Wright v. Van Patten
128 S.Ct. 743 (2008) (per curiam)
After the Supreme Court vacated the Seventh Circuit’s earlier grant of relief and remanded for
reconsideration in light of Carey v. Musladin, 127 S.Ct. 649 (2006), the Seventh Circuit adhered to
its conclusion that relief was required. The Supreme Court again granted certiorari, and this time
reversed. Respondent’s claim was that his Sixth Amendment right to counsel had been violated as a result
of his attorney’s participation in his Wisconsin guilty plea hearing via speaker phone. While the state
courts rejected respondent’s claim for failure to satisfy Strickland v. Washington, the Seventh
Circuit held that respondent’s claim should have been assessed under United States v. Cronic, which
permits a presumption of prejudice where a defendant has been denied counsel, rather than under the more
demanding Strickland standard.
The Supreme Court disagreed. After explaining that Strickland “ordinarily applies to claims of
ineffective assistance of counsel at the plea hearing stage,” and that “it was in a different context that
Cronic ‘recognized a narrow exception ...,’” the Court observed as follows:
No decision of this Court ... squarely addresses the issue in this case ... or clearly establishes that
Cronic should replace Strickland in this novel factual context. Our precedents do not clearly
hold that counsel's participation by speaker phone should be treated as a “complete denial of counsel,” on
par with total absence. ... The question is not whether counsel in those circumstances will perform less
well than he otherwise would, but whether the circumstances are likely to result in such poor performance
that an inquiry into its effects would not be worth the time. ... Our cases provide no categorical answer
to this question ... ¶ Because our cases give no clear answer to the question presented, let alone one in
Van Patten’s favor, “it cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established
Federal law.’” Under the explicit terms of §2254(d)(1), therefore, relief is unauthorized.
129 S.Ct. at 746-747 (internal citations omitted).
Justice Stevens concurred in the judgment, indicating that he saw merit in respondent’s Sixth Amendment
claim, but recognizing that a lack of clarity in the reach of the holding articulated in Cronic
prevented the state court’s use of Strickland rather than Cronic from constituting an unreasonable
application of clearly established federal law.
Danforth v. Minnesota
128 S.Ct. 1029 (2008)
In this Minnesota child sexual assault case involving a Confrontation Clause challenge under
Crawford v. Washington asserted in state post-conviction proceedings, the Supreme Court addressed
“whether Teague [v. Lane, 489 U.S. 288 (1989),] constrains the authority of state courts to
give broader effect to new rules of criminal procedure than is required by that opinion.” The Court
(Stevens, J., joined by Scalia, Souter, Thomas, Ginsburg, Breyer and Alito, JJ.) held that Teague
imposes no such constraint.
Before resolving the question presented, the Court paused to clarify what is meant by “retroactivity” and
“new rule,” explaining as follows:
[W]e note at the outset that the very word “retroactivity” is misleading because it speaks in temporal
terms. “Retroactivity” suggests that when we declare that a new constitutional rule of criminal procedure
is “nonretroactive,” we are implying that the right at issue was not in existence prior to the date the
“new rule” was announced. But this is incorrect. ... [T]he source of a “new rule” is the Constitution
itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily
pre-exists our articulation of the new rule. What we are actually determining when we assess the
“retroactivity” of a new rule is not the temporal scope of a newly announced right, but whether a violation
of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to
the relief sought.
128 S.Ct. at 1035.
With the distinction between the existence of rights and the availability of remedies for their violation
established, the Court went on to trace the development of its nonetroactvity jurisprudence, and to explain
why Teague does not reach the question whether state courts on collateral review are bound by its
rule. As to the latter point, the Court first noted that “not a word” in Teague suggests that it
reaches state courts’ authority to apply “new rules” to a broader class than Teague requires. Next,
the Court identified Teague as one of a set of Supreme Court decisions, all issued under color of
the Court’s power to interpret the habeas corpus statutes, meant to “adjust the scope of the writ in
accordance with equitable and prudential considerations.” “Since Teague is based on statutory
authority that extends only to federal courts applying a federal statute,” the Court continued, “it
cannot be read as imposing a binding obligation on state courts.” 128 S.Ct. at 1040. Third, the Court
added that “the text and reasoning of Justice O’Connor’s opinion [in Teague] also illustrate that
the rule was meant to apply only to federal courts considering habeas corpus petitions challenging
state-court criminal convictions.” 128 S.Ct. at 1040. In support of this assertion, the Court noted
Teague’s multiple references to the writ of habeas corpus, and observed as follows:
If anything, considerations of comity militate in favor of allowing state courts to grant habeas relief to
a broader class of individuals than is required by Teague. And while finality is, of course,
implicated in the context of state as well as federal habeas, finality of state convictions is a state
interest, not a federal one. It is a matter that States should be free to evaluate, and weigh the
importance of, when prisoners held in state custody are seeking a remedy for a violation of federal rights
by their lower courts.
128 S.Ct. at 1041.
The court went on to summarize its holding as follows:
In sum, the Teague decision limits the kinds of constitutional violations that will entitle an
individual to relief on federal habeas, but does not in any way limit the authority of a state court, when
reviewing its own state criminal convictions, to provide a remedy for a violation that is deemed
“nonretroactive” under Teague.
128 S.Ct. at 1042.
Finally, after addressing and rejecting the state’s contention that two prior cases require a contrary
outcome, the Court again emphasized that its nonretroactivity jurisprudence is concerned with limiting the
availability of a remedy in certain classes of cases:
It is important to keep in mind that our jurisprudence concerning the “retroactivity” of “new rules” of
constitutional law is primarily concerned, not with the question whether a constitutional violation
occurred, but with the availability or nonavailability of remedies. ... ¶ A decision by this Court that a
new rule does not apply retroactively under Teague does not imply that there was no right and thus
no violation of that right at the time of trial-only that no remedy will be provided in federal habeas
courts. It is fully consistent with a government of laws to recognize that the finality of a judgment may
bar relief. It would be quite wrong to assume, however, that the question whether constitutional violations
occurred in trials conducted before a certain date depends on how much time was required to complete the
appellate process.
128 S.Ct. at 1047.
Chief Justice Roberts (joined by Kennedy, J.) dissented, contending that the retroactivity of a
constitutional rule is a question of federal law such that state courts must be bound by Supreme Court d
eterminations, and that the Court’s decision to the contrary in this case impermissibly undermines
uniformity.
Boumediene v. Bush
128 S.Ct. 2229 (2008)
In this appeal from the D.C. Circuit, the Court (Kennedy, J., joined by Stevens, Souter, Ginsburg and
Breyer, JJ.) held that the petitioners – alien prisoners detained as enemy combatants at Guantanamo Bay –
“have the habeas corpus privilege,” and that the procedures established by the Detainee Treatment Act of
2005 (DTA) “are not an adequate and effective substitute for habeas corpus,” such that the Military
Commissions Act of 2006 (MCA) “operates as an unconstitutional suspension of the writ.” 128 S.Ct. at 2240.
The Court began by determining that “Art. I, §9, cl. 2 of the Constitution has full effect at Guantanamo
Bay,” and that, “[i]f the privilege of habeas corpus is to be denied to the detainees [there], Congress
must act in accordance with the requirements of the Suspension Clause.” 128 S.Ct. at 2262. After a
cknowledging that its existing “case law does not contain extensive discussion of standards defining
suspension of the writ or of circumstances under which suspension has occurred,” 128 S.Ct. at 2263, the
Court found that the DTA and MCA under review in this case “were intended to circumscribe habeas review,”
id. at 2265, and that §7 of the MCA “eliminates habeas review for these petitioners,” id. at
2266.
Turning to whether the procedures provided by the DTA were adequate “as a substitute for habeas corpus,”
the Court held that they were not. While the Court did “not endeavor to offer a comprehensive summary of
the requisites for an adequate substitute for habeas corpus,” it did “consider it uncontroversial ... that
the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is
being held pursuant to ‘the erroneous application or interpretation’ of relevant law.” 128 S.Ct. at 2266
(quoting INS v. St. Cyr, 533 U.S. 289, 302 (2001)). After further noting that “the necessary scope of
habeas review in part depends upon the rigor of any earlier proceedings,” 128 S.Ct. at 2268, the Court
recognized that, in these cases, there were no prior formal proceedings because the petitioners were
detained by executive order, that the non-habeas procedures made available to the detainees did not provide
for the assistance of counsel, or for disclosure of all of the allegations against the prisoner, and that
“there are in effect no limits on the admission of hearsay evidence,” which meant that “the detainee’s
opportunity to question witnesses is likely to be more theoretical than real.” 128 S.Ct. at 2269. Based
on these observations, the Court concluded that “even when all the parties involved in this process act
with diligence and in good faith, there is considerable risk of error in the tribunal’s findings of fact.
... And given that the consequence of error may be detention of persons for the duration of hostilities
that may last a generation or more, this is a risk too significant to ignore.” 128 S.Ct. at 2270. The
Court went on to explain as follows with regard to the basic requirements of habeas review in this context:
For the writ of habeas corpus, or its substitute, to function as an effective and proper remedy in this
context, the court that conducts the habeas proceeding must have the means to correct errors that occurred
during the CSRT proceedings. This includes some authority to assess the sufficiency of the Government’s
evidence against the detainee. It also must have the authority to admit and consider relevant exculpatory
evidence that was not introduced during the earlier proceeding. Federal habeas petitioners long have had
the means to supplement the record on review, even in the postconviction habeas setting. ... Here that
opportunity is constitutionally required.
128 S.Ct. at 2270. The Court later added that “when the judicial power to issue habeas corpus properly is
invoked the judicial officer must have adequate authority to make a determination in light of the relevant
law and facts and to formulate and issue appropriate orders for relief, including, if necessary, an order
directing the prisoner’s release.” 128 S.Ct. at 2271. After further discussion of the ways in which DTA
review fails to satisfy these basic requirements, the Court concluded that “MCA §7 thus effects an
unconstitutional suspension of the writ.” 128 S.Ct. at 2274.
Finally, the Court concluded that there are no “prudential barriers to habeas corpus review” in these
cases. The Court explained:
In some of these cases six years have elapsed without the judicial oversight that habeas corpus or an
adequate substitute demands. And there has been no showing that the Executive faces such onerous burdens
that it cannot respond to habeas corpus actions. To require these detainees to complete DTA review before
proceeding with their habeas corpus actions would be to require additional months, if not years, of delay.
The first DTA review applications were filed over a year ago, but no decisions on the merits have been
issued. While some delay in fashioning new procedures is unavoidable, the costs of delay can no longer be
borne by those who are held in custody. The detainees in these cases are entitled to a prompt habeas
corpus hearing.
128 S.Ct. at 2275. The Court concluded with the observation that “[t]he laws and Constitution are designed
to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our
system they are reconciled within the framework of the law. The Framers decided that habeas corpus, a right
of first importance, must be a part of that framework, a part of that law.” 128 S.Ct. 2277.
Justice Souter (joined b Ginsburg and Breyer, JJ.) concurred, writing separately to emphasize that the
Court’s decision flowed naturally from its prior decisions in earlier Guantanamo Bay cases, and that the
issues surrounding review of prisoners’ detention there had persisted for years: “After six years of
sustained executive detentions in Guantanamo, subject to habeas jurisdiction but without any actual habeas
scrutiny, today’s decision is no judicial victory, but an act of perseverance in trying to make habeas
review, and the obligation of the courts to provide it, mean something of value both to prisoners and to
the Nation.” 128 S.Ct. at 2279.
Chief Justice Roberts (joined by Scalia, Thomas and Alito, JJ.) dissented, criticizing the Court for
striking down the “most generous set of procedural protections ever afforded aliens detained by this
country” and replacing them “with a set of shapeless procedures to be defined by the federal courts at
some future date.” 128 S.Ct. at 2279.
Justice Scalia (joined by Roberts, CJ., and Thomas and Alito, JJ.) also dissented, disagreeing with the
Court’s decision to extend the writ of habeas corpus to “aliens abroad,” and asserting, inter alia, that
“[t]he game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief will make
the war harder on us. It will almost certainly cause more Americans to be killed.” 128 S.Ct. at 2294.