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January 19, 2011

SCOTUS unanimously reverses two Ninth Circuit habeas grants on IAC claims

The Supreme Court handed down three opinions this morning, and two of them involved unanimous rulings authored by Justice Kennedy (with Justice Ginsburg concurring separately and Justice Kagan not participating) reversing grants of habeas relief by the Ninth Circuit based on the defendants' claims of ineffective assistance of counsel. The cases are Harrington v. Richter, No. 09-587 (opinion here), and Premo v. Moore, No. 09-658 (opinion here).

I will not get a chance to review these decisions closely until probably late tonight. But the unanimous outcomes and Justice Ginsburg's brief concurring opinions in both cases lead me to the (hasty?) early conclusion that these ruling reflect a desire by the Justices to give the Ninth Circuit a lesson about habeas review rather than a significant evolution in the jurisprudence of Sixth Amendment ineffectiveness claims. But perhaps others have (and will share in the comments) different perspectives on these twin rulings.

January 19, 2011 at 11:48 AM | Permalink


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The 9th circuit recieved the legal equivalent of a smack down today by SCOTUS. The 9th cicuit continues to supplant their Judgement instead of defering to the State Courts and applying Strickland. They cite only that law they like or which appears to confirm their positions; like Arizona v. Fulminante in the Moore case. The relevant federal law is the standard for ineffective assistance of counsel under Strickland, which requires a showing of “both deficient performance by counsel and prejudice.” Knowles v. Mirzayance. The state-court decision was not an unreasonable application ofeither part of the Strickland rule. As Kenendy stated: For the 9th circuit to reach that result, it transposed that case into a novel context;and novelty alone—at least insofar as it renders the relevant rule less than “clearly established”—provides a reason to reject it under AEDPA. Just how do many of the 9th circuit loons sleep at night when they know they are citing weak or inappropriate cases. We known the 9th hates AEDPA, but lets hope this puts an end to many of these frivolous habeas cases.

Posted by: DeanO | Jan 19, 2011 1:04:24 PM

Well, no, I think this goes beyond a 9th Circuit smack down. Justice Kennedy's opinions purport to emphasize how "doubly difficult" it is to get relief for ineffective assistance claims by state prisoners seeking relief in federal habeas courts. Yet there's a lot of needless, careless language that seems to encourage postconviction courts to allow defense counsel to rely on careless speculation to justify irrational strategic calls during trial (Richter). Richter also includes language purporting to increase the threshold for establishing Strickland prejudice to proof of "a substantial likelihood" of a different result, whereas, STrickland expressly defined that threshold far lower -- a reasonable likelihood sufficient to undermine confidence in the outcome.

The Premo case also announces for the first time that there are differing degrees of deference to counsel at different stages, and quixotically suggests greater deference is owed to counsel who promotes a fast plea on far less than complete investigation based on speculative fears about how the case may get worse otherwise. While this makes a lot of sense in a case like Moore's (where the possibility for the case to become a capital prosecution lurked in the background) Justice Kennedy's opinion is truly troubling in an era when public defenders's case load are burgeoning to record levels and their resources dwindling.

Truly this is a case which makes me mourn the loss of Justice Stevens, as no one has yet picked up the torch for standing up for the rights of the oppressed. Today's opinions clearly make Strickland a champion not of the Sixth Amendment or the great writ's value against inustice, but make this case officially a tool to preclude claims against attorneys.

Posted by: nan | Jan 19, 2011 1:34:52 PM

I concur in the sentiment regarding missing Justice Stevens' voice in these two cases. Indeed, I'm quite surprised that the Court was as unanimous as it was on not only the outcome but the reasoning in both opinions. While it is no doubt true that the Ninth Circuit (rather, certain panels) has been aggressive in its review of habeas corpus cases, I do think there is a real risk that today's opinions insulate some seriously questionable state court decisions in the cloak of AEDPA deference. In particular, Harrington's holding respecting deference owed to even the most summary of state court adjudications is bound to incentivize state courts to offer even less discussion of a habeas petitioner's claims going forward.

Herein lies the perversity: the less the state court says, the better for it. Tf the state court says nothing but "denied" or "affirmed," then that decision receives deference; if the state court says, as it often does when adjudicating a Strickland claim, there is no prejudice but it does not reach deficiency, under current precedent, only the prejudice finding receives deference. The less the court says, now, potentially, the more deference its decision receives. If the state court shows its work, it's quite possible that it shows an unreasonable application or a misapprehension of federal law or an otherwise unadjudicated claim that might entitle the state habeas petitioner to de novo review in federal court. Under Harrington, it will be the federal court's job to give the state court's silent and summary adjudication the benefit of every doubt and the benefit of its own speculation as to the grounds of the decision.

I know that state courts, and federal courts alike, are substantially burdened by habeas petitioners. I cannot agree, however, with a decision that encourages courts to dispose of those claims in a summary fashion -- even if that encouragement is only implicit and an inevitable by-product of the Court's decision.

Posted by: anonymous | Jan 19, 2011 3:12:46 PM

Another double smackdown for the 9th Circus especially for our esteemed Stephen Reinhardt. This term hopefully will bring several more like this.

Posted by: DaveP | Jan 19, 2011 3:37:22 PM

Being a habeas corpus practitioner, I think Richter has far reaching consequences. First, in the context of review under § 2254(b) when reviewing unexplained state court opinions the decision allows courts to speculate as to what arguments or theories could have supported the unexplained decision. (They adopt the "conceivable" argument they later denigrate in a different context in section IV B of the opinion). Second, as it relates to evaluation of IAC under § 2254(b), a reviewing court no longer looks at the reasonableness of counsel’s actions but now, scours the record and its own experience to determine whether there is any reasonable argument to support counsel’s performance. Third, under the prejudice prong, the “reasonably likely” standard under Strickland is somewhat morphed into “substantial likelihood.” In this context, the selection of the terms “substantial likelihood” seems to increase a petitioner’s burden.

Posted by: Z | Jan 20, 2011 10:46:02 AM

Some observations:

(1) We've been down this road before with the Ninth. Judge Ikuta has often cited numerous Ninth Circuit AEDPA cases overturned by SCOTUS in her dissents, yet the high amount of reversals doesn't seem to stop some judges on that court. However, I think this one will have some staying power in the Ninth. While Judges Reinhardt, Paez, Berzon and maybe a few others will be willing to buck SCOTUS' mandate, but many others, I suspect, will begin to get the message. This case, with its harsh admonition, is clearly written to send a message. I'm guessing other judges don't want to be called out. It also cannot be forgotten that Richter was an en banc decision, so the smackdown has even more force. Kozinski, I suspect, isn't all that jazzed about joining the decision that got such a rude reception at the Court.

(2) This case will also cure some outlier judges in the other circuits. I suspect the Sixth will get the message, to the extent the Sixth didn't get it last Term with its abysmal habeas record.

(3) Richter may have some effect on capital cases, but I think that the AEDPA-lite approach that even SCOTUS uses sometimes in capital cases is going to continue.

(4) I think that if the Court decides to send Schwarzenegger v Plata back to the three-judge District Court, Reinhardt is going to be removed from that panel. How in the world, given Reinhardt's monkey business with the record in Wong v. Belmontes, and now these two stinging reversals, can anyone be confident that Reinhardt gives the state a fair shake?

(5) Nan, you should lighten up--you don't like AEDPA, lobby Congress. Whining about these decisions, which come after years of outright defiance on AEDPA seems a bit overwrought. Neither of these cases is a close call--even without AEDPA deference.

(6) I don't think Pinholster is going to win.

(7) It will be interesting to see how many GVRs are granted a a result of these cases.

Posted by: federalist | Jan 20, 2011 9:19:44 PM


good post. The Sixth Circuit threw out an Ohio death sentence today disagreeing with the Ohio Court of Appeals and Ohio Supreme Court.

Posted by: DaveP | Jan 21, 2011 4:23:49 PM

I read that DP case in Sixth Circuit--authored by McKeague, who is no bleeding heart. I didn't like it that the record got expanded on habeas.

Posted by: federalist | Jan 21, 2011 7:23:32 PM

Thank you very much for keeping me up to date.

Posted by: Health Blog | Jan 26, 2011 8:01:17 AM

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