June 11, 2012
SCOTUS gives Sixth Circuit an AEDPA smack-down via per curiam opinion
This morning, I was again expecting (or at least hoping for) some notable criminal justice Supreme Court action this morning as the Justices returned to action. But it appear we must wait at least another week for the three big sentencing issue still pending (reviewed here).
The Justices did give criminal justice fans a little love this morning by granting cert on a new Double Jeopardy Clause case, Evans v. Michigan, which concerns an issue SCOTUSblog describes in this way: "Whether the Double Jeopardy Clause bars retrial after the trial judge erroneously holds a particular fact to be an element of the offense and then grants a midtrial directed verdict of acquittal because the prosecution failed to prove that fact."
The Justices also gave the Sixth Circuit a little error-correction smack-down via a sharp per curiam summary reversal in Parker v. Matthews (available here). Here is how the unanimous Parker opinion gets started:
In this habeas case, the United States Court of Appeals for the Sixth Circuit set aside two 29-year-old murder convictions based on the flimsiest of rationales. The court’s decision is a textbook example of what the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) proscribes: “using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 12). We therefore grant the petition for certiorari and reverse.
June 11, 2012 at 10:19 AM | Permalink
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"the flimsiest of rationales"
Smack! Guesses on who wrote the opinion?
Posted by: Joe | Jun 11, 2012 10:42:57 AM
More and more of SCOTUS's recent habeas opinions have been per curiam and/or unanimous circuit smackdowns, like this one. The war against habeas as a second bite at the evidentiary apple (absent the grossest kind of error) is now clearly over.
Visiting Associate Professor
Charlotte School of Law
Posted by: Stan Adelman | Jun 11, 2012 11:25:40 AM
"Judge" Clay wrote the opinion at the Sixth Circuit. For those who don't know, Clay is a Clinton appointee.
What an embarrassment to the bench.
Hey guys, I've said here before that Clay is a hack of the first order. Guess I got that one pegged.
Posted by: federalist | Jun 11, 2012 11:46:29 AM
Btw, without reading the Evans v. Michigan materials, I think that the DJ clause would bar retrial. But that's an off-the-cuff opinion.
Posted by: federalist | Jun 11, 2012 11:47:31 AM
The Matthews decision was absolutely right. I don't get why the circuit courts have such a hard time with AEDPA. I know it's fairly complex, but they keep getting the easy stuff wrong.
federalist- I actually disagree with you about the DJ question in Evans and I'm generally a bit liberal with issues of defendant's rights. A directed verdict based on an added element doesn't actually resolve any factual elements of the offense which is the general hallmark of the definition of acquittal.
Posted by: Matt | Jun 11, 2012 11:59:02 AM
My question was actually who wrote the USSC opinion since it was per curiam.
Are those who joined the opinion and maybe those who rejected en banc review also "hacks" who should be called "judges" because federalist thinks they -- in a particular area of law -- write "embarrassing" opinions? BTW, is it true that he or Bill Otis ghostwrote the per curiam? I kid.
Why does it matter if he was a Clinton appointee? Volokh Conspiracy notes the smack down record of the 6th Cir., and a statistical anomaly would arise, I think, if each case only involved Clinton nominations.
Posted by: Joe | Jun 11, 2012 12:08:47 PM
"I don't get why the circuit courts have such a hard time with AEDPA."
The litigation underlines that just what is covered by words like "clearly" (or whatever opaque standard the law sets) established law is quite debatable.
In the past, this allowed appellate courts more discretion to develop the law of the circuit after the USSC decided broader questions that case by case were applied in the lower courts. Some judges in fact think this makes the law unconstitutional, but even if they are wrong, it is to be expected many might apply the terms liberally. The fact that the USSC repeatedly splits on how they applied its terms underlines all of this.
Posted by: Joe | Jun 11, 2012 12:13:20 PM
Joe, if you look at the per curiams and unanimous smackdowns from SCOTUS over the last 6 or so years, you'll see that the Dem judges are the problem. As for this particular case, Karen Nelson Moore, another Dem judge, joined the opinion (and yes, she deserves calumny too). Judge Siler, a GOP appointee, dissented, which makes this the fourth such AEDPA case in which he has dissented and been vindicated by a per curiam SCOTUS opinion.
As for en banc, check out Sutton's concurrence in Mitts v. Bobby for an explanation.
Posted by: federalist | Jun 11, 2012 12:18:15 PM
And Joe, go read the Sixth Circuit opinions in Bies v. Bobby and then Ginsburg's unanimous opinion. "Embarrassment" is a kind word.
Posted by: federalist | Jun 11, 2012 12:30:33 PM
Joe: "The litigation underlines that just what is covered by words like 'clearly' (or whatever opaque standard the law sets) established law is quite debatable."
Senator Kyl foresaw this back in '95 as the bill was moving through Congress. He said the standard would never work as intended. Instead, he proposed an amendment that would apply to the states the same standard Congress adopted for DC's local state-like court system back in the 70s. (See Swain v. Pressley, 430 U.S. 372 (1977) rejecting without dissent a Suspension Clause challenge to that system.)
After 16 years of experience, perhaps Congress should admit that Kyl was right and belatedly adopt his amendment.
Posted by: Kent Scheidegger | Jun 11, 2012 1:12:45 PM
. . . if you look at the per curiams and unanimous smackdowns from SCOTUS over the last 6 or so years, you'll see that the Dem judges are the problem.
Well, it should be noted that four Dem justices (Ginsburg, Breyer, Sotomayor, Kagan) joined today’s unanimous PC opinion.
Posted by: Marc Shepherd | Jun 11, 2012 1:51:49 PM
Marc, thanks for ripping my quote out of context--the issue is the Dem judges on the courts of appeals.
Posted by: federalist | Jun 11, 2012 2:07:17 PM
"...is it true that he or Bill Otis ghostwrote the per curiam?"
Oh, phooey. And here I thought my friends in the press would keep it covered up.
Posted by: Bill Otis | Jun 11, 2012 3:15:33 PM
Isn't it cute how Joe resorts to backdoor ad hominem? The bottom line is that the libs on the Court uttered nary a peep about this decision--so it doesn't matter who wrote it. And instead of defending Clay on the merits, Joe casts about for mitigating factors and argues that others are to blame. Whatever. The bottom line is that this jurist authored a piece of garbage and got called out. No one's disputing that the opinion sucked, and no one's disputing that it's Judge Clay's handiwork. And silly me for judging a guy on his handiwork.
Joe likes to dispute without committing to a point of view. It's a cheap rhetorical tactic.
Posted by: federalist | Jun 11, 2012 3:36:03 PM
The crime in this case occurred in 1981. Why is AEDPA applicable?
Posted by: Calif. Capital Defense Counsel | Jun 11, 2012 4:00:52 PM
"The crime in this case occurred in 1981. Why is AEDPA applicable?"
Because the federal habeas petition was filed Feb. 12, 1999, almost three years after enactment of AEDPA.
The state courts spent a lot of time on this case in state collateral review.
Posted by: Kent Scheidegger | Jun 11, 2012 5:04:10 PM
The Court also jvr'd Howes v. Walker, another habeas case authored by the same judge, "in light of Parker v. Matthews." Interestingly, there were no apparent substantive similarities between the cases.
Posted by: Guest | Jun 11, 2012 5:13:34 PM
I can't believe this case wasn't authored by Martin or Merritt at the 6th.
Posted by: DaveP | Jun 11, 2012 5:30:29 PM
Maybe it was ghost-written. Since when does SCOTUS use the terms "flimsiest" and "textbook example."
Posted by: DaveP | Jun 11, 2012 7:50:17 PM
So Joe, I am curious. What is the issue with me pillorying Judge Clay? This is not an isolated occurrence for this learned jurist. So why shouldn't rank incompetence on the part of a government official be excoriated. This man is paid by taxpayers, and evidently, he cannot follow the law. Is he just stupid? Does he delight in twisting the law so convicted murderers can walk out of prison. I don't see any other possibilities.
For the larger point--one meme always heard was that Clinton appointed moderates and Bush 43 appointed extremists. Given Clay's spotty record (which always seems to help the criminal), who is the extremist--certainly not Bill Pryor.
I hope Judge Clay's clerks are reading this. Guys, you work for a dim bulb, and you're probably dim as well.
Posted by: federalist | Jun 12, 2012 9:07:27 AM
It took 18 years for the case to get to federal court?
Then, there was more than a decade of litigation in federal court?
And, the case is ultimately decided on the merits, rather than on timeliness and/or procedural grounds?
AEDPA was supposed to cut down habeas litigatin. It has done exactly the opposite. There is an ever-growing mass of habeas litigation. And, thanks to AEDPA, the majority of it deals with procedural crap, rather than the merits of the cases.
AEDPA makes no sense in non-capital cases: While capital appellants/petitioners have a natural incentive to delay litigation in their cases, non-capital litigants do not. Non-capital habeas litigants want their claims heard as soon as possible, so that if they win, they can get out or get their sentence reduced or get a re-trial.
Posted by: Calif. Capital Defense Counsel | Jun 12, 2012 11:00:11 AM
you live in CA. It takes forever to get a case finished with all the state and federal appeals. Reversals, remands for evidentiary hearings,vacate and remands by SCOTUS for AEDPA violations(Belmontes-3 times.)
Next time you read an opinion by the 9th Circuit, look at when the district court received the case. Sometimes 10 years earlier.
Unfortunately, my state Florida can compete with CA for oldest death row cases. At least prosecutors in CA can ask for execution dates from the superior court where we have to wait until our Governor decides to order one. Only 10 execution dates in the last 6 years.
Posted by: DaveP | Jun 12, 2012 4:01:19 PM
"AEDPA was supposed to cut down habeas litigation. It has done exactly the opposite."
No, AEDPA has not done that. The evasions of AEDPA have done that. If the federal courts had followed AEDPA the way it was written from day one, cases would go much, much faster.
Hopefully Pinholster will produce a marked improvement.
Posted by: Kent Scheidegger | Jun 12, 2012 4:21:45 PM
BTW, I now think that Sotomayor has Southern Union and Kennedy has Jackson and Miller. I'm still projecting defendant wins in those cases.
Posted by: Jacob Berlove | Jun 12, 2012 9:47:04 PM
"No, AEDPA has not done that. The evasions of AEDPA have done that. If the federal courts had followed AEDPA the way it was written from day one, cases would go much, much faster."
It would go much, much faster if everyone read AEDPA the same way that you do. Thankfully most federal judges are better than that. Cheers on your boy Kyl getting Hurwitz confirmed, by the way. You must be thrilled.
Posted by: The Death Penalty Sucks. | Jun 12, 2012 10:01:10 PM
There is a reason why the federal judiciary was designed by the Framers to be independent:
State court judges often are elected, both in trial and appellate courts. Elected judges are susceptible to pressures that life-tenure federal judges may find less compelling. And, the quality of state court judges may be uneven in many states with counties and cities of great diversity.
Kent and AEDPA fans either don't get or don't care about this circumstance. After all, they advocate a scheme in which federal judges defer to politically susceptible state court judges, and in which federal judges leave unremedied a host of constitutional errors committed by state court judges.
The scheme they urge is the one they want; it is not the one designed and written by Hamilton, Jay, and Madison.
Posted by: Calif. Capital Defense Counsel | Jun 12, 2012 10:25:35 PM
CCDC--if you look at AEDPA as modified full, faith and credit, then you;ll understand. Congress' power to limit habeas relief to egregiously wrong cases is pretty much unquestioned.
Posted by: federalist | Jun 13, 2012 2:46:14 AM
CCDC -- The scheme urged by Madison and Hamilton was one in which the Bill of Rights only applied to the federal government and habeas corpus was limited to whether there was a judgment or court order issued by a court of competent jurisdiction to authorize incarceration.
Section 2254 is much younger than opponents of AEDPA wish to admit. It began first as collateral review for federal employees who might be convicted of a state crime and only gradually extended to all crimes. While state courts may not be perfect, they are not inferior courts to inferior federal courts. That's what AEDPA reflect, an acceptance that state courts are competent to do their jobs in 99% of the cases without being second guessed by federal judges with minimal experience in state criminal law.
Posted by: TMM | Jun 13, 2012 10:01:04 AM
TMM - federal habeas relief is only available for violations of constitutional rights.
Federalist - as usual, your remarks are nigh incomprehensible. AEDPA violates Article III; it is an impermissible Congressional encroachment on the power and authority of the federal judiciary to identify and rectify governmental transgressions against individual constitutional rights.
Posted by: Calif. Capital Defense Counsel | Jun 13, 2012 11:33:52 AM
TMM, I disagree with the assumption that state intermediate appellate courts, which are the primary error correction courts, are competent. Here in Michigan, our court of appeals makes factual misstatements and gets the law wrong so often it's an embarrassment. Part of it is that too many of its members are result oriented - what is the outcome we want and how do we get there - and part of it is too much delegation to overworked law clerks.
In a recent MCOA decision, the opinion took me to task for not presenting certain facts or legal arguments, when my brief expressly set out the facts and made the arguments. It was like the clerk who wrote the opinion didn't take the time to read it. I pointed the mistakes out in a motion for reconsideration, but they didn't even have pride enough to correct the opinion.
Posted by: John Minock | Jun 13, 2012 11:43:11 AM
"The scheme they urge is the one they want; it is not the one designed and written by Hamilton, Jay, and Madison."
Very true. Here is the rule on federal habeas for state prisoners enacted by First Congress: "Provided, That writs of habeas corpus shall in no case extend to prisoners in gaol, unless where they are in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify." (Judiciary Act of 1789, section 14.)
In other words, no habeas corpus ad subjiciendum for state prisoners at all. The only habeas for a state prisoner was ad testificandum, to bring him into federal court as a witness, after which he went back to state jail (then spelled "gaol").
My proposal for federal habeas for state prisoners does not go that far, and hence it is very different from the Founders' view of that use of the writ.
Posted by: Kent Scheidegger | Jun 13, 2012 12:24:27 PM
"Federalist - as usual, your remarks are nigh incomprehensible. AEDPA violates Article III; it is an impermissible Congressional encroachment on the power and authority of the federal judiciary to identify and rectify governmental transgressions against individual constitutional rights."
No CCDC, you're just as dumb as Judge Clay. Federal courts, being courts of limited jurisdiction, don't have free-standing power to correct every perceived unconstitutional conviction in state court. Thus, whether to allow federal courts to correct state constitutional errors is, at first, a decision of Congress. Congress also has the power to state that federal courts will give res judicata effect to state court judgments (i.e., full, faith and credit). Therefore, Congress has the right to define which state criminal judgments are entitled to res judicata and which are not. And those determinations can be made apart from the underlying merits of the Constitutional claims.
This really isn't that hard.
Posted by: federalist | Jun 13, 2012 2:28:47 PM
"If [the AEDPA] were read to deny litigants a meaningful opportunity to prove the facts necessary to vindicate Federal rights, it would raise serious constitutional questions. I do not read it that way."
- Statement of President William J. Clinton upon signing the Antiterrorism and Effective Death Penalty Act of 1996
Posted by: Calif. Capital Defense Counsel | Jun 13, 2012 7:44:41 PM
Of course, Kent and federalist want AEDPA interpreted in the way the man who signed it into law did not interpret it.
Posted by: Calif. Capital Defense Counsel | Jun 13, 2012 7:45:56 PM
So what CCDC? I explained to you why, and you appeal to a signing statement?
Posted by: federalist | Jun 13, 2012 8:36:16 PM
So federalist --- You say "so what" to a complaint about the systematic denial of meaningful opportunities for individuals to prove that government has violated their constitutional rights.
Is that really what you want? You want a system in which state governments can get away with violating individual constitutional rights, due to incorrect but "not unreasonably incorrect" decision making by state judges, and in which federal judges are left powerless to rectify the constitutional violations?
Aren't you a Republican? Don't you, as a Republican, advocate small, efficient government? Don't you, as a Republican, have a healthy distrust of government?
Then why, in matters of criminal justice, are you willing to cede so much power to the government over the individual?
Habeas is often the last opportunity for individuals condemned by the criminal justice system to prove that their constitutional rights were violated. Why do you want to allow governmental violations of the constitutional rights of individuals to be left unredressed?
Have you really thought about the position you are taking?
And, I'm no fan of signing statements (particularly since they have been so badly abused by Bush & Obama), but Clinton's signing statement re: AEDPA suggests that he would not have signed AEDPA into law had he believed it was susceptible to the interpretation you advocate. That is a matter of some significance.
Posted by: Calif. Capital Defense Counsel | Jun 13, 2012 11:24:49 PM
So now, CCDC, you go from a pathetically weak constitutional argument to a generalized whine about people's rights being violated. You obviously don't care about erroneous habeas grants. Nor do you care about all the other policy reasons for restricting habeas, not the least of which is the prevention of sandbagging.
A federal habeas court recently told Pennsylvania that it cannot enforce its fugitive disentitlement doctrine. That sort of irresponsibility shows we have more to go on restricting federal courts. Maybe, CCDC, if federal courts didn't abuse habeas, AEDPA never would have come around.
Posted by: federalist | Jun 13, 2012 11:48:52 PM
well fed maybe the federal court was RIGHT to can their fugitive disentitlement doctrine...since it is a DIRECT VIOLATION of the individuals RIGHT to FACE their acuser as well as their RIGHT to a fair trial. Sorry trial without the actual defendant just isn't legal under our REAL constution.
No matter what some crooked politican says!
Posted by: rodsmith | Jun 14, 2012 10:17:42 AM
You are way out of your depth.
Posted by: Shane Stevenson | Jun 14, 2012 5:22:38 PM