For information on lower federal court cases addressing this topic from 1996 to early 2003, go to Federal Update 16.

In Griffey v. Lindsey, 345 F.3d 1048 (9th Cir. 2003), although the Ninth Circuit ultimately determined that an evidentiary hearing was unnecessary, the appeals court disagreed with the district court's determination that petitioner's request for an evidentiary hearing should be rejected because he had not requested an evidentiary hearing in state court, and therefore had not been sufficiently diligent as required by §2254(e)(2). The court explained that in California, "[a] request for an evidentiary hearing is needed, if at all, only at the traverse stage of the proceedings. . . ¶ Griffey was not required to request an evidentiary hearing under California law because his state habeas petitions were dismissed before Griffey reached the traverse stage. This early dismissal defeats the state's lack of diligence argument."

In Paine v. Massie, 339 F.3d 1194 (10th Cir. 2003), a non-capital Oklahoma murder case, the Tenth Circuit remanded for a hearing to permit petitioner to present expert testimony that she suffered from Battered Woman Syndrome ("BWS") and explaining how that condition affected her thinking at the time she shot her husband. The court further instructed that, if petitioner makes this showing, she will be entitled to habeas relief on her claim that trial counsel was ineffective for failing to present such testimony in conjunction with her claim of self-defense at trial. In reaching this conclusion, the Tenth Circuit focused on the Oklahoma Court of Criminal Appeals’ decision in Bechtel v. State, 840 P.2d 1 (Okla Crim. App. 1992), in which the state court held that, in self-defense cases involving BWS, like petitioner’s, expert testimony about BWS "was necessary to mount an effective self-defense claim given the jury’s likely misconceptions about BWS." The court went on to find that although trial counsel presented substantial evidence of abuse by the decedent, petitioner’s "self-defense theory, the only theory offered, was effectively eviscerated by th[e] failure to present a BWS expert." The court found that this was so even though counsel did present a psychologist who indicated that petitioner had "features of battering," reasoning that the missing elements of an actual BWS diagnosis and an explanation of how that condition would affect a battered woman’s thinking deprived the jury of information deemed necessary by the state court in Bechtel.

In analyzing petitioner’s claim, the Tenth Circuit described the limitations on its ability to grant relief imposed by § 2254(d), but did not discuss the ways in which the state appellate court’s summary denial of relief might have been contrary to, or involved an unreasonable application of, federal law.

In Bryan v. Mullin, 335 F.3d 1207 (10th Cir. 2003) (en banc), an Oklahoma capital case, the en banc Tenth Circuit upheld the district court’s decision to hold an evidentiary hearing on petitioner’s penalty phase ineffective assistance of counsel claim. The court found that the state’s general arguments – made without citation to the record – that the pre-hearing record contained sufficient evidence to facilitate adjudication of petitioner’s claim were unpersuasive. The court further observed that although the record did contain evidence relating to the mental health matters underlying the ineffective assistance claim, it lacked any evidence concerning what trial counsel knew and why he elected not to present mental health testimony at trial. "It is exactly this information Bryan sought to develop in state court when he requested an evidentiary hearing . . . Because Bryan diligently sought to ‘develop the factual basis of [his] claim in State court proceedings,’ § 2254(e)(2) does not bar an evidentiary hearing." After going on to find that petitioner had alleged facts which if true would entitle him to relief, the court concluded that "the district court correctly afforded Bryan an evidentiary hearing . . ."

Having concluded that petitioner was properly afforded an evidentiary hearing, the court further noted that, in accordance with Miller v. Champion, 161 F.3d 1249 (10th Cir. 1998), it would not apply the presumption of correctness to findings of fact made by the state appellate court in rejecting petitioner’s ineffectiveness claim, since any such findings would have been made without benefit of an evidentiary hearing.

In Parrish v. Small, 315 F.3d 1131 (9th Cir. 2003), a non-capital case from California, the Ninth Circuit vacated the district court’s denial of relief and remanded for an evidentiary hearing on petitioner’s shackling claim. While it was undisputed that petitioner was handcuffed to a chair during trial, neither the state courts nor the federal district court provided a hearing to determine what the jury saw, electing instead to attempt to resolve that question based only on the trial transcript. The Ninth Circuit, however, found that "the trial transcript does not reveal with any precision what the jury saw." Therefore, the court went on to conclude, the state court’s finding that the jury only noticed the handcuffs when petitioner was required to stand during one witness’ testimony "‘was based on an unreasonable determination of the facts in light of the evidence presented . . .’" (quoting § 2254(d)(2)). After noting that the state had not contended that petitioner "failed to develop" the facts supporting his claim in state court, the Ninth Circuit remanded for an evidentiary hearing.

In Clark v. Crosby, 335 F.3d 1303 (11th Cir. 2003), the Eleventh Circuit (2-1) vacated the district court’s denial of relief on petitioner’s ineffective assistance of appellate counsel claim in this Florida attempted murder case, and remanded for an evidentiary hearing. Petitioner alleged that appellate counsel was ineffective for failing to challenge his conviction using a state court decision, announced while his direct appeal was pending, which invalidated one of the theories on which the jury’s general verdict in his case might have been based. Pursuant to Florida procedure, the ineffectiveness claim was raised before the state appellate court; the state conceded at that time that an evidentiary hearing was necessary, but the court denied relief without a hearing. At the hearing on petitioner’s subsequent state post-conviction application – which did not include the previously raised and rejected appellate ineffectiveness claim – appellate counsel testified about other matters, and briefly touched on the issues surrounding the failure to raise the claim that had been the subject of the ineffectiveness allegation. In the federal habeas proceedings that followed, the district court relied upon this testimony to conclude that appellate counsel had not performed deficiently. The Eleventh Circuit majority held that this reliance "was improper," explaining as follows:

28 U.S.C. §2253(c) provides:

In Hohn v. United States, 524 U.S. 236 (1998), the Supreme Court held that an application for a certificate of appealability (COA) qualifies as a "case" for purposes of permitting certiorari review where a COA application is denied by the appeals court.

In Slack v. McDaniel, 529 U.S. 473 (2000), the Supreme Court held that the new COA requirement applies to appeals initiated after enactment of the AEDPA (April 24, 1996), even if the habeas petition was itself filed before that date. The Court further ruled that the right to appeal from the denial of a petition for writ of habeas corpus is not foreclosed under the AEDPA just because the district court ruled on procedural habeas corpus, as opposed to substantive constitutional, grounds. The AEDPA requires that a petitioner receive a certificate of appealability (COA) in order to appeal a district court’s denial of relief, and a certificate of appealability is available when a petitioner makes a "substantial showing of the denial of a constitutional right." Because Slack’s claims were dismissed as an abuse of the writ, the actual constitutional merit of his challenges was not addressed by the district court. Because an appeal can only be taken with respect to constitutional issues, and because no constitutional issue was addressed in the district court, the Warden argued that no appeal could be taken.

The Supreme Court rejected this view and held that when the district court denies a habeas petition on procedural grounds without reaching the prisoner’s underlying constitutional claim, a COA should issue (and an appeal of the district court’s order may be taken) if the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right, and that jurists of reason would find it debatable whether the district court was correct in the procedural ruling.

In Miller-El v. Cockrell, 537 U.S. 322 (2003), a Texas capital case, the Court (Kennedy, J., joined by Rehnquist, C.J., and Stevens, O’Connor, Scalia, Souter, Ginsburg, and Breyer, JJ.) reversed the Fifth Circuit’s denial of a COA concerning petitioner’s claim, and remanded for further proceedings. Establishing at the outset that "[t]he COA denial is the subject of our decision," the Court began by making clear that "when a habeas applicant seeks permission to initiate appellate review . . . , the court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims." The Court elaborated on the limits of the proper analysis for determining whether to issue a COA as follows:

The Court further explained: "We do not require petitioner to prove . . . that some jurists would grant the petition for habeas corpus. Indeed, a claim can be debatable even though every jurist of reason might agree, after the COA has been granted and the case has received full consideration, that petitioner will not prevail." At the COA stage, "we only ask whether the District Court’s application of AEDPA deference, as stated in §§ 2254(d)(2) and (e)(1), to petitioner’s Batson claim was debatable amongst jurists of reason."

Examining petitioner’s application for leave to appeal the denial of his claim, the Court had "no difficulty concluding that a COA should have issued." Having earlier made clear that, "[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review," the Court observed that the district court’s refusal to grant a COA came as a result that court’s failure to "give full consideration to the substantial evidence petitioner put forth in support of the prima facie case. Instead, it accepted without question the state court’s evaluation of the demeanor of the prosecutors and jurors in petitioner’s trial." The Court further found that the standard under which the Fifth Circuit denied a COA – "requiring petitioner to prove that the state court decision was objectively unreasonable by clear and convincing evidence" – "was too demanding a standard on more than one level." The Court explained:

The Court went on to note that the Fifth Circuit’s approach was "incorrect" for the "even more fundamental reason" that it effectively decided the merits of petitioner’s Batson claim without first determining – through issuance of a COA – that it had jurisdiction to do so. "At the COA stage, . . . a court need not make a definitive inquiry into [resolution of the issues raised by §§ 2254(d) and (e)]. As we have said, a COA determination is a separate proceeding, one distinct from the underlying merits. [citations omitted]. . . . The question is the debatability of the underlying constitutional claim, not the resolution of that debate"

Justice Scalia concurred in the judgment, but wrote separately to (1) "explain why [he] believe[s] the Court’s willingness to consider the [AEDPA] limits on habeas relief in deciding whether to issue a [COA] is in accord with the text of 28 U.S.C. § 2253(c)," and (2) "to discuss some of the evidence on the State’s side of the case – which, though inadequate (as the Court holds) to make the absence of a claimed violation of Batson v. Kentucky . . ., undebatable, still makes this, in [his] view, a very close case."

Justice Thomas dissented alone, contending that "[b]ecause petitioner has not shown, by clear and convincing evidence [as required by § 2254(e)(1)], that any peremptory strikes of black veniremen were exercised because of race, he does not merit a [COA]."

For information on lower federal court cases addressing this topic from 1996 to early 2003, go to Federal Update 16.

In a Montana sexual assault case, Hanson v. Mahoney, 338 F.3d 964 (9th Cir. 2003), the Ninth Circuit held that "magistrate judges may issue [certificates of appealability] if they have been authorized by consent of the parties to adjudicate the entire case pursuant to 28 U.S.C. § 636(c)(1)."

In Frazier v. Huffman, 343 F.3d 780 (6th Cir. 2003), the court noted the district judge’s policy of granting blanket certificates of appealability in all capital cases and declared it "contrary to our decision in Porterfield v. Bell, 258 F.3d 484 (6th Cir. 2001)." The court went on to "excuse the procedural error of the district court" in this case, but took the opportunity to reiterate that COAs should only be issued pursuant to the requirements of §2253(c)(2) and (3).

In Perez v. Cockrell, 2003 WL 21704420 (5th Cir. July 23, 2003) (unpublished), without mentioning the discussion of this point in Miller-El v. Cockrell, 537 U.S. 322 (2003), the Fifth Circuit described its COA analysis in this Texas capital case as follows: "Our review of whether Perez has made a ‘substantial showing of the denial of a constitutional right’ is also subject to the applicable AEDPA standards of review. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir.2000), cert. denied, 532 U.S. 949 (2001)."

In Reid v. True, ___F.3d___, 2003 WL 22301063 (4th Cir. Oct. 8, 2003), a Virginia capital case, the court took the opportunity to discuss new Local Rule 22(a), adopted in light of Miller-El v. Cockrell, 537 U.S. 322 (2003), for handling certificate of appealability issues. The court described the rule's operation as follows:

(Footnotes omitted.)