Early v. Packer 537 U.S. ___, 123 S.Ct.362 (2002) (per curiam) In this non-capital California murder case, the Supreme Court summarily reversed the Ninth Circuit’s grant of habeas relief on a claim that the trial court improperly coerced the jury into reaching a verdict by issuing supplemental instructions effectively aimed at one hold-out juror. The state court rejected this claim on the basis of state law, without mentioning any Supreme Court precedents. The Ninth Circuit found the state court’s decision "contrary to" federal law and went on to find that the state trial court erred, and that the error was not harmless under Brecht. The Supreme Court, however, ruled unanimously that each of the "possibly three" reasons given by the Ninth Circuit for deeming the state court’s decision "contrary to" federal law were incorrect. First, the Court criticized the Ninth Circuit’s observation that "the state court ‘failed to cite . . . any federal law, much less the controlling Supreme Court precedents,’" stating that "[i]f this meant to suggest that such citation was required, it was in error." After reiterating the definitions of "contrary to" set forth in Williams v. Taylor, 529 U.S. 362, 405-406 (2000), the Court instructed that, "[a]voiding these pitfalls does not require citation of our cases –– indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." (emphasis by Court). Second, the Court disagreed with the Ninth Circuit’s finding that the state court "‘failed to apply the totality of the circumstances test as required by Lowenfield [v. Phelps, 484 U.S. 231 (1988)].’" After describing the Ninth Circuit’s rationale, and noting that the state court had acknowledged the facts the Ninth Circuit deemed important, the Court stated that "[t]he contention [by the Ninth Circuit] that the [state] court ‘failed to consider’ facts and circumstances that it had taken the trouble to recite strains credulity." The Court continued: The Ninth Circuit may be of the view that the [state] Court of Appeal did not give certain facts and circumstances adequate weight (and hence adequate discussion); but to say that it did not consider them is an exaggeration. There is, moreover, nothing to support the Ninth Circuit’s claim that the [state court] did not consider the "cumulative impact" of all the recorded events. Compliance with Lowenfield does not demand a formulary statement that the trial court’s actions and inactions were noncoercive "individually and cumulatively." It suffices that that was the fair import of the [state court’s] opinion. (emphasis by Court).
After once again pointing out that a state court’s "fail[ure] to apply" federal law is not the equivalent of a decision that is "contrary to" federal law, the Court went on to explain that because the Ninth Circuit erred in finding the state court’s decision in this case to be "contrary to," it was wrong to proceed to the questions of whether petitioner had shown constitutional error, and whether that error was harmless. The Court explained: [Brecht harmless error] inquiry would have been proper only if the Ninth Circuit had first found (pursuant to the correct standard) that the California court’s decision was "contrary to" clearly established Supreme Court law –– which it did not and could not. By mistakenly making the "contrary to" determination and then proceeding to a simple "error" inquiry, the Ninth Circuit evaded § 2254(d)’s requirement that decisions which are not "contrary to" clearly established Supreme Court law can be subjected to habeas relief only if they are not merely erroneous, but "an unreasonable application" of clearly established federal law, or based on "an unreasonable determination of the facts" (emphasis added). Even if we agreed with the Ninth Circuit majority (Judge Silverman dissented) that there was jury coercion here, it is at least reasonable to conclude that there was not, which means that the state court’s determination to that effect must stand. (emphasis by Court).
Woodford v.
Visciotti In this California capital case, the Supreme Court held that the Ninth Circuit misapplied § 2254(d) and that the California Supreme Court’s rejection of a claim of ineffective assistance of counsel at the penalty phase was neither "contrary to," nor involving an "unreasonable application of" Strickland v. Washington, 466 U.S. 668 (1984). John Visciotti was convicted of armed robbery, attempted murder, and a robbery-murder. Following a penalty phase, he was sentenced to death. In state habeas proceedings, Visciotti alleged that he was denied his right to effective assistance of counsel at the sentencing phase. The California Supreme Court assumed that trial counsel performed deficiently, but ruled that Visciotti was not prejudiced by counsel’s failings. In federal district court, Visciotti was granted relief on his ineffective assistance of counsel claim. On appeal, the Ninth Circuit found that the state supreme court’s decision rejecting the claim was both "contrary to" and involved an "unreasonable application of" Supreme Court precedent. The Supreme Court began its discussion by addressing the Ninth Circuit’s finding that relief was permitted under the "contrary to" prong of § 2254(d). Under Strickland v. Washington, a defendant proves prejudice by establishing a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. In Strickland, the Supreme Court expressly rejected a prejudice test requiring the defendant to show that it was more likely than not that a different outcome would have occurred in the absence of counsel’s deficient performance. The Ninth Circuit’s reading of the California Supreme Court’s opinion led it to conclude that the state court had erroneously adopted the latter test. The Supreme Court, in contrast, found that the Ninth Circuit mischaracterized the state court’s decision. In the Supreme Court’s view, the state court both expressed and applied the proper standard. The High Court conceded that the state court occasionally used language arguably describing a higher burden of proof than mandated by Strickland (i.e., by using "probable" without the modifier "reasonably"). In other places, however, including the passage central to its analysis, the California Supreme Court correctly articulated the Strickland prejudice test of whether confidence in the outcome had been undermined. While the state court may have been guilty at times of "imprecision," the Supreme Court observed that it too had indulged in that same imprecision in past decisions. The Ninth Circuit was criticized for making no attempt to reconcile the state’s use of the word "probable" in certain places with its otherwise correct recitation of the prejudice prong of Strickland. The Supreme Court found that the Ninth Circuit’s "readiness to attribute error" to be "inconsistent with the presumption that state courts know and follow the law." The Ninth Circuit’s analysis was "also incompatible with § 2254(d)'s ‘highly deferential standard for evaluating state-court rulings,’ Lindh v. Murphy, 521 U.S. 320, 333, n. 7 (1997), which demands that state court decisions be given the benefit of the doubt." The Supreme Court then turned to the Ninth Circuit’s alternative finding that the California Supreme Court’s prejudice determination involved an "unreasonable application" of Strickland. The Supreme Court concluded that the Ninth Circuit violated § 2254(d) by simply substituting its own judgment for that of the California Supreme Court. The "unreasonableness" finding of the Ninth Circuit was based on two considerations: (1) a belief that the state court failed to take into account the totality of available mitigating evidence, and failed to consider the prejudicial impact of some of counsel’s missteps; and (2) a determination that the state supreme court’s conclusion that the aggravating circumstances were "overwhelming" was erroneous. As to the first point, the Supreme Court found no support for the Ninth Circuit’s view of the record. According to the Supreme Court: All of the mitigating evidence, and all of counsel's prejudicial actions, that the Ninth Circuit specifically referred to as having been left out of account or consideration were in fact described in the California Supreme Court's lengthy and careful opinion. The Supreme Court next recounted the aggravating circumstances that were judged by the state court to be devastating - "a cold-blooded execution-style killing of one victim and attempted execution-style killing of another, both during the course of a preplanned armed robbery," and the prior offenses of "the knifing of one man, and the stabbing of a pregnant woman as she lay in bed trying to protect her unborn baby." The Ninth Circuit rejected the view that such circumstances were "overwhelming" by looking to the fact that the jury deliberated an entire day on penalty and that it had asked the trial court for additional guidance on the meaning of certain terms found in two of the statutory mitigating factors. The Supreme Court did not decide whether the Ninth Circuit’s view was correct, instead holding: "[U]nder § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly." Bell [v. Cone, 122 S.Ct. 1843, 1852 (2002)]. The federal habeas scheme leaves primary responsibility with the state courts for these judgments, and authorizes federal-court intervention only when a state- court decision is objectively unreasonable. It is not that here. Whether or not we would reach the same conclusion as the California Supreme Court, "we think at the very least that the state court's contrary assessment was not 'unreasonable.'" Id., at 1853-1854 . Habeas relief is therefore not permissible under § 2254(d).
Miller-El v.
Cockrell
The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits. We look to the District Court’s application of AEDPA to petitioner’s constitutional claims and ask whether that resolution was debatable amongst jurists of reason. This threshold inquiry does not require full consideration of the factual or legal bases adduced in support of the claims. In fact, the statute forbids it. When a court of appeals side steps this process by first deciding the merits of an appeal, and then justifying its denial of a COA based on its adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction. 2003 WL 431659 at *10; see also id. at *11 ("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"); id. at *12 ("At this 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 Batson claim, the Court had "no difficulty concluding that a COA should have issued." 2003 WL 431659 at *13. Having earlier made clear that, "[e]ven in the context of federal habeas, deference does not imply abandonment or abdication of judicial review," 2003 WL 431659 at *12, 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." 2003 WL 431659 at *13. 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." 2003 WL 431659 at *13. The Court explained: It was incorrect for the Court of Appeals, when looking at the merits, to merge the independent requirements of §§ 2254(d)(2) and (e)(1). AEDPA does not require petitioner to prove that a decision is objectively unreasonable by clear and convincing evidence. The clear and convincing evidence standard is found in § 2254(e)(1), but that subsection pertains only to state-court determinations of factual issues, rather than decisions. Subsection (d)(2) contains the unreasonable requirement and applies to the granting of habeas relief rather than to the granting of a COA. 2003 WL 431659 at *13. 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. 2003 WL 431659 at *13; see also id. ("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"). In the course of discussing petitioner’s entitlement to a COA, the Court addressed the evidence supporting petitioner’s Batson claim, and the ways in which that evidence was relevant to the merits of the claim, in some detail. Disagreeing with the lower courts rejection of petitioner’s "comparative analysis" evidence, the Court found that, "[t]o the extent a divergence in responses [by prospective jurors to voir dire questions] can be attributed to the racially disparate mode of examination, it is relevant to our inquiry." 2003 WL 431659 at *7; see also id. at *14 ("We question the Court of Appeals’ and state trial court’s dismissive and strained interpretation of petitioner’s evidence of disparate questioning"). The Court went on to find that, in this case, "a fair interpretation of the record on this threshold examination in the COA analysis is that the prosecutors designed their questions to elicit responses that would justify the removal of African- Americans from the venire." 2003 WL 431659 at *15. The Court also agreed with petitioner that the prosecution’s conduct in connection with its use of a jury shuffle "raise[s] a suspicion that the State sought to exclude African-Americans." 2003 WL 431659 at *15. Finally, the Court accorded "some weight to petitioner’s historical evidence of racial discrimination by the District Attorney’s Office" in other cases, observing that this evidence "reveals that the culture of the District Attorney’s Office in the past was suffused with bias against African-Americans in jury selection," and stating that "[t]his evidence, of course, is relevant to the extent it casts doubt on the legitimacy of the motives underlying the State’s actions in petitioner’s case." 2003 WL 431659 at *16. The Court concluded by stating that, "[t]o secure habeas relief, petitioner must demonstrate that a state court’s finding of the absence of purposeful discrimination was incorrect by clear and convincing evidence, 28 U.S.C. § 2254(e)(1), and that the corresponding factual determination was ‘objectively unreasonable’ in light of the record before the court." 2003 WL 431659 at *17. 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." 2003 WL 431659 at *17. 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]" 2003 WL 431659 at *
Clay v. United States
In an opinion authored by Justice Ginsburg, a unanimous Supreme Court held that, "for federal criminal defendants who do not file a petition for certiorari with this Court on direct review, § 2255's one-year limitation period starts to run when the time for seeking such review expires." In reaching this conclusion, the Court rejected the position taken by the Seventh Circuit in this and other cases that, where a federal prisoner does not seek review by the Supreme Court on direct appeal, the case becomes final for purposes of the limitations period on the date the court of appeals' mandate issues. Noting that "finality" carries different meanings in different contexts, the Court explained that "[h]ere, the relevant context is postconviction relief, a context in which finality has a long-recognized, clear meaning: Finality attaches when this Court affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires." The Court concluding by rejecting the arguments of amicus (the United States, technically the respondent in this case, agreed with petitioner that his § 2255 motion was timely) that differences between § 2255's limitations period language and the language of § 2244(d)(1) and § 2263 compel a determination that finality under § 2255 should be defined more narrowly than under those other provisions.
Lockyer v. Andrade
In this California "three strikes" case, a divided Supreme Court reversed the Ninth Circuit’s grant of relief on the habeas petitioner’s Eighth Amendment proportionality claim, and in so doing, touched on several issues relating to the meaning and application of § 2254(d). Petitioner contended that the imposition under California’s "three strikes" law of two consecutive 25 year to life sentences for two shoplifting offenses violated the Eighth Amendment’s prohibition on grossly disproportionate sentences, and that the state courts’ rejection of that claim involved an unreasonable application of clearly established federal law. Writing for the majority, Justice O’Connor (joined by Rehnquist, C.J., and Scalia, Kennedy, and Thomas, JJ.) immediately established that "the issue" in this case was whether the state court’s decision was contrary to, or involved an unreasonable application of, federal law "within the meaning of 28 U.S.C. § 2254(d)(1)." 2003 WL 728766 at *3. After describing the substance of Andrade’s Eighth Amendment claim, and the handling of that claim by the state and lower federal courts, the Court turned to what it deemed to be the central issue: § 2254(d)(1). Beginning with the Ninth Circuit’s approach to § 2254(d), the Court stated as follows: The Ninth Circuit requires federal habeas courts to review the state court decision de novo before applying the AEDPA standard of review. See, e.g., Van Tran v. Lindsey, [212 F.3d 1143,] 1154-1155 [(C.A.9 2000)] . . .. We disagree with this approach. AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under § 2254(d)(1) – whether a state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law. See Weeks v. Angelone, 528 U.S. 225 . . . (2000). In this case, we do not reach the question whether the state court erred and instead focus solely on whether § 2254(d) forecloses habeas relief on Andrade’s Eighth Amendment claim. 2003 WL 728766 at *6.
Having identified this "disproportionality principle" as "the only relevant clearly established law amendable" to evaluation under § 2254(d)(1), the Court moved on to the "final question" – "whether the [state court’s] decision affirming Andrade’s sentence is ‘contrary to, or involved an unreasonable application of,’ this clearly established gross disproportionality principle." 2003 WL 728766 at *7. The Court first found that the state court’s decision to rely on Rummel v. Estelle was not "contrary to" governing law, since Harmelin v. Michigan "allows a state court to reasonably rely on Rummel," and because "Andrade’s sentence . . . was not materially indistinguishable from the facts in Solem [v. Helm]," the case on which Andrade primarily relied. 2003 WL 728766 at *7. Before assessing the impact of § 2254(d)(1)’s "unreasonable application" clause on Andrade’s claim, the Court paused to correct the "error" in the Ninth Circuit’s decision in Van Tran v. Lindsey to "define[] ‘objectively unreasonable’ to mean ‘clear error.’" 2003 WL 728766 at *8. The Court explained: These two standards . . . are not the same. The gloss of clear error fails to give proper deference to state courts by conflating error (even when clear) with unreasonableness. It is not enough that a federal habeas court, in its "independent review of the legal question" is left with a "firm conviction" "that the state court was erroneous." [citations and additional quotation marks omitted]. We have held precisely the opposite[.] 2003 WL 728766 at *8. The Court then acknowledged that § 2254(d)(1) "permits a federal court to grant habeas relief based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." 2003 WL 728766 at *8. "Here, however," the Court explained, "the governing legal principle gives legislatures broad discretion to fashion a sentence that fits within . . . the proportionality principle – the ‘precise contours’ of which ‘are unclear.’ . . . And it was not objectively unreasonable for the [state court] to conclude that these ‘contours’ permitted an affirmance of Andrade’s sentence." 2003 WL 728766 at *8. Justice Souter (joined by Stevens, Ginsburg and Breyer, JJ.) dissented, contending that there were "two independent reasons for holding that the disproportionality review by the state court was not only erroneous but unreasonable . . ." – first, because "[t]he facts here are on all fours with those of Solem and point to the same result," 2003 WL 728766 at *10, and second, because "the argument that repeating a trivial crime justifies doubling a 25-year minimum incapacitation sentence based on a threat to the public does not raise a seriously debatable point on which judgments might reasonably differ. The argument is irrational, and the state court’s acceptance of it in response to a facially gross disproportion between triggering offense and penalty was unreasonable within the meaning of § 2254(d)." 2003 WL 728766 at *11.
Woodford v. Garceau In Lindh v. Murphy, 521 U.S. 320 (1997), the Supreme Court ruled that the AEDPA’s amendments to Chapter 153 of the habeas corpus provisions did not apply to cases that were pending at the time AEDPA was enacted. In this California death penalty case, the Supreme Court considered "when a capital habeas case becomes ‘pending’ for purposes of the rule announced in Lindh." Writing for the Court, Justice Thomas (joined by Rehnquist, C.J., and Stevens, Scalia, and Kennedy, JJ.) concluded that, "for purposes of applying the rule announced in Lindh, a case does not become ‘pending’ until an actual application for habeas corpus relief is filed in federal court." In reaching this conclusion, the Court rejected the Ninth Circuit’s determination that Garceau’s motion for appointment of counsel and request for a stay of execution were sufficient to create a "pending" habeas case for purposes of the Lindh rule. Citing the "AEDPA’s heavy emphasis on the standards governing the review of the merits of a habeas application," the Court explained as follows: [W]hether AEDPA applies to a state prisoner turns on what was before a federal court on the date AEDPA became effective. If, on that date, the state prisoner had before a federal court an application for habeas relief seeking an adjudication on the merits of the petitioner’s claims, then amended § 2254(d) does not apply. Otherwise, an application filed after AEDPA’s effective date should be reviewed under AEDPA, even if other filings by that same applicant – such as, for example, a request for the appointment of counsel or a motion for a stay of execution – were presented to a federal court prior to AEDPA’s effective date. The Court went on to reinforce this determination with references to the language of § 2254(e)(1), which is addressed to "a proceeding instituted by an application for a writ of habeas corpus," and to "the procedural rules governing § 2254 cases," which indicate that "a habeas suit begins with the filing of an application for habeas corpus relief – the equivalent of a complaint in an ordinary civil case." The Court also rejected Garceau’s contentions that certain provisions of Chapter 154 suggest a different interpretation of the Lindh rule, and that McFarland v. Scott and Hohn v. United States indicate that a habeas case may be considered "pending" in advance of the filing of an actual application for habeas relief. The Court concluded by reversing the Ninth Circuit’s decision granting Garceau relief under pre-AEDPA law, and remanding for further proceedings. Justice O’Connor concurred in the judgment, but wrote separately because in her view "the Court’s reasoning is broader than necessary." Justice O’Connor also noted that, "[u]nder the facts of this case, . . . the Court may have misapplied its own rule" since Garceau had filed a statement of non-frivolous issues which served to put the merits of Garecau’s claims before the district court: "It is difficult to see how the ‘merits’ were not in front of the District Court at that time, which was well before the AEDPA’s effective date." Justice Souter (joined by Ginsburg and Breyer, JJ.) dissented, contending that "the earlier version of § 2254 should apply throughout a habeas proceeding if the habeas court that issued a § 2254 stay took its preliminary look at the prospects for habeas success prior to AEDPA’s effective date."
Kaupp v. Texas
State court judgment affirming murder conviction is vacated by the Supreme Court where the defendant’s confession was obtained following an unconstitutional seizure. The defendant, a 17-year-old boy, was arrested within the meaning of the Fourth Amendment when at least three police officers awakened him in his bed at 3:00 a.m., told the defendant "we need to go and talk," led the undressed defendant from his home in handcuffs, drove the defendant to the scene of the crime, and then took the defendant to an interrogation room at the police station where he was questioned. The defendant waived his Miranda rights and confessed 10 to 15 minutes into the interrogation. Under the circumstances described above, the fact that the defendant said "okay," in response to the officer’s statement "we need to go and talk," did not demonstrate consent. Instead, it was more accurately seen as submission to a claim of lawful authority. Further, the ensuing events – taking the boy from his home in his underwear, handcuffed, for a trip to the crime scene prior to interrogation at law enforcement headquarters – resolved any possible doubt about the nature of the encounter. "Even ‘an initially consensual encounter . . . can be transformed into a seizure or detention within the meaning of the Fourth Amendment.’ INS v. Delgado, 466 U.S. 210, 215 (1984)." The state court erred in attributing significance to the fact that the police routinely transported individuals in handcuffs for safety reasons, and in fact had done so with the defendant on a prior occasion. That the officers subjectively viewed the handcuffs as a means to protect themselves did not answer how their actions would be objectively perceived. As for the state’s reliance on the absence of resistance or lack of cooperation by the defendant, the Supreme Court responded, "failure to struggle with a cohort of deputy sheriffs is not a waiver of Fourth Amendment protection, which does not require the perversity of resisting arrest or assaulting a police officer." The case is remanded to the state court for a determination whether the confession was "an act of free will [sufficient] to purge the primary taint of the unlawful invasion." Wong Sun v. United States, 371 U.S. 471, 486 (1963). After recounting the evidence, the Supreme Court noted: "Unless, on remand, the state can point to testimony undisclosed on the record before us, and weighty enough to carry the state’s burden despite the clear force of the evidence shown here, the confession must be suppressed." Massaro v. United States
In this federal criminal case Justice Kennedy writes for a unanimous court, ruling that a federal prisoner may bring a claim of ineffective assistance of trial counsel in a § 2255 motion without fear of procedural default even where the claim could have been brought on direct appeal. The Court takes this position in light of the fact that ineffective assistance claims most often require further factual development, and therefore the district court is the most appropriate forum. The rule adopted by the Second Circuit, which required raising the claim on direct appeal if possible, was seen by the Supreme Court to create "inefficiencies for courts and counsel, both on direct appeal and in the collateral proceeding." The Court observed: On direct appeal it puts counsel in an awkward position vis-B-vis trial counsel. Appellate counsel often need trial counsel’s assistance in becoming familiar with a lengthy record on a short deadline, but trial counsel will be unwilling to help appellate counsel familiarize himself with a record for the purpose of understanding how it reflects trial counsel’s own incompetence. Subjecting ineffective-assistance claims to the usual cause-and-prejudice rule also would create perverse incentives for counsel on direct appeal. To ensure that a potential ineffective assistance claim is not waived - and to avoid incurring a claim of ineffective counsel at the appellate stage - counsel would be pressured to bring claims of ineffective trial counsel, regardless of merit. Even meritorious claims would fail when brought on direct appeal if the trial record were inadequate to support them. Appellate courts would waste time and resources attempting to address some claims that were meritless and other claims that, though colorable, would be handled more efficiently if addressed in the first instance by the district court on collateral review. Other aspects of the Second Circuit’s rule were found inefficient. For example, because claims of ineffectiveness were required to be raised on appeal only where there was "new" counsel, the court on collateral review was forced to determine whether appellate counsel had indeed been "new." This could be tricky when the case involved attorneys in the same law firm, one handling the trial and the other the appeal. Further, the habeas court had to "engage in a painstaking review of the trial record solely to determine if it was sufficient to support the ineffectiveness claim and thus whether it should have been brought on direct appeal." By adopting a bright line rule permitting ineffective assistance claims to be raised in § 2255 motions, the Supreme Court eliminated these time consuming inquiries. In the Court’s view, "[i]t is a better use of judicial resources to allow the district court on collateral review to turn at once to the merits." In closing, the Supreme Court clarified that it is not requiring that claims of ineffectiveness be brought in a § 2255 motion. It then noted that where claims of ineffective assistance are raised on direct appeal, or where they are addressed by an appellate court sua sponte, questions about the conclusiveness of determinations made on appeal may arise if the claim is raised again in collateral proceedings. Because that issue was not before the Court, it was left unresolved. Ewing v. California
The Supreme Court upheld a California appellate court’s ruling that the Eighth Amendment does not preclude a sentence of twenty-five years to life under the "Three Strikes" law for a recidivist defendant convicted of stealing golf clubs. The judgment of the Court was announced by Justice O’Connor. Her plurality opinion was joined by the Chief Justice and by Justice Kennedy. Justices Scalia and Thomas wrote opinions concurring in the judgment. Justice Stevens filed a dissenting opinion, which was joined by Justices Souter, Ginsburg and Breyer. Justice Breyer also wrote a dissenting opinion, which was joined by Justices Stevens, Souter and Ginsburg. In 1994, California enacted a three strikes law designed to incapacitate and deter repeat offenders. Between 1993 and 1995, 24 States and the Federal Government enacted similar laws. Although the laws vary to some degree, they all share the common goal of protecting public safety by requiring lengthy prison terms for habitual offenders. In California, a defendant who is convicted of a felony and who has previously been convicted of one or more enumerated "serious" or "violent" felonies is subject to sentencing under the three strikes provisions. If the defendant has two or more "strikes," he will receive an indeterminate life sentence. Parole eligibility is calculated by reference to a "minimum term," which is the greater of (a) three times the term otherwise provided by the new conviction, (b) 25 years, or (c) the term determined by the court for the current conviction pursuant to California Penal Code § 1170, including any enhancements. California law also provides that certain offenses can be treated as either misdemeanors or felonies. They are termed "wobblers." Some crimes that would otherwise be misdemeanors may become a wobbler as a result of the defendant’s prior record. A wobbler, if prosecuted as a felony, is a triggering offense for the three strikes statute. The decision on how to charge a wobbler is within a prosecutor’s discretion. In addition, the trial court has discretion both to reduce a wobbler charged as a felony or to vacate a strike allegation if it concludes that the enhanced punishment is outside the spirit of the law. The petitioner in this case, Gary Ewing, had a lengthy criminal history which included prior burglary and robbery convictions. In 2000, while Ewing was on parole, he walked out of a pro golf shop with three golf clubs concealed in his pants leg. He was charged with and convicted of felony grand theft of personal property in excess of $400. Because of his prior convictions, he was subject to the three strikes law. The trial court rejected Ewing’s plea that the charge be reduced to a misdemeanor or that some strikes be vacated. Ewing was sentenced to 25 years to life. On appeal, the state court rejected Ewing’s contention that his sentence was grossly disproportionate under the Eighth Amendment. O’Connor’s opinion begins by recounting the key Supreme Court cases on disproportionate sentencing, Rummel v. Estelle,445 U.S. 263 (1980), Hutto v. Davis, 454 U.S. 370 (1982) (per curiam), Solem v. Helm, 463 U.S. 277 (1983), and Harmelin v. Michigan, 501 U.S. 957 (1991). In Rummel, the Court found no Eighth Amendment violation from a life with parole sentence given to a man with repeated theft convictions. In Hutto, consecutive sentences of 20 years was not unconstitutional for a man convicted of drug distribution charges. In contrast, in Solem, a life without possibility of parole sentence was deemed disproportionate when imposed on a man convicted of his seventh nonviolent felony - uttering a "no account" check for $100. In order to assess disproportionality under the Eighth Amendment, the Court in Solem identified three factors: (1) the gravity of the offense and the harshness of the punishment; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. Solem did not overrule Rummel. Rather, it distinguished Rummel on the ground that the defendant there had a parole opportunity. Harmelin, unlike Rummel and Solem, did not concern a recidivism statute. The defendant in Harmelin was a first-time offender who received a sentence of life imprisonment without the possibility of parole for possessing 672 grams of cocaine. Although a majority of the Court concluded no Eighth Amendment violation occurred, there was no agreement on why Harmelin’s proportionality argument failed. In the view of Justice Scalia and the Chief Justice, gross disproportionality principles apply only to capital cases. Justice Kennedy, joined by two other Justices, took a different view. He concluded that gross disproportionality under the Eighth Amendment could occur in non-capital cases, and identified four principles of proportionality review - "the primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by object factors" - that inform the final one: only gross disproportionality is prohibited by the Constitution. Justice Kennedy’s concurrence further stated that Solem does not mandate comparative analysis within and between jurisdictions. It is Kennedy’s proportionality principles from Harmelin that guide O’Connor’s analysis. After discussing the clear policy choice behind the three strikes law, she points out that the Court has traditionally deferred to state legislatures in making such decisions. This deference finds a corollary in the principle that no one penological theory is mandated by the Constitution. Instead, "[a] sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation." Thus, nothing in the Eighth Amendment barred California from choosing to incapacitate certain recidivists, which also serves the interest of deterring crime. Indeed, numerous Supreme Court cases recognize that States have a valid interest in deterring and segregating habitual criminals. In concluding that the justification given by California cannot be deemed pretextual, O’Connor sets out statistics showing the extremely high recidivism rate of persons with a criminal history similar to Ewing’s. O’Connor also cites to studies showing certain positive effects from the law. O’Connor concedes that the law is controversial, but finds that critics of three strikes should be directing their views towards the legislature. O’Connor next turns to Ewing’s specific case. First, there is a comparison of the gravity of the offense and the severity of the sentence imposed. O’Connor believes that Ewing has incorrectly framed this issue by describing the gravity of the offense as merely "shoplifting three golf clubs." Her formulation of the offense is: "Ewing was convicted of felony grand theft for stealing nearly $1,200 worth of merchandise after previously having been convicted of at least two ‘violent’ or ‘serious’ felonies." O’Connor insists that the gravity of the crime must include consideration of both the current theft and Ewing’s long history of felony recidivism. "Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature’s choice of sanctions." O’Connor finds the sentence received by Ewing to be justified by the State’s legitimate interests, and supported by Ewing’s long, serious criminal record. Although the triggering offense for the severe sentence was a non-violent property crime, neither the Eighth Amendment nor Supreme Court precedent precludes the California legislature from choosing to make the character of the most recent crime non-determinative in the three strikes law. Justice Scalia concurs in the judgment. He continues to believe that the Eighth Amendment does not include a guarantee against disproportionate sentences in non-capital cases, and the plurality opinion fails to convince him that there is a narrow proportionality principle that can be intelligently applied. He sees proportionality analysis as applicable only where the penological theory is retribution. Once a different theory is invoked to justify the sentence, there is no intelligent means of analysis. Scalia ultimately accuses the majority of evaluating policy rather than applying the law. Justice Thomas also concurs in the judgment. He first expresses his agreement with Scalia’s conclusion that the test announced in Solem "is incapable of judicial application." Then he explains that even if Solem’s test was perfectly clear, he does not believe the Eighth Amendment contains a proportionality principle. Justice Stevens dissents, asserting that the punishment received by Ewing is cruel and unusual under Harmelin as set forth fully in Justice Breyer’s dissent. He notes, however, that because this case involves a recidivist statute the Solem test, rather than the narrower Harmelin analysis, appears more directly on point. Stevens writes separately in order to respond to the concurrences and to demonstrate "that proportionality review is not only capable of judicial application but also required by the Eighth Amendment." Justice Breyer applies Harmelin and concludes that this is one of the exceedingly rare cases where the punishment imposed is grossly disproportionate. According to Breyer, "[t]hree kinds of sentence-related characteristics define the relative comparative spectrum: (a) the length of the prison term in real time, i.e., the time that the offender is likely actually to spend in prison; (b) the sentence-triggering criminal conduct, i.e., the offender’s actual behavior or other offense-related circumstances; and (c) the offender’s criminal history. Applying these factors, Breyer finds that Ewing’s case presents a factual scenario closer to Solem than Rummel, and that there is arguably an unconstitutional sentence in this case. Having passed this threshold test of disproportionality, Breyer turns to comparative analysis, looking at: (1) how other jurisdictions (or pre-three strikes California) punish the same offense conduct; and (2) what other conduct leads to a similar sentence. Breyer’s discussion draws extensively on publications tracking actual time served for grand theft and other crimes. These sources lead him to conclude that "[o]utside the California three strikes context, Ewing’s recidivist sentence is virtually unique in its harshness for his offense of conviction, and by a considerable degree." Finally, Breyer rejects the notion that special criminal justice concerns related to the three strikes policy might justify the treatment Ewing received. In closing, Breyer counters the arguments of the concurrences concerning the scope of the Eighth Amendment and the feasibility of conducting proportionality review. Sattazahn v. Pennsylvania
The Supreme Court held that neither the Double Jeopardy nor the Due Process Clause barred imposition of a death sentence in a case where the defendant was initially sentenced to life imprisonment after the jury could not reach a unanimous agreement on penalty, but the defendant’s successful appeal of his conviction led to a retrial at which the death penalty was successfully sought. Justice Scalia announced the judgment of the Court and delivered an opinion in which Justices O’Connor and Kennedy joined in all but one section, and Justice Thomas and the Chief Justice joined in its entirety. O’Connor wrote an opinion concurring in part and concurring in the judgment. Justice Ginsburg dissented, joined by Justices Stevens, Souter and Breyer. Sattazahn was convicted of several crimes, including first-degree murder. At the sentencing phase, the prosecutor presented evidence of one statutory aggravating circumstance. Under Pennsylvania law, a sentence of death is mandatory if the jury unanimously finds one or more aggravating circumstances and no mitigating circumstances, or if the jury unanimously finds one or more aggravating circumstances that outweigh any mitigating circumstances. If the jury appears incapable of reaching a unanimous decision, the trial judge has discretion to discharge the jury, in which case the defendant will be sentenced to life imprisonment. Without making any specific finding about the alleged aggravating circumstance, the jury in Sattazahn’s case indicated it was hopelessly deadlocked 9-3 in favor of a life sentence. The jury was discharged and Sattazahn was sentenced to life in prison. On appeal Sattazahn successfully challenged the guilt-phase instructions, resulting in a remand for a new trial. The prosecutor provided notice that it would seek the death penalty again, and that it would seek to prove an additional aggravating circumstance at the new sentencing phase. At the second sentencing trial, the jury returned with a death verdict. Scalia begins by citing to Stroud v. United States, 251 U.S. 15 (1919), a pre-Furman case, where the Court found that double jeopardy principles did not preclude the prosecution from seeking a death sentence on retrial of a defendant who successfully challenged his conviction after receiving a life sentence. Notably, in Stroud no special findings had been required in order for a sentence of death to be imposed. Stroud was contrasted by Scalia with Bullington v. Missouri, 451 U.S. 430 (1981), a case in which the Court recognized that the Double Jeopardy Clause does apply to sentencing proceedings if they "have the hallmarks of the trial on guilt or innocence." Id. at 439. Missouri’s sentencing proceedings resembled a traditional trial in that they required the prosecutor to prove certain statutorily defined facts beyond a reasonable doubt before a defendant could receive a sentence of death. A jury verdict of life signified an acquittal of whatever it was that was needed for a sentence of death. Thus, the Double Jeopardy Clause precluded the prosecution from seeking the death penalty at any retrial following a. life verdict. In so ruling, the Supreme Court made clear in Bullington that an "acquittal" at a trial-like sentencing phase, rather than the mere imposition of a life sentence, was required in order for double jeopardy protections to arise. Similarly, in Arizona v. Rumsey, 467 U.S. 203 (1984), the Supreme Court held that the Double Jeopardy Clause barred a retrial of the sentencing phase where the trial court found that none of the three alleged aggravating factors existed. In that case, the defendant had appealed his conviction after receiving a life sentence. The Arizona Supreme Court ruled on the State’s cross-appeal that the trial court erred in its interpretation of one of the aggravating factors, and remanded for a new sentencing proceeding which then produced a death sentence. The Supreme Court reversed, finding that the trial court’s findings in the first sentencing phase established Rumsey’s legal entitlement to a life verdict. Rumsey thus "reaffirmed that the relevant inquiry for double-jeopardy purposes [is] not whether the defendant received a life sentence the first time around, but whether a first life sentence was an ‘acquittal’ based on findings sufficient to establish legal entitlement to the life sentence . . .." Sattazahn, 123 S.Ct. at 738. In contrast was Poland v. Arizona, 476 U.S. 147 (1986), where the defendant received a sentence of death at his initial sentencing proceeding. On appeal the Arizona Supreme Court held that the evidence was insufficient to support the single aggravating circumstance found by the trial court. It also concluded, however, that there was sufficient evidence to support the second aggravating factor that the trial court erroneously found had not been proven. Under these circumstances, the Supreme Court determined that the Double Jeopardy Clause was not implicated because neither the judge nor the jury had "acquitted" Poland of death "by entering findings sufficient to establish legal entitlement to the life sentence." Sattazahn, 123 S.Ct. at 738. Like in Poland, Scalia concludes that neither the jury or the judge made findings in Sattazahn’s case sufficient to establish a legal entitlement to the life sentence. Further, as for any argument that there was a state law entitlement to a life verdict under the sentencing statute, Scalia points out that the Pennsylvania Supreme Court did not find an intent by the legislature to create such an entitlement. In the plurality portion of Scalia’s opinion, he considers how Apprendi and Ring should inform the Supreme Court’s double jeopardy jurisprudence insofar as it relates to capital sentencing. Scalia can see no principled reason to distinguish between what constitutes an offense for purposes of the Sixth Amendment’s jury-trial guarantee and what constitutes an "offense" for purposes of the Fifth Amendment Double Jeopardy Clause. This approach limits double jeopardy protections to situations where the fact-finder acquits the defendant of an aggravating circumstance that creates eligibility for the death penalty. The remaining portion of the opinion is joined by a majority of the Justices. It includes a section explaining why the dissent’s reliance on United States v. Scott, 437 U.S. 82 (1978), is misplaced. The concluding portion is a rejection of Sattazahn’s due process argument, which was based on an alleged deprivation of "a constitutionally protected life and liberty interest in the finality of the life judgment statutorily mandated as a result of a [deadlocked] jury." Scalia responds: Nothing indicates that any "life" or "liberty" interest that Pennsylvania law may have given petitioner in the life sentence imposed after his first capital sentencing proceeding was somehow immutable. And he was "deprived" of any such interest only be operation of the "process" he invoked to invalidate the underlying first-degree murder conviction on which it was based. The Court "decline[s] petitioner’s invitation to hold that the Due Process Clause provides greater double-jeopardy protection than does the Double Jeopardy Clause." Justice O’Connor’s concurring opinion explains that she does not join Scalia’s Apprendi/Ring discussion because she continues to believe that Apprendi was wrongly decided. She also sets forth her analysis for disposing of Sattazahn’s double jeopardy claim. In short, double jeopardy in the capital sentencing context requires a finding by the sentencer that the prosecution failed to prove its case that the death penalty is appropriate. When, as in this case, the jury simply deadlocked, there is no decision at all and the defendant was not "acquitted" of the death penalty under Bullington and Rumsey. Justice Ginsburg, dissents. She would hold that entry of a final judgment after a jury deadlock, as mandated by state law, "qualifies as a jeopardy-terminating event." While she agrees with the majority’s assertion that double jeopardy case law attaches particular significance to an acquittal, she contends that Supreme Court precedent "recognize[s] that jeopardy can terminate in circumstances other than acquittal." She relies heavily on language in United States v. Scott, 437 U.S. 82 (1978), to support that proposition. There are also "two ultimate considerations" that she gives weight to in finding that double jeopardy principles should preclude the death sentence in this case. First, under the majority’s rule, "a defendant in Sattazahn’s position must relinquish either her right to file a potentially meritorious appeal, or her state-granted entitlement to avoid the death penalty." Ginsburg argues that the Court has previously declined to interpret the Double Jeopardy Clause in a manner that would place defendants in such a bind. See, e.g., Green v. United States, 355 U.S. 184 (1957) [rejecting argument that appealing a second-degree murder conviction prolonged jeopardy on a related first-degree murder charge].) Second, the uniqueness of the death penalty in both its severity and its finality "heighten Sattazahn’s double jeopardy interest in avoiding a second prosecution." Bunkley v. Florida
The Supreme Court held that the Florida Supreme Court contradicted the principles of Fiore v. White, 531 U.S. 225 (2001) (per curiam), when it refused to apply new case law to defendant on postconviction review without addressing whether the recent decision, which it described as part of an evolutionary refinement of the law, represented the state of the law as it existed at the time Bunkley’s conviction became final. The Chief Justice dissented, joined by Justices Kennedy and Thomas. Petitioner Bunkley was arrested for burglary in 1986. At the time of his arrest, the police discovered Bunkley was carrying a "pocketknife, with a blade of 2 ½ to 3 inches in length," folded and in his pocket. Bunkley was charged with first degree burglary based on his possession of a "dangerous weapon" during the offense. If there was no "dangerous weapon" involved, the offense would have been third degree burglary which carried a maximum sentence of 5 years. Bunkley was convicted of first degree burglary and sentenced to life imprisonment. In 1989, a Florida appellate court affirmed the conviction and sentence, rejecting Bunkley’s argument that the pocketknife was not a weapon under state law. The Florida statute that defines "weapons" has since 1901 expressly stated that a "common pocketknife" does not constitute a weapon. It was not until 1997, however, that the Florida Supreme Court interpreted the meaning of "common pocketknife." In L.B. v. State, 700 So.2d 370, the state supreme court ruled that a pocketknife with a blade of 3 3/4 inches clearly met the "common pocketknife" exception to the statutory definition of "weapon." In so ruling, the state court relied on a 1951 opinion by the Florida Attorney General that stated a pocketknife with a blade of 4 inches or less was a "common pocketknife." Given this holding, the state court reversed L.B.’s conviction. Following the L.B. decision, Bunkley filed for postconviction relief. The Florida Supreme Court affirmed the denial of relief to Bunkley on the ground that L.B. did not apply retroactively. The state court explained that only "jurisprudential upheavals" are applied retroactively, and the L.B. decision was merely an "evolutionary refinement" of the law. Without analysis, the state court announced that Fiore v. White was inapplicable. The United States Supreme Court began by recounting its decision in Fiore. In that case, the defendant could not be found guilty of the crime for which he had been convicted if a state court decision that post-dated the finality of his conviction was applied to his case. Certiorari was granted to determine whether the Due Process Clause required retroactive application of the new law. That question was rendered moot, however, when the Pennsylvania Supreme Court stated in response to a certified question that the decision at issue did not represent a change in law, but merely clarified the plain language of the statute. The Supreme Court then concluded that Fiore’s conviction violated the Due Process Clause on the ground that his conduct did not satisfy an element of the crime, as made clear by the later state court decision. It is Fiore, rather than retroactivity analysis, that is found by the Court to control here. The key question, which was never answered by the Florida Supreme Court, is what the law was at the time Bunkley’s conviction became final, i.e., in 1989, was Bunkley’s 2 ½ to 3 inch pocketknife a "weapon" under Florida law? This would not be an issue had the Florida Supreme Court described L.B. simply as a change in the law. Instead, however, it characterized L.B. as part of a century long evolutionary process. Thus, the case was remanded for the Florida Supreme Court to determine whether the L.B. ruling stated the law as it existed in 1989, or whether further evolution occurred following finality of Bunkley’s conviction. In dissent, the Chief Justice complained that the Court was making new law without either briefing or argument. According to Rehnquist, the Florida Supreme Court’s announcement that L.B. constituted a change in the law rendered Fiore inapplicable, as the state court recognized. Price v. Vincent
In a case governed by AEDPA, a unanimous Supreme Court held that the Sixth Circuit erred by applying de novo review to the question of whether the trial court’s statements concerning a motion for directed verdict effectively acquitted petitioner of first degree murder. Given the record in this case, the proper inquiry was whether the state appellate court’s decision rejecting petitioner’s double jeopardy claim was contrary to Supreme Court precedent, or based on an unreasonable application of that precedent. Applying § 2254(d), the Court found habeas relief precluded. The Chief Justice authored the opinion for the Court. Duyonn Vincent had been charged with open murder. At the close of the prosecution’s case, Vincent’s attorney moved for a direct verdict of acquittal as to first degree murder, arguing that there was insufficient evidence of premeditation and deliberation. The trial court expressed agreement with that view, opined that second degree murder was the appropriate charge, and then said “Okay.” Prior to adjournment, the prosecutor asked permission to make a statement about first degree murder the following day. The trial court agreed to hear it. When the prosecutor made the statement, defense counsel objected, asserting that the trial court had already directed a verdict in favor of Vincent, thereby precluding further prosecution for first degree murder under the Double Jeopardy Clause. While the trial court conceded he’d granted a motion, it denied that it had directed a verdict and ultimately permitted the charge of first degree murder to go to the jury. Vincent was convicted of that charge. On appeal, the intermediate appellate court concluded that the conviction did indeed violate the Double Jeopardy Clause. The Michigan Supreme Court reversed. It acknowledged that a trial court’s characterization of a ruling or the form of the ruling was not necessarily controlling for Double Jeopardy purposes. Looking to the record, the state supreme court determined that the trial court’s comments were not sufficiently final to constitute a judgment of acquittal terminating jeopardy. Vincent unsuccessfully sought reconsideration of this ruling in light of the docket sheet which stated: “Motions by all atts for directed verdict. Court amended c[oun]t: 1 open murder to 2nd degree murder.” A federal district court then granted Vincent’s habeas petition and the Sixth Circuit affirmed. Although reciting the new limitation on habeas relief found in 28 U.S.C. § 2254(d), the federal appeals court applied de novo review because the acquittal question was one of law rather than fact. The Supreme Court found that the Sixth Circuit’s approach was erroneous. Because the facts were not disputed, Vincent was only able to receive habeas relief if the state supreme court’s decision was contrary to, or involved an unreasonable application of, clearly established law as set forth by the Supreme Court. 28 U.S.C. § 2254(d)(1). Looking to the state court opinion, the Supreme Court noted that it had correctly identified the relevant Supreme Court cases, and reaffirmed the principles articulated in them. Further, it had properly followed one of them when it recognized that the trial court’s characterization of its actions was not controlling. Nothing in the state court’s decision set forth a rule contrary to the guiding Supreme Court precedent. Nor was Vincent’s case virtually identical to those cases in which the Supreme Court had found a double jeopardy violation. Therefore, the state court decision could not be deemed “contrary to” Supreme Court case law. Nor could it be found to involve an unreasonable application of clearly established law. The state court applied the relevant Supreme Court cases in concluding that the trial court’s comments were not sufficiently final so as to terminate jeopardy. In addition to reviewing the context and substance of the trial court’s remarks, the state court further noted: (1) no formal judgment or order had been entered; (2) the jury did not hear the comments and was never discharged; (3) and no trial proceedings took place with Vincent mistakenly believing he was no longer facing a first degree murder charge. Although the state court had initially observed that a docket entry was something that might be considered in determining finality, when the entry from this case was brought to its attention, the court did not waiver from its conclusion that the trial court’s comments did not terminate jeopardy. According to the Supreme Court, this was not an “objectively unreasonable” application of its case law. In reaching this conclusion, the Court pointed out that “numerous other courts have refused to find double jeopardy violations under similar circumstances.” Thus, even if the Supreme Court agreed with the Sixth Circuit that the Double Jeopardy Clause should be read to invalidate Vincent’s first degree murder conviction, it was reasonable for the state court to conclude otherwise, and so Vincent was unable to meet the statutory requirements for habeas relief. Sell v. United States
In this non-capital case concerning a federal prosecution, the Supreme Court reversed the Eighth Circuit’s ruling that the Constitution permitted the forcible medication of the defendant in order to render him competent to stand trial, and remanded for further proceedings consistent with the Court’s opinion. Justice Breyer wrote the majority opinion, joined by the Chief Justice, and Justices Stevens, Kennedy, Souter and Ginsburg. Justice Scalia wrote a dissenting opinion, which was joined by Justices O’Connor and Thomas. First, the majority held that the order requiring Sell to be involuntarily medicated was appealable under the collateral order doctrine. Next, the Court examined the relevant precedent in this area – Washington v. Harper, 494 U.S. 210 (1990), and Riggins v. Nevada, 504 U.S. 127 (1992) – and found that these cases established the following: [T]he Constitution permits the Government involuntarily to administer antipsychotic drugs to a mentally ill defendant facing serious criminal charges in order to render that defendant competent to stand trial, but only if the treatment is medically appropriate, is substantially unlikely to have side effects that may undermine the fairness of the trial, and, taking account of less intrusive alternatives, is necessary significantly to further important governmental trial-related interests. The Court then observed that it might be only in rare instances that involuntary medication for purposes of restoring competency would be permissible given that the above standard implies that a court must find: (1) important governmental interests are at stake; (2) involuntary medication will significantly further those concomitant state interests; (3) involuntary medication is necessary to further those interests; and (4) administration of the drugs is medically appropriate, i.e., in the patient's best medical interest in light of his medical condition. Regarding what constitutes an important government interest, the Court noted that serious crimes for which the government has a significant interest in bringing the accused to trial includes both crimes against a person and crimes against property. The interest in prosecuting a serious crime may be somewhat diminished, however, where the defendant’s refusal to be medicated will result in prolonged confinement in a facility for the mentally ill. The same is true where the defendant has already been incarcerated for a lengthy time, and would receive credit for that time in sentencing. Further, the Court observed that the government "has a concomitant, constitutionally essential interest in assuring that the defendant's trial is a fair one." As to whether forcible medication will significantly further state interests, this requires a finding that "administration of the drugs is substantially likely to render the defendant competent to stand trial," and also that "administration of the drugs is substantially unlikely to have side effects that will interfere significantly with the defendant's ability to assist counsel in conducting a trial defense . . .." Turning to the question of when involuntary medication can be deemed necessary, the Court stated that a lower court must find that "any alternative, less intrusive treatments are unlikely to achieve substantially the same results." Further, a court is required to consider "less intrusive means for administering the drugs, e.g., a court order to the defendant backed by the contempt power, before considering more intrusive methods." Finally, as to appropriateness of the medication, the Court noted that "[d]ifferent kinds of antipsychotic drugs may produce different side effects and enjoy different levels of success." The Court then clarified that the above analysis applies only in cases where the medication is for the purpose of rendering the defendant competent for trial, and it will be unnecessary in cases where forced medication is found to be appropriate because the defendant is a danger to himself or others, or where refusal to take the medication places the defendant’s health at risk. Lower courts that are asked to approve forced administration of drugs for purposes of rendering a defendant competent to stand trial "should ordinarily determine whether the Government seeks, or has first sought, permission for forced administration of drugs" on other grounds, given that "the findings underlying such a decision will help to inform expert opinion and judicial decisionmaking in respect to a request to administer drugs for trial competence purposes." Turning to Sell’s case, the Court assumed that the Eighth Circuit was correct in rejecting the finding of the Medical Center and the Magistrate Judge that involuntary medication was justified in large part by Sell’s dangerousness. The Court then held that the appeals court erred in finding that the government’s desire to have Sell stand trial supported the order medicating him against his wishes. Because the focus of the hearings and testimony below were on the question of Sell’s dangerousness, "the experts did not pose important questions--questions, for example, about trial-related side effects and risks--the answers to which could have helped determine whether forced medication was warranted on trial competence grounds alone." Thus, the Court was unable to "tell whether the side effects of antipsychotic medication were likely to undermine the fairness of a trial in Sell's case." Further, the appeals court did not consider the fact that Sell had already been confined for a significant period of time, and further confinement could result from a refusal to take medication. These factors "moderate-- though they do not eliminate--the importance of the governmental interest in prosecution." The case therefore had to be remanded for further proceedings consistent with the opinion. Justice Scalia dissented, expressing the view that the Court lacked jurisdiction to hear the case. Stogner v. California
In this non-capital case from California, the Supreme Court ruled 5-4 that the Ex Post Facto Clause bars application of a new law extending the statute of limitations in certain criminal cases, where the new law was passed after the prior limitations period had already expired. The majority opinion was written by Justice Breyer, joined by Justices Stevens, O’Connor, Souter and Ginsburg. Justice Kennedy dissented, joined by the Chief Justice and Justices Scalia and Thomas. Stogner was indicted in 1998 on charges of sex-related child abuse committed between 1953 and 1977. At the times the crimes were allegedly committed, there was a 3-year statute of limitations. This limitations period had expired more than two decades before Stogner’s indictment. The new prosecution was based on a law enacted in 1993 to apply to sex-related child abuse charges. Under the new law, a prosecution was permissible despite the expiration of the prior limitation period if: (1) a victim reported allegations of abuse to the police; (2) there was clear and convincing evidence to corroborate the allegations; and (3) the prosecution was begun within 1-year of the victim’s report. Looking to Calder v. Bull, 3 Dall. 386, 391 (1798), the Court found an ex post facto violation in applying the new statute to Stogner. In Calder, four categories of ex post facto laws were identified. The Court concluded that the law at issue here fell into the second category – laws "that aggravate[] a crime, or make[] it greater than it was, when committed," as understood to mean laws that "inflict[] punishments, where the party was not, by law, liable to any punishment" The Court explained: After (but not before) the original statute of limitations had expired, a party such as Stogner was not "liable to any punishment." California’s new statute therefore "aggravated" Stogner’s alleged crime, or made it "greater than it was, when committed," in the sense that, and to the extent that, it "inflicted punishment" for past criminal conduct that (when the new law was enacted) did not trigger any such liability. See also H. Black, American Constitutional Law §266, p. 700 (4th ed. 1927) (hereinafter Black, American Constitutional Law) ("[A]n act condoned by the expiration of the statute of limitations is no longer a punishable offense") The Court also observed that the law at issue may also fall under the fourth Calder category – for laws "that alter[] the legal rules of evidence, and receive[] less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender." Given its finding that the second category was implicated here, the Court did not fully explore the fourth category. Of additional significance to the Court was that fact that "numerous legislators, courts, and commentators have long believed it well settled that the Ex Post Facto Clause forbids resurrection of a time-barred prosecution." These sources are recounted in some detail in the opinion. Further, the Court pointed out that "[e]ven where courts have upheld extensions of unexpired statutes of limitations," holdings which were not at issue in this case, "they have consistently distinguished situations where limitations periods have expired." The opinion closed with a lengthy discussion of why the dissent’s view "is too narrow; . . . is unsupported by precedent; and . . . would deny liberty where the Constitution gives protection." In dissent, Justice Kennedy asserted: The Court’s stretching of Calder’s second category contradicts the historical understanding of that category, departs from established precedent, and misapprehends the purposes of the Ex Post Facto Clause. The Court also disregards the interests of those victims of child abuse who have found the courage to face their accusers and bring them to justice. The Court’s opinion harms not only our ex post facto jurisprudence but also these and future victims of child abuse, and so compels my respectful dissent.
Wiggins v. Smith
In this Maryland capital case, the Supreme Court held that Wiggins’ Sixth Amendment right to the effective assistance of counsel was violated by trial counsel’s failure to investigate Wiggins’ background and present mitigating evidence of his unfortunate life history at the sentencing proceedings. Further, the Court found that the state court’s conclusion that counsel did not perform deficiently was based in part on an unreasonable determination of the facts, and the state court’s decision denying relief to Wiggins involved an unreasonable application of Strickland v. Washington. Justice O’Connor delivered the opinion of the Court, which was joined by the Chief Justice, and Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer. Justice Scalia filed a dissenting opinion in which Justice Thomas joined. Wiggins was convicted at a bench trial of the robbery-murder of a 77-year-old woman. Wiggins then elected to be sentenced by jury. His trial attorneys moved for a bifurcated hearing in hopes of first showing that Wiggins was not a "principal in the first degree," i.e., that he did not kill the victim by his own hand, which would eliminate death eligibility. If he was found to be a principal, mitigation evidence would then be presented. The motion was denied. To preserve the issue for appeal, lead counsel made a proffer of the mitigation evidence that would have been presented had the motion been granted. The evidence mentioned went to psychological reports and expert testimony regarding Wiggins’ limited intellectual functioning, capacity for empathy, etc. The proffer did not include any reference to evidence of Wiggins’ life history or family background. In the opening statement of second counsel at the sentencing hearing, she informed the jurors that they would hear evidence suggesting that someone other than Wiggins killed the victim. She also stated that they would hear about Wiggins’ difficult life. No evidence of his life history was presented to the jury, which returned with a sentence of death. After his conviction and death sentence were affirmed, Wiggins sought postconviction relief. He argued, among other things, that trial counsel was ineffective in failing to investigate and present evidence of Wiggins’ dysfunctional background. In support of the claim, he presented testimony by Hans Selvog, a licensed social worker, who had prepared an elaborate social history report which contained evidence of severe physical and sexual abuse suffered by Wiggins at the hands of his mother and while in the care of foster parents. At an evidentiary hearing, lead counsel explained that he and cocounsel had decided well in advance of trial to focus the sentencing phase on retrying the factual case and disputing Wiggins’ direct responsibility for the murder. Relief was ultimately denied by the postconviction court on the ground that counsel had made a tactical decision not to investigate. This was affirmed by the appellate court, which noted that counsel had been generally aware of Wiggins’ troubled background, including physical and sexual abuse, through the presentence report (PSI) and social service (DSS) records. Counsel then made a reasoned choice to proceed with a different sentencing phase defense. The federal district court, in contrast, found that counsel was ineffective. The limited knowledge counsel had about Wiggins’ background, in the view of the district court, triggered an obligation to look further. The Fourth Circuit reversed, agreeing with the state appellate court’s finding that counsel had sufficient knowledge of available mitigation to make an informed strategic choice to focus on contesting Wiggins’ direct responsibility for the murder. Because this case falls under the AEDPA, the Court begins its analysis by identifying the "clearly established" precedent that existed at the time of the state court’s decision. The governing case is Strickland v. Washington, 466 U.S. 668 (1984), with its two prong test for assessing claims of ineffective assistance of counsel. Under Strickland, "strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Id. at 690-691. The Court recounts its recent decision in Williams v. Taylor, which it finds "illustrative of the proper application of [Strickland’s] standards." The Court observes that Williams v. Taylor is relevant even though it had not been decided at the time of the Maryland court’s rejection of Wiggins’ claim because the case made no new law, but rather simply applied Strickland. Under Strickland, the proper question in this case is not whether counsel should have presented mitigation. Instead, the focus is on "whether the investigation supporting counsel’s decision not to introduce mitigating evidence of Wiggins’ background was itself reasonable." This requires "a context-dependent consideration of the challenged conduct as seen ‘from counsel’s perspective at the time.’" (Quoting Strickland, 466 U.S. at 689.) The Court then turns to counsel’s investigation. Counsel had arranged for psychological testing of Wiggins. The reports of the psychologist, however, revealed nothing about Wiggins’ life history. The PSI had a one-page account of Wiggins’ history, which noted his "misery as a youth," his description of his background as "disgusting," and stated that Wiggins had spent most of his life in foster care. Finally, counsel had social service records documenting Wiggins’ various foster care placements. The Court concludes that counsel’s decision not to expand its investigation beyond these records "fell short of the professional standards that prevailed in Maryland in 1989." At that time, it was standard practice in Maryland to have a social history report prepared. Even though funds were available for such a report, counsel here chose not to commission one. In addition, counsel’s conduct fell short of the standards for capital defense work articulated by the ABA. It is the ABA standards that the Court has long referred to as guides to determining what is reasonable. These guidelines required efforts to discover "all reasonably available" mitigating evidence, as well as evidence to rebut any aggravating evidence presented by the prosecution. "Despite these well-defined norms, however, counsel abandoned their investigation of petitioner’s background after having acquired only rudimentary knowledge of his history from a narrow set of sources." The scope of counsel’s investigation was also unreasonable in light of what counsel discovered from the social service records: that Wiggins’ mother was a chronic alcoholic; that Wiggins was shuttled from foster home to foster home and he displayed some emotional difficulties while there; Wiggins had frequent lengthy absences from school; and, at least one time, Wiggins and his siblings were left alone for days without food by their own mother. The Court finds that "any reasonably competent attorney would have realized that pursuing these leads was necessary to making an informed choice among possible defenses, particularly given the apparent absence of any aggravating factors in petitioner’s background." Because counsel had uncovered nothing indicating that further investigation would be counterproductive or fruitless, this case is distinguishable from prior cases where the Court found limited investigations to be reasonable. Looking to the trial record, the Court finds suggestions that counsel’s failure to investigate was the result of inattention, rather than reasoned strategic judgment. Counsel sought to have the proceedings bifurcated up until the eve of sentencing. Thus, counsel had every reason to have a fully developed mitigation case ready for presentation should the motion be granted. Further, the actual sentencing proceeding was not limited to contesting Wiggins’ direct responsibility for the killing. Counsel had promised the jury evidence of Wiggins’ difficult life, although such evidence was never presented. The jury did hear from a criminologist who testified about adjustment issues for prisoners sentenced to life, a subject not related to Wiggins’ role in the crime. Thus, counsel did in fact put forth the kind of shotgun mitigation approach that the state appellate court concluded counsel had made a tactical decision to avoid. "When viewed in this light, the ‘strategic decision’ the state courts and respondents all invoke to justify counsel’s limited pursuit of mitigating evidence resembles more a post-hoc rationalization of counsel’s conduct than an accurate description of their deliberations prior to sentencing." The Court then finds that the state appellate court unreasonably applied Strickland by assuming that counsel was in a position to limit the investigation because they were in possession of some mitigating evidence. In fact, given what the records in counsel’s possession showed, "counsel chose to abandon their investigation at an unreasonable juncture, making a fully informed decision with respect to sentencing strategy impossible." Having unreasonably presumed that counsel’s investigation was adequate, the state court further unreasonably applied Strickland by then giving deference to counsel’s decision not to present every conceivable mitigation defense. Furthermore, the state court’s conclusion was based in part on a clear factual error – that evidence of sexual abuse was included in the records counsel possessed. This was shown to be incorrect by clear and convincing evidence (see 28 U.S.C. § 2254(e)(1)), and reflected "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 2254(d)(2). According to the Court, "[t]his partial reliance on an erroneous factual finding further highlights the unreasonableness of the state court’s decision." The Court next discusses in some detail why it reads the state appellate court opinion as premised on an understanding that counsel’s investigation began and ended with the PSI and social service records. (This is disputed by the dissent, which argues that the state appellate court made a binding factual finding that counsel looked beyond those records.) It then addresses de novo the question of whether counsel did in fact go beyond the records in investigating Wiggins’ background. Looking to the record as a whole, the Court concludes it does not support a finding that counsel did a more thorough investigation than described above. While the dissent reads trial counsel’s postconviction testimony as establishing knowledge of the sexual abuse, the Court construes the testimony in a different manner. Further, the Court points out that counsel made no reference to repeated sexual abuse in its proffer in support of bifurcation. This is only explicable if it is assumed that counsel was ignorant of the abuse. As for the fact that counsel engaged a psychologist, this "sheds no light on the extent of their investigation into petitioner’s social background." And while the psychologist did base his conclusions in part on clinical interviews with Wiggins, as well as meetings with his family members, "his final report discussed only petitioner’s mental capacities and attributed nothing of what he learned to Wiggins’ social history." The Court concludes that counsel’s investigation into Wiggins’ background was in fact limited to the PSI and social service records, and that such an investigation "did not reflect reasonable professional judgment." And, as noted above, the objective unreasonableness of the state appellate court’s decision meets the requirements for habeas relief under § 2254(d). Finally, the Court applies the prejudice prong of Strickland. Because the state courts did not reach this issue, the Court is unconstrained by § 2254(d). The Court describes the background evidence that counsel failed to discover as "powerful." Selvog’s report indicated: Wiggins experienced severe privation and abuse in the first six years of his life while in the custody of his alcoholic, absentee mother. He suffered physical torment, sexual molestation, and repeated rape during his subsequent years in foster care. The time Wiggins spent homeless, along with his diminished mental capacities, further augment his mitigation case. It is this type of "troubled history" that the Court has repeatedly "declared relevant to assessing a defendant's moral culpability." The Court finds it reasonably probably that a competent attorney, aware of Wiggins’ history, "would have introduced it at sentencing in an admissible form." The Court observes that such evidence could have been presented while still focusing on Wiggins’ direct responsibility for the murder since these sentencing strategies were not necessarily mutually exclusive. Further, given the strength of the background evidence, "a reasonable attorney may well have chosen to prioritize the mitigation case over the direct responsibility challenge, particularly given that Wiggins' history contained little of the double edge [the Court has] found to justify limited investigations in other cases." The Court also finds a reasonable probability of a more favorable result had the jury learned of Wiggins’ life history. As it was, the sentencing jury was given only one significant mitigating factor to consider – that Wiggins had no prior convictions. "Had the jury been able to place [Wiggins’] excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance." The Court rejects the dissent’s contention that it cannot reach this conclusion without first making the state-law evidentiary rulings that would have been at issue at the actual sentencing phase. The Court points out that the prejudice prong of Strickland involves an evaluation of the totality of the evidence – both that presented at trial, as well as the evidence adduced in habeas proceedings. Further, it notes that the Selvog report may well have been admissible under state law, contrary to the dissent’s assertion. Justice Scalia dissents at length. In his view, the Court’s "decision sets at naught the statutory scheme [it] once described as a 'highly deferential standard for evaluating state-court rulings,' Lindh v. Murphy, 521 U. S. 320, 333, n. 7 (1997)." First, he points out that AEDPA requires analysis of a state court decision in light of the clearly established Supreme Court precedent that existed at the time of that decision. Williams v. Taylor was not available to the state court when it adjudicated Wiggins’ claim, and, in Scalia’s opinion, Williams created new law to the extent it announced that trial counsel has an "obligation to conduct a thorough investigation of the defendant's background," 529 U. S., at 396, with citation to the ABA standards. Even assuming Williams was not new, Scalia argues it is still improper to consider it because it did not exist at the relevant time. Next, Scalia contends that the Court is wrong in its belief that the state court "assumed" that trial counsel’s investigation was limited to the PSI and DSS records. Scalia argues that is not a defensible reading of the record, which makes it clear that counsel investigated beyond those sources. And without the assumption that the investigation began and ended with the reports, Scalia asserts that the Court is deprived of a basis for finding the state court’s decision unreasonable. Strickland does not require an attorney with detailed knowledge of a defendant’s troubled background to commission a social history report before deciding how best to proceed, and it certainly would not have been unreasonable for the state court to so conclude. To the extent that the Court’s analysis is premised on a belief that trial counsel was untruthful when he claimed to have known about sexual and physical abuse, Scalia believes that this is based on a mischaracterization of the record, and an erroneous shifting of the burden of proof. If it would be reasonable to find counsel’s testimony to be truthful, then the state court decision cannot be deemed unreasonable under § 2254(d)(1). Scalia is willing to assume that the state court made an "unreasonable" factual determination when it mistakenly stated that incidences of sexual abuse were contained in the records counsel had obtained. He refuses to accept, however, that the state court’s decision was "based on" this error, as required by § 2254(d)(2). This is because the state court’s decision would have been the same without the error, according to Scalia, given counsel’s sworn testimony that he had knowledge of the abuse. Putting aside § 2254(d)’s bar to relief, Scalia contends that Wiggins cannot meet the prejudice prong of Strickland. First, he finds no reasonable probability that counsel in this case would have changed their strategy had they possessed the Selvog social history report. In Scalia’s view, it is simply "irrelevant" what a hypothetical "reasonable attorney" would have done. Further, Scalia believes that almost all of the social history evidence was inadmissible. This is because the source regarding sexual abuse was Wiggins himself, and the allegations were uncorroborated. Under Scalia’s reading of state law, the social history report and testimony would not have been admitted. Thus, the only way the jury could have heard about the abuse was through testimony from Wiggins, and Scalia can find no reasonable probability that counsel would have risked putting him on the stand. And even if the report was admissible, Scalia doubts it would have been accorded much weight given Wiggins’ lack of credibility. |