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November 30, 2015

Notable SCOTUS dissent from cert denial in habeas case from Sixth Circuit

This morning the Supreme Court came back to work after a few weeks on argument hiatus, and its first formal action was to release this order list full of cert denials and no grants of review in any new cases. There was this one notable dissent from the denial of cert in the habeas case of Rapelje v. Blackston authored by Justice Scalia and joined by Justices Thomas and Alito. Here is how the three-page dissent starts and ends:

A criminal defendant “shall enjoy the right . . . to be confronted with the witnesses against him.” U.S. Const., Amdt. 6.  We have held that this right entitles the accused to cross-examine witnesses who testify at trial, and to exclude certain out-of-court statements that the defendant did not have a prior opportunity to cross-examine.  Crawford v. Washington, 541 U.S. 36, 50–51 (2004); Davis v. Alaska, 415 U. S. 308, 315–317 (1974).  We have never held — nor would the verb “to confront” support the holding—that confrontation includes the right to admit out-ofcourt statements into evidence.  Nevertheless, the Sixth Circuit held not only that the Confrontation Clause guarantees the right to admit such evidence but that our cases have “clearly established” as much.  We should grant certiorari and summarily reverse....

There may well be a plausible argument why the recantations [offered by the defendant] ought to have been admitted under state law.  See Mich. Rule Evid. 806.  But nothing in our precedents clearly establishes their admissibility as a matter of federal constitutional law.  AEDPA “provides a remedy for instances in which a state court unreasonably applies this Court’s precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error.”  White v. Woodall, 572 U. S. ___, ___ (2014) (slip op., at 11).  By framing the confrontation right at a high level of generality (making it the right “to impeach the credibility of an adverse witness”), the Sixth Circuit in effect “transform[ed] . . . [an] imaginative extension of existing case law into ‘clearly established’” law.  Jackson, supra, at ___ (slip op., at 7). That will not do.

The Sixth Circuit seems to have acquired a taste for disregarding AEDPA.  E.g., Woods v. Donald, 575 U. S. ___ (2015) (per curiam); White v. Woodall, supra; Burt v. Titlow, 571 U. S. ___ (2013); Metrish v. Lancaster, 569 U. S. ___ (2013); Howes v. Fields, 565 U. S. ___ (2012).  We should grant certiorari to discourage this appetite.

November 30, 2015 at 02:15 PM | Permalink


Well, having read Justice Scalia's dissent, all the more reason why AEDPA should be repealed in total. State's rights (which is at the heart of AEDPA) is all good, but not at the risk of depriving individuals of a fair trial. I get Justice Scalia's rant that the Supreme Court has never ruled that recantations should be admitted into evidence, but putting aside that cobweb, if a witness recants, then his testimony is then read into evidence, and you can't confront or otherwise introduce evidence to impeach that witness that's a recipe for disaster. Anyone else thoughts?

Posted by: An attorney | Nov 30, 2015 2:21:41 PM

Sotomayor flagged AEDPA as the sort of thing she would avoid if she had her druthers:


A conservative blog cited here at times judged her as reasonable in application of the provision when she was a lower court judge.


Posted by: Joe | Nov 30, 2015 5:19:44 PM

AEDPA is horrible and the Sixth Circuit hates it, which is why they routinely ignore it (it's the Ninth Circuit philosophy of "you can't reverse us on every case."

That being said, Justice Scalia is right. I could see an argument for Due Process (there are cases saying you can't apply the rules of evidence mechanistically to defeat the ends of justice), but it's hard to believe the cases are specific enough to say it's clearly established. I find it almost impossible to believe there's anything under the Supreme Court precedent for the Sixth Amendment that clearly establishes the right.

In the federal rules, there's a rule that allows hearsay statements to be used to impeach hearsay statements if those statements would be admissible against a live witness. It seems precisely relevant here. I'm assuming it's what Justice Scalia cited to with Mich. R. Evid. 806. In addition, it's plausibly a statement against penal interest. Shame this had to reach this point when it seems the defendant could have prevailed back then.

Posted by: Erik M | Nov 30, 2015 7:12:16 PM

Even if you agree with Justice Scalia, what about Crawford v. Washington? If a witnesses statements can be read into evidence and you can't challenge them, there can be no confrontation....It would be like shooting fish in a bucket (I forgot the old saying), but in short you'd end up with a jury trial with a predictable outcome.

Posted by: An attorney | Nov 30, 2015 10:13:14 PM

bucket/barrel ... merit counts anyways

Posted by: Joe | Nov 30, 2015 10:59:25 PM

This is, yet again, another example of 'rat judges (the majority in this case are 'rats) who decide to blow off the law to hook up a murderer--and why--because boo hoo, the judges didn't like how the state court did its work.

No one in here can really defend the Sixth Circuit--the decision is utterly lawless, and everyone knows it.

Posted by: federalist | Dec 1, 2015 8:44:35 AM

Scalia's response on Crawford (which he wrote) would be to read Crawford. Crawford expressly holds that the prior opportunity to confront has always been sufficient to satisfy the Confrontation Clause. While this case may be more extreme than other circumstances, it is not unusual after any witness's testimony (whether at an earlier hearing or at the trial itself) for an attorney or the client to feel that there is something more that should have been brought up and that another opportunity to cross-examine the witness would be good.

AEDPA is based on the simple concept that federal trial and appellate courts are not necessarily superior to state courts in resolving constitutional issues. As such, unless the Supreme Court has resolved the constitutional issue, the state courts get to resolve them without being second guessed by another court.

Posted by: tmm | Dec 1, 2015 9:57:04 AM

tmm--excellent analysis. The degree of willfulness of the judges in the majority is extremely troubling.

Posted by: federalist | Dec 1, 2015 11:37:57 AM

"AEDPA is based on the simple concept that federal trial and appellate courts are not necessarily superior to state courts in resolving constitutional issues."

This doesn't quite by definition lead to the -- "unless the Supreme Court has resolved the constitutional issue" rule. There are a myriad of issues out there and USSC only takes a tiny amount of cases. The lower federal courts allow a chance to develop the law there, even if the USSC did not "clearly" decide the specific issue. Not that determining what that means is easy -- as an attorney once noted on a separate forum, AEDPA gives a lot of work to lawyers. Supremacy Clause can go to town on that.

The "simple concept" can be addressed in various ways.

Posted by: Joe | Dec 1, 2015 7:40:27 PM

Joe, what are you talking about? AEDPA simply requires that reasonable state court decisions be left undisturbed on federal habeas. tom's formulation is the other side of the coin. If the state has resolved issue X in a certain way, just because a federal court thinks otherwise is not enough reason to overturn the state judgment. This reflects what tmm said--i.e., that federal courts aren't necessarily better.

With 'rat judges like Daughtrey and that Obama judge Donald, it's clear that federal judges aren't better than state judges.

And it's funny too that Joe sits on the sidelines--makes a silly comment about tmm's post--but cannot defend the 'rat judges on the Sixth Circuit. This decision is horrible, and if Blackstone kills again, Donald and Daughtrey have blood in their hands. Once again, a 'rat judge has earned the white-hot hatred of victims' families.

Posted by: federalist | Dec 1, 2015 10:37:21 PM

"Blackstone" is the godfather of the common law, one of those legal giants whose works our country's legal system is formulated by. You may have meant to write "Blackston," who was the beneficiary of the Rule of Law in the instant case.

Posted by: Mark m. | Dec 2, 2015 10:40:24 AM

I think that autocorrect got me.

Funny how no one here really can defend the Sixth Circuit.

Posted by: federalist | Dec 2, 2015 11:32:00 AM

Mark--how was the law clearly established that Blackston should win?

Posted by: federalist | Dec 2, 2015 12:10:28 PM

Joe, the state courts also give an opportunity to develop the federal constitutional issues. The "unless the Supreme Court has resolved" is there for two reasons: 1) its what AEDPA says; and 2) it's well established as a matter of constitutional law that the U.S. Supreme Court trumps state courts; but that authority is less clear for lower federal courts.

Posted by: tmm | Dec 2, 2015 6:05:54 PM

tmm, and I'm not saying anything profound here, the federal courts provide a special level of protection of federal constitutional rights given their independent role in the system. This is not "necessarily true," but it is how the system is set up. Even now, the USSC is left open the chance to come in, though realistically it is much more rare. The different mind-set of life tenured federal judges from often elected state judges is duly noted but it's a feature, not a bug.

So, having the state courts have an opening doesn't end the matter. The federal courts once had very limited appellate review of criminal trials in general. Particularly with the 14A, this was seen as a bit too limited. AEDPA provided an assumed necessary balance but there are various ways to balance things there. That's all I said. Yes, AEDPA "says" it. The purpose could be done another way.

The second statement doesn't quite address a primary concern. The concern is that the purpose of the lower federal courts is to develop the broad law found in the few cases the USSC take to apply it to specific fact scenarios. This percolates in the federal courts and eventually the USSC takes things up. The lower courts are applying USSC decisions. But, here a special exception is made -- only "clearly established" (again a term far from clear in practice) USSC rulings count.

This also doesn't only concern Democrats. Scalia didn't say "Democrats on the 6CA." I recall, e.g., Judge Kozinski, a Reagan appointee, concerned about AEDPA. Certain judges think it interferes with their Art III duties. The debate over the matter and the balance of concerns here is duly noted.

Posted by: Joe | Dec 2, 2015 8:38:39 PM

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