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March 29, 2015

Previewing the little SCOTUS capital case examining what procedure Atkins may require

On the last Monday of March 2015, the only case being heard by the U.S. Supreme Court is a quirky capital case from Louisiana, Brumfield v. Cain, which appears only to concern the process by which a state rejects a defendant's claim that he is intellectually disabled and thus prohibited from execution after Atkins.  Here are the questions presented:

(1) Whether a state court that considers the evidence presented at a petitioner’s penalty phase proceeding as determinative of the petitioner’s claim of mental retardation under Atkins v. Virginia has based its decision on an unreasonable determination of facts under 28 U.S.C. § 2254(d)(2); and (2) whether a state court that denies funding to an indigent petitioner who has no other means of obtaining evidence of his mental retardation has denied petitioner his “opportunity to be heard,” contrary to Atkins and Ford v. Wainwright and his constitutional right to be provided with the “basic tools” for an adequate defense, contrary to Ake v. Oklahoma.

Lyle Denniston provides this SCOTUSblog preview, which notes that the lone amicus brief filed in this case highlights that Louisiana's "state courts have now established procedures for fully evaluating a mental disability claim, making Brumfield’s case an aberration."  In short, it seems unlikely that the Brumfield case will be of great consequence for anyone other than killer Kevin Brumfield. But one never knows what the Justices will do with a capital case.

March 29, 2015 at 11:22 PM | Permalink


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Based on the summary on today's argument on SCOTUSblog, the issue seems to be how to apply Atkins to pre-Atkins cases. Louisiana appears to have taken the position that -- even though the jury did not have to decide expressly decide if the defendant was mentally retarded -- mental health issues are enough of a mitigating circumstance that (in most cases) the trial judge could decide an Atkins motion based on the trial evidence about a defendant's mental capacity without having a full-blown new hearing.

Given that Atkins was decided thirteen years ago (with the one-year statute of limitations on filing a federal habeas petition after state proceedings end), I can't see that many cases still in the pipeline with a pre-2002 trial and sentencing that might still need an Atkins hearing. Assuming that the appeal is not dismissed as improvidently granted, I would be surprised at any decision that would say anything significant about the right procedure for a capital case being tried today. I would be shocked if the Supreme Court held that, for a case being tried today, it is improper for a state to have the Atkins issued decided by a properly instructed jury as part of the penalty phase, particularly given the emphasis put on the right to a trial by jury by the current justices.

Posted by: tmm | Mar 30, 2015 2:37:16 PM

Although it seems from the argument that this case has turned into a bit of a muddle, my original hope was that it could provide some needed guidance on what kind of post-conviction process is adequate to merit deference at the federal habeas corpus level with respect to claims where the prisoner requests an opportunity to develop new facts and that request is denied.

The Atkins-related posture may be unusual, but in my experience it is actually not that unusual for a state post-conviction court to deny an evidentiary hearing and decide a post-conviction claim (Brady, IAC) on the basis of either the post-conviction pleadings themselves, the evidence from the original trial, or some combination of the two. And when that occurs, it can get complicated to figure out how to apply AEDPA's deference standards, as well as the standards governing the granting of a federal evidentiary hearing.

In general, circuit precedent is not particularly enlightening in these circumstances. I had hoped Brumfield might cast some light, but based on the argument transcript I am not optimistic.

Posted by: justpassingthrough | Mar 31, 2015 1:33:14 PM


My own take -- for what it's worth -- is that 2254(d) and 2254(e) can be applied to the denial of an evidentiary hearing in state court by treating the state court ruling in a somewhat similar fashion to summary judgment/judgment on the pleadings.

If a reasonable state court could find that the pleadings do not allege sufficient facts to show the undisclosed evidence was exculpatory or material or that an uncalled witness could have been found by counsel, then the State court did not unreasonably apply federal law in denying the claim. If a reasonable state court could find that the missed objection would have been overruled based on the trial record, then the state court reasonably applied federal law.

Strickland itself implicitly recognizes that there may be cases in which no hearing was necessary by discussing the strength of the State's case as a significant factor in the prejudice analysis. For example, if the defendant's DNA is found in the rape kit and his fingerprint is found on the knife dropped by the rapist, a state court could probably find no prejudice from the failure of defense counsel to call the defendant's girlfriend as an alibi witness.

The trickier question is when the pleadings by counsel in state court are sufficiently detailed to clearly state a claim (even under the strictest fact pleading rules) and the state court's analysis of the strength of the prosecutions case is clearly unreasonable (whatever that means). In that case, does the failure to grant an evidentiary hearing in state court mean that the inmate did not have an adequate opportunity to develop the claim -- probably, but it is unclear how common such cases are.

The weird circumstances of Atkins retroactivity is probably not the best vehicle for examining this issue.

Posted by: tmm | Apr 1, 2015 10:00:35 AM

tmm, I agree generally with your take that the AEDPA question is akin to reviewing summary judgment or judgment on the pleadings. But I don't think it is always clear to the lower courts that that is the way it should work. Also, the application of that standard can be tricky. It is true that with some guilt-phase IAC claims, the record can be more-or-less dispositive on prejudice. But where I feel one runs into bigger problems is in death cases with penalty-phase IAC.

I have seen several cases where the state court assumed that the lawyer performed deficiently by not introducing the extensive mitigating evidence summarized in the pleadings, but nevertheless denied the claim based on lack of prejudice, all without an evidentiary hearing. The trial court claims that in doing so, it is taking all of the allegations in the pleading as "true." But the petitioner argues that mitigation witnesses (unlike, say, alibi witnesses) do not merely offer objective facts that are "true" or "false," and that therefore it was not really possible* for the state court to reliably/reasonably evaluate the impact of his mitigation evidence based on a cold summary in a pleading, as opposed to the live testimony he wanted to present.

There is some logical force to this argument, but it doesn't fit cleanly into established AEDPA analytical categories. It is sort of a mash-up of an AEDPA-type claim that the state court made an unreasonable finding of fact (i.e., that it reached an unreasonable result), and a more traditional habeas argument that the state court prevented the petitioner from reasonably developing/presenting his claim (i.e., that it followed an unreasonable process).

You are right that Brumfield is probably not the best place to hash this out.

*Or, maybe more accurately, that this may be possible in some cases where the mitigation is clearly minimal or cumulative, but that his case rises above that threshold.

Posted by: justpassingthrough | Apr 1, 2015 11:03:13 AM

"trial court" = "state post-conviction court"

Posted by: justpassingthrough | Apr 1, 2015 11:04:32 AM

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