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Habeas Hints: Staring Down the Two-Headed Monster: Richter-Pinholster

by Kent Russell

This column provides “habeas hints” to prisoners who are considering or handling habeas corpus petitions as their own attorneys (“in pro per”). The focus of the column is on the Antiterrorism and Effective Death Penalty Act (AEDPA), the federal habeas corpus law which now governs habeas corpus practice in courts throughout the United States.

Part One of Two

Harrington v. Richter,
131 S.Ct. 770 (2011)

Cullen v. Pinholster,
131 S.Ct. 1388 (2011)

In Richter and Pinholster, the U.S. Supreme Court (SCOTUS) dealt body blows to the already slim chances for relief on federal habeas corpus by making ineffective assistance of counsel (IAC) claims even harder to win than they were before (Richter), and by all but eliminating federal evidentiary hearings as an aid to satisfy AEDPA’s requirement that a petitioner show the state court’s denial of habeas corpus relief was “unreasonable” (Pinholster). Because evidentiary hearings in federal court traditionally have been the gateway to relief on habeas corpus, and because IAC claims – which by definition bring something new to the table that wasn’t considered at trial – have until now been the staple of habeas litigation, the decisions in Richter and Pinholster represent a two-headed monster which habeas petitioners will often have to face and stare down.

In this two-part column, I discuss these important cases and suggest some habeas hints for how to make the best of them. In Part One we focus on Richter, and in Part Two (to be published in the following issue of PLN) we will zero in on Pinholster.

Richter involved a robbery-murder amid murky facts as to how the shooting went down. A victim who was shot but survived (Johnson) told police that Richter’s accomplice had shot him in the bedroom; that he found the other victim shot to death on a living room couch; and that Johnson’s safe, a pistol and cash were missing. Johnson’s account was corroborated by spent shell casings and blood evidence found at the scene, as well as by a search of Richter’s home, which turned up the missing safe and ammunition matching crime scene evidence.

Richter initially lied about not being at the scene, but then admitted that he’d not only been there but had disposed of guns belonging to Johnson and Richter’s co-defendant. At trial, with the prosecution having planned its case against Richter based on Johnson’s account, Richter’s defense attorney gave an opening statement in which he claimed self-defense. Taken by surprise, the prosecution hurriedly obtained expert testimony from a blood expert, whose findings undercut Richter’s self-defense claim. Meanwhile, Richter’s defense counsel called Richter and several lay witnesses and cross-examined the state’s expert, but did not call a blood expert for the defense. Richter was convicted and sentenced to life without parole, and lost on direct appeal.

Represented on habeas corpus by new counsel, Richter sought relief from the California Supreme Court, claiming that his trial lawyer had been ineffective in failing to present expert testimony regarding the blood evidence. His claim was supported by declarations from new experts who had been retained by habeas counsel. The California Supreme Court denied the habeas petition as it usually does: in a one-sentence, summary order.

Richter then filed a federal habeas corpus petition re-alleging his IAC claim. The U.S. District Court denied the petition, but a divided Ninth Circuit reversed en banc, holding that the California court’s denial of the IAC claim constituted an unreasonable application of the Strickland standard, which supports habeas relief where the petitioner has shown deficient performance by counsel and prejudice.

The U.S. Supreme Court granted review on certiorari and, in a unanimous decision, reversed the Ninth Circuit’s grant of habeas relief.

The first issue SCOTUS addressed was whether a state court’s summary dismissal of a habeas petition – i.e., a one-sentence denial without a statement of reasons – is nevertheless an “adjudication on the merits” which therefore is entitled to deference under AEDPA. SCOTUS not only found that it was, but that the absence of reasons for the decision was a burden the petitioner had to bear by 1) addressing all the arguments or theories that “could have supported the state court’s decision,” and then 2) showing that each hypothetical argument was so bogus that no fair-minded judge could possibly have found it consistent with established U.S. Supreme Court authority.

Hard as this standard is to meet, SCOTUS made it even more difficult to satisfy in the context of IAC claims. Pursuant to the prevailing Strickland standard, a petitioner must show both deficient performance (“incompetence under prevailing professional norms”) and prejudice (“a reasonable probability that, but for counsel’s errors, the result would have been different”); the petitioner also has the burden of establishing both of these elements by evidence sufficient to shake the court’s presumed confidence in counsel’s performance and in the jury’s verdict.

Obviously, satisfying this standard is no day at the beach. Yet this is just half the battle on federal habeas corpus, because the deference due under Strickland is doubled down by the deference due to state court denials under AEDPA. Thus, to overcome a denial of an IAC claim by a state court, a habeas petitioner must not only convince the federal judge that he or she would personally find both deficient performance and prejudice, but also show that no “fair-minded” judge could disagree with either of those findings!

Applying this enormous burden to the facts in Richter, SCOTUS: 1) nixed deficient performance because trial counsel’s assumption that the defense wouldn’t need forensic testimony was a “reasonable miscalculation,” and because “it was at least arguable that a reasonable attorney could decide to forgo inquiry into the blood evidence in the circumstances here”; and 2) found prejudice lacking either because the expert evidence tendered by habeas counsel did not obliterate the conclusions reached by the prosecution’s experts, and/or because there was so much circumstantial evidence of guilt that it “eclipsed” whatever habeas counsel had produced which pointed to the defendant’s innocence.

Habeas Hints

• One thing that is perfectly clear from both Richter and Pinholster is that the state proceedings on habeas corpus are now the “main event” – so much so that a petitioner who fails to make a sufficient habeas record in state court is going to be toast when he or she gets to federal court. Therefore, start early and do everything you possibly can to make the best possible record in state court – including requesting an evidentiary hearing at every stage and providing detailed declarations from key witnesses and experts – and be prepared to live and die with the state record when it comes to federal habeas corpus.

• Because relief on federal habeas corpus is now almost totally dependent on the state court’s habeas record, if you are bringing a claim based on ineffective assistance of counsel – which necessarily depends on evidence that trial counsel did not present – be prepared to expend a substantial share of your available financial resources on state habeas in general and the state habeas investigation in particular. Start by finding an experienced habeas corpus lawyer who is licensed to practice in the state where you were convicted and is familiar with whatever state procedures exist for filing a state habeas corpus petition and supporting it with evidence from the existing record as well as new declarations from lay and expert witnesses whose testimony can support the facts alleged in the petition. Be prepared to pay that attorney adequately to supervise an investigation into the facts supporting your claims and to competently present those facts to the state’s highest court before you proceed to federal court with competent federal counsel.

• Where money for attorneys’ fees is available but limited, it’s usually best for your family or supporters to save what they have and use it to retain private counsel on habeas corpus after you’ve used up your right to court-appointed counsel on your first (direct) appeal. However, where there’s no money for a private lawyer and you are in a state which (like California) does not provide court-appointed counsel for habeas corpus following a direct appeal, urge your appointed attorney on appeal to carefully investigate the possibility of filing a “companion” habeas corpus petition along with the direct appeal. If the appointed lawyer arbitrarily refuses to do anything for you on habeas corpus, consider sending him or her a letter which: a) summarizes the law and facts in support of what you believe to be your strongest habeas claims; b) states that neither you nor your family has any funds to pay for an independent habeas corpus investigation; and c) reminds your lawyer that, pursuant to Martinez v. Ryan, 132 S.Ct. 1309 (2012), you have a constitutional right to effective assistance of counsel on what amounts to your first and only chance to file a state habeas corpus petition based on evidence that was not in the trial record. If the attorney ignores your letter, use that in federal court as “cause” for excusing any state procedural default that may occur between then and the time you file your federal habeas corpus petition.

• Because Richter was a unanimous opinion, there’s little hope that it will be overruled or undermined at any time in the foreseeable future. However, in most instances Richter can be distinguished on the facts. For example, in Richter there were several issues besides serology (blood) on which expert testimony could have been used, and testimony by the prosecution’s blood expert was not the sole basis for the defendant’s conviction. That situation invites more leeway for tactical decisions by defense counsel than a case in which testimony by a single expert is critical. Compare, for example, a gang case in which a single gang expert’s testimony is crucial to both the validity of enhanced charges and an enhanced sentence. I would argue that in the latter situation, unlike in Richter, the need to call a specific expert for the defense is so essential that failing to do so is necessarily deficient performance. Similarly, when arguing prejudice on an IAC claim where the Attorney General invokes Richter, point out that Richter’s credibility was completely shot when he at first denied any involvement in the crime and then changed his story to self-defense after damning inculpatory evidence was found at his home, and argue that the evidence pointing to guilt in your own case was far less overwhelming. See, e.g., Showers v. Beard, 635 F.3d 625, 630-34 (3d Cir. 2011) (distinguishing Richter’s facts as being “radically different” from those at bar).

• Richter’s holding that the state court denial can be based on any reasonable argument that an Attorney General or judge can come up with at the federal level only applies when the state court gives no reasons for its denial. Where specific reasons for the denial are provided – as more typically occurs in the lower courts than in the state’s highest court – a federal court is not free to supply its own rationale for the denial. Nevertheless, beware of going through the lower state courts when the petition is pushing the one-year-from-finality deadline under the AEDPA’s statute of limitations, as a state untimeliness ruling, no matter how poorly supported by state precedent, is an absolute bar to federal habeas corpus.

• Although SCOTUS went out of its way in Richter and Pinholster to find “strategic” bases for defense counsel’s failures, both decisions relied on specific support in the record for counsel’s “tactics.” Hence, Richter and Pinholster notwithstanding, the federal court is not free to pull alleged so-called “strategic” or “tactical” decisions by defense counsel out of thin air.

• While holding that a summary denial of habeas corpus relief by a state court qualifies as a decision on the merits which is entitled to deference under AEDPA, Richter mentions nothing about possible defects in state court procedures that may have preceded the summary denial. Specifically, Richter does not consider or address whether the state court denial in a particular case may have amounted to an unreasonable determination of the facts [see AEDPA, 28 U.S.C. § 2254(d)(2)]. I’ll have more to say about this in Part Two of this column, which will run in the next issue of PLN.

Kent A. Russell specializes in habeas corpus and is the author of the California Habeas Handbook, which thoroughly explains state and federal habeas corpus under AEDPA. For the cost of the latest edition, check Kent’s website – – which also contains an optional order form. Or contact Kent directly at 3169 Washington Street, San Francisco, CA 94115 (415) 563‑8640, e‑mail:

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Related legal cases

Harrington v. Richter

Cullen v. Pinholster