« Spotlighting challenges facing federal prosecutors in capital pursuit of Sayfullo Saipov | Main | NAAUSA and six other law enforcement groups write to Sentencing Reform and Corrections Act, per the attached letter. »

November 6, 2017

Two notable summary reversals from SCOTUS after circuits failed, yet again, to properly follow AEDPA

The US Supreme Court this morning released this order list which does not grant cert in any new cases but does concludes with two notable summary reversals both of which result from circuit courts failing to follow properly the commands of the Antiterrorism and Effective Death Penalty Act (AEDPA).

The longer per curiam ruling (without dissent) comes in Kernan v. Cuero, No. 16-1468 (S. Ct. Nov 6, 2017) (available here), which gets started this way:

The Antiterrorism and Effective Death Penalty Act of1996 provides that a federal court may grant habeas relief to a state prisoner based on a claim adjudicated by a state court on the merits if the resulting decision is “contrary to,or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. §2254(d)(1). In this case, a California court permitted the State to amend a criminal complaint to which the respondent, MichaelCuero, had pleaded guilty. That guilty plea would have led to a maximum sentence of 14 years and 4 months. The court acknowledged that permitting the amendment would lead to a higher sentence, and it consequently permitted Cuero to withdraw his guilty plea. Cuero then pleaded guilty to the amended complaint and was sentenced to a term with a minimum of 25 years.

A panel of the Court of Appeals for the Ninth Circuit subsequently held that the California court had made a mistake of federal law. In its view, the law entitled Cuero to specific performance of the lower 14-year, 4-month sentence that he would have received had the complaint not been amended.

The question here is whether the state-court decision “involved an unreasonable application o[f] clearly established Federal law, as determined by the Supreme Court of the United States.” Ibid. Did our prior decisions (1) clearly require the state court to impose the lower sentence that the parties originally expected; or (2) instead permit the State’s sentence-raising amendment where the defendant was allowed to withdraw his guilty plea? Because no decision from this Court clearly establishes that a state court must choose the first alternative, we reverse the Ninth Circuit’s decision.

The other per curiam ruling comes in Dunn v. Madison, No. 17-193 (S. Ct. Nov 6, 2017) (available here), includes these passages:

Neither Panetti nor Ford “clearly established” that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case. The state court did not unreasonably apply Panetti and Ford when it determined that Madison is competent to be executed because — notwithstanding his memory loss — he recognizes that he will be put to death as punishment for the murder he was found to have committed.

Nor was the state court’s decision founded on an unreasonable assessment of the evidence before it. Testimony from each of the psychologists who examined Madison supported the court’s finding that Madison understands both that he was tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime.

In short, the state court’s determinations of law and fact were not “so lacking in justification” as to give rise to error“beyond any possibility for fairminded disagreement.” Richter, supra, at 103.  Under that deferential standard, Madison’s claim to federal habeas relief must fail. We express no view on the merits of the underlying question outside of the AEDPA context.

Notably, Justice Ginsburg penned this brief concurrence in Dunn that was joined by Justices Breyer and Sotomayor:

The issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet addressed by the Court. Appropriately presented, the issue would warrant full airing. But in this case, the restraints imposed by the Antiterrorism and Effective Death Penalty Act of 1996, I agree, preclude consideration of the question. With that understanding, I join the Court’s per curiam disposition of this case.

And Justice Breyer also added a concurrence in Dunn to note that the "case illustrates one of the basic problems with the administration of the death penalty itself. That problem concerns the unconscionably long periods of time that prisoners often spend on death row awaiting execution." Notably, no other Justice joined this concurrence by Justice Breyer.

November 6, 2017 at 10:57 AM | Permalink


More per curiam error correction specifically targeting AEDPA. William Baude can add a couple data points to his "shadow docket" record-keeping.


The liberals (Kagan often staying away, though she joined them in certain cases) have picked their spots to flag problems with the machinery of death. The length of appeals has long been a concern of Breyer (along with Stevens, at least back to the 1990s), citing various arguments including international practice. RBG joined his remarks on the subject in Glossip v. Gross. If the matter actually was taken for oral argument, it is fairly likely he wouldn't be writing alone when the case was decided.

Anyway, these two cases show how judges generally are able to decide narrow issues even if they don't like the end result big picture including in hot button areas.

Posted by: Joe | Nov 6, 2017 11:50:15 AM

Given how many of the condemned deny committing the offense I would be amazed if that ever became the rule. I can at least understand (though disagree) with the rule that someone must understand why they are being executed but that is a very different thing from acknowledging committing the offense.

Posted by: Soronel Haetir | Nov 6, 2017 11:58:03 AM

Kernan v. Cuero is the far worse case. It turns a blind eye to the prosecutor gamesmanship that was played in the case. It is going to mess up plea bargaining because prosecutor have now learned that if something comes up after someone has pleaded guilty they just have to amend the charges (a trivial exercise) and they can walk away from their commitment. Whatever the merits of the AEPDA claim the 9th was correct on the substantive merits and it's sad that it didn't get more traction at the court.

Posted by: Daniel | Nov 6, 2017 12:48:45 PM

Did anyone notice the author of the Ninth Circuit's decision---none other than Kim McLane Wardlaw, a 'rat judge. This is the FOURTH opinion authored by that 'rat judge that has been summarily reversed. Four: Gonzalez v. Thomas, Whitman v. Department of Transportation and McDaniel v. Brown and now this one.

What a joke. Doug, your thoughts?

Posted by: federalist | Nov 6, 2017 1:48:58 PM

Kim Wardlaw is a wonderful judge and harly a flaming liberal. Wardlaw wrote the unanimous opinion denying the final legal appeal of convicted murderer Clarence Ray Allen. Allen v. Ornoski, 435 F.3d 946 (2006). Seventy-six-year-old Allen, sentenced to death for a triple-murder in Fresno in 1980, was at that time the oldest murderer on death row. His attorneys argued it would be cruel and unusual punishment to execute him because of his age and physical infirmities. Denying the stay for execution, Wardlaw wrote that Allen had "not demonstrated substantial grounds upon which relief may be granted." Allen was executed Jan. 17, 2006. In another case, Wardlaw held that the U.S. government was within its rights to search an importer's cigarette shipment because the cigarettes had been stored in a foreign trade zone. USA v. 4,432 Mastercases of Cigarettes, 448 F.3d 1168 (2006). Customs officials determined the cigarettes were counterfeit, socked the importer for not paying taxes and seized the 44 million cigarettes, worth an estimated $5.5 million. Eric Honig, the Marina del Rey lawyer representing the importer, said he was not happy with Wardlaw's result, but acknowledged the amount of work the judge put into the case. "She's very intelligent, very deliberate, very thorough," Honig said. "She covers the subject matter very thoroughly."

Posted by: Ted | Nov 6, 2017 2:23:02 PM

Ted, four per curiam reversals? Come on.

Posted by: federalist | Nov 6, 2017 6:37:31 PM


Posted by: federalist | Nov 6, 2017 6:41:25 PM

Ted, now that I have a little more time, I can respond to you. Your defense of Wardlaw is weak beyond belief--it shows you're just a moron who is willing to say anything to defend your team.

Wardlaw's record is embarrassing--by any objective standard.

You're a hack defending a hack.

Posted by: federalist | Nov 6, 2017 7:18:57 PM

federalist, I have not read enough Wardlaw opinions to opine on her body of work, but I have read enough AEPDA reversals to know that any judge inclined to regularly question state-court decisions against criminal defendants is likely to end up authoring (many?) opinions that could get SCOTUS AEDPA error-correction treatment. State prosecutors are always going to seek AEDPA-based error correction when a state defendant gets habeas relief, and SCOTUS of late seems more than ready to step in. And arguably this is exactly what Congress wanted when it passed AEDPA.

Your accounting of these reversals reminds me a bit of all the times SCOTUS reversed the Eighth Circuit after Booker to make sure the circuit took seriously the notion that advisory guidelines really meant advisory and that below-guideline sentences ought not be regularly reversed if reasonable (e.g., in just a few years we got Gall and Spears and Nelson and Pepper).

Posted by: Doug B | Nov 6, 2017 7:47:36 PM

Saudis adopt the Italian Death Penalty. No cost. No delay. No bullshit lawyer procedure.

Dead resisting arrest.


Posted by: David Behar | Nov 6, 2017 9:57:08 PM

I couldn't find a cert petition on the state court cases for either defendant. While getting cert may be rare, concept behind AEDPA is that habeas is not intended to be use to resolve "open" issues on the merits.

As concurrence in Dunn notes, issues in both cases are open questions for Supreme Court to decide. My initial thought was that Cuero should have been raised as a double jeopardy case rather than a specific performance case, but I could not find any decision where the Supreme Court had held that jeopardy attached at time that trial court accepted the plea (although some states do have that rule). If jeopardy had not attached, then not sure what established legal rule the state courts violated. One can disagree on policy ground with the California rule (i.e. on merits, it is a bad way to approach the finality of guilty pleas). A bad policy is not necessarily unconstitutional.

Posted by: tmm | Nov 7, 2017 11:31:39 AM

Federalist, calling someone you disagree with a "moron" is no way to encourage a dialogue. Actually, it's classic Trump; call everyone you disagree with some epithet or other: crooked Hillary, Little Marco,
Once you resort to ad hominem attacks, you lose the argument because folks disregard the substance of what you say and wont engage with you.

Posted by: Ted | Nov 7, 2017 2:25:00 PM

Federalist, you call Ted "a hack defending a hack" and a "morno." I've noticed over the years, that everyoone you disagree with is a hack or a moron or a jerk or a fool. For all your supposed intelligence, you sound like one angry, nasty dudewho cannot have many friends. Have you thought of therapy?

Posted by: Emily | Nov 7, 2017 2:30:46 PM

Ted--you say she's a wonderful judge, yet you cannot defend the four summary reversals (only two of which, Doug, were AEDPA, and one of which, Doub, was completely ridiculous McDaniel v. Brown).

Emily, read the thread--no one can defend Wardlaw. Ted tried some lame-o defense--and I am going to call it as i see it. I don't particularly care if nitwits like you or Ted disengage.

With respect to McDaniel, Wardlaw, a federal appellate judge, missed the very basic issue--a reversal for insufficiency does not allow a retrial. Mistakes like that cannot happen. And the defense is, what, she upheld a poster child for DP's death sentence? That's such weak sauce. Ir's not serous debate. And those who cannot seriously debate should STFU.

Posted by: federalist | Nov 7, 2017 10:30:00 PM

Emily is a Russian bot, using tactic from the KGB Handbook she found in the trash. Call dissenters from her feminist ideology mentally ill.

Posted by: David Behar | Nov 8, 2017 2:48:38 AM

A judge decides a range of things & even if you think she's wrong on this specific issue [e.g., she is flagged in that Baude article] doesn't really tell us that she is a horrible judge overall. The same applies to a person in general. A person can be bad on a certain point but good overall. This sort of thing pops up when dealing with judicial nominees too.

I stick to my comment in that 2010 post (federalist's reply suggests more patience with me back then) that we are dealing with such a small pool of cases among thousands nation-wide and a conservative Supreme Court, so it is far from surprising that a few liberal leaning judges will be repeat players here. If the Supreme Court leaned liberal, fewer of these cases would seem worthy of per curiam reversal.

Then, you have the basic point of AEDPA -- court of appeals judges are inclined by the nature of their position to look at each case in a certain way, and the law is trying to block their natural inclination. They apply wider Supreme Court cases to more narrow fact situations to flesh out the details. In a vacuum, specific cases might appear to raise problems. Conservative leaning judges will think so too if in a different way.

It is normally what lower courts do but habeas is something of a special case. The Supreme Court, which only decides a narrow number of cases in a big picture fashion, will look at things differently by nature. As the professor notes, though people will debate specific cases, it is not surprising the USSC will feel a need to use repeat instances to get the message across.

Posted by: Joe | Nov 8, 2017 12:20:08 PM

The AEDPA (and how it has been interpreted) has worked enormous injustice. It has given hack state court
judges (whose tenure is at will of the rabid mobs) the power to to affirm unjust convictions with a postcard affirmance without any check by the federal judges (who have life tenure) and who are beholden only to the law and not to the electorate.

Posted by: Todd | Nov 8, 2017 12:30:16 PM

First of all, Joe, two of Wardlaw's summary reversals aren't AEDPA cases. Second of all, did you even read what you wrote---as you know, generally, these AEDPA reversals are without noted dissent, which means that it's not the lib/conservative thing as you try to portray (i.e., that lib judges are only getting hammered because the Court has 5-4 "conservative" majority. Rather, to take your point of view is that lib Justices would just ignore the blowing off of AEDPA more often--what does that say about the rule of law?

As for the poor court of appeals judges who are conflicted about following a law that goes against their inclinations, well,I will just leave that comment as is.

Face it, Joe, a lot of these AEDPA reversals have to do with stupidity or willfulness (or both). That a hypothetical liberal Supreme Court would ignore the lawlessness isn't a defense of these idiot 'rat judges.

Posted by: federalist | Nov 8, 2017 12:57:49 PM

AEDPA is at issue here & as noted in the Baude article is a primary category for this sort of reversal. So, I focused on that. If we are going to cite two cases among a mass of opinions, that really is a small sample size.

The "inclinations" was cited as a structural thing. Again, both liberal or conservative, court of appeals judges views these cases in a specific fashion. Ditto some district court judge. It's like a Supreme Court justice looking at a case. It was merely an ideological thing. They look at only a few cases in each area a term. They are likely to act somewhat differently in the process.

I gather my comment as a whole was read. In various cases, liberal justices wouldn't take the case at all. Justices, on both sides, repeatedly have noted that though such and such an opinion might be wrong, it wasn't worth taking. IF they did have to decide, they might decide in "x" sort of way. This is why it shouldn't be assume some specific justice supported or opposed a stay merely because of a per curiam deny -- if the votes aren't there, one or more very well might think it's best to remain silent.

AEDPA reversals amount to a handful of cases out of a mass of cases where some majority of justices deem it worth singling out that case. The same applies to other summary reversals. As Baude notes, it is somewhat unclear why -- it is a sort of "shadow docket." And, the fact Wardlaw was in twenty years subject of that a few times among the quite numerous cases she wrote doesn't tell me as a whole she is a bad judge.

Posted by: Joe | Nov 8, 2017 1:32:55 PM

edit: It was merely [NOT] an ideological thing.

Posted by: Joe | Nov 8, 2017 1:34:13 PM

"And, the fact Wardlaw was in twenty years subject of that a few times among the quite numerous cases she wrote doesn't tell me as a whole she is a bad judge."

Until it's your case that she screws up.

Posted by: federalist | Nov 9, 2017 7:38:08 AM

The AEDPA is a deeply stupid law that ignores that all too often prosecutors and judges ARE incompetent/dishonest/racist sociopathic fools who would cheerfully throw an innocent under a bus to advance their careers.

The Wild Ninth only reverses things because the state supreme court is so damn timid that even if a prosecutor is lying or a case is weak they won't challenge it (they refused to reverse Gloria Killian even though there was proof Gary Massie was lying).

Quite frankly the ninth circuit SHOULD be telling the AEDPA to go fuck itself; the AEDPA is one of the worst laws congress has EVER passed

Posted by: Ryan Moore | Dec 18, 2017 10:21:07 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB