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March 24, 2009

SCOTUS unanimously reverses Ninth Circuit grant of habeas on IAC claim

SCOTUSblog in this post has these very basic details on the criminal justice opinion handed down by the Supreme Court this morning:

The Court has released the opinion in Knowles v. Mirzayance (07-1315).  The decision below, which held for the criminal defendant, is reversed and remanded in a unanimous opinion by Justice Thomas.  Justices Scalia, Souter, and Ginsburg join in the judgment except for part two. The opinion is available here.

Though not dealing with sentencing issues, the opinion's to-the-point discussion of state habeas standards and ineffective assistance of counsel claims makes the ruling a must-read for any criminal justice practitioner working on these common appellate issues.

Since I will be off-line the rest of the day, I would be intrigued to hear not only general comments on this unanimous smack-down of the Ninth Circuit's work below, but also specific insights as to why the notable troika of Justices Scalia, Souter, and Ginsburg all refused to sign on to Part II of the opinion.

March 24, 2009 at 10:49 AM | Permalink


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The U.S. Supreme Court unanimously reversed the Ninth Circuit yet again in another habeas case. As we have noted before, it is not the much-debated "reversal rate" that demonstrates how far out of the mainstream the Ninth is. Rather, it... [Read More]

Tracked on Mar 24, 2009 1:22:37 PM


My best guess as to why Scalia, Ginsburg, and Souter did not join Part II: minimalism. There was a lurking issue as to whether the AEDPA standard applied to the ineffective-assistance claim (see FN 2). In Part III, the Court concluded that even under a de novo standard (i.e., not applying AEDPA deference), the ineffective-assistance claim failed. Hence, there was simply no reason to address the issue through AEDPA. It's somewhat surprising (and disappointing) that other liberal members of the Court (Stevens and Breyer) and the so-called minimalists (Roberts and Alito) were willing to join Part II given that it went further than necessary to resolve the case.

Posted by: Scott | Mar 24, 2009 11:30:10 AM

If it doesn't fly de novo, it doesn't fly under AEDPA either. Thomas wanted to take a shot at the Ninth Circuit, I think. Note the "misleading" slap.

Posted by: federalist | Mar 24, 2009 11:55:10 AM

I agree with Scott; Part II appears to be unnecessary. This is especially true since, if application of section 2254(d)(1) *was* necessary to the result, it would be somewhat inexplicable that the Court declined even to address the petitioner's argument that some form of relaxed or intermediate 2254(d)(1) scrutiny should be applied in cases where the State court judgment was entirely summary and without explanation (see FN2).

Notwithstanding the questionable necessity of Part II, however, it was joined by 6 Justices, and I suspect that those courts that are inclined to read AEDPA as broadly as possible will soon latch on to Justice Thomas's language about the standard of review for IAC claims being "doubly deferential." (Or is that triply deferential, as Thomas was referring to AEDPA deference plus a purported "extra" deference for "general standards", without mentioning the deference to counsel's judgments already built-in to the "de novo" Strickland standard?) It is a nice catch phrase and sounds nicer than "we are rubber-stamping a state-court's unexplained order in derogation of our responsibility to interpret the federal Constitution."

Posted by: Anon | Mar 24, 2009 12:09:20 PM

Can someone help me out. Does Knowles shed any light on the following argument (raised by several circuits in dissenting opinions: AEDPA’s standard of review – limiting relief to cases in which the state court unreasonably applied clearly established USSC precedent represents a fundamental breach of the separation of powers, constituting an unconstitutional intrusion by Congress into the federal judiciary’s independent and exclusive duty to ‘say what the law is.’"? If Knowles has no bearin on this issue, is the issue being raised in any case before the Supreme Court?

Posted by: Michael R. Levine | Mar 24, 2009 12:09:49 PM

Michael - It doesn't look like Knowles sheds any light on the constitutional challenge you mention. As for other cases, if I recall, a similar question was raised in the petition in Williams v. Taylor (2000), but the Court declined cert on that specific question. I think other cases have tried, including the ones whose dissenting opinions you may have in mind--e.g., Davis v. Straub (6th Cir. 2006); Crater v. Galaza (9th Cir. 2007); Evans v. Thompson (1st Cir. 2008). I believe that cert was sought and denied in each of these cases, but you'll probably want to confirm that.

Posted by: LT | Mar 24, 2009 1:10:31 PM

Williams implicitly rejected the constitutional argument by construing the statute as it did despite the "construe to avoid constitutional doubt" arguments by the petitioner and Justice Stevens. A panel of the Ninth briefly tried to resurrect that controversy in Irons v. Carey but backed down.

The application of the AEDPA standard to summary state-court dispositions remains an issue and is probably the reason for the nonjoining of the three in this case.

In general, though, deciding the AEDPA question first is usually the better approach, particularly where there is a written opinion. Deciding whether a prior disposition is reasonable is usually easier than redeciding the case from scratch.

Posted by: Kent Scheidegger | Mar 24, 2009 1:20:15 PM

Gosh, I'm just shocked, shocked that Justice Thomas wrote this opinion like a partisan hack, devoting time to an issue (IAC claim fails under AEDPA deference in Part II) that was absolutely unnecessary given the conclusion in III that the IAC claim fails de novo review. And Mr minimalist "balls & strikes" umpire Chief justice signing on is also just completely unexpected. /sarcasm.

I am, however, genuinely surprised that Stevens signed on to part II. I would expect as much from Thomas, Alito, Roberts and basically Breyer too. But JPS is usually pretty careful, and Thomas' opinion here is an instance of entirely unnecessary judicial overreaching driven by ideology. Or, par for the course for CT.

Posted by: Sentencing Observer | Mar 24, 2009 2:12:54 PM

Well, Sentencing Observer, instead of being surprised that Justice Stevens concurred in a partisan hack job, perhaps you should take that as a signal to reconsider your opinion that it is a partisan hack job.

Posted by: Kent Scheidegger | Mar 24, 2009 2:23:40 PM

After everything we've heard and read about CJ Roberts and his minimalist philosophy, I, too, am surprised he signed onto Part II. But I'm not being sarcastic. He does have a track record of writing and advocating for narrow opinions. I genuinely wonder why he decided to depart from that philosophy here.

Posted by: DEJ | Mar 24, 2009 2:24:47 PM

Part II is not a departure. Its discussion of the AEDPA standard is nothing new. Indeed, the minimalist approach would have been to decide on AEDPA and forget the de novo part.

Posted by: Kent Scheidegger | Mar 24, 2009 2:32:51 PM

Or I could just continue to believe JPS erred here.

Instead of just assuming that this opinion is a normal and unremarkable exercise of judicial power, could you explain your opinion and/or explain how Part II was anything but an unnecessary hack job?

Posted by: Sentencing Observer | Mar 24, 2009 2:32:58 PM

Kent, I think you're missing the point here. You claim that "the minimalist approach would have been to decide on AEDPA and forget the de novo part." But in order to do that, the Court would have to confront an open (and unbriefed) standard-of-review issue (which even you seem to recognize is difficult). In any event, regardless of which approach the Court SHOULD have taken, once the Court decided NOT to resolve the standard-of-review issue and hold that the defendant's claim even if reviewed de novo, there was simply no reason for the Court to address the claim under the AEDPA standard (other than to -- once again -- give a well-deserved smack to the Ninth Circuit, which is probably why the Court took the case in the first place).

Bottom line: Under the circumstances, Part II essentially amounts to dicta and should not have been included in the decision (though I agree that it doesn't really break any new AEDPA ground anyway).

Posted by: Scott | Mar 24, 2009 3:03:02 PM

Partisan hackjob?

Sentencing Observer, why don't we take a stroll down memory lane? Ever wonder why there are so many AEDPA cases from the Ninth Circuit? It's because they just cannot seem to get it right. So the Supreme Court, which cannot "catch them all", decides to put a little extra mustard on an opinion which it never should have had to write in the first place but for bunch of judges on the Ninth who cannot seem to get the AEDPA standard right, and this is a partisan hack job?

And dont forget, Sentencing Observer, footnote 1, joined by all Justices finding that the Ninth's characterization of the facts of the case as "at best misleading".

You're just ticked because the Ninth's incompetence was laid bare, again.

Posted by: federalist | Mar 24, 2009 3:13:21 PM

Scott, you are quite mistaken about the status of this holding as dicta. "But where a decision rests on two or more grounds, none can be relegated to the category of obiter dictum." Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949).

No, I'm not missing any point here. Decision on multiple grounds is not that unusual, and the Supreme Court may deem it advisable where the lower court has screwed up badly on both grounds, as is the case here.

The application of 2254(d) to summary dispositions may present difficulties in other cases where the case the petitioner presented to the state court could not be disposed of without resolving genuinely disputed facts, but that issue is not presented in this case. Hence, the Court can quite legitimately decide it on 2254(d) grounds without deciding how that statute would apply in different circumstances.

Posted by: Kent Scheidegger | Mar 24, 2009 4:02:56 PM

Also, you appear to believe that the Court decided the de novo point first and then went on to the AEDPA point, unnecessarily in your view. In the copy of the opinion I downloaded, Part II comes before Part III.

Posted by: Kent Scheidegger | Mar 24, 2009 4:04:57 PM

Kent, I do think you are missing the point. As federalist said: "If it doesn't fly de novo, it doesn't fly under AEDPA either." We all seem to agree on that. Accordingly, the Court did not need the AEDPA discussion if it were to rest one of its holdings (and let's assume they are both holdings) on de novo review. That's the point: that Part II was unnecessary to the outcome.

Further, the point is not that it isn't "advisable" to further elaborate on AEDPA. In fact, for the sake of argument let's assume that it was advisable to do so. But, my point (and I’ll speak for myself) was that it in many cases it's advisable to not be minimalist, yet CJ Roberts usually declines to do so. In other words, if a Justice is going to espouse a minimalist approach as central to his judicial philosophy, then I wouldn't expect him to abandon it when its convenient to do so.

Posted by: DEJ | Mar 24, 2009 4:17:47 PM

"In the copy of the opinion I downloaded, Part II comes before Part III."

Sheesh, can't we agree to disagree without getting snarky?

As for the merits of our disagreement, I agree that the Court probably will not treat Part II as dicta. But that doesn't change the fact that it was entirely unnecessary to resolve the case (which is why I characterized it as "essentially dicta").

Finally (and I confess I don't have a lot of knowledge in this area), my understanding of the rule from Woods applies to alternative holdings. Here, however, the Court's conclusion in Part II is essentially subsumed within its conclusion in Part III (i.e., if the claim fails when reviewed de novo, it will necessarily fail when reviewed under AEDPA). Under these circumstances, would Woods apply?

Posted by: Scott | Mar 24, 2009 4:23:44 PM

DEJ, what you say could apply just as easily, perhaps better, the other direction. Once the court decided the AEDPA point, the de novo review was unnecessary. Given the principle of not deciding constitutional issues when statutory ones resolve the case, that would have been the minimalist position.

Snarky, Scott? I wouldn't call it that. Particularly in comparison to the brickbats that often fly in the comments of this blog (which I generally ignore), that was just a little good-natured kidding.

Seriously, though, I do not think the order of the holdings is an accident. I suspect that Justice Thomas's first draft simply decided on the basis of AEDPA, and that when the others said they would have to concur only in the judgment he wrote the alternative holding of Part III.

Posted by: Kent Scheidegger | Mar 24, 2009 4:59:15 PM

It's a bit rich for all the libs to be critical of Roberts and Thomas here. The "minimalist" approach is consistent with judicial modesty, promotes agreement among Justices, allows lower courts to develop the law and allows for more certainty in opinions. None of those concerns are really present here. As Kent notes, the hard AEDPA issue isn't really presented here and the lower court really botched this case up. Thus, a slapdown (i.e., the exercise of the Supreme Court's supervisory power) was warranted and doable, so they did it.

Guys, you need a little more before your manufactured outrage is taken seriously. "Partisan hack job"--good grief. I thought it was Doug on a DUI rant.

Posted by: federalist | Mar 24, 2009 5:18:34 PM

In response to Mr. Levine's post regarding the separation of powers issue, the USSC did deny my cert petition in Davis Straub. Besides the fact that the case involved a horrible crime, I don't think the court was ready then to take on broader AEDPA issues, like what constitutes CEFL.

Posted by: John Minock | Mar 24, 2009 5:42:31 PM

Another possible explanation for the unusual lineup is here.

Posted by: Kent Scheidegger | Mar 24, 2009 6:19:52 PM

Lawyer question. What is the overlap between effective representation and professional standards of due care? Would a criminal defense expert agree that more effort was needed to pressure parents to testify? That a subpoena should have been issued? That he should have filed the insanity defense because there was nothing to lose?

If there is some overlap between standards of due care and effectiveness, shouldn't an expert witness have agreed, the lawyering fell below a standard of due care, because most similar lawyers would have acted as the judges requires? By their decision, didn't the Ninth Circuit express an opinion about an area in which they had no expertise? Even if some were prosecutors and defense attorneys in the past, should a judge be allowed to settle an expert question with expert testimony? If someone replies, they are applying the case law of effective counsel, I would appreciate a reference requiring the pressuring of parents to testify.

Posted by: Suicide Malpractice | Mar 24, 2009 11:51:15 PM

On a simply real-life practical level, the option of pressuring the parents to testify would not really be on the table. It could be a monumental mistake: if they are reluctant or opposed, you may not be in control of what comes out of their mouths. They were supposed to be a key sympathetic/explanatory voice for their son and if they came off as even lukewarm, it could be devastating. Sure, you could impeach them, but where does that get you. On the other hand, what was there to lose??????

Posted by: t | Mar 25, 2009 9:55:11 AM

As heartwarming as it is to see that some of the layfolk are starting to understand "minimalism," the shots taken at Justice Thomas's opinion are disingenuous.

I'm sure that Justice Thomas isn't the first judge this month to write an opinion that was longer than necessary and reached out to decide an issue that wasn't strictly necessary to the case. A lot of judges simply aren't "minimalists" and think that the law is better served in terms of clarity and uniformity when appellate courts issue opinions that reach all or most of the issues fairly presented to them. Appellate court opinions address alternate holdings all of the time, even when affirming.

Part of the reason the Supreme Court takes cases is to explain the law and ensure that federal law is applied uniformly across the country, so if anything that court can be forgiven more than other courts for eschewing minimalism in the occasional case. The Ninth Circuit often needs to be reminded of how the AEDPA standard of review works.

Reasonable people can differ as to whether Section II was useful to include in the opinion. Apparently, 6 Justices thought it was, and 3 thought it wasn't.

Also, as Mr. Scheidegger suggests, maybe the lineup reflects the chronology of the drafting process or perhaps there's another explanation out there. I can understand the hardcore legal realists' complaints when the Supreme Court issues 5-4 decisions in statutory cases, divided on predictable lines. The complaints of ideology-driven decisionmaking here, however, are simply ignorant.

Posted by: ab | Mar 25, 2009 10:13:36 AM

I second ab's comment.

Posted by: federalist | Mar 25, 2009 10:26:14 AM

ab and federalist, let me clarify (again) my position: I am not "outraged" nor am I "taking shots" at the lack of minimalism here. I'm merely saying that CJ Roberts, since day 1, has espoused a minimalist philosophy. I never said that was a good thing, and in fact, I believe that minimalism often leaves much to be desired. As I said earlier, I'll assume that Part II was "useful" and even "advisable" to put in the opinion. However, to see CJ Roberts agree with that statement surprised me.

Posted by: DEJ | Mar 25, 2009 11:31:29 AM

Embarrassingly, Judge Thomas's opinion suggest that the defendant was lucky not to get death or LWOP, even though no specials were alleged. "Mirzayance has no complaints about the sentencing phase since he received the lowest possible sentence for his first-degree murder conviction. California authorizes three possible sentences for murder: death, life imprisonment without parole, and imprisonment for 25 years to life. Cal. Penal Code Ann. § 190(a) ( (West 1999). Mirzayance was sentenced to 25 years to life plus 4 years for a weapons enhancement." (Knowles v. Mirzayance (3/24) 2009 U.S. LEXIS 2329.)
From what I can tell, def was maxed out. Am I wrong?
Michael C. McMahon
Chief Deputy Public Defender
Writs, Appeals, & Training
Ventura County, CA

Posted by: Michael C. McMahon | Mar 25, 2009 3:03:08 PM

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