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Habeas Hints: Supreme Court Habeas Review 2014

Habeas Hints: Supreme Court Habeas Review 2014

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.


How Far Right Has the Supreme Court Drifted on Habeas Corpus?

As the 2014 term proceeds in the U.S. Supreme Court (SCOTUS), the Court’s docket contains very few habeas corpus cases – a situation similar to the 2013 term. This relatively quiet interlude comes in the wake of recent terms yielding blockbuster decisions which are major roadblocks to relief on federal habeas corpus – as described in my previous Habeas Hints columns, “Staring Down the Two-Headed Monster: Richter and Pinholster.” [See: PLN, Dec. 2013, p.28; Nov. 2013, p.12].

This provides an opportunity to step back and assess the degree to which the Court may have drifted so far to the “right” – that is, to the ultra-conservative “right-wing” extreme – that habeas corpus no longer serves a valuable function in holding the state criminal justice systems accountable by providing a federal check on unconstitutional convictions. Indeed, this is essentially the position that Michael Dorf, a law professor at Cornell, laid out in Verdict, an online publication, in a May 22, 2013 article titled “A Unanimous Supreme Court Ruling Underscores the Limits of Habeas Corpus as a Remedy for State Prisoners.”

Professor Dorf based this conclusion on Metrish v. Lancaster, 133 S.Ct. 1781 (2013), in which the Court unanimously held that a federal habeas corpus petitioner could not argue “diminished capacity” at his retrial even though Michigan law at the time he committed the crime specifically allowed for such a defense. In this column I’ll review Professor Dorf’s argument and explain why I disagree with it.

In Metrish, Burt Lancaster (not the famous actor but a former police officer with a long history of severe mental health problems) shot and killed his girlfriend in 1993. Lancaster was tried by jury in a Michigan court, where he admitted the killing but argued “diminished capacity” – a defense whereby a defendant who has been found to be legally sane nevertheless presents evidence of mental illness in an effort to negate the specific intent required for murder.

The jury didn’t buy the defense and convicted him of first-degree murder. Lancaster, however, filed a habeas corpus petition and managed to get his conviction reversed because the prosecutor had improperly excluded a potential juror on the basis of race.

Lancaster was retried but it was now 2005, and by that time the Michigan Supreme Court had rejected diminished capacity as a defense and the Michigan legislature had explicitly abolished diminished capacity, replacing it with a system in which the defendant could argue either that he was legally insane or “guilty but mentally ill,” but could no longer present evidence of mental illness in an effort to reduce the crime of murder to some lesser offense.

Lancaster was re-tried, and after electing a trial by judge rather than by jury, argued that the change in the law eliminating diminished capacity could not apply to him, because the Constitution prohibited the state from retroactively “punishing” a defendant by depriving him of a defense that had been in existence when the alleged crime occurred. However, the judge rejected that argument and prohibited Lancaster from using diminished capacity as a defense, whereupon he was again convicted of first-degree murder and sentenced to life in prison.

Lancaster then continued to assert his due process claim on appeal and habeas corpus. He was unsuccessful in the Michigan courts and in the U.S. District Court, but the Sixth Circuit Court of Appeals reversed, concluding that clearly established SCOTUS case law prohibited the state courts from retroactively depriving Lancaster of a diminished capacity defense. SCOTUS then granted certiorari, and a unanimous Court rejected Lancaster’s habeas claim and reinstated his conviction and sentence.

To anchor his argument that Metrish marks an extreme rightward tilt by SCOTUS, Professor Dorf adopts the premise that the justices unanimously rejected Lancaster’s habeas claim despite concluding that his trial “may very well have violated his due process rights.” In my judgment that’s just not so. Rather, the SCOTUS opinion carefully examined the prior cases relied upon by Lancaster, found them to be inapplicable and concluded: “The Court has never found a due process violation in circumstances remotely resembling Lancaster’s case.” That is far from a casual acknowledgment that Lancaster’s due process rights may have been violated; instead, it’s a clear and firm determination that his constitutional rights were not infringed.

Next, Professor Dorf argues that, because the Supreme Court – having previously held that a habeas petitioner cannot benefit from new rules announced since his conviction became final, yet refusing to allow Lancaster to assert a defense that was on the books when he was tried – has become a forum in which “The only operative rule is Heads I win, tails you lose.”

I don’t agree, at least not on the basis of Metrish. First, prohibiting Lancaster from arguing diminished capacity a second time doesn’t seem all that unfair, because Lancaster did have the opportunity to argue diminished capacity at his first trial and the jury rejected that defense. More importantly, the law that Lancaster was prohibited from using at his second trial was not only old but disfavored and disapproved both in Michigan and in almost all other jurisdictions as well. Accordingly, nothing that the Court said in Metrish would prohibit some other petitioner from using old law to his benefit upon a retrial if the old law hadn’t been so discredited as to become legally obsolete.

Professor Dorf also relies on a brief historical analysis showing that SCOTUS has moved far to the right since the Warren Court era. That’s certainly true – a no-brainer, really – but I would argue that the major rightward tilt by SCOTUS had already reached its limit before its decision in Metrish. It’s no secret to anyone familiar with habeas history that, since the Warren Court’s heyday in the 1960s, SCOTUS has cut far back on the power of the federal courts to interfere with convictions and sentences handed down by the state courts.

Whereas a single federal judge used to have the power to set aside a criminal conviction simply because he or she disagreed with the state court’s application of the underlying constitutional law, those days ended with the 1996 enactment of AEDPA – the law which prohibits a federal court from interfering with a state court’s verdict or sentence unless the state court’s decision was not only wrong, but “unreasonable.” Although SCOTUS backed away from eliminating habeas corpus altogether in the Guantanamo Bay cases, the Court has continued to weaken federal habeas corpus by requiring an almost slavish acceptance of state court denials, especially when it comes to IAC (ineffective assistance of counsel) claims – traditionally the backbone of habeas corpus litigation because it allows the petitioner to bring in new evidence not available at the time of trial.

Thus, well before SCOTUS decided Metrish in May 2013, there was already a consensus among the justices as to three core principles (let’s call them the “Tough Three”) which, taken together, severely limit the role of federal habeas corpus as a bulwark against wrongful state convictions: 1) On federal habeas corpus, a prisoner bears the burden of disproving state factual findings by clear and convincing evidence and, as to the state court’s legal reasoning, showing constitutional error “so lacking in justification that it is beyond any possibility for fairminded disagreement.” 2) The prisoner must carry this heavy burden solely on the basis of the state court record and without resort to a federal evidentiary hearing. 3) When a federal habeas petitioner’s claim is based on IAC, the district court must accord “double deference” to the state court’s denial of relief, such that the petitioner can only prevail if s/he can demonstrate that every conceivable basis for the state court’s denial – whether actually mentioned by the state court or not – is unreasonable.

Compared with the Tough Three, which had already impacted the vast majority of the thousands of federal habeas corpus petitions filed annually, Metrish involved a unique situation involving allof the following anomalies: a defense that was on the books when the defendant was tried but which was abolished just a few years later; a defendant who was allowed to use the since-abolished defense at the first trial and did so, but who lost because the jury rejected it; a habeas petitioner who managed to win a retrial on federal habeas corpus but on an issue having nothing whatsoever to do with the disapproved defense; and a retrial which occurred after the former defense was not only abolished by the state’s highest court but also was explicitly removed by the state legislature as part of a comprehensive overhaul of the state’s criminal code.

Thus, Metrish was a perfect storm of highly unusual occurrences that almost certainly will never happen again in any other case coming before the Supreme Court. Accordingly, that this bizarre case was decided unanimously does not represent to me a consensus on anything other than that it wasn’t worth it to labor over a dissenting or concurring opinion in a case of such insignificance to habeas corpus litigation as a whole.

In the concluding part of his article, Professor Dorf offers three specific reasons why he believes the ground has shifted to the right in the Supreme Court. But none supports his thesis that SCOTUS has drifted so far right that federal habeas corpus no longer serves as a check on wrongful state convictions.

First, he argues that no politicians – Democrats or Republicans – have any “political angle” in supporting the constitutional rights of criminal defendants. That may have been true when AEDPA was enacted in 1996, but since then there have been hundreds of cases of people who were duly convicted in state courts but who have since been proved to be completely innocent, many after serving lengthy prison terms.

The public is well aware of these exonerations through news reports, documentaries and even plays and movies, and I would argue that, as a result, many if not most voters would enthusiastically support a politician who opposes a legal system in which federal habeas corpus – the last bastion of the wrongfully convicted – is eliminated as a remedy.

Second, Dorf laments that even Justice Ginsburg – the Court’s most liberal voice – quietly accepted Lancaster’s “unconstitutional conviction.” Yet, as I’ve shown above, there was nothing unfair or unconstitutional about Lancaster’s failure to get a second bite at a rotten apple, and Justice Ginsburg continues to dissent in habeas cases which, unlike Metrish, affect numerous defendants. (See, e.g., White v. Woodall,134 S.Ct. 1697 (2014)(Ginsburg, j., dissenting with Breyer and Sotomayor in a habeas case involving penalty-phase jury instructions)).

Third, Dorf “speculates” that the justices, having stood fast against the Bush administration’s pressure to abandon habeas corpus altogether in the Guantanamo cases, have incurred a species of battle fatigue whereby they “have less energy or inclination to fight for habeas corpus as a mechanism for collateral review of state convictions.” But if that’s true, then the liberal justices would have stopped dissenting across the board in criminal and habeas cases, and that simply hasn’t happened. Moreover, it’s even possible that Justice Roberts is beginning to emerge as an advocate for civil liberties and constitutional rights. (See, e.g., Roberts’ majority opinion invalidating a police seizure of a defendant’s cell phone in Riley v. California, 134 S.Ct. 2473 (2014), and his strong dissent from a ruling in which the majority upheld a criminal forfeiture case which resulted in the defendant being denied the right to counsel to contest the forfeiture, in Kaley v. United States,134 S.Ct. 1090 (2014)).

In sum, the Court has surely moved to the right in the past few decades, but most of that happened well before the decision in Metrish v. Lancaster. And, contrary to Professor Dorf, I believe that SCOTUS is more likely now to continue to defend habeas corpus in the most important cases than to go off the right-wing cliff and abandon the Great Writ altogether as a check on unconstitutional state convictions.


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. The 5th Edition, revised every year or so, can be purchased for $49.99, which includes priority mail postage. An optional order form can be obtained from Kent’s website (, or simply send a check or money order to: Kent Russell, “Cal. Habeas Handbook,” 3169 Washington Street, San Francisco, CA 94115.


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Related legal case

Metrish v. Lancaster