Habeas and the Guantanomo Bay Prisoner Cases

Thanks to Scotusblog, at this link is a Supreme Court Order issued today remanding the case of four Britons released from Guantanomo, who then sued United States Military officials for misconduct in the treatment, allegedly torture. That means the opinion of the DC Circuit Court must be reconsidered in light of the Supreme Court Opinion in the case of Boumedienne, issued more recently this year. The opinion to be reconsidered was issued January 11, 2008 and is available at this link. If I can find it I'll post a link to the Boumedienne case as well.

Clearly Established Law Not Always Clear

Here is a petition to watch, with links to the opinion below, petition for cert and reply concerning the recent Cunningham decision in the Court. The appellate court held Cunningham did not establish new law, following Blakely, making defendant eligible for habeas relief under 2254. Frustrating, isn't it, to see how much litigation can arise from the simple phrase, "clearly established".

It was quite interesting to search the blog for "clearly established". There are too many prior posts to list here. A cursory review shows that this is a key concept in habeas and civil rights litigation. It is typically used in order to limit claims for relief.

Thank you Scotusblog:

Docket: 08-517
Title: Curry v. Bulter
Issue: Whether the Court’s ruling in California v. Cunningham (2007), which struck down part of the state’s sentencing scheme, was dictated by the Court’s ruling in Blakely v. Washington (2004) or instead announced a “new rule” that cannot be applied retroactively on habeas review.

• Opinion below (9th Circuit)
• Petition for certiorari
• Brief in opposition*
• Petitioner’s reply

More New Conclusions on Federal Habeas

Continuing to review the Hoffmann & King, Rethinking the Federal Role in State Criminal Justice
DRAFT, forthcoming N.Y.U.L.Rev. DRAFT, at page 9 we find the following remarkable conclusions:

Given the time to habeas filing and disposition, most defendants convicted of felony offenses in state court have no practical access to federal habeas review.22 For the latest year with available data, 60% of all defendants who were convicted of felony crimes in state court did not receive any prison sentence at all,23 and the average prison sentence for the remaining 40% was less than five years, with release in less than three.24 This means that the average habeas petition is filed after the average prisoner is released.

It should not be surprising, therefore, that in examining who filed habeas cases, the study found that nearly 30% of prisoners who challenged their state criminal judgments were serving life sentences,25 even though fewer than 1% of all state felons who are sentenced to state prison receive life terms.26 At the other extreme, only 12% of those who filed federal habeas petitions were serving sentences of five years or less27 – even though the latter group represents the majority of all those who are sent to prison.28 Federal habeas corpus review of state convictions and sentences is unavailable to those who are not serving a very long prison sentence or who have not received a death sentence. For most of the more than two million people now incarcerated for state offenses,29 the Great Writ is a pipe dream.

Economical Thinking in Federal Habeas

Here is how a new draft by King and Hoffman, to be published in the NYU Law Review next year opens. Commentary will follow once I've read more. At the link you can download the whole thing from SSRN. Thanks, Doc B!

We believe that it is time to rethink the federal role in state criminal justice. The present approach is a failure, because it relies almost entirely on post-hoc litigation in the federal courts – especially federal habeas litigation. A recently completed empirical study,1 conducted by one of the co-authors of this essay, has exposed the futility of habeas review today. In 99.99% of all state felony cases – excluding those cases in which the defendant is sentenced to death2 – the time, money, and energy spent on federal habeas litigation is wasted, generating virtually no benefits for anyone. Non-capital federal habeas has become, in essence, a lottery, funded at great expense by taxpayers, open almost exclusively to the small group of state inmates who are sentenced to the longest prison terms, and producing almost no marginal increase in the enforcement of constitutional rights.

Secretly Shrinking National Security

Concerns over the lingering Gitmo cases expressed by Judge Leon as reported by AP, here.

Excerpt,

WASHINGTON (AP) -- A federal judge overseeing cases against dozens of Guantanamo Bay detainees said Wednesday that he fears the public - and the detainees themselves - will be locked out of the courtroom when evidence in the case is scrutinized for the first time.

Hundreds of detainees are awaiting hearings in a Washington federal court in the coming months to determine whether they were properly labeled enemy combatants and imprisoned without being charged.

U.S. District Judge Richard J. Leon, who has said he wants to resolve the 24 cases assigned to him before the next president is sworn in, urged President Bush's administration to find a way for at least part of those cases to be held in public.

"If it can't be done, I have great concern that these hearings will be virtually or exclusively classified, closed to the public and, I might add, to the detainees," Leon said.

Update to Doe privacy/national security appeal

The privacy case appeal, involving the Patriot Act, "national security letters" and judicial review powers, link here, (Doe v Mukasey; How Appealing, Lawdotcom), updating my earlier post, "Secret Government" was heard with skepticism on the part of a panel of 2d Circuit judges this Wednesday.

Excerpts from Lawdotcom:

Judge Calabrese expressed his concern to Assistant U.S. Attorney General Gregory Katsas that such language would permit the issuance of NSLs and gag orders in traffic safety investigations or operations seeking to determine if a state governor is patronizing prostitutes.

"Why isn't the appropriate thing to say that Congress here used, in a First Amendment sense, language that simply goes too far?" asked the judge.

The panel also expressed concern that the statute constrained judges reviewing such gag orders to uphold them unless they had "no reason to believe" any harm would arise from permitting disclosure.

Katsas countered that this standard could be "charitably construed" as "no good reason" and said the FBI's certification process was geared toward counterterrorism and national security concerns.

But Calabrese said he was particularly uncomfortable that gag orders could be certified by a special agent-in-charge, rather than a more senior FBI official.

"A special agent-in-charge is not someone who is directly responsible to the people," the judge said.

The ACLU brought the underlying case on behalf of a small Internet service provider served with an NSL several years ago. Jameel Jaffer, the director of the ACLU's national security project, told the court that gag orders were preventing many opposed to the Patriot Act's surveillance programs from speaking out.

But the judges pointed out that, of more than 40,000 NSLs issued, only three parties had complained about their inability to discuss them.

"Do we have any reason to believe there is anyone out there other than your client who is dying to make a speech about this?" Judge Sotomayor asked.

Habeas and Unconstitutional Deference

The Supreme Court granted petition re: the 28 USC 2254(d) deferential standard of review in the case of Bell v Kelly (SCOTUSwiki preview here). The practical issue is, how do you get to present "new" evidence that was lost previously through your lawyer's conduct or misconduct, (or the governments sleight of hand, or procedure) when the standard of review won't allow for a fresh look at all the circumstances, but only a "reasonableness" test brushing over what is already in the record below? Petitioner took issue that the state court proceedings did not afford a full and fair hearing, sufficient to consider the element of prejudice. Finding no prejudice, but affirmative deficient performance, the courts below had denied relief.

To noone's surprise, there is a split in the circuits. Technically, it might be phrased: (1) whether the deferential 28 U.S.C. § 2254(d) standard should apply to a claim resting on evidence that the state court did not consider and was thus introduced for the first time on federal habeas.

It occurred to me reviewing the briefs (available at SCOTUSblog wiki) that the adverse position makes a good practical case in point for why the statute is facially unconstitutional: following the dictates requires no substantive review, contrary to the traditional, constitutional role of higher court review.

Do we want our higher courts rubber stamping decisions in other areas as well? Not, hopefully.

An argument schedule for cases in Nov. follows:

Mon., Nov. 3

Wyeth v. Levine (06-1249) — federal preemption of state drug labeling law

Ysursa v. Pocatello Education Association (07-869) — state legislative control of county and city payroll policies

Carcieri v. Kempthorne (07-526) — federal power to set aside land for Indian tribes’ use

Tues., Nov. 4

FCC v. Fox Television Stations (07-582) — scope of federal law on use of single or fleeting use of “indecent” words on radio and TV

U.S. v. Eurodif (07-1059) and USEC v. Eurodif (07-1078) — federal power to impose “anti-dumping” fees on imports (cases consolidated for one hour of argument)

Jimenez v. Quarterman (07-6894) — clarification of one-year filing deadline for habeas petitions

Wed., Nov. 5

Negusie v. Mukasey (07-499) — availability of asylum in U.S. for individual who formerly was a prison guard abroad

Van de Kamp v. Goldstein (07-854) — legal immunity for supervisors of prosecutors at the trial level

Mon., Nov. 10

Chambers v. U.S. (06-11206) — failure to report to jail as “violent felony” under federal armed career criminal law

U.S. v. Hayes (07-608) — ban on gun possession after conviction for domestic violence

Melendez-Diaz v. Massachusetts (07-591) — right to confront at trial a forensic expert who prepared a crime lab report offered as evidence

Tues., Nov. 11 (legal holiday; no arguments)

Wed., Nov. 12

Pleasant Grove City v. Summum (07-665) — right to display religious monument on government property, including public park

Bell v. Kelly (07-1223) — scope of federal court duty in habeas to defer to state court findings

Secret Government?

At this link is brief of amicus curiae, the National Archive (of Washington, D.C.) and Electronic Frontier Foundation, in the case of Doe v. Mukasey, on appeal from the US District Court, Southern District of New York. Summary of the argument: judicial review of government's demands for secrecy is necessary to protect the security of the nation and quality of government decision making.

The case has an aspect of interest for habeas watchers: it challenges an attempt by Congress to usurp the traditional role of the courts. Part of the AEDPA, governing federal judicial review of habeas corpus, does this also, and may well fall under fire from recent constitutional challenges.

Habeas and Sentencing

For those who haven't yet discovered the exciting world of habeas, here is a brief intro:

The quintessential example of a claim within the core of habeas is a challenge to the validity of the prisoner‟s conviction or sentence, that is, a claim that the police, the prosecutor, the defense lawyer, the jury, or the court made a constitutional error resulting in an unlawful conviction or sentence.
***
A prisoner challenging the conditions of confinement, on the other hand, is permitted to bring suit under § 1983.

At this link is an article in which a whole new world of habeas seems to have been rediscovered. In which the Preiser doctrine is turned on its head for good reason. I'm also stunned to see how clearly the authors show that federal judges get it wrong, (on at least two occasions) at pp 18-19. Demonstrating splits in the circuits here is also helpful.

The recommendation splitting sentence admin claims from other categories makes much sense; federal courts are likely to find it very helpful. That further deference is suggested for reviewing state court decisions where state judicial review avails is problematic. The problem of reviewing parole and disciplinary cases remains a daunting, growing, task. Deference only gives state reviewing courts the first opportunity to ignore (sweep under carpet) the valid federal claim. Having said this, AEDPA and PLRA are both legislative mistakes making it only easier to ignore valid claims. The consequences of this will continue to be evident as the prison population grows by leaps and bounds, as a toll on those unfortunate enough to be swept into the dragnet, their families, friends and acquaintances. Policies making it easier to convict and harder to undo wrongful convictions should be viewed with very critical eyes.

I hope after Doc Berman has a read on it he'll post his take. Following is a snippet from the paper by NANCY J. KING Vanderbilt University School of Law and SUZANNA SHERRY Vanderbilt University Law School :

Before 1972, it was not clear whether sentence-administration decisions by state corrections and parole officials were subject to constitutional regulation at all. In that year, the Court held in Morrissey v. Brewer that a parolee does have a liberty interest in his continued release on parole, which cannot be revoked without due process.5 In 1974, in Wolff v. McDonnell,6 the Court extended Morrissey to decisions that deprive d inmates of good-time credits and thus delayed the date of presumptive release. Five years later in Greenholtz v. Inmates of Nebraska Penal and Correctional Complex,7 the Court recognized a liberty interest in the denial or delay of parole, if the state parole system created an entitlement to a parole hearing after a set amount of time served. In particular, the Court held in Greenholtz that a state‟s decision to deny parole must meet minimum due process standards.8 These cases made it possible for state prisoners to raise constitutional challenges to sentence-administration decisions that had previously been unregulated by federal law.

Here are several of the more controversial statements, with which I tend to agree wholeheartedly, to be viewed critically by a trained eye:

The Court‟s expansion of the liberty interests of prisoners, the shift away from discretionary to
mandatory release laws, and the early decisions in Preiser and Wolff were not the only developments that contributed to an increase in the number of prisoners seeking habeas relief for sentence-administration claims over the past thirty years.

Once Edwards was combined with the changes in sentencing and release law described above, it ultimately channeled many sentence-administration challenges into habeas. But there was yet another development, almost simultaneous to the doctrinal change worked by Edwards, which has turned an unfortunate situation into an intolerable one.

in the years leading up to passage of the Act there is no sign in the legislative history that lawmakers anticipated the application of the new provisions to attacks by non-capital state prisoners on administrative decisions that affected the timing of their release from prison.

In general, the law recognizes (1) that similar claims by state and federal prisoners are treated similarly in terms of access to judicial review; (2) that federal courts are more reluctant to interfere with the judgments of state courts than with the actions of other, non-judicial state actors; and (3) that deprivations of physical liberty are the most egregious invasions of liberty.

Wilkinson further complicates the problem, because almost every case can be described both as satisfying and as not satisfying the Wilkinson standard: If the prisoner wins his procedural challenge, it means both that the first hearing was constitutionally invalid (and thus that the result of the hearing was invalid) and that the plaintiff is entitled to a new, constitutionally adequate, hearing.90

when states choose not to authorize judicial review, federal
oversight of the decisions made by their prison and parole officials will be more
exacting than it would have been had the state provided judicial review.

UPDATE: this SSRN piece is still in draft stage.

In its other two certiorari grants, the Court agreed to examine law enforcement’s ability to conduct a warrantless search of the automobile’s passenger compartment incident to the arrest (Arizona v. Gant, No. 07-542) and when erroneous jury instructions can lead to habeas corpus relief (Chrones v. Pulido, No. 07-544). DC Dicta

Request for Cert here in Bell v Cone, earlier Supreme Court decisions here and here. The petition challenges the application of a technique used widely by the states' attorneys to dispose of state habeas actions: the ignored federal claim. By ignoring federal claims under guise of state rules of procedure, or simply for no reason whatsoever, states have been able to argue that vague elements of the "procedural default" doctrine apply. I'm glad to see that this form of legal abuse is getting the attention it deserves. I'm sorry to see that it takes a capital case and a big rich law firm to bring it up with any force.

The Supreme Court (Danforth opinion), Ohio and Missouri make news this week in the Habeas and Residency Restriction arenas. Get your update from here of course, thanks to Doc Berman.

On Danforth, the headliner here says it all (THANKS SCOTUSBLOG). Was that supposed to be a good thing I wonder, Wanda? To expand the "criminal rights" -- I'm sure it is a magnanimous thing for the Court to allow the States to do that. But read on, and we find we are actually talking about something akin to the retrospective application, or as some say, the "retroactive benefit" of Supreme Court rulings. Chief Justice Roberts dissented, in which Justice Kennedy joined.

Is it only coincidence that retrospective application of laws is also in the spotlight in those Residency challenges? Don't let the big words fool you. What this involves is determining whether the rules of the game can/will be changed in the middle of the fourth quarter, sort of like counting the Florida and Michigan delegates after the DNC said they wouldn't before the vote (or non-vote), because the state's delegations broke, (transgressed?) the Party rules.

That depends, of course, on what the word Justice means to you. The Framers'? I heard something about "restoring habeas" (Obama) in last night's debate with Hilary. Was he speaking only about Guantanomo detainees? Barrack also mentioned the phrase "wrongful convictions." This is clearly something to be redressed through a pardon or a more muscular Habeas process. There must be consequences for those who would callously engage in behavior designed to produce wrongful conviction of innocent individuals.

Here is an interesting, if tangential discussion arising out of Danforth on Scotusblog's site.

“…while on your website you claim this is relevant to constitutional habeas.”

If by “constitutional habeas” you mean habeas as required by the Suspension Clause, the only point in today’s decision relevant to that question is the Court’s acknowledgment that common law habeas (and therefore the Suspension Clause) was limited to jurisdictional questions. That was once a furious historical debate, but it’s largely over, and the Fay v. Noia revisionism lies in ruins.

The primary debate over § 2254(d)– the one in the two law review articles I cited in the beginning and the one before the Ninth Circuit in Irons v. Carey — is all about the statutory writ and whether Congress can, consistently with Article III, require “deference” (actually a limited form of res judicata) to state court judgments in a class of cases where Congress could repeal the jurisdiction entirely if it chose. Today’s holding on the nature of the Teague rule is highly relevant to that debate, as I explained in comment 7, above.

And here's this one concerning Theory: "Blinking on the Bench -- How Judges Decide Cases"

Beam Me Up, "Scottie"

Clashing Perspectives On Habeas Corpus in the “War on Terror”--The Constitution versus the Statute: The Constitution and a law that spells out the reach of habeas corpus sparked an exchange between Attorney General Alberto R. Gonzales and the senators. Although everyone -- including, apparently, the attorney general -- agrees the Constitution protects a right to habeas corpus, there is considerable debate over the reach of that right. That is the focus of a bill before Congress as well as cases involving "enemy combatants" headed to the Supreme Court.

The senator incorrectly said the Supreme Court had already ruled the Constitution protects the habeas rights of detainees at Guantanamo.
Gonzales responded by suggesting the Constitution does not protect habeas corpus at all.

"The fact that the Constitution — again, there is no express grant of habeas in the Constitution. There is a prohibition against taking it away," he said.

Boy, talk about offering a mile and taking an inch...

"Now, wait a minute," Specter interrupted. "The Constitution says you can't take it away except in case of rebellion or invasion. Doesn't that mean you have the right of habeas corpus?"

Lawyers delicately tried to explain what the attorney general meant. "This didn't come out as cleanly and crisply as we might have hoped," said one, who spoke on the condition that he not be identified. "The question is not whether Americans have a right to habeas corpus. That is undisputed. What's at issue is the scope of the right."

Precisely. The poem about the cake comes to mind . Little by little, bit by bit, crumb by crumb, the whole cake was gone. David G. Savage, Los Angeles Times, for the factual reporting. The opinion is wholly “my bad.” That's a “Rosy Original” if I ever heard one. Anybody know if she kicked Donald's ass yet? Because if anybody can it's her.

Relatedly (stole this good adjectival non-word from Prof. Berman) how does the Spectrum of Abstraction,“Alice in Wonderland” stuff from my posts here tie together? The scope of habeas is as related to its application as flies gathering on a steaming summer day. Gutting habeas by shrinking the standard of review (via the unconstitutional provisions of AEDPA) into the size of a pin-head (-hole?) is a lot like shaving the “scope” which is not too unlike “saving face” (or that other smooth part of the baby). Of course there's Congress, and there's the Constitution. Who wins? Tune in, read on, you won't be disappointed!

Habeas Corpus Takes the Weekend Cake

Wow, a 48 hour plus hiatus from blogging has done wonders for the soul.

Emily Bazelon weighed in on Habeas Corpus this weekend with a piece that ran in Slate and the Washington Post Outlook. This should be read with Fareed Zakaria's piece in the New York Times. He reviewed books by John Yoo and Bruce Ackerman on terrorism, Habeas Corpus (the great writ) and "the rule of law." Fareed is the editor of Newsweek International, the author of "The Future of Freedom" and the host of the PBS program "Foreign Exchange."

Here is an article from Salon (by Alex Koppelman) showing why Habeas Corpus and judicial review is still badly needed. The quote from Jonathan Turley refers to the inhuman "treatment" of terrorist suspect Padilla. Turley is professor of law at George Washington University and specializes in constitutional criminal procedure.

Turley says that is symptomatic of problems with the administration's strategy in prosecuting terror cases generally. He believes that by abandoning traditional methods, such as those used in the Crocker case, it has crippled its own efforts.

"In some ways, this president is the best friend of the criminal defense bar. His inclination to ignore legal standards serves to undermine even the strongest case," Turley says. And had they tried Padilla in the way terror suspects had been prosecuted for years, Turley says, he believes that "Jose Padilla probably could have been convicted by now."

Here is your comprehensive guide to "collateral consequences" of a conviction, said to be an invaluable resource for attorneys, policymakers, and citizens, (from Sentencing Project dot org) and, here at this link you'll find a "prison consultant" (Dr. Prison) claiming to, well, take a guess, is it survival or comfort we are looking for? I make no claims as to either of these products, but here is what Dr. Prison says:

If you don't know how to act in prison, you will have...
*
25-30% chance of getting killed during your prison sentence.
*
10-15% chance of getting raped during your prison sentence.
*
30-40% chance of getting stabbed during your prison sentence.
*
80-90% chance of getting beaten during your prison sentence.
- If you make trouble in prison, you could face...
*
23-hour solitary confinement, with 1 hour outside, all alone.
*
No visits or privileges of any kind.
*
A cell worse than this.

Other notes about prison:
*
Prison guards care very little if at all about you.
*
Prison riots last an hour on average.
*
Prisoner jobs throughout prison generally pay less than $200 a month.

I happen to know that Texas State prisoners get no pay whatsoever, and one three minute telephone call every 90 days, if they are lucky (and behave).

Here is a book that looks interesting:

The Tyranny of Good Intentions: How Prosecutors and Bureaucrats Are Trampling the Constitution in the Name of Justice (Hardcover)
by Paul Craig Roberts, Lawrence M. Stratton

AND, did you know there are 7 millions incarcerated in the United States? What
happens to these folks concerning employment when they come out? Learn about a program which will work to provide meaningful employment for those persons being released from prison, or those presently on probation. It may be too late to click the following link:

http://www.acbradio .org/pweb/ index.php? module=pagemaste r&PAGE_user_ op=view_p
age&PAGE_id= 8&MMN_position= 14:14

but there it is. Maybe there's a way to track it back.

Okay, enough for now. Thoughts, comments, feedback is appreciated. Blog on!

A PAIR OF INTERESTING 6th CIRCUIT HABEAS CASES GRANTING RELIEF LAST WEEK

Stewart v. Wolfenbarger, No. 04-2419 (6th Cir. 11/9/2006)
Petitioner raises two further claims of ineffective assistance of counsel: that O'Connell failed to file a proper notice of alibi witnesses, and that she failed to investigate Delshawn Williams as a potential witness. These two errors constitute deficient performance under Strickland's first prong. An assessment of the totality of the omitted evidence shows that the unprofessional errors of counsel were prejudicial. We consider these errors in turn***
The uncontested evidence in the record is that O'Connell failed to adequately investigate Simpson's statement, and she failed to adequately investigate Williams as suggested by Petitioner. In either case, it seems clear that O'Connell should have, at some point, contacted Williams, one of the individuals who lived in the house where Simpson purportedly had the conversation with Petitioner on April 22, 1996. This failure to investigate clearly constituted objectively deficient performance ***
We can see no strategic purpose in failing to investigate Williams as a potential favorable witness. As this Court stated: "Where counsel fails to investigate and interview promising witnesses, and therefore `ha[s] no reason to believe they would not be valuable in securing [defendant's] release,' counsel's inaction constitutes negligence, not trial strategy." Workman v. Tate, 957 F.2d 1339, 1345 (6th Cir. 1992) (quoting United States ex rel. Cosey v. Wolff, 727 F.2d 656, 658 n.3 (7th Cir. 1984)). Blackburn v. Foltz, 828 F.2d 1177, 1183 (6th Cir. 1987) ("Counsel did not make any attempt to investigate this known lead, nor did he even make a reasoned professional judgment that for some reason investigation was not necessary

Joseph v. Coyle, No. 05-3111 (6th Cir. 11/9/2006) (6th Cir., 2006)
AEDPA DEFERENCE: As the text of the statute makes clear, however, § 2254(d)(1)'s limits on habeas relief apply only if there is a state-court "adjudicat[ion] on the merits" of a given claim. For reasons we discuss at greater length in Part IV.C, Joseph's Brady claim was not "adjudicated on the merits in State court proceedings" and therefore is not governed by the strictures of § 2254(d)(1). Joseph's remaining claims were, however, "adjudicated on the merits" by the state courts, so § 2254(d)(1)'s limits apply. For each of these claims, the decision we review is that of "the last state court to issue a reasoned opinion on the issue." Payne v. Bell, 418 F.3d 644, 660 (6th Cir. 2005), cert. denied, ___ U.S. ___, 2006 WL 732193 (U.S. June 26, 2006) (No. 05-9829); see also, e.g., Schultz v. Page, 313 F.3d 1010, 1015 (7th Cir. 2002) ("[A] federal court reviewing a habeas petition should examine the decision of the last state court to rule on the merits of the issue."), cert. denied, 538 U.S. 1057 (2003); Franklin v. Johnson, 290 F.3d 1223, 1233 n.3 (9th Cir. 2002) ("This court . . . must look to the last reasoned decision of the state court as the basis of the state court's judgment."); Barrientes v. Johnson, 221 F.3d 741, 779 (5th Cir. 2000) ("When the last state adjudication of the claim is silent or ambiguous, the federal court should look through to the last clear state decision on the matter." (internal quotation marks omitted)), cert. dismissed, 531 U.S. 1134 (2001). ***
STRICKLAND ISSUE: A number of recent cases have emphasized that defense attorneys have a constitutional duty to conduct adequate factual investigations. See, e.g., Rompilla v. Beard, 545 U.S. 374 (2005); Wiggins v. Smith, 539 U.S. 510 (2003). Yet it can hardly be doubted that defense lawyers have a constitutional obligation to investigate and understand the law as well. See, e.g., Williams, 529 U.S. at 395 (noting that counsel "failed to conduct an investigation . . . not because of any strategic calculation but because they incorrectly thought that state law barred access to such records."); Strickland, 466 U.S. at 690 ("[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable . . . ." (emphasis added)); Smith v. Dretke, 417 F.3d 438, 442-43 (5th Cir. 2005) ("[Defense counsel] failed to achieve a rudimentary understanding of the well-settled law of self-defense in Texas. By doing so, he neglected the central issue in his client's case. . . . This misunderstanding could have been corrected with minimal legal research." (footnote omitted)) ***
RE: NO AEDPA DEFERENCE WHEN NEWLY DISCOVERED EVIDENCE PRESENTED FOR FIRST TIME DURING FEDERAL HABEAS Joseph's current Brady claim is not the same as the one he brought before the state courts: he now relies on a different mix of suppressed evidence that includes some items discovered only during federal habeas proceedings. Thus, Joseph argues, his Brady claim was not "adjudicated on the merits in State court proceedings," and AEDPA's strict standard of review does not apply. We agree. Williams v. Coyle, 260 F.3d 684 (6th Cir. 2001), cert. denied, 536 U.S. 947 (2002), we reviewed a Brady claim based on evidence disclosed during federal habeas proceedings "under pre-AEDPA standards because no state court reviewed the merits of that claim." Id. at 706; Monroe v. Angelone, 323 F.3d 286, 297-98 (4th Cir. 2003) (collecting cases); Holland v. Jackson, 542 U.S. 649, 653 (2004) (noting that "[w]here new evidence is admitted, some Courts of Appeals have conducted de novo review on the theory that there is no relevant state-court determination to which one could defer" and "[a]ssuming . . . that this analysis is correct and that it applies where . . . the evidence does not support a new claim but merely buttresses a previously rejected one"). Because AEDPA's standard of review does not apply here, we review the district court's factual findings for clear error, while whether a Brady violation occurred is a mixed question of law and fact that we review de novo. Williams, 260 F.3d at 706.