Tuesday, December 26, 2006

Spectrum of Abstraction

A Spectrum of Abstraction
Does the Anti-Terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. 2254(d), Unconstitutionally Limit Judicial Independence by Abridging the Judicial Power Under Article III of the U.S. Constitution (to Decide Whether the Law is “clearly established”) and, Does it Unconstitutionally Suspend the Writ in Violation of Article I Section 9?

Readers should keep in mind that this note was written in the same year as the Military Commissions Act of 2006 (MCA) in which Congress abrogated the writ of Habeas Corpus in its entirety for aliens, and also at a time when certain “secret” laws or rules regarding the Transportation Security Administration are being withheld from the public (classified), and yet the public is charged with obedience to said terms or provisions.

The judges of the United States Court of Appeals for the Ninth Circuit have asked for a briefing regarding “whether, under the separation of powers doctrine or for any other reason involving the constitutionality of 28 U.S.C. § 2254(d)(1), this court should decline to apply the AEDPA standards in this case.” This question has arisen in the case of Irons v. Carey, 408 F.3d 1165 (9th Cir. 2005) (before Reinhardt, Noonan, and Fernandez—Fernandez did not join the Order). The case has not yet been decided as of today (but briefs have been filed).

In December of that same year (2005) Judge Merritt of the Sixth Circuit Court of Appeals wrote the following in a resounding dissent: “The state court's decision in the instant case neither identified nor applied the governing legal principle of Washington v. Texas that a state may not arbitrarily deny a defendant the right to call a witness whose testimony is relevant and material to the defense. With such an oversight, it is not difficult to conclude that the state court's determination that "the trial court did not err in refusing to compel Jordan to testify" was contrary to the clearly established mandate of Washington v. Texas.” Davis v. Straub, 430 F.3d 281 (6th Cir.-argued March 17, 2005).

Michigan is not exactly the deep South, but the petitioner was convicted of killing a woman and two children, an event/act/crime that rarely evokes much sympathy among even the least hardened, most liberal, or compassionate. Elaborating on the constitutional points of law nonetheless, Judge Merritt was concerned enough to write,

It seems to me that the Court's reading of AEDPA both unconstitutionally refuses to exercise the "judicial power" required under Article III in a case "arising under this constitution" and "suspends" the writ of habeas corpus in violation of Article I, Section 9. The result — life imprisonment for a probably innocent accused — so undermines both the "the judicial power" and the great writ that it leaves the federal courts without the authority to correct constitutional errors that lead to serious injustice.

430 F.3d at 295-96.

Also important for Judge Merritt was the matter of “deference” to lower court decisions (deference happens to be a matter of considerable controversy at the moment):
Using § 2254(d)(1) as a crutch, the majority simply defers to the state court's decision in which the state court neither identifies nor applies the relevant governing legal principles under either the Compulsory Process Clause or the Self-Incrimination Clause.

A Spectrum of Abstraction

The anatomy or architecture from which the notion that AEDPA may be unconstitutional arises can be found in the opening paragraph of Judge Merritt's thoughtful dissent. It actually goes back further, but a good introduction might begin in the Supreme Court of the United States with Williams v. Taylor, 529 U.S. 362, at 412, 120 S.Ct. 1495 (2000) ('With the caveat that the source of clearly established law is Supreme Court jurisprudence, "whatever would qualify as an old rule under our Teague jurisprudence will constitute `clearly established Federal law, as determined by the Supreme Court of the United States' under § 2254(d)(1).")'.

To Judge Merritt‘s way of thinking, Williams directly or indirectly supports the assertion that the Supreme Court adopted the “spectrum of abstraction of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), to determine whether a particular legal principle was clearly established at the relevant time” (emphasis mine throughout).

It will be necessary to get into the reasons why this is important in short order (basically, a clearly established principle of law is required in order to rule in petitioner's favor (grant the Writ or grant relief) on the relevant issue under “new” AEDPA standards, (adopted in 1996) which revised/changed slightly the “old” review standards to include certain language to the effect that relief will not be granted unless ... unreasonable ... under clearly established law...”.
First, however, it will be interesting if not essential to explore, explain and describe Judge Merritt’s phrase, “spectrum of abstraction” in a bit of detail.

At one end of the spectrum lie legal principles with such a high level of generality, like the Eight Amendment principle of reliability in sentencing, whose application does not necessarily lead to a "predictable development" in the relevant law and therefore can not be considered clearly established. See Sawyer v. Smith, 497 U.S. 227, 236, 110 S.Ct. 2822, 111 L.Ed.2d 193 (1990) [emph added]. On the other end are narrowly drawn bright-line rules with little application beyond factually indistinguishable situations. In the middle of the spectrum lie those general principles of law crafted by the Supreme Court to constitute clearly established law in a wide range of factual situations. It was the middle of the spectrum that Justice Kennedy described while concurring in Wright v. West, 505 U.S. 277, 308-09, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992).

At 292.

Nb. Teague has made things interesting because it reinforces Justice Harlan’s general rule that new rules of criminal procedure should not take retroactive application, with a few exceptions (Justice Harlan's view that new constitutional rules of criminal procedure generally should not be applied retroactively to cases on collateral review is the appropriate approach. Unless they fall within one of Justice Harlan's suggested exceptions to this general rule—that a new rule should be applied retroactively (1) if it places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," Mackey v. United States, 401 U.S. 667, 692, 91 S.Ct. 1160, 1180, 28 L.Ed.2d 404, or (2) if it requires the observance of "those procedures that . . . are 'implicit in the concept of ordered liberty,' " id., at 693, 91 S.Ct., at 1180—such new rules will not be applicable to those cases that have become final before the new rules were announced. Pp. 305-310.). Teague v. Lane, 489 U.S. 288, 290, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989).

Is the Law Ever “Clearly Established”?

People, and scholars, should soon begin to take notice of what Judge Merritt rightly points out, that the special “clearly established” lingo of the AEDPA actually goes to the heart of a series of questions that are of fundamental importance for the law generally, and not just to that body of law related to the writ:

1. How do lower courts (and the public, to whom the law is held to account, as well as their lawyers) determine whether the law of the case is clearly established?

2. How can we tell whether the lower courts properly understood, recited and/or applied the clearly established law? (Judge Merritt's point was that the majority failed to even take notice of let alone apply the correct, applicable law).

3. And ultimately, how can we know that a decision of a State or lower federal court was correct, that is to say reasonable (or not) in applying the law to the unique facts?

Readers must keep in mind that it will be extremely rare in all areas of the law that two cases will ever present completely identical sets of facts. Of course in that event it is very easy to determine the outcome only because a squarely identical matter has already been decided. Deciding what law may be applicable also involves rendering a decision as to the application of that law, which is to say, how it should be applied.

The Supreme Court has provided some guidance in this area. The facts need not be identical in reaching the conclusion that the law was clearly established. Further complicating matters, both Congress (in the AEDPA) and the Court have suggested that a case should be “indistinguishable” but that is clearly not the same as identical. The Fifth Circuit Court of Appeals recently recited the standards for granting the Writ as follows:

Under AEDPA, a federal court may not grant a writ of habeas corpus “with respect to any claim that was adjudicated on the merits in State court proceedings” unless the petitioner shows that the state court’s adjudication “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or that the state court’s adjudication of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 402-13 (2000). A state court’s decision is “contrary to” clearly established federal law if (1) the state court “applies a rule that contradicts the governing law” announced in Supreme Court cases, or (2) the state court decides a case differently than the Supreme Court did on a set of materially indistinguishable facts. Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (internal quotation marks omitted).

A writ of habeas corpus may also issue if the state court’s adjudication of a claim “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Under AEDPA, a state court’s factual findings are “presumed to be correct” unless the habeas petitioner rebuts the presumption through “clear and convincing evidence.” Id. § 2254(e)(1); Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000).

We review the district court’s conclusions of law regarding the state court’s application of federal law de novo, and we review the district court’s findings of fact, if any, for clear error. Collier v. Cockrell, 300 F.3d 577, 582 (5th Cir. 2002).

Nelson v. Quarterman, at page 6-7, No. 02-11096 (5th Cir. December 11, 2006) (emphasis is mine). The language presenting difficulty/controversy is the “as determined by the Supreme Court”, 28 U.S.C. § 2254(d)(1). But what does Nelson offer to teach about all this? First of all, there was a close dissent (9-6, one concurring opinion by Judge Dennis) illustrating that judges on the same court can have difficulty in deciding whether the law is clearly established. (One would think it is hopeless, then, for lawyers and lay persons to embark on this determination and reach the correct conclusion). It should not be surprising then, that different courts will also sometimes disagree (as to whether the law is clearly established in a particular case,) again, because the facts are almost never perfectly identical in two or more given cases.

There is, apparently, some leeway and room for interpretation, slippage or sloppiness, in reaching the determination whether the law has been clearly established. The caveat respecting facts is necessary because when the Court decides a case it does so within its given (peculiar) facts. If another case were to come along in which the slightest deviation regarding the totality of the circumstances was observed, this inconsistency could make enough of a difference and, to that extent it would be inappropriate to apply the law of the previously decided case. In this event it would have to be said that the law was not clearly established.

We learn from this peculiarity then, that the law is very rarely “clearly established” because the facts are so rarely identical. This is where the spectrum of abstraction Judge Merritt talks about re-enters the picture. All is not lost because the law operates also in terms of principles that can be broadly applicable in similar situations, if the situations are similar enough. There is a trick to making that determination.

Here, we might take instruction from Judge Merritt, again dissenting in Davis v. Straub, 430 F.3d 281:

The majority defers by concluding that there is no Supreme Court case with indistinguishable facts. As explained above, this is not the correct interpretation of § 2254(d)(1). Such an interpretation would withdraw from the federal courts, including the Supreme Court, the judicial power to interpret independently the Constitution in most cases and would make the state court's decision the rule we must follow. Such an application of the federal judicial power established in Article III would render § 2254(d)(1) unconstitutional, as Justice Stevens suggests and Klein holds.

And further:

Congress may not say to the federal courts "clearly established law" means a case in the Supreme Court directly in point on the facts, just exactly like the case you have before you. It may, however, say, as the Supreme Court has already said Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and its progeny, you should follow constitutional language and the principles and standards established by the Supreme Court and in existence at the time the state court completed its case. In the present case, my colleagues have said rather, there is no case in the Supreme Court just like the present case — no case directly in point on the facts — and hence the habeas petition must be dismissed. They say that Supreme Court precedent must be defined in its narrowest sense. Such a reading of § 2254(d)(1) renders it unconstitutional by preventing our Court from giving our independent judgment on the legal effect of the evidence before us and by leaving us "no adjudicatory function to perform."
Id., (emphasis mine throughout).


Morilun Zolbrod, Esq.
Research Consultant For Hire
(*I am not currently engaged in the private practice of law or affiliated with any lawyer or law firm*)

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