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Habeas Hints

This column is intended to provide habeas hints for prisoners who are considering or handling habeas corpus petitions as their own attorneys. The focus of the column is habeas corpus practice under the AEDPA, the 1996 habeas corpus law which now governs habeas corpus practice throughout the U.S.



In the last "Habeas Hints" column, I discussed the differing "standards of review" which apply throughout the criminal process in general and on habeas corpus in particular. It is important to understand, however, that the standards of review covered in the last column only come into play after the federal court has decided to hear the habeas corpus claim on the merits (that is, having decided that the federal claim is not barred by the AEDPA statute of limitations or by some state procedural bar) but before the federal court has decided how much "deference" to give to the previous denial of the habeas claim in state court as a part of the exhaustion process. In this column we look at this latter aspect of "standard of review", namely the amount of "deference" (respect, or reliance) that is due under the AEDPA to the state court's denial of the habeas claim.

If these multiple layers of "standard of review" are confusing, think of it like baseball: When the federal court decides to hear the claim on the merits, you've made it to first base. The "standards of review" covered in the last column, which apply to specific claims, don't kick in until third base. In between, you've got to make it past second base which means getting past the deference that is due under the AEDPA to the state court's denial of a habeas claim which, before it can be brought in federal court, must be exhausted in state court by having it denied there.

The AEDPA was designed to give more deference to state court criminal adjudications than previously. Hence, under the AEDPA, federal courts may grant a writ of habeas corpus only if the state court's denial of the habeas claim "resulted in a decision that was [1] contrary to, or involved [2] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." We'll look at both these alternative tests in reverse order.

Of the two bases for overcoming a state denial of a habeas claim under the AEDPA, # [2], unreasonable application, is much harder to establish. A state's decision is only an "unreasonable application of" Supreme Court law if the state court "identifies the correct legal standard but applies it in an unreasonable manner to the facts before it". Therefore, the "unreasonable application" test is only satisfied where the state court has both [2a] correctly identified the applicable standard, that is the U.S. Supreme Court (USSC) decision on which the habeas corpus claim is based; and [2b] has applied that USSC decision "unreasonably" to the facts of the specific habeas claim it is considering. In short, under [2a], the state court must first identify the USSC decision on which the petitioner's habeas claim is based; and under [2b], the state court must apply that decision to the factual and legal specifics of petitioner's claim in an "unreasonable" manner. Meeting both of these components of the unreasonable application test is very, very difficult. Although not all state courts will correctly identify the USSC case on which the habeas claim is based, if the state court does what it is supposed to do and correctly identifies the USSC decision that is the basis for the petitioner's claim, just about any competent state court will manage to apply that decision "correctly" to the petitioner's claim. Furthermore, even if the state court does somehow make a mistake in applying the correct USSC decision to petitioner's claim, under requirement [2b], the petitioner still loses unless s/he can show that the state court's decision was not only "wrong" but "unreasonably wrong". In legal terms, that means that the petitioner must show that the state court's decision was not only erroneous, but "clearly erroneous" _ a showing that is one of the toughest to satisfy in the law. In sum, if the state court does identify the USSC decision on which a habeas corpus claim is based, the petitioner will rarely be able to show that the state court erred in applying that decision to petitioner's claim, and will almost never be able show that the state court "clearly erred" in applying that decision. Put in terms of our baseball analogy, a petitioner who tries to get past a state court denial under the "unreasonable application" test will almost always be out at second base.

More promising, however, is # [1], the "contrary to" prong of the AEDPA test. A state court decision is "contrary to" federal law if it [1a] fails to apply the correct controlling Supreme Court authority or [1b] comes to a different conclusion when presented with a case involving materially indistinguishable facts. See, e.g., Beniel v. Cone, 533 U.S. 685 (2002). Being able to satisfy one or the other of these aspects of the "contrary to" test is fortunate for the petitioner because, in practice, [1b] almost never applies: In order to show that the petitioner's case is "materially indistinguishable" from the USSC case on which it is based, the petitioner would have to show that the facts of his or her case happen to be virtually identical to those in the USSC case on which the habeas claim is based _ something which would almost never occur in the real world. That brings us back to alternative [1a], that the state "fails to apply the correct controlling Supreme Court authority". That does occur in practice, especially because state courts often give so little time and energy to habeas corpus claims that they may well fail to identify the controlling USSC decision; and, as a result, fail to "apply the correct controlling Supreme Court authority". Also, in contrast with the "unreasonable application" test, there's no requirement under the "contrary to" clause that petitioner show that the state court erred "unreasonably" in failing to apply the correct USSC case _ it's enough to show just that the court failed to apply the controlling USSC authority. That kind or standard is far more petitioner-friendly than demonstrating that the state court "clearly erred".

Unfortunately, however, qualifying for the "contrary to" test is not as simple as just showing that the state court failed to cite the USSC case on which the federal habeas corpus claim is based. In Early v. Packer, 123 S.Ct. 362 (2002), the USSC reversed a Ninth Circuit case which had done just that. In Early, the Ninth Circuit had upheld a habeas claim where the petitioner had alleged that the instructions given by the court had unconstitutionally coerced the jury into reaching a guilty verdict. Relying on the AEDPA, the U.S. District Court had denied the habeas claim by deferring to the state court's denial of the claim. However, the state court denial which the District Court had deferred to hadn't cited any USSC decisions, instead relying on California case law which was different from although not inconsistent with the controlling USSC authority. The Ninth Circuit found that the state court's failure to cite any USSC decisions necessarily made the state court denial "contrary to" federal law under the AEDPA. Therefore, the Ninth Circuit accorded no deference to the state court denial; and, applying a "de novo" (brand new) standard of review, ruled for the petitioner. The USSC reversed, holding that even if the state court had failed to cite or discuss any USSC cases, AEDPA deference was still required, so long as the state cases relied upon for the denial did not "contradict" the USSC authority on which the petitioner's claim was based.

Early does stand for the proposition that AEDPA deference is required where the state court decision relies on law that is consistent with or analogous to the USSC decision on which the federal habeas corpus claim is based. Importantly, however, Early does not require AEDPA deference where the state court decision denies a habeas claim by citing no cases at all _ federal or state. Included within this exception to Early are two types of state court denials: (1) where the state court properly and purposefully considers the claim and denies it on the merits, but without explaining its denial or citing any case-law; and (2) where, due to some mistake by the state court, the state court doesn't consider or adjudicate the habeas claim at all.

State court denials in category (1) are granted a "relaxed" level of deference under the AEDPA: In such cases, the federal court will independently review the record to determine whether the state court clearly erred in its application of Supreme Court law. See, e.g., Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) ["Federal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law"]. In other words, the federal court must independently review the record, but will still defer to the state court's ultimate decision by upholding it if its independent record review supports the denial of the claim.

In contrast with category (1), state court denials in category (2) are granted no deference under the AEDPA. For example, in Pirtle v. Morgan, 313 F.3d 1160 (9th Cir. 2002), the state court thought that the petitioner's federal habeas corpus claim had been brought and denied on direct appeal, and denied it solely on that basis. However, the state court was mistaken: The claim was being brought for the first time on habeas corpus, and properly so, because the petitioner alleged that his counsel had been ineffective in failing to raise the claim on direct appeal. Accordingly, the entire basis for the state court's denial of the claim was a mistake: i.e., the belief that the claim had been presented on appeal when, in fact, it had been presented for the first time on state habeas corpus. The Ninth Circuit held that, because the state court had "mistakenly" failed to consider a habeas claim that the petitioner had properly brought, no "deference" was due to the state court decision denying it, because there was no reasoned state court decision to defer to. Hence, the court reviewed the habeas corpus claim "de novo" _ according the state court denial no deference, and relying on the state court decision only to the extent that it contained findings of disputed fact, which stand unless rebutted by clear and convincing evidence. Put another way, the Ninth Circuit held in Pirtle that, where the state court mistakenly fails to consider a habeas claim that has been properly raised, the state court has not "adjudicated" that claim as required by the AEDPA, and therefore the state denial is entitled to no deference at all on federal habeas corpus. Most other circuits have similarly held. See Appel v. Horn, 250 F.3d 203, 210 (3d Cir. 2001); Mercadel v. Cain, 179 F.3d 271, 274-75 (5th Cir. 1999); Chadwick v. Janecka, 312 F.3d 597, 605 (2nd Cir. 2002); Fortini v. Murphy, 257 F.3d 39 (1st Cir. 2001).

Habeas Hints:

1. Don't rely on the "unreasonable application" prong unless you have to, i.e., where the state court denial cites the correct, controlling USSC decision.

2. Where the correct USSC decision is not cited in the state court denial, invoke the "contrary to" basis for relief under the AEDPA, and argue for one of the more forgiving standards discussed above ("de novo" or "relaxed" standard of review).

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