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November 5, 2013

SCOTUS unanimously reverses Sixth Circuit on Sixth Amendment habeas case in Burt v. Titlow

The Supreme Court wasted no time wasting a Sixth Circuit ruling that ruling in favor of a state habeas petitioner, issuing today a reversal in Burt v. Titlow, No. 12-414  (S. Ct. Nov. 5, 2013) (available here).  Here is how the opinion for the Court by Justice Alito gets started:

When a state prisoner asks a federal court to set aside a sentence due to ineffective assistance of counsel during plea bargaining, our cases require that the federal court use a “‘doubly deferential’” standard of review that gives both the state court and the defense attorney the benefit of the doubt.  Cullen v. Pinholster, 563 U. S. ___, ___ (2011) (slip op., at 17).  In this case, the Sixth Circuit failed to apply that doubly deferential standard by refusing to credit a state court’s reasonable factual finding and by assuming that counsel was ineffective where the record was silent.  Because the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, and Strickland v. Washington, 466 U. S. 668 (1984), do not permit federal judges to so casually second-guess the decisions of their state-court colleagues or defense attor­neys, the Sixth Circuit’s decision must be reversed.

Both Justice Ginsburg and Justice Sotomayor have written short opinions in Burt v. Titlow in order to articulate their views of what the Court's opinion does not mean.

Based on a very quick review, it seems this ruling should be viewed more as a bit of habeas review error-correction rather than a significant new precedent about the Sixth Amendment's reach or application. But all habeas practitioners ought to give this a very close read to see if there might be more "there there" than immediately meets the eye.

November 5, 2013 at 10:29 AM | Permalink


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If there is a "there there," it is the repeated emphasis on the need of an inmate to prove that counsel was incompetent and the inability of a federal habeas court to grant relief on claims merely because the habeas court would read the evidence differently than the state courts did. None of these are particularly new.

Ginsburg concurring in the judgment is potentially interesting because it is somewhat inconsistent with the position taken by the majority in Laffler -- recognizing that it is impossible in many cases to go back to the plea bargain (one of the positions taken by Michigan in Laffler as to why there is no remedy after trial for bad advice to reject a plea deal).

Posted by: tmm | Nov 5, 2013 12:34:16 PM

One thing noticeably "there" there is an absence of gender-specific pronouns in Justice Alito's opinion, achieved through painstaking feats of grammatical avoidance. Vonlee Titlow does not even get a first name in the caption of the case! One wonders if Sotomayor and Ginsburg wrote separately just to use Vonlee's full name and refer to her as a "she."

Posted by: A defender (of humanity) | Nov 5, 2013 12:37:13 PM


The main difference I see between this case and Laffler is that here there is nothing to indicate that the decision to reject the plea offer arose in any way from the advice of counsel, it was instead very much the product of Titlow.

I still tend to think that Laffler and Frye came out wrong (both got what the constitution demands, that being a fair trial), but if the court is going to so quickly turn them into meaningless nullities then well *shrug>*

Posted by: Soronel Haetir | Nov 5, 2013 1:06:23 PM

Soronel, I would agree with you on the competence prong, but the Ginsburg concurrence went into the remedy issue in a way that is arguably inconsistent with the opinion that she joined in Lafler. As such it poses the question of what might happen in a future case in which the Supreme Court has to actually decide whether the state court's remedy is adequate.

Posted by: tmm | Nov 5, 2013 1:58:17 PM

I didn't read the opinion of the Court, which, after glossing through the syllabus, seemed to basically be an AEDPA opinion. However, I will have to go back and check again because Justice Sotomayor's concurrence does suggest that language in the majority's opinion was, at best, inartfully phrased, and, at worst, indicative that having a client who says they are innocent goes a long way towards relieving an attorney of the burden to investigate and advise. That could be problematic ethically (and inconsistent with prior precedent). Justice Sotomayor goes a long way toward reshaping those statements to mean something else, but the fact that they weren't changed to be closer to her meaning suggests that she isn't entirely in agreement with them.

Justice Ginsberg's opinion is interesting in a future case, but not all that binding here. Her approach would allow some clear Strickland violations to go un-remedied because it could potentially result in a windfall for the client. I'm not sure the best approach here. On the one hand, a windfall for the client is less than ideal. On the other hand, Strickland violations are already the worst of the worst, so I'm not sure it makes sense to further preclude a remedy.

Posted by: Erik M | Nov 5, 2013 5:09:26 PM

"On the other hand, Strickland violations are already the worst of the worst, so I'm not sure it makes sense to further preclude a remedy."

Funny how quickly a leftward expansion gets pocketed. Strickland violations may be the "worst of the worst," but that hardly obtains where the defendant got a fair trial--the very thing Strickland was designed to accomplish.

Posted by: federalist | Nov 5, 2013 8:14:26 PM

I can't help but wonder if, at least from a practictioner's standpoint, the "there there" lies in footnote 1...

Posted by: J.D. | Nov 6, 2013 10:03:25 AM

Alito-- from the quote above" “‘doubly deferential’” standard of review that gives both the state court and the defense attorney the benefit of the doubt. Cullen v. Pinholster, 563 U. S. ___, ___ (2011)"

I am a lawyer. I don't believe that the defense counsel needs benefit of the doubt. The client is doing life or about to get poisoned by the state and we are concerned about giving bad counsel the benefit of the doubt. Alito is the biggest mistake since Roberts.

Posted by: Liberty1st | Nov 6, 2013 9:03:23 PM

Well, Liberty, given that the guy (later woman) (a) got apparently good advice, and forsook that advice and (b) had a fair trial, I'd say that your hyperbole is a wee bit overblown.

Posted by: federalist | Nov 6, 2013 9:20:34 PM

Liberty, that phraseology does not come from either Alito or Roberts, it has been in the case law for almost 30 years and goes back to the principle of competence first laid out in Strickland. There are many different ways to defend a case, and it is up to the inmate to show what counsel did was something that a competent attorney would not do.

In this case, all that the record shows is that the client wanted to withdraw the guilty plea and the attorney acquiesced in that request. The record does not include what advice counsel actually gave the client. What the record does show is that new counsel entered the case a short time before the client was scheduled to provide testimony against the co-defendant and needed to make a quick decision about whether she wanted to follow through on her plea agreement or seek to withdraw the guilty plea. There is very little that even the most competent counsel could do in such a short time frame to tell Ms. Titlow what the best option was, and counsel was really limited to describing the options and the risks.

Posted by: tmm | Nov 7, 2013 10:33:38 AM

Titlow got gamed by the lawyer who wanted a book deal. No trial, no book. The lawyer only had the case for several days and did next to nothing to prepare before pursuing plea withdrawal, didn't talk to the first lawyer or get the file. I believe the local prosecutor conceded she received IAC.

The flaw in the case was that the record in state court was undeveloped (not the fault of the lawyer who handled the 2254 appeal). There was not even an affidavit from Titlow explaining what happened. That was the reason for the reversal - without more detailed facts regarding the representation, it was not possible to find the state courts erred. The circumstantial evidence was Titlow got gamed, but not enough to satisfy AEDPA.

Posted by: John Minock | Nov 12, 2013 7:48:00 AM

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