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March 5, 2012

Unanimous SCOTUS opinion resolves counsel rules for federal habeas

In its last day of action before another Supreme Court hiatus, the Court today issued a unanimous ruling in the federal habeas case Martel v. Clair, No. 10-1265 (S. Ct. March 5, 2012) (available here). The opinion, per Justice Kagan, gets started this way:

A federal statute, §3599 of Title 18, entitles indigentdefendants to the appointment of counsel in capital cases,including habeas corpus proceedings.  The statute contemplates that appointed counsel may be “replaced . . . upon motion of the defendant,” §3599(e), but it does not specify the standard that district courts should use in evaluating those motions.  We hold that courts should employ the same “interests of justice” standard that theyapply in non-capital cases under a related statute, §3006A of Title 18.  We also hold that the District Court here did not abuse its discretion in denying respondent KennethClair’s motion to change counsel.

March 5, 2012 at 10:13 AM | Permalink


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Hmmmm. Ninth gets bounced again, 9-0. And SCOTUS apparently thinks that death is different, but only when it benefits the defendant.

Posted by: federalist | Mar 5, 2012 10:47:28 AM

federalist, surely you did not mean to express a modicum of sympathy for a defendant accused of a capital crime?

Posted by: Dave from Texas | Mar 5, 2012 12:02:00 PM

Dave, that would be a defendant convicted of a capital crime, and no, not sympathy. (I should have been more clear and said condemned, rather than defendant.) My point is that the Court rejected the state's "death is different" argument. (The Court pointed to the statute and stated that it didn't have a different standard for death cases.) And I was commenting on the assymmetry . . . .

Posted by: federalist | Mar 5, 2012 12:08:57 PM

"Protecting against an abusive delay is an interest of justice." Martel v. Clair, 565 U.S. ___ (2012) (slip op. at 12) (emphasis in original).

Expect to see that quote in a lot of government briefs from now on.

Posted by: Kent Scheidegger | Mar 5, 2012 12:23:02 PM

Dave from Texas --

What difference doe it make where federalist's sympathies lie? The question is whether SCOTUS correctly decided the case. What is your view of that?

Posted by: Bill Otis | Mar 5, 2012 12:45:13 PM


the Supremes got it right.

Posted by: Dave from Texas | Mar 5, 2012 1:40:16 PM

As Justice Kagan wrote for a unanimous Court, ". . . .

Posted by: federalist | Mar 5, 2012 1:55:55 PM

Dave from Texas --

Thanks and I agree.

Posted by: Bill Otis | Mar 5, 2012 2:05:54 PM

No surprise that PREGERSON and REINHARDT a.k.a. tweedle dumb and dumber are the authors of the reversed decision. Keep at it 9th circus. Your reputation is well deserved.

Posted by: DeanO | Mar 5, 2012 4:14:30 PM

Has SCOTUS ever upheld a decision by the 9th Circuit when Reinhardt was on the panel majority or when he agreed with a unanimous one?

Posted by: DaveP | Mar 5, 2012 6:01:29 PM

Government is fine with delay when the government is doing the delaying. But when there is delay on the part of those targeted and persecuted by the government, many of whom are wrongly targeted and persecuted, the government has no problem with barring their access to the courts altogether.

Government, and its stooges, are incompetent and out of control.

Posted by: Calif. Capital Defense Counsel | Mar 5, 2012 6:25:29 PM

Hundreds of thousands of lower court opinions out there. There are really bad opinions outside of the 9th opinion and without a different Court, we would see more of them. As to Reinhardt/Pregerson, repeatedly the Supremes voted against the wishes of Kozinksi too, as Stevens at least noted explicitly.

Posted by: Joe | Mar 5, 2012 6:37:50 PM

Hundreds of thousands of lower court opinions out there. There are really bad opinions outside of the 9th Cir. and with a different Court, we would see more of them overturned. As is, there are others that are, and repeatedly those from the Ninth are only overturned by split decision. As to Reinhardt/Pregerson, repeatedly the Supremes voted against the wishes of Kozinksi too, as Stevens at least noted explicitly.

[sorry, posted too soon]

As to "an" interest of justice, yes; it is not the only one and of course what is 'abusive' is also the matter in dispute.

Posted by: Joe | Mar 5, 2012 6:42:26 PM


"Government, and its stooges, are incompetent and out of control."

Are you saying that this particular opinion was written by "incompetent government stooges who are out of control"?

Posted by: Bill Otis | Mar 5, 2012 7:27:14 PM

If I got reversed 9-0, I would be incredibly embarrassed. Reinhardt takes it in stride even though it is over and over again. Doesn't he ever get one right? Pregerson is also a Carter appointee. Over thirty years later and still wasting SCOTUS time. The only question is, who is the 3rd stooge at the 9th Circuit?

Posted by: DaveP | Mar 5, 2012 7:49:28 PM

Bill Otis -

Are you implying that the government is competent?

Posted by: Calif. Capital Defense Counsel | Mar 5, 2012 8:38:53 PM


I'm "implying" that I'd like to know if you think this case was correctly decided. Do you?

Posted by: Bill Otis | Mar 6, 2012 1:51:56 AM

CCDC-- I agree as to one thing. The government that signs your paycheck is clearly as you describe. Only an incompetent, out of control bureacracy would force taxpayers to fund such stoogery.

Posted by: Rich Mantei | Mar 6, 2012 8:28:13 AM


I want to ask this question on this thread because you missed it during our last discussion. Do you agree that 90& of non-pot drug users wish they had never met their drug dealer and does that impact your analysis on the legality of LSD, Heroin, Cocaine, PCP, Oxycodone, etc?

Posted by: Robert Barnhart | Mar 6, 2012 9:25:03 AM

Mr. Barnhart --

One other thing you and I have in common is that we have about the same chance of getting CCDC to produce responsive answers to our questions.

Posted by: Bill Otis | Mar 6, 2012 9:47:52 AM

Rich Mantei --

On an earlier thread, CCDC said that the taxpayers fork over to him $145 per hour. No wonder California is going broke.

Posted by: Bill Otis | Mar 6, 2012 9:51:44 AM

Judge Reinhardt wrote thousands of opinions over the years and the USSC left most of them stand. Unlike some here, he has better perspective of how things work as a whole. Is Thomas "embarrassed" at repeatedly not even having Scalia on his side? I think not. He thinks he is correct.

Posted by: Joe | Mar 6, 2012 10:12:57 AM

All questions about capital punishment vs. LWOP (and the prosecution of the purchasers of illegal street drugs) aside, if CCDC really sees people who have killed other people simply as individuals who have been "targeted and persecuted by the government," as opposed to people who are in the situations they are in because of something they have done, i.e., kill one or more people, he has completely lost perspective. I would question his ability to give reasonable and level-headed professional advice, particularly on questions such as whether to accept an offer to plead guilty to reduced charges, if he thinks that all (or even most) of his clients are factual innocents whom "the man" has decided to "persecute" simply for kicks or to distract from more pressing social issues. In any event, I doubt that he really is that naive or deluded.

Posted by: guest | Mar 6, 2012 10:59:20 AM

Joe --

Since your ally CCDC seems to be having some trouble coming up with a simple answer (or any answer), perhaps you could help out.

Do you think the SCOTUS correctly decided this case?

Posted by: Bill Otis | Mar 6, 2012 11:22:11 AM

guest --

"In any event, I doubt that he really is that naive or deluded."

I agree. The question is why he presents himself as that naive and deluded. And the answer certainly seems to be that it's simpler to just accuse your adversaries of being bloodthirsty stooges than to engage in anything like a businesslike discussion.

The Left is so convinced it has the answers that it views its arrogance and bad manners as not merely justified but as the only natural response.

Posted by: Bill Otis | Mar 6, 2012 11:29:40 AM

Joe, Judge Reinhardt's record is pretty uniquely bad as appellate judges go. Too many unanimous reversals to count, and many summary reversals, including one, where the Supreme Court called him out for playing fast an loose with the record.

There is no defending the indefensible, and your attempt to do so comes off as extremely ill-informed.

Posted by: federalist | Mar 6, 2012 11:59:32 AM

Mr. Barnhart -


In college, I used many drugs -- LSD, mushrooms, ecstasy, in addition to marijuana. I used those drugs with friends, including yuppy fraternity brothers, a couple of whom are now prosecutors and judges.

We almost always acquired the drugs from friends.

Like Bill Otis, you have a skewed, distorted perception of the “drug world.”

Steve Jobs was in the drug world.

When any of my frat brothers got in any trouble in connection with drugs, they were able to run to Daddy for $ to avoid any real consequences.

People like Bill Otis don't put white, yuppy college boys in prison for our drug use and distribution. They go after those who can't fight back.

Bill - pound sand! You rarely answer my questions. I've repeatedly asked you what punishment Steve Jobs should have received for using LSD. Should he have gotten as much time as that non-violent, black crack user you put down for 23 years?

Posted by: Calif. Capital Defense Counsel | Mar 6, 2012 3:52:02 PM


First, I'm through with indulging your anonymity. Your name is Michael Satris, and you represented, unsuccessfully, the last person to be executed in California, Clarence Ray Allen. Your clemency petition to the Governor was a true piece of work. I have seldom seen so many crocodile tears for a triple murderer.

Second, if you actually wanted anonymity, you should stay away from doing Fox News interviews, like with Greta van Sustern.

Third, if you want to retaliate by using my real name, feel free...............oh, wait, I already use my real name. Well gosh darn.

Fourth, you're not about to answer my question (which is directly relevant to this thread), but I'll be happy to answer yours (which is irrelevant but something of a hoot, like so much else you write).

The sentence Steve Jobs should have received was zero. That is because people cannot get sentenced unless they're convicted of a crime. Was Mr. Jobs?

Righto!!! God, you're a genius, Michael.

"People like Bill Otis don't put white, yuppy college boys in prison for our drug use and distribution."

Wanna bet?

Now to return to the subject matter of the thread: Do you think the SCOTUS decided this case correctly?

Posted by: Bill Otis | Mar 6, 2012 4:44:05 PM

Bill Otis --

Do you ever get your accusations right? Does accuracy in accusation even matter to you?

Posted by: Calif. Capital Defense Counsel | Mar 6, 2012 5:32:10 PM

Michael --

"Do you ever get your accusations right? Does accuracy in accusation even matter to you?"

I'm sure we're all impressed with your outrage, tiresome though it surely has become. Still, try for once to quit dodging and answer the question.

This thread is about Martel v. Clair. Do you think the SCOTUS decided the case correctly?

Posted by: Bill Otis | Mar 6, 2012 5:48:50 PM

You've got the wrong guy, half-wit.

Posted by: Calif. Capital Defense Counsel | Mar 6, 2012 7:39:34 PM

Then feel free to correct me with accurate information.


Didn't think so. Nice smokescreen.

Now let's try once more, since I answered your question about Steve Jobs: Do you think the SCOTUS decided Martel v. Clair correctly?

Posted by: Bill Otis | Mar 6, 2012 8:05:13 PM

well after finaly getting time to read the actual decison. I think the idiots on the bench have screwed the pooch AGAIN!

What it looks like to me is the man got a couple of low-paid hacks who were working for his first lawyer who then went to work for the feds and the courts have been protecting them.

As for the courts stupidity in ignoring his 2nd motion ...sorry retards NEW EVIDENCE trumps EVERYTHING! the fact that you were in the final step of tossing his case when you got it just makes it worse! Here's a thought if you hadnt' take a DECADE to remeder a decsion! things might have went smoother!

Posted by: rodsmith | Mar 7, 2012 11:07:59 AM

rodsmith --

Thanks for giving an answer. One thing about you is that you're not afraid to step up to the bar. Too bad the same can't be said for CCDC, who, after days, still refuses to give a simple answer.

Posted by: Bill Otis | Mar 7, 2012 11:18:10 AM

The petitioner filed his section 2254 petition in 1994. The district court did not get around to deciding the petition until 2005.

And, defenders of this decision cite delay on the part of the petitioner as a justification for reversing the 3-0 9th Circuit panel decision that the district court abused its discretion by failing to adequately inquire into the petitioner's particularized complaints with his attorneys' representation?

That's rich.

Posted by: Calif. Capital Defense Counsel | Mar 7, 2012 1:12:52 PM

The question is not whether the decision is "rich." The question is whether you think the unanimous Supreme Court decided the case incorrectly. Do you?

Posted by: Bill Otis | Mar 7, 2012 1:27:56 PM

Professor Berman, I have no idea whether Bill Otis has correctly revealed the person uses the CCDC handle. And I don't write this to defend or endorse the opinions of either of these people. I'm commenting strictly to say that I'm very uncomfortable with the comments sections of this blog being used to reveal people's identity. Obviously, Bill Otis is free to publish on his own who certain individuals are and that is also obviously between Bill Otis and the person he is "outing." It just seems beyond the pale to use an independently run blog/website to "out" someone or to threaten to "out" someone. I respect that you don't believe that banning comments or commenters is in the best interest of your blog. But I think you should at least consider that you may be losing out on a significant number of people that might have valuable opinions to add to your discussions but don't because of the level of discourse and bullying that occurs in the comments sections here.

Posted by: ssb | Mar 7, 2012 5:13:41 PM

I share your concerns here, ssb, though I also think this is another matter that I lack time/energy/ability to police effectively. Plainly, CCDC has done a notable job getting under Bill's (thin? think?) skin, and Bill is now seeking to "out" him for whatever reasons he thinks wise. Your comment (and perhaps those of others) will prompt Bill to be troubled by how he and CCDC are going at it lately, and I continue to be saddened that the comment threads too often become partisan attack forums. But I barely have time to read most of the blog comments, let alone the time (or any desire) to develop a policy for serving as a moderator of these comments.

More broadly, my "free market" approach to comments is itself designed to demonstrate how free markets (at least in ideas) can/will often be dominated by those with the greatest eagerness and energy to in the marketplace, not necessarily those with the best ideas (or the best manners). That reality itself is a lesson I keep learning from leaving the marketplace to operate without any interference by me (except if/when I see fraud or fear criminal activity in this (poorly functioning?) idea marketplace that I nominally foster).

Posted by: Doug B. | Mar 7, 2012 5:32:58 PM

ssb and Doug --

CCDC wrote on this "independently run blog" that I am a "violent criminal." Since I am currently a licensed lawyer, and neither violent nor a criminal, that is libel. Did either of you object to it?

I have also been called on this "independently run blog" a pedophile and a necrophiliac, among many other nauseating things such as "stark raving mad" (a recent phrase used by CCDC).

Did either of you object to it?

Mr. ssb, people have been using the most rancid language directed at conservatives, me among them, for quite some time. They do it in large measure simply because they can get away with it. They insulate themselves from accountability by bringing down the curtain of anonymity. But, by posting publicly, they assume the risk that said curtain will be pulled back. In absolutely no place in the rules of this forum is anonymity guaranteed.

I sign every post with my real name because I invite, rather than seek to evade, accountability for what I say. There are sometimes good reasons for anonymity. As you may have noticed, I have uniformly respected and will continue to respect those reasons from both liberal and conservative posters who want to argue rather than spit. There are also quite bad reasons for anonymity, such as to hide behind the tree while zinging slurs of the kind CCDC has done. If you want to respect that use of anonymity, go ahead. I won't, because there is no sound reason to. The stuff coming from him is hate and will be treated with all the deference hate deserves.

Finally, let me say that if Doug, as the blog owner, wants me to stop posting for any reason or no reason, he has but to ask, and I will depart with gratitude for the opportunity he has given me and many others to chime in.

Posted by: Bill Otis | Mar 7, 2012 6:20:33 PM

i have to give bill this one! i know him and i have disagreed and tied up any number of times. But so far we have managed to do it without the hate. That is a big big problem in the whole country. It is ALMOST imposible to have any conversation with someone let alone a rational one when every everthing is clouded by hate!

We need to step back and remember Nothing says anyone one person's approach to life or the decisions in it are always going to be right or wrong!

Just like nobody can be right all the time. Nobody can be WRONG all the time either.

Like the old saying "Even a BROKEN clock is RIGHT TWICE A DAY!"

It helps to remember that when talking to others about anything. In the back of your mind should always be the question.

"Is this person RIGHT this time"

I think everyone knows and is even willing to admit this country right now has a lot of problems. It is also in the most dangerous time of it's life. A time not seen since the days before the revelunatory way. We NEED to be talking and listening and WORKING on those problems not letting hate destroy us!

Posted by: rodsmith | Mar 7, 2012 7:53:20 PM

rodsmith --

Great post. I have only one quibble: My wife says I am indeed wrong all the time. At least that what she says when she gets mad. I used to be able to get out of the doghouse with a stuffed animal, but now it takes an Oriental rug.

Posted by: Bill Otis | Mar 7, 2012 8:37:00 PM

LOL shame on you BILL haven't you learned yet! the HUSBAND is ALWAYS WRONG! That is one of the universal constants!

At least in the oppinion of thier wives and mother-in-laws!

Posted by: rodsmith | Mar 8, 2012 1:33:32 AM

how interesting that you make an assumption about my gender. in any respect, i think the level of discourse among the posters here is unfortunate and that you believe somehow that because you use your real name when you say horrible things to people or about groups of people that absolves of you of any responsibility or any role in the deterioration of the comment threads. i think the mudslinging comes from both sides and i'm not here to referee. i frankly don't care and it's irrelevant to the issue of revealing people's identity. i don't think that individual posters should be threatening to reveal or revealing other people's identity on a site that does not belong to them. particularly, a site that permits anonymous users. i'm unconcerned with your reasons or justifications as to why you feel justified in doing so. i am uncomfortable with a climate where any poster, whether it be CCDC, me or anyone else, would be fearful that individuals on this site will take it upon themselves to discover who they are and reveal their identity without any regard for what the consequences may be for them. and i think the disrespectful tone of so many of the comment threads keeps people who would add much more value to the conversations from participating. i am not comfortable with Bill Otis or any other individual poster here determining the criteria for revealing a person's identity on a site that belongs to Professor Berman. You feel justified in having "outed" someone here. I respect Professor Berman's many different reasons for an unmoderated comments section. So I am taking Professor's Berman's suggestion to voice that I don't approve of posters using Professor Berman's forum for the purpose of "outing" people regardless of whatever mud has been slung at anyone.

Posted by: ssb | Mar 8, 2012 9:27:20 AM

well ssb i do agree with you to a point. That point is reached when subjected to personal attacks. When those happen the individual making the attacks should not be suprised but should in fact expect the response to become PERSONAL.

Not sure which one said it but back in the late 1800's early 1900's we had a U.S. Supreme Court Justice who said we had a much more POLITE socity when most everyone was armed. It's a lot harded to be rude to people who have the ability and will to make you back up your rudness!

Posted by: rodsmith | Mar 8, 2012 3:51:49 PM

ssb --

1. You do not own this blog anymore than I do and you do not makes the rules for it or for me.

2. Your "comfort" does not define what I may say, anymore than anyone else's comfort does. Do you think I feel "comfortable" being called a Nazi, as has happened here many times? But you have never raised an objection to that.

3. You say that I have said "horrible" things to people and about groups of people. But you quote absolutely nothing, so I have no idea what you are talking about.

4. You don't even bother to respond to my pointing out that for CCDC to have said that I, a licensed attorney, am a "violent criminal" is an open-and-shut case of libel.

5. I might say the same of the accusation that I am a necrophiliac. Of course if you think that's true, you are welcome to produce the evidence. You won't, and not simply because there is none. You won't produce it because evidence has no particular importance to you.

6. I "outed" California Capital Defense Counsel as being -- now get this -- a California capital defense counsel, and a prominent one at that. Would you mind telling me how it damages a person to be identified as the person he repeatedly says he is?

7. You pretend to be non-partisan, but it's not much of a pretense and it doesn't really work. I have never, ever used the kind of vulgar, disgusting and libelous language that has been used against conservatives, including me. The reason you make me the villian, and suggest to Doug that he consider banning me, is that you want to silence a conservative voice with which you disagree. Thank you so much, Sen. McCarthy.

8. Your opening line getting snarky about gender is just so cute. Your playing the victim on such an absurdly skimpy record (gosh golly, did I SO SINFULLY address you as "Mr."??!!) is as lame as it gets.

9. If you were really just a neutral commenter distressed about "outing," you would have raised the roof when Supremacy Claus was "outed" some time ago. But you didn't and neither did Doug. Indeed not a single word was said about it. It becomes a newly-minted transgression only now. How odd.

10. I post under my real name because, unlike you, I welcome the accountabiiity that comes from being up front. It's quite true that some people have good reasons to remain anonymous, and, as I noted, I have always respected those and will continue to do so, no matter what the person's politics. But when anonymity is used just to spit, it's nothing but cowardice. It deserves no respect and is not going to get any from me, now or ever.

Posted by: Bill Otis | Mar 8, 2012 7:35:58 PM

victim of what? huh? i remarked that i find it interesting that you make any assumption about my gender. that you assume i'm a man makes me wonder why. it interests me. the end.

i've made my position clear. i wasn't aware that Supremacy Claus' identity had been revealed or i would have made the same point there. i'm sorry that i'm not aware of every single comment thread on this blog. i saw the issue come up here and so i voiced my opinion. i don't care about CCDC personally or about you personally. i think that given Professor Berman's open forum policy, posters here should not be fearful that other individual posters will "retaliate" against them. Professor Berman has stated that he is willing to accept that that kind of retaliation may happen here but invites those of us who disapprove to make our opinions known. that is what i'm doing. i can't stop you, Professor Berman will not stop you, but for whatever it's worth, i think this risk of retaliation will further distance readers of this blog who may have interesting and substantive opinions to add to these topics from participating. whether CCDC will personally experience any negative consequences from being revealed in this instance is irrelevant to my point. for any given poster here, there may be fall-out and i don't believe that posters using Professor Berman's forum are in the position to make that call. that Bill Otis or anyone individual poster here has the power on their own to determine that you "deserve" to have your anonymity stripped from you is disconcerting to me. and i believe it does a disservice to this blog. and in my personal opinion, i believe the entire crew here, including you, that engage in hackneyed smears against each other do it because you all enjoy it. all of you push each others buttons for sport. i really can see no other reason why any of you would continue to engage each other in threads going on for 40+ comments time and time again. i'm not here to quote you, you know exactly what you say and the role you enjoy playing in these threads. this is my last word on the matter, at this point i am just repeating myself.

Posted by: ssb | Mar 9, 2012 12:20:17 PM

ssb --

The reason you don't quote the allegedly "horrible things" I say is that, as you full well know, I don't use anything approaching the gross and vulgar epithets that have been used against conservatives.

Your speculation that my revealing CCDC's identity (namely, that he is who he says he is) will drive valuable posters away is just that -- speculation. It is, moreover, unpersuasive speculation, since there is absolutely no evidence that ANYONE was "driven away" after SC was "outed" in the late summer of 2010. Indeed there have been thousands upon thousands of comments since then.

"[T]hat you assume i'm a man makes me wonder why."

Of course you could ask, but you don't because you'd rather play the woebegotten female victim. Give it a rest. I assumed you're a male because (1) you didn't identify yourself, and (2) most people who post here are, in fact, male. So it's that natural assumption.

BTW, get over your rudeness. If you want to address me, do so by name, just as you did with Professor Berman. It's just normal business courtesy, no matter what your opinion of me.

Posted by: Bill Otis | Mar 9, 2012 2:59:51 PM

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