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October 29, 2017

SCOTUS back in action with two intricate habeas cases

After a late October break (which included for some Justices a notable trip to my alma mater), the Supreme Court is back in action on Monday.  And right out of the gate, SCOTUS hears oral argument in two habaes procedure cases: Ayestas v. Davis and Wilson v. Sellers.  Steve Vladeck has thoughtful previews of both cases at SCOTUSblog, and here are links and the start of each preview:

Ayestas v. Davis Argument preview: A subtle but significant dispute over funding federal habeas petitions in capital cases:

As part of the Criminal Justice Act, Congress has provided in 18 U.S.C. § 3599(f) that federal courts in capital cases involving indigent defendants (including suits for post-conviction relief) should fund “investigative, expert, or other services [that] are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence.”  When the Supreme Court returns to the bench next Monday morning to hear argument in Ayestas v. Davis, it will consider a recurring question in federal habeas cases, especially those raising claims that the prisoner’s trial lawyers provided ineffective assistance of counsel: What, exactly, must habeas counsel demonstrate to show that such services are “reasonably necessary for the representation of the [petitioner]”?

The U.S. Court of Appeals for the 5th Circuit has imposed a high bar in such cases, holding that such funding is “reasonably necessary” only when the petitioner can demonstrate a “substantial need” for the services contemplated by the statute — i.e., “substantiated argument, not speculation, about what the prior counsel did or omitted doing.” The question at the heart of this case is whether that standard puts too high a burden on capital habeas petitioners — requiring them to all-but describe the merits of their ineffective-assistance claims in order to obtain funding to prove those claims.  Assuming the Supreme Court has jurisdiction to answer that question (an issue raised by the state of Texas), the answer could have enormous consequences for the ability of indigent death-row inmates to use federal habeas petitions to challenge the effectiveness of their trial lawyers.

Wilson v. Sellers Argument preview: To which state-court adjudications must federal habeas courts defer?

In its 2011 decision in Harrington v. Richter, the Supreme Court held that even a summary ruling by a state court can count as an adjudication “on the merits” to which federal habeas courts must defer under the Antiterrorism and Effective Death Penalty Act of 1996.  But the court in Richter specifically distinguished, rather than overruled, its 1991 decision in Ylst v. Nunnemaker, which had erected a presumption that, “[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”  Under the Ylst presumption, federal habeas courts are supposed to “look through” the summary state-court ruling to the decision that was actually on the merits of the claim raised in the federal habeas petition.  Richter holds that, at least when the Ylst presumption doesn’t apply (i.e., when there is no reasoned state-court decision on the merits issue), a summary state-court ruling still triggers “AEDPA deference.”

The question the justices will consider next Monday in Wilson v. Sellers, a capital case out of Georgia, is whether the Ylst presumption in fact survived Richter.  Even though the state of Georgia and the petitioner, Marion Wilson, agreed below that the answer was yes, a 6-5 majority of the en banc U.S. Court of Appeals for the 11th Circuit came to the opposite conclusion.  And although the state has since changed its position and is now arguing for affirmance, it may have a difficult time attracting a majority of the Supreme Court to this new and expansive take on Richter.

October 29, 2017 at 06:19 PM | Permalink


Please, click on the Justices's visit to Harvard Law School. Read it. Answer this simple question.

Aren't these the very stupidest people in our nation?

The banality of the questions, and the insufferable answers are amazing. We are in a retardocracy.

The first case explains the purpose of and the state of the US death penalty. Jobs.

Posted by: David Behar | Oct 29, 2017 6:49:40 PM

Always love it when procedural rules require a defendant to know the answer before they authorize the funds to look for the answer.

Posted by: Erik M | Oct 30, 2017 2:38:29 PM

Reading the oral argument in Wilson leads to only one conclusion -- what a mess. At the end of the day, a lot of the argument focused on the unique rules in Georgia and how whatever rule might apply would apply to cases from Georgia and I had no idea how either party's position would translate to review of cases in my state. Every state does things slightly differently (and some things that state appellate courts do is not always explained by the rules or published opinions), and any rule/default assumption needs to fit all fifty states. To add further complication to the matter, sometimes the decision by state trial courts (or intermediate appellate courts) will offer alternative grounds -- e.g., a procedural bar and that an IAC claim fails on both the competence and prejudice prongs -- making it unclear which if any of the grounds are being approved in a summary affirmation.

Any rule needs to: 1) distinguish between a decision in which the higher court's ruling (by the state's own rules) is a decision to not decide (e.g., a denial of discretionary review) and a decision which implicitly comments on the decision below; 2) provides standards by which the federal habeas court can determine when it should look to an earlier state court judgment in the case and when it should look at the judgment from the last court to examine the merits (or procedural rues barring a review on the merits) of the case; and 3) how review differs depending upon whether the federal court can clearly determine the basis of the state court decisions. Ylst and Harrington both represent a potential starting point for such a rule. Practitioners just need guidance on how the two fit together.

Posted by: tmm | Oct 31, 2017 4:13:39 PM

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