 |
|||||
|
|
|
|
|
||
|
|
|||||
|
|
|
|
|
||
The present case calls for the application of 28 U.S.C. § 2254(d). The Senate sponsor of the habeas reform portion of the Antiterrorism and Effective Death Penalty Act of 1996, 110 Stat. 1214 (AEDPA) called this the "single most important provision contained in the habeas reform proposal." See 141 Cong. Rec. 15,062, col. 3 (1995) (statement of Sen. Hatch). Within the limits of statutory language and binding precedent, the Act should be construed and applied in a way to further its purpose.
The central purpose is abundantly clear from the debates. It is to expedite the resolution of habeas corpus petitions, particularly in capital cases. The supporters of reform invariably bolstered their arguments with horror stories of unconscionable delays. See id. at 14,734 (statement of Sen. Feinstein); id. at 15,062 (statement of Sen. Hatch); id. at 15,019 (statement of Sen. Specter); id. at 15,036-15,037 (statement of Sen. Nickles). Any interpretation which further delays, rather than expedites, habeas cases would be contrary to the clear purpose of AEDPA.
In his argument for the new standard, Senator Hatch tied it specifically to this purpose:
"After all, State courts are constrained to uphold the Constitution and faithfully apply Federal law as well. There is simply no reason that Federal courts should have the ability to virtually retry cases that have been properly adjudicated by our State courts. There is no reason to allow Federal courts to do that." Id. at 15,062 (emphasis added).
The provision's primary sponsor saw it as not only a limitation on relief but also as a limitation on relitigation. This is a rule about respecting the outcome of a previous adjudication, in the same category as res judicata and law of the case. See Scheidegger, Habeas Corpus, Relitigation, and the Legislative Power, 98 Colum. L. Rev. 888, 946 (1998); see also id. at 911-917. A substantial part of its value lies in protecting the party who has already prevailed on the merits from the burden and delay of having to litigate those merits over again. It is not enough for that party to win the second battle over the same turf; in most cases he should not have to fight the second battle at all.
A second purpose of this provision is to protect correct state court judgments from erroneous nullification. If AEDPA had been in effect 11 years ago, it would have prevented the embarrassing Dunn debacle. In Dunn v. Commonwealth, 703 S.W.2d 874, 876 (1985), the Kentucky Supreme Court considered the perennial problem of habitual criminals attacking the validity of their prior convictions and came up with a framework for adjudicating such claims. On federal habeas, this Court declared that the Kentucky system did "not comply with federal standards." Dunn v. Simmons, 877 F.2d 1275, 1279 (6th Cir. 1989), cert. denied, 494 U.S. 1061 (1990). Years later, in a different case, the Supreme Court decided that the Kentucky system "easily passes constitutional muster." Parke v. Raley, 506 U.S. 20, 28 (1992) (emphasis added). The state court judgment in Dunn had been wrongly set aside. The state court was not only right, according to the final authority, it was right by a wide margin.
On the complex questions of constitutional criminal procedure, "right" and "wrong" in the abstract are very often debatable. We must operationally define the "right" answer as the Supreme Court's answer.
"Whenever decisions of one court are reviewed by another, a percentage of them are reversed. That reflects a difference in outlook normally found between personnel comprising different courts. However, reversal by a higher court is not proof that justice is thereby better done. There is no doubt that if there were a super-Supreme Court, a substantial proportion of our reversals of state courts would also be reversed. We are not final because we are infallible, but we are infallible only because we are final." Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring in the judgment).
Until the Supreme Court renders its answer, though, other courts will disagree. The real question, then, is not what to do about "incorrect" state court judgments, cf. Terry Williams v. Taylor, 529 U.S. __, 146 L.Ed.2d 389, 429, 120 S. Ct. 1495, 1522 (2000),(1) but rather what to do with a state court judgment on an unresolved question with which the federal court might disagree.
From Brown v. Allen until AEDPA, the answer was that the federal court simply substituted its own judgment for that of the state court, subject to limitations such as retroactivity and procedural default. See Scheidegger, supra, 98 Colum. L. Rev. at 928, 940. Congress quite deliberately changed that rule, creating "a new constraint." Williams, 146 L.Ed.2d at 430, 120 S. Ct. at 1523. The premise of the change was a renewed respect for state courts. See 141 Cong. Rec. 15,062, col. 2 (1995) (statement of Sen. Hatch). Their judgments are no longer to be brushed aside as virtual nullities. In case of disagreement, the federal court should keep in mind that the state court might be right.
The decision process typically involves three steps: determining the facts, identifying the controlling rule of law ("pure law"), and applying the rule to the facts ("mixed questions of law and fact). See Monaghan, Constitutional Fact Review, 85 Colum. L. Rev. 229, 233 (1985). Federal habeas courts have always deferred to reasonable state court factual findings, see Brown v. Allen, 344 U.S. 443, 458 (1953), and this rule continues under AEDPA. See 28 U.S.C. § 2254(d)(2).
Although the correspondence is not exact, questions of pure law will generally be considered under the "contrary to" branch of § 2254(d)(1), while mixed questions will generally fall under the "unreasonable application" branch. In Terry Williams v. Taylor, 529 U.S. __, 146 L.Ed.2d 389, 425-426, 120 S. Ct. 1495, 1519 (2000), the Supreme Court affirmed the Fourth Circuit's understanding of the "contrary to" clause:
"A state-court decision will certainly be contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases. . . . A state-court decision will also be contrary to this Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent."
The first of these scenarios is the "pure law" question. The second is more difficult to classify, but it will occur so rarely that it is of little importance, and such a decision would be overturned under any standard. Williams went on to hold that the state court's application of the correct standard to the facts of the case, the classic "mixed question" situation, falls under the "unreasonable application" prong. Id., 146 L.Ed.2d at 426-427, 120 S. Ct. at 1520-1521; see also Machacek v. Hofbauer, 213 F.3d 947, 953 (6th Cir. 2000).
The Williams Court did not decide on the correctness of a fourth possibility suggested by the Fourth Circuit, i.e., whether a state court extension of or refusal to extend a Supreme Court precedent would also fall under the "unreasonable application" prong. Id., 146 L.Ed.2d at 426, 120 S. Ct. at 1521. Amicus believes there is no need for a fourth inquiry. As the Williams opinion suggests, ibid., the "extension" question is subsumed in the other questions. This is illustrated by Williams itself, where the state court's unreasonable extension of Lockhart v. Fretwell, 506 U.S. 364 (1993) was contrary to the clearly established precedent of Strickland v. Washington, 466 U.S. 668 (1984). See Williams, 146 L.Ed.2d at 430-431, 120 S. Ct. at 1523-1524 (opinion of O'Connor, J.).
In a curious passage, Williams says that the phrase "clearly established" "bears only slight connection to our Teague jurisprudence," id., 146 L.Ed.2d at 429-430, 120 S. Ct. at 1523, but then goes on to say they are nearly identical.
"With one caveat, whatever would qualify as an old rule under our Teague jurisprudence will constitute 'clearly established Federal law, as determined by the Supreme Court of the United States' under § 2254(d)(1). . . . The one caveat . . . is that § 2254(d)(1) restricts the source of clearly established law to this Court's jurisprudence." Id., 146 L.Ed.2d at 430, 120 S. Ct. at 1523.
The converse is also true. If the rule petitioner seeks would be a Teague "new rule," it is not "clearly established." See Harris v. Stovall, 212 F.3d 940, 944 (6th Cir. 2000); Vasquez v. Strack, No. 98-2590, Part II.B. (2d Cir. Sept. 14, 2000).
All Supreme Court precedents are, of course, "clearly established Federal law" on their precise facts. The question is typically one of scope. That was true under Teague and it remains true under § 2254(d)(1). In Butler v. McKellar, 494 U.S. 407, 415 (1990), the scope of Edwards v. Arizona, 451 U.S. 477 (1981) as applying to interrogation about a different offense was not dictated by precedent (or clearly established) as of the time of the state court ruling. In Lambrix v. Singletary, 520 U.S. 518, 530-539 (1997), the scope of the Godfrey v. Georgia, 446 U.S. 420 (1980) line of cases as applying to jury instructions in Florida's mixed judge/jury sentencing system was not dictated by precedent as of the time of the state court decision. Where the applicability of a Supreme Court precedent to the issue before the state court is not clear at the time of its decision, that decision is not subject to collateral attack, either under Teague or AEDPA.
One issue that remains a source of confusion is the role of lower court precedent in a § 2254(d)(1) analysis. Congress has clearly designated Supreme Court precedents as the only ones state courts are bound to follow. That has always been the law, despite occasional, erroneous indications to the contrary in some circuit opinions. See Arizonans for Official English v. Arizona, 520 U.S. 43, 58-59 n. 11 (1997); id. at 66 n. 21; Lockhart v. Fretwell, 506 U.S. at 375-376 (Thomas, J., concurring). Whether the AEDPA's limitation is a "significant change" from pre-AEDPA law, see Harris, 212 F.3d at 944, or merely correction of error, see Scheidegger, supra, 98 Colum. L. Rev. at 948, is unresolved.
The fact that lower court authority is not controlling does not render it irrelevant. A Teague-like survey of the legal landscape, cf. Graham v. Collins, 506 U.S. 461, 468 (1993), can still illuminate whether the applicability of the Supreme Court precedent to the issue at hand is "clearly established." In this survey, the opinions of state courts are entitled to equal consideration with those of the federal courts. See Caspari v. Bohlen, 510 U.S. 383, 394-395 (1994).
Just as a single lower court precedent does not, by itself, make a rule "clearly established," so " 'the mere existence of conflicting authority does not necessarily mean a rule is new,' " Williams, 146 L.Ed.2d at 428, 120 S. Ct. at 1522 (quoting Wright v. West, 505 U.S. 277, 304 (1992) (O'Connor, J., concurring in the judgment)). Even so, a substantial body of contrary authority is powerful evidence that a proposed rule would be new under Teague, see Caspari, 510 U.S. at 395, and it is equally powerful evidence that the contrary rule was not "clearly established" under AEDPA.
In the present case, as we will describe further in Part IV, the state court opinion follows the clear preponderance of authority in recent American jurisprudence. Most of the contrary authority predates significant shifts in the Supreme Court's harmless error cases. To obtain relief on this claim, petitioner would have to show not merely that one or two cursory opinions are clearly wrong, but that most of the courts to consider the question, including thorough, well-reasoned opinions, are clearly wrong. While amicus will not go so far as to say this is impossible, it would be extraordinarily rare.
|
|
||||
|
|
|
|
||
1. We include Williams' first name to avoid confusion with another case of the same name, decided the same day, Michael Williams v. Taylor, 529
U.S. __, 146 L.Ed.2d 435, 120 S. Ct. 1479 (2000).