Thursday, January 11, 2007

Deference is Hot

These are interesting because "deferential review" is one hot potato:

A. The petition for cert (pending, earlier post) in Varner v. Thomas (3d Circuit) presented these questions:

1. Where counsel’s action at trial is objectively reasonable, may the conviction nonetheless be reversed on the ground that counsel’s subjective thought process is found deficient?
(Answered in the affirmative by the United States Court of Appeals for the Third Circuit, in conflict with other circuits.)

2. Where a state court has clearly adjudicated the merits of an ineffective assistance of counsel claim, may a federal court avoid AEDPA deference and invoke de novo review as to any aspect of the claim that, in the federal court’s view, has not adequately been addressed in the state court’s legal analysis?

(Answered in the affirmative by the United States Court of Appeals for the Third Circuit.)


I. The Circuits have split in constructing “objective” and “subjective” elements of the Strickland test. This Court should grant certiorari to make clear that an attorney’s subjective thought processes cannot trump an objectively reasonable rationale for his conduct.

I. This Court’s decisions in Weeks v. Angelone and Wiggins v. Smith have led to confusion concerning the nature of “deference” on habeas review. The Court should grant certiorari to make clear that review under § 2254(d) of the habeas act is of the state court’s ruling, not its reasoning.

The number of cases affected by this circuit conflict is unusually high, because ineffective assistance is perhaps the most frequently litigated issue in the field of criminal law.
The impact is especially significant in federal habeas review of state convictions, where the subjective/ objective distinction affects application of all the special rules that have been created to accommodate federalism concerns: deference, evidentiary hearings, procedural default, and exhaustion. Even aside from such procedural matters, the difference between a subjective and an objective analysis of ineffectiveness claims is often outcome-determinative.

B. Eddleman v. McKee,
No. 05-1493 (6th Cir. 12/14/2006) (6th Cir., 2006)
presents the question of what type of deference is owed on collateral review to a state court's harmless-error determination. David Eddleman was convicted of second-degree murder and a firearm offense in a Michigan state court. On direct review, the Michigan Court of Appeals affirmed his conviction, concluding that the trial court erred in admitting his coerced confession but that the error was harmless. Eddleman petitioned for a writ of habeas corpus in federal court. The district court granted the writ, and warden Ken McKee appealed.

Affirmed: holding "that, when a state court has found an error to be harmless, we should ask on collateral review whether the state court's harmless-error decision was contrary to, or an unreasonable application of, the clearly established federal rule that a trial error is harmless only if it is harmless beyond a reasonable doubt. Applying this standard of review to the case at hand, we hold that the Michigan Court of Appeals's harmless-error determination was an unreasonable application of the Supreme Court's decisions Chapman v. California, 386 U.S. 18 (1967), and Arizona v. Fulminante, 499 U.S. 279 (1991). "

C. Frantz v. Hazey, No. 05-16024 (9th Cir. 1/5/2007) (9th Cir., 2007)
Ordered that parties brief the following issues:
(1) (a) When a state court utilizes a legal test contrary to that endorsed by the Supreme Court, may we affirm the denial of federal habeas relief if the ultimate decision of the state court (but not its reasoning) is consistent with precedent of the Supreme Court? See Cooper-Smith v. Palmateer, 397 F.3d 1236 (9th Cir. 2005) (affirming denial of federal habeas relief where de novo review of an ineffective assistance of counsel claim showed that the conduct did not rise to the level of a constitutional violation); Williams v. Taylor, 529 U.S. 362, 406 (2000) ("A state-court decision will also be contrary to this Court's clearly established precedent if the state court . . . arrives at a result different from our precedent."); Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir. 2002) ("[T]he intricacies of the state court's analysis need not concern us; what matters is whether the decision the court reached was contrary to controlling federal law.").
(b) Or, is our review under the "contrary to" prong of 28 U.S.C. § 2254(d)(1) confined to the reasoning employed by the state court, necessitating a grant of federal habeas relief when the state court utilized reasoning contrary to precedent of the Supreme Court? See Van Lynn v. Farmon, 347 F.3d 735, 741 (9th Cir. 2003) ("[A] federal court may not avoid granting habeas relief by positing an alternative reason for the state court's decision that might have enabled the state court to reach the same result, where the record reveals that the state court did not base its decision on that alternative reason."); Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (noting that a state court need not even be aware of the Supreme Court's cases "so long as neither the reasoning nor the result of the state-court decision contradicts them").
(2) Does petitioner's claim amount to structural error under McKaskle v. Wiggins, 465 U.S. 168 (1984)? END

These also looked interesting:

Brewer v. Quarterman, No. 05-70056 (5th. Cir. 12/29/2006) (COA issues, IAC)

Wright v. Vaughn, No. 04-3457 (3rd Cir. 12/26/2006) (IAC fail to call witness)

Anderson v. Benik, No. 05-2323 (7th Cir. 12/20/2006)(exhaustion and proc default)

If not mistaken the Fifth Circuit has not been issuing many published decisions recently. I guess Nelson kept them pretty busy.

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