AEDPA is unconstitutional. It purports to require Article III judges to violate their Article III duties.
AEDPA is also stupid. It directs federal judges to discern the ineffable difference between a "reasonable" constitutional error and an unreasonable constitutional error. What the hell is a "reasonable" constitutional error?
Posted by: Calif. Capital Defense Counsel | May 29, 2012 6:29:44 PM
In addition to the cases that most likely will be vacated and remanded in light of Coleman, there is the Georgia mental retardation case of Warren Hill up for conference on Thursday.
Posted by: DaveP | May 29, 2012 6:30:04 PM
"AEDPA is unconstitutional. It purports to require Article III judges to violate their Article III duties.
"AEDPA is also stupid. It directs federal judges to discern the ineffable difference between a "reasonable" constitutional error and an unreasonable constitutional error. What the hell is a "reasonable" constitutional error?
Dude, all AEDPA does is say that the federal courts will give full, faith and credit to state decisions meeting certain criteria. Perhaps you could explain how that is unconstitutional when Congress could give FF & C to all state cases. I am all ears.
Posted by: federalist | May 29, 2012 7:13:40 PM
are you of the opinion that the Coleman case above was decided incorrectly by a unanimous Supreme Court?
Posted by: DaveP | May 29, 2012 7:23:44 PM
Four Members of the Supreme Court have recognized the potential for AEDPA to be applied in a manner that violates the power of Article III judges. Williams v. Taylor, 529 U.S. 362, 375-379, 386-387 (2000) (opinion of Stevens, J., joined by Souter, Ginsburg, and Breye, JJ.).
Numerous jurists and commentators believe § 2254(d)(1) impermissibly intrudes upon the judicial power of Article III judges by constraining them to refrain from remedying state court criminal convictions tainted by structural or prejudicial constitutional error. Irons v. Carey, 479 F.3d 658, 667 (CA9) (Noonan, J., concurring) (AEDPA “is a direct legislative interference in the independence of the judiciary.”), amended by 505 F.3d 846 (CA9 2007); Davis v. Straub, 430 F.3d 281, 296 (CA6 2005) (Merritt, J., dissenting) (“The notion that AEDPA ... raises grave constitutional concerns by impinging on the judicial power and ‘suspending’ the writ of habeas corpus is far from new.”), cert. denied, 127 S.Ct. 281 (2007); Lindh v. Murphy, 96 F.3d 856, 885-890 (CA7 1996) (en banc) (Ripple, J., dissenting, joined by Rovner, J.) (§ 2254(d) “does not leave intact the integrity of the Third Branch”), rev’d 521 U.S. 320 (1997); J. Brunner, Negating Precedent and (Selectively) Suspending Stare Decisis: AEDPA and Problems for the Article III Hierarchy, 75 U. Cin. L. Rev. 307, 339 (2006); 2 R. Hertz & J. Liebman, Federal Habeas Corpus Practice and Procedure, § 32.5, pp. 1643-1676 (5th ed. 2005); Brief of Amicus Curiae Marvin E. Frankel et al., Williams v. Taylor 529 U.S. 362 (brief of five former Article III judges arguing that § 2254(d)(1) violates Article III); Brief of Amicus Curiae Abner J. Mikva et al., Iron v. Carey, 479 F.3d 658 (brief of the former chief judge of the D.C. Circuit and all Federal Offices within the Ninth Circuit); I. Bloom, Prisons, Prisoners, and Pine Forests: Congress Breaches the Wall Separating Legislative from Judicial Power, 40 Ariz. L. Rev. 389, 418 (1998) (“Congress, by enacting the substantive standards [for the issuance of the writ] in the Antiterrorism Act, is once again infringing upon the Article III judicial power.”); see also B. Hoffstadt, How Congress Might Redesign a Leaner, Cleaner Writ of Habeas Corpus, 49 Duke L.J. 947, 1033-1034 (2000) (“it seems wrong to require federal courts to stand idly by when a sate court interprets or applies ... fundamental constitutional rights in an incorrect, but not unreasonable, manner”).
Counting heads, no less than 16 sitting circuit judges have concluded § 2254(d) is unconstitutional: Judges Lipez and Torruella in the First Circuit, Evans v. Thompson, 524 F.3d 1; Judges Merritt, Martin, Daughtrey, Moore, Cole, and Clay in the Sixth Circuit, Davis v. Straub, 445 F.3d at 908; Davis v. Straub, 430 F.3d at 291; Judges Ripple and Rovner in the Seventh Circuit, Lindh v. Murphy, 96 F.3d at 885; and Judges Noonan, Pregerson, Gould, Reinhardt, Paez, and Berzon in the Ninth Circuit, Crater v. Galaza, 508 F.3d 1261.
Posted by: Calif. Capital Defense Counsel | May 29, 2012 8:04:30 PM
Dave P -
I haven't read the 3rd Circuit's opinion in this case. But, based on my quick read of the Supreme Court's per curiam opinion, I'm amazed by the fact that Johnson was tried and convicted of murder in the first place.
The Jackson standard is unfair, because the majority of juries in this country don't understand and apply the reasonable doubt standard. The majority of juries in this country presume the guilt of one brought to trial.
Posted by: Calif. Capital Defense Counsel | May 29, 2012 8:34:06 PM
Don't you think the 3rd Circuit was "unreasonable"
when they disagreed with every court that has considered the case starting at state trial court?
Posted by: DaveP | May 29, 2012 8:47:04 PM
Dave P -
I haven't read the 3rd Circuit's opinion.
But, I certainly wouldn't deem a panel opinion of federal judges unreasonable simply because those Article III judges disagree with the decision of state judges who are generally more susceptible to political influence than federal judges.
I see that one of the 3rd Circuit judges in the panel majority in this case was a Reagan appointee and that the other is the current chief judge of the 3rd Circuit. Other than that, I don't know anything about the two judges who comprised the panel majority.
Reading the facts set forth in SCOTUS' per curiam opinion, I'm very troubled that Mr. Johnson was convicted of murder. It seems like a chicken-sh*t case against him.
Posted by: Calif. Capital Defense Counsel | May 29, 2012 8:58:38 PM
Isn't it funny--I can spout off the argument off the top of my head, and CCDC has to point to a bunch of dissents.
Posted by: federalist | May 29, 2012 9:29:44 PM
If you notice, 4 of the judges named are Pregerson, Reinhardt, Merritt and Martin.
Posted by: DaveP | May 29, 2012 10:06:48 PM
DaveP, what about the other judges?
Scalia was a solo dissent in the independent counsel case & many think he was correct. But, he's just a conservative hack, so let's just laugh at him.
Posted by: Joe | May 30, 2012 9:33:07 AM
"Four Members of the Supreme Court have recognized the potential for AEDPA to be applied in a manner that violates the power of Article III judges. Williams v. Taylor, 529 U.S. 362, 375-379, 386-387 (2000) (opinion of Stevens, J., joined by Souter, Ginsburg, and Breyer, JJ.)."
But the opinion of the Court (which on this point is part II of Justice O'Connor's opinion) rejects that thesis, at least implicitly, and the Court has regularly applied AEDPA ever since without any of the justices questioning its constitutionality. Before Williams, 2254(d) was applied in every circuit to consider it. They differed on its meaning, but none thought going all the way back to de novo review was constitutionally required.
Sixteen federal circuit judges out of how many think 2254(d) is unconstitutional? About 180 or so, a few less if we exclude the courts that don't do state-prisoner habeas, so maybe about 10%. The judges CCDC lists include some of the worst, most often reversed judges in the country.
For the long form of the argument that 2254(d) is constitutional, see moi, 98 Colum. L. Rev. 888.
Posted by: Kent Scheidegger | May 30, 2012 12:55:43 PM
thanks for the post. I didn't have time to respond to CCDC and Joe.
Posted by: DaveP | May 30, 2012 7:16:42 PM
Decisions are not authority for propositions not considered therein. SCOTUS has never granted cert. on the question of whether AEDPA in constitutional.
I've had a number of cases in which I sought amicus support in favor of an argument that application of AEDPA was unconstitutional, because application of AEDPA allowed prejudicial, constitutional error to go unremedied. Many of the defense-oriented candidates for amicus briefing --- e.g., NACDL, CACJ, Habeas Corpus Resource Center, etc. --- simply don't want the argument advanced yet, because of the current composition of SCOTUS. The thinking is that there is simply no way that Roberts, Alito, Scalia, Thomas, and Kennedy would hold that AEDPA is unconstitutional, even though it obviously is.
Kent's suggested 10% figure is nonsense. The relevant inquiry is - how many circuit judges have passed on the question of whether AEDPA is constitutional, and what % of those judges rendered an opinion. Well over 10% of those circuit judges have reached the natural conclusion, as opposed to the result-oriented, "law-and-order" conclusion, that AEDPA is unconstitutional.
Furthermore, the majority of the members of academia who have weighed in on the subject have recognized AEDPA's unconstitutionality.
Posted by: Calif. Capital Defense Counsel | May 30, 2012 10:27:40 PM
Kent Scheideger, the judges you deem "some of the worst" I consdider "some of the best." As they would day in Rome, "De gustibus non disputandum est."
Posted by: onlooker | May 30, 2012 10:29:47 PM
Then go win your case.
Posted by: Bill Otis | May 30, 2012 11:29:39 PM
Judge Rovner is an appointee of George H. W. Bush.
Judge Ripple is a Reagan appointee, who began his career as an officer in the Navy's Judge Advocate General Corps.
Juan Torruella was appointed by Ford to the district court and then elevated to the First Circuit by Reagan.
Judge Merritt was a US Attorney before being appointed to the federal bench.
Judge Daughtrey was an Asst. District Attorney in Tennessee before being appointed to the bench.
Judge Moore graduated magna cum laude from Harvard Law School.
Judge Cole's nomination to the Sixth Circuit was confirmed unanimously by the Republican-controlled Senate in 1995.
Judge Noonan was a Reagan appointee.
Are these "some of the worst" federal circuit judges besmirched by Kent?
Who are some of the judges deemed acceptable/good by Kent? Jay Bybee?
Posted by: Calif. Capital Defense Consel | May 31, 2012 12:41:29 AM
"Who are some of the judges deemed acceptable/good by Kent? Jay Bybee?"
Otto Kerner? Harry Claiborne? Alcee Hastings?
You must have forgotten to post that case you won.
Posted by: Bill Otis | May 31, 2012 1:15:53 AM
There is a remedy for prejudicial constitutional error in a state court opinion -- petition for writ of certiorari.
There is no constitutional requirement for any additional review beyond that.
Having created a statutory remedy (collateral review under 28 USC 2254), Congress can certainly define the nature of the review granted under that remedy.
Given the lack of even a footnote in 15 years in a concurring or dissenting opinion suggesting that AEDPA is questionable, but is being applied because of the lack of a challenge to its constitutionality, I think there is less of a chance of a single Justice finding AEDPA unconstitutional than a majority of the court finding that the death penalty is per se unconstitutional.
Posted by: TMM | May 31, 2012 9:52:44 AM