The Volokh Conspiracy

Last week, I filed an amicus brief on behalf of petitions for certiorari in Chafee v. United States and Pleau v. United States. These related cases could be among the most important federalism cases before the Court this term. The amici are the Cato Institute and the Independence Institute.

The State of Rhode Island and the federal government are fighting for custody of Jason Pleau, who is accused of perpetrating a murder during the course of a bank robbery. Rhode Island got him first, by revoking his parole for previous crimes. Pleau has offered to plead guilty in Rhode Island state court, and receive a sentence of life without parole for the murder/robbery. Although Pleau’s robbery of the bank’s night depository involves no particularly strong federal interest (such as the murder of a federal officer), the U.S. Attorney for Rhode Island wants to prosecute Pleau in federal court, and has stated that capital punishment may be sought.

Over four decades ago, the States entered into an interstate compact, the Interstate Agreement on Detainers Act (IADA). The Act provides the procedures for the temporary transfer of a prisoner from one state to another state, for criminal prosecution in the second state. Congress liked IADA so much that it not only gave permission for the compact, it also enacted IADA as a federal statute, and made the U.S. a party to the compact. So under IADA, the U.S. functions just like any other “sending” or “receiving” state.

The U.S. Attorney filed a detainer under IADA, to obtain temporary custody of Pleau. IADA explicitly provides that the Governor of the sending state has an unlimited right to refuse to transfer a prisoner. Rhode Island Governor Lincoln Chafee exercised this right. Because Rhode Island does not have the death penalty, Chafee believes that it would be contrary to Rhode Island public policy for Pleau to be subject to capital punishment for a crime perpetrated in Rhode Island, by a Rhode Island citizen, against another Rhode Island citizen.

Having been rejected under IADA, the U.S. Attorney then sought to obtain Pleau by asking a federal district court to issue a writ of habeas corpus ad prosequendum. This common law writ is used by a court to obtain a prisoner for prosecution, and it is implicitly recognized in the 1948 federal habeas corpus statute.

Lower courts split on whether the ad prosequendum writ could be used to evade IADA. Rhode Island lost in federal district court, won 2-1 before a First Circuit panel, and then lost 3-2 before the First Circuit en banc. What made the case of particular interest to Cato and the Independence Institute was the en banc majority’s casual use of the Supremacy Clause as a trump card automatically resulting in a win for the federal government.

The National Governors Association filed an amicus brief on behalf of Governor Chafee before the en banc panel; the NGA argued vigorously against the U.S. Attorney’s theory that the Supremacy Clause can override a valid compact between the States and the federal government. The NGA argued that this interpretation makes all federal/state compacts into worthless scraps of paper, as far as federal adherence to the compact is concerned.

Although the Solicitor General initially declined to respond to the cert. petitions by Chafee and Pleau, the Supreme Court has requested a response from the SG, which should be filed later this month.

The Cato Institute’s write-up of the case is here. Scotusblog’s collection of the various briefs is here, including the cert. petition amicus briefs of the National Governor’s Association and the Rhode Island ACLU. (Note that this is for docket number 12-223, the Chafee case. The related case of Pleau is 12-230, which is linked from the Scotusblog page for Chafee.) Below is the summary of argument from my amicus brief:

The First Circuit’s decision violates Supreme Court teachings about the relationship between habeas corpus writs and state sovereignty, as explicated by Chief Justice Marshall in Ex Parte Bollman, 8 U.S. (4 Cranch) 75 (1807), and by Chief Justice Taft in Ponzi v. Fessenden, 258 U.S. 254 (1922). More fundamentally, the First Circuit misuses the Supremacy Clause to make it an absolute trump card to defeat any state claim. This is not, and never has been, the meaning of the Supremacy Clause.

The decision below mangles the Supreme Court’s major case about the Interstate Agreement on Detainers Act, United States v. Mauro, 436 U.S. 340 (1977). Westlaw characterizes the First Circuit’s decision as the “most negative” of the more than 600 lower court cases applying Mauro. The decision below does not merely misread Mauro, but instead chops quotes and inverts language so as to turn Mauro into the opposite of what Mauro actually said.

There is no evidence, let alone an “unmistakably clear statement,” that any act of Congress, including the 1789 and 1948 habeas corpus statutes, was intended to abrogate state sovereignty, including the sovereign right of Governors to refuse a writ of habeas corpus ad prosequendum.

The First Circuit grants unauthorized additional power (indeed, statutorily forbidden power) to the federal government, which makes it imperative that this Court grant certiorari to protect our constitutional system of dual sovereignty.

Thanks to my fine summer interns, Christopher Ferraro and Rachel Maxam, of Denver University Sturm College of Law, for their work on this brief.

Today the Supreme Court issued a unanimous per curiam opinion summarily reversing a divided panel of the U.S. Court of Appeals for the Sixth Circuit in Parker v. Matthews. The opinion begins:

In this habeas case, the United States Court of Appeals for the Sixth Circuit set aside two 29-year-old murder convictions based on the flimsiest of rationales. The court’s decision is a textbook example of what the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) proscribes: “using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 12).

The citation to Renico is a clear rebuke to the Sixth Circuit. Renico also reversed a Sixth circuit decision granting a habeas petition. As the Court notes later in its opinion, in Renico the Court corrected “an identical error” to that made by the Sixth Circuit here.

The reversal of the Sixth Circuit in habeas cases has become rather common. In the 2009-2010 term, when Renico was decided, the Supreme Court reversed Sixth Circuit habeas decisions in five separate cases. But it’s not just habeas cases. If I have my numbers right, the Sixth Circuit is 0-20 over the past four terms. This pattern has caused some to wonder whether the Sixth Circuit is (or could become) the “most-reversed” circuit or the “new Ninth.”

How the Sixth Circuit fares in the future will largely depend on how the court’s newest judges approach habeas cases, particularly those confirmed in the past five years. The lion’s share of the Sixth Circuit’s reversals have come from habeas cases and the lion’s share of those have involved opinions written or joined by a handful of judges who clearly have a different (and more pro-petitioner) understanding of habeas rights and the Anti-Terrorism and Effective Death Penalty Act (AEDPA) than does a majority of the Supreme Court. Even if a majority of judges on the Sixth Circuit have gotten the message and are ready to apply AEDPA in accord with relevant precedent, a handful of judges can still control the outcome in a significant number of cases. As not all erroneous panel opinions are en banc worthy, these opinions will survive unless reversed by the Supreme Court — and the Supreme Court has not been shy about reaching out to overturn the Sixth.

Yesterday, in Gagne v. Booker, the full U.S. Court of Appeals for the Sixth Circuit splintered along unusual lines over the application of Michigan’s rape-shield statute to exclude evidence relating to the complaining witness’ prior sexual conduct with the defendant. Lewis Rodney Gagne was accused of gang raping his ex-girlfriend and sought to introduce evidence that she had consented to rough, group sex with Gagne and other men on at least one prior occasion. The trial court refused to admit this evidence due to Michigan’s rape shield law. In his habeas petition, Gagne claimed the trial court’s decision violated his constitutional right to present an effective defense. The distrcit court granted Gagne habeas relief and a three-judge panel of the Sixth Circuit affirmed (then with an amended opinion). Sitting en banc, the Sixth Circuit reversed, 11-5.

What makes this decision particularly interesting is the procedural posture of the case, the appeal of a denial of a writ of habeas corpus, as the Sixth often splits along ideological lines in habeas cases. Here, however, the judges did not split along traditional ideological lines. Chief Judge Alice Batchelder delivered the opinion of the court denying habeas relief with an opinion for a seven judge plurality. Judges Boggs, Gibbons, Sutton, Cook, McKeague, and Griffin joinedthe Chief Judge. Judge Moore concurred in the judgment only, joined by Cole and Clay, as did Judge White. Judge Kethledge dissented, joined by Judges Martin, Norris, Rogers and Stranch.

President Obama today fired his opening salvo in an unprecedented attack on the Constitution of the United States. Regarding the impending Supreme Court ruling on the health control law, the President said, “Ultimately, I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

His factual claims are false. His principle is a direct assault on the Constitution’s creation of an independent judicial branch as a check on constitutional violations by the other two branches.

It is certainly not “unprecedented” for the Court to overturn a law passed by “a democratically elected Congress.” The Court has done so 165 times, as of 2010. (See p. 201 of this Congressional Research Service report.)

President Obama can call legislation enacted by a vote of 219 to 212 a “strong” majority if he wishes. But there is nothing in the Constitution suggesting that a bill which garners the votes of 50.3% of the House of Representatives has such a “strong” majority that it therefore becomes exempt from judicial review. To the contrary, almost all of the 165 federal statutes which the Court has ruled unconstitutional had much larger majorities, most of them attracted votes from both Democrats and Republicans, and some of them were enacted nearly unanimously.

That the Supreme Court would declare as unconstitutional congressional “laws” which illegally violated the Constitution was one of the benefits of the Constitution, which the Constitution’s advocates used to help convince the People to ratify the Constitution. In Federalist 78, Alexander Hamilton explained why unconstitutional actions of Congress are not real laws, and why the judiciary has a duty to say so:

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . . .

Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.

Because Hamilton was the foremost “big government” advocate of his time, it is especially notable that he was a leading advocate for judicial review of whether any part of the federal government had exceeded its delegated powers.

Well before Marbury v. Madison, the Supreme Court recognized that the People had given the Court the inescapable duty of reviewing the constitutionality of statutes which came before the Court. The Court fulfilled this duty in cases such as Hylton v. U.S. (1796) (Is congressional tax on carriages a direct tax, and therefore illegal because it is not apportioned according to state population?); and Calder v. Bull (1798) (Is Connecticut change in inheritance laws an ex post facto law?). The Court found that the particular statutes in question did not violate the Constitution. (The ex post facto clause applies only to criminal laws; the carriage tax was an indirect tax, not a direct tax.) However, the Court’s authority to judge the statutes’ constitutionality was not disputed.

It would not be unfair to charge President Obama with hypocrisy given his strong complaints when the Court did not strike down the federal ban on partial birth abortions, and given his approval of the Supreme Court decision (Boumediene v. Bush) striking down a congressional statute restricting habeas corpus rights of Guantanamo detainees. (For the record, I think that the federal abortion ban should have been declared void as because it was not within Congress’s interstate commerce power, and that Boumediene was probably decided correctly, although I have not studied the issue sufficiently to have a solid opinion.) The federal ban on abortion, and the federal restriction on habeas corpus were each passed with more than a “strong” 50.3% majority of a democratically elected Congress.

As a politician complaining that a Supreme Court which should strike down laws he doesn’t like, while simultaneously asserting that a judicial decision against a law he does like is improperly “activist,” President Obama is no more hypocritical than many other Presidents. But in asserting that the actions of a “strong” majority of Congress are unreviewable, President Obama’s word are truly unprecedented. Certainly no President in the last 150 years has claimed asserted that a “strong” majority of Congress can exempt a statute from judicial review. President Lincoln’s First Inaugural criticized the Dred Scott majority for using a case between two private litigants for its over-reaching into a major national question, but Lincoln affirmed that the Court can, and should, provide a binding resolution to disputes between the parties before the Court. And in 2012, the government of the United States is one of the parties before the Court. (And the government is before the Court in part because the government filed a petition for a writ of certiorari to ask the Court to use its discretion to decide the case.)

Alone among the Presidents, Thomas Jefferson appears as a strong opponent of judicial review per se. Notably, he did not propose that Congress be the final judge of its own powers, especially when Congress intruded on matters which the Constitution had reserved to the States. Rather, Jefferson argued that in such a dispute the matter should be resolved by a Convention of the States, and the States would be make the final decision. Given that 28 States have already appeared as parties in court arguing that the individual mandate is unconstitutional, we can make a good guess about what a Convention would decide about the constitutionality of the health control law.

President Obama, however, wants Obamacare to be reviewable by no-one: not by the Supreme Court, not by the States.  You can find professors and partisans who have argued for such lawlessness, but for a President to do so is unprecedented.

The People gave Congress the enumerated power “To regulate Commerce . . . among the several States.” According to the Obama administration, this delegation of power also includes the power to compel commerce. Opponents contend that the power to regulate commerce does not include the far greater power to compel commerce, and that the individual mandate is therefore an ultra vires act by a deputy (Congress) in violation of the grant of power from the principal (the People). Seventy-two percent of the public, including a majority of Democrats, agrees that the mandate is unconstitutional. Few acts of Congress have ever had such sustained opposition of a supermajority of the American public.

President Obama today has considerably raised the stakes in Sebelius v. Florida. At issue now is not just the issue of whether Congress can commandeer the People and compel them to purchase the products of a particular oligopoly. At issue is whether the Court will bow to a President who denies they very legitimacy of judicial review of congressional statutes–or at least those that statutes which garnered the “strong” majority of 219 out of 435 Representatives.

This morning a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued an opinion in Van Hook v. Bobby for the fourth time.  On three previous occasions the panel had granted habeas relief to death row inmate Robert Van Hook , and all three times the panel was overturned — twice by an en banc court and once, summarily, by the Supreme Court.  This time, it appears, Van Hook was out of arguments, and the panel denied his petition.

Given all the attention paid to Rick Perry’s “record tally” of executions as Texas Governor, I am surprised the Supreme Court’s decision last week to stay the execution of Duane Edward Buck has not received more attention.  From the Houston Chronicle:

Buck was sentenced to die for the July 1995 shooting deaths of his former girlfriend, Debra Gardner, and her friend, Kenneth Butler. Buck also shot his sister, Phyllis Taylor, in the chest at point-blank range, but the woman recovered and later became an advocate for saving his life.

The legal fight for Buck’s life centered on a 2000 assertion by then-Texas Attorney General John Cornyn that Buck’s case was among six capital trials that might have been tainted by racial testimony from psychologist Walter Quijano.

The other five killers all received new federal court-ordered punishment hearings in which they again were sentenced to death. But Buck, whose case still was at the state level at the time of Cornyn’s pronouncement, never had his sentencing reconsidered.

Given the stay, I would think that a grant of certiorari is likely.

Today, a divided panel of the U.S. Court of Appeals for the Sixth Circuit rejected death row inmate Bobby Shepherd’s appeal of the district court’s denial of his petition for a writ of habeas corpus in Shepherd v. Bagley. Among Shepherd’s claims was that his trial was constitutionally defective because one of the jurors had consulted a psychologist during the penalty phase of the trial to understand what “paranoid schizophrenia” means. This was potentially relevant because the defense had argued (unsuccessfully) that Shepherd’s paranoid schizophrenia was a mitigating factor that should weigh against imposition of the death penalty. The juror maintained that this conversation did not affect his or the jury’s deliberations, however, and the trial court concluded there was no prejudice and sentenced Shepherd to death.

One of the issues dividing the Sixth Circuit panel was whether the trial court properly handled the juror’s improper conduct and, specifically, whether the prosecution or the defense should bear the burden of proof in such a situation. Judge Kethledge, writing for the court joined by Chief Judge Batchelder (who also wrote a separate concurrence addressing this issue), concluded that the burden was on the defense to prove prejudice. Judge Merritt, in dissent, forcefully argued the burden must rest on the prosecution.

Judge Merritt argued that the burden was on the proscecution to prove that the juror’s conversation with the psychologist was not prejudicial, and that this burden was never met.  In support of his position, Judge Merritt cited the Supreme Court’s decision in Remmer v. United States, 347 U.S. 227, 229 (1954), in which the Court held that ex parte communications with jurors are “presumptively prejudicial. The majority, on the hand, concluded that Remmer had been abrogated by subsequent decisions, including Smith v. Phillips, 455 U.S. 209, 215-17 (1982), a point Chief Judge Batchelder stressed in her concurrence.

I don’t know the case law in this area to know which side offers the better interpretation of the Supreme Court’s precedent or how such ex parte communications should be handled. The dissent notes that the majority of Circuit’s reject the view that Smith abrogated Remmer, and the majority of circuits may be right. Only one circuit disagrees — but therein lies the problem for Judge Merritt’s argument. As he acknowledges in footnote 1 of his opinion, that one circuit is the Sixth. The circuit concluded Smith abrogated Remmer in United States v. Pennell, 737 F.2d 521 (6th Cir. 1984). Moreover, as Judge Batchelder notes, the Sixth Circuit has followed this holding since. Therefore, even if Judge Merritt offers what is ultimately the better argument, the panel was bound to conclude otherwise, as this is the law of the circuit unless and until the question is revisited en banc or reaches the Supreme Court.

Today the U.S. Court of Appeals for the Sixth Circuit granted death row inmate John David Stumpf’s petition for a writ of habeas corpus for a second time – seven years after its first habeas grant, six years after the Supreme Court’s reversal of that decision, and four years after the subsequent oral argument. As one might expect, the panel was divided, just as it had been the first time around. Judge Daughtrey wrote the majority opinion, joined by Judge Moore. Judge Boggs dissented. Although the majority’s rationale is somewhat different this time, the arguments seem familiar. Could this decision prompt another Supreme Court reversal? Perhaps. After all, this is a habeas grant from the Sixth Circuit.

Excerpts from the opinions are below the jump.

Continue reading ‘The Stumpf Sequel’ »

If your defense attorney falls asleep during your trial, and you are convicted, do you have an ineffective assistance of counsel claim? That may depend on how long your attorney was asleep, and whether you can demonstrate prejudice. Yesterday, in Muniz v. Smith, the U.S. Court of Appeals for the Sixth Circuit denied a habeas petition alleging ineffective assistance of counsel because the defense attorney fell asleep while the defendant was under cross-examination. A courtroom nap, by itself, is insufficient to establish ineffective assistance of counsel unless the attorney is asleep for a “substantial portion” of the trial, and that could not be demonstrated here. Further, the defendant could not demonstrate he was prejudiced by his attorney’s nap.

This morning the Supreme Court called for the views of the Solicitor General in Ryan v. Gonzales, a habeas case arising out of the Ninth Circuit posing the question whether a habeas petitioner is entitled to a stay of the proceedings if the petitioner is not competent to assist counsel. This question is similar to that raised in Carter v. Bradshaw, a case from the Sixth Circuit about which I blogged over the weekend.

Last week, in Carter v. Bradshaw, the U.S. Court of Appeals for the Sixth Circuit held that habeas proceedings challenging a capital sentence should be stayed until the petitioner is competent to proceed. The opinion by Judge Martin, joined by Judge Cole, acknowledged that “federal habeas petitioners facing the death penalty for state criminal convictions do not enjoy a right to competence,” but nonetheless concluded that habeas petitioners “do have a statutory right to competence in some situations.” For example, only a competent habeas petitioner may terminate habeas proceedings once they have been initiated. By the same token, the court suggested, if a petitioner lacks the competency to assist the attorneys working on his behalf – perhaps by providing information necessary to prove an ineffective assistance of counsel claim – it is tantamount to the petitioner terminating the claim. On this basis, Judge Martin concluded that Carter’s habeas proceedings should be stayed until such time as Carter regains his competency.

Judge Martin’s opinion provoked a forceful dissent from Judge Rogers. Here is how begins:

Today the court allows habeas petitioners to prevent States from enforcing their judgments, potentially forever, on the grounds of a nonexistent right to competency in habeas proceedings. The asserted right has no basis in the Constitution or federal statutes. Civil suits can be brought by lawyers representing mentally incompetent plaintiffs, and habeas cases are no different. Nor are capital cases different in this respect.

In the concluding section, Judge Rogers writes:

Requiring competency on the part of capital habeas petitioners is not compelled by the right to competency at trial, the right to competency in waiving further habeas proceedings, or the right to be competent at the time of execution. The new ‘right’ is not provided by either the Constitution or any statute. It is instead an anomalous monkey wrench thrown into the capital-litigation process.

One point Judge Rogers stresses is the potential for the majority’s holding to create odd incentives and produce perverse results.

For practical purposes, the right will be asserted by capital petitioners but not by other petitioners. Capital petitioners gain something (delaying execution) from indefinitely delaying habeas proceedings, while the interests of convicts serving prison terms—whether competent or not—will almost always be served by the prompt litigation of habeas petitions, so as to advance the possibility of release. But acceptance of the right in concept might well require that it be applied to noncapital cases, where prosecutors could insist that habeas be indefinitely delayed. One might argue that noncapital defendants may waive the right, but by hypothesis such defendants are incompetent, and thus might be incapable of waiving the right. So recognition of a right to competency in habeas proceedings means either that prosecutors can for practical purposes insist on indefinite postponement of habeas proceedings where convicts are not competent (a counterintuitive result), or that the difference in punishment—capital vs. noncapital—somehow fundamentally changes the nature of how much a lawyer must have input from the client, such that the right is categorically available only for capital convicts (an anomalous result).

It is also anololous to have a system in which a civil litigant can go into court and instantly get the relief he seeks merely by showing that he is incompetent. In civil cases in our system, a plaintiff has to show a basis for relief, not merely that he is disable from making such a showing. While habeas convictions deal with criminal convictions, they are at bottom civil cases.

Given the Sixth Circuit’s recent record in habeas cases, I would not be surprised were the state of Ohio to file a petition for certiorari in this case. Douglas Berman agrees.

The U.S. Court of Appeals for the Sixth Circuit has been one of the more divided appellate courts, particularly when it comes to habeas cases. Ideological splits on the court are common in such cases, especially so in capital cases or when claims of ineffective assistance of counsel are raised. Some judges on the Sixth Circuit are notorious for liberally granting ineffective assistance of counsel claims, while others are known for approaching any such claims with extreme skepticism. But it would be a mistake to assume that the judges on the Sixth Circuit (or any Circuit, for that matter) simply vote their ideological preferences or reflexively support or oppose certain types of claims without regard for the legal merits.

Case in point is today’s decision in Hardaway v. Robinson. Holland Hardaway was convicted of murder and given consecutive 40 to 80 year prison terms. Hardaway filed a habeas petition to challenge his conviction alleging, among other things, the ineffective assistance of counsel. Hardaway drew a fairly conservative panel — Judges Batchelder, Rogers and Kethledge. This would doom his ineffective assistance claim, right? Not in this case. In an opinion by Judge Rogers, the panel unanimously concluded that Hardaway had been denied the effective assistance of counsel, and that this violation was not cured by Hardaway’s subsequent ability to challenge his conviction in collateral state proceedings.

This morning, with its end-of-term orders, the Supreme Court issued a 5-4 per curiam opinion in Sears v. Upton, a capital habeas case in which five justices voted to grant the petition of ceriorari, summarily vacate the decision below, and remand for further proceedings.  According to the brief per curiam opinion, after determining that Sears had received inadequate assistance of counsel, the state court failed to apply the proper Sixth Amendment inquiry to determine whether Sears was prejudiced.  The opinion notes that Chief Justice and Justice Alito would not have granted certiorari, and Justice Scalia, joined by Justice Thomas, dissented.

SCOTUSBlog has more on today’s orders here.

The Daily Journal reports that the U.S. Court of Appeals for the Sixth Circuit has gone 0-5 before the Supreme Court this term.  As I noted here, all five cases were pro-prisoner habeas cases.  The article discusses the role of the Michigan AG’s office in encouraging the Supreme Court to review the Sixth Circuit’s habeas handiwork.

As for why the Supreme Court suddenly became interested in 6th Circuit habeas rulings, court-watchers say part of the reason is that Michigan Solicitor General Eric Restuccia went to great lengths to flag the issue in his briefs. Of the five 6th Circuit habeas cases decided this term, three were out of Michigan.

In five briefs filed last year, Restuccia mentioned the other petitions he was filing in an attempt to highlight the failure of the 6th Circuit to follow habeas corpus rules as revised by Congress in the Antiterrorism and Effective Death Penalty Act back in 1996.

“These cases evidence a pattern by the 6th Circuit of usurping the role of the State courts by failing to properly apply the AEDPA,” he wrote in a passage that appeared in all five briefs.

Joy Yearout, a spokeswoman for the Michigan Attorney General’s office, said Thursday that the state is “going to keep filing petitions as long as the 6th Circuit continues its pattern of failure to accord proper deference to state court determinations.”

One has already been filed and another will be filed in the coming weeks, she added.

The Michigan AG’s office is not alone.  Prosecutors within the Sixth Circuit are well aware that some of the Circuit’s judges are out-of-step with existing Supreme Court precedent on habeas.  Now that the Supreme Court appears to be aware of this as well, I would expect state AGs to become increasingly aggressive at seeking review of decisions granting habeas petitions.

(Hat tip: How Appealing)

With today’s decision in Berghuis v. Thompkins the Supreme Court has once again reversed the U.S. Court of Appeals for the Sixth Circuit in a habeas case.  Indeed, this is the fifthsuch reversal this year.  In each case, a panel of the Sixth Circuit granted a prisoner’s habeas corpus petition.  In each case, the Supreme Court reversed.  Three of these decisions were unanimous (Berghuis v. Smith, Smith v. Spisak and Bobby v. Van Hook), one was 6-3 (Renico v. Lett).  Today’s decision was 5-4.  Overall, this means the Circuit could only muster 7 of 45 available votes in support of its decisions.

It’s hardly unheard of for a single circuit to be reversed five or more times in a single term.  The number of cases up for review in any given year is a sufficiently small and unrepresentative sample to preclude drawing any sweeping conclusions.  Still, it is unusual to see a circuit fare so poorly in a single area of the law in a single term, and in such a uniform direction.

The spate of reversals is also notable because the Sixth Circuit has been so divided in habeas cases of late.  As I’ve chronicled over the past several years (see, e.g., here, here and here), the judges on the Sixth Circuit are deeply split over the proper standard of review in habeas cases, particularly when the death penalty is involved.  Indeed, the Circuit released yet another divided panel decisionin a habeas case this morning.   The uniformity of the reversals suggest that one side in the Sixth Circuit’s habeas disputes has the better of the argument, at least under existing law.  If current law is too restrictive on this score — and it may well be — then it is up to the Court or Congress to make things right, not a handful of judges on a single Circuit.  With these five decisions, the Supreme Court seems to be sending a message.  Time will tell whether the judges on the Sixth Circuit heed it.

UPDATE: It’s been suggested to me that it’s unfair to blame the Sixth Circuit for today’s reversal.  In Berghuis v. Thompkins the Sixth Circuit was not only reversed for failing to apply the proper standard to review of a habeas petition denial.  On the petitioner’s Miranda claim, the five-justice majority revised the standard for what constitutes a waiver of one’s Miranda rights. Thus, the Court did not hold that the Sixth Circuit failed to apply pre-existing precedent, and there is a reasonable argument that the Sixth Circuit’s decision on this question was on solid ground at the time of the decision.  This was not the only basis upon which the Sixth Circuit afforded Thompkins with habeas relief, however.  The panel below also found that Thompkins had received inadequate assistance of counsel, and here the Court majority found the Sixth Circuit had not applied the proper standard under AEDPA.  (The dissent did not address this issue, as the dissenting justices would have granted relief on the Miranda claim.)  Interestingly enough, because today’s decision was 5-4, if one ignores Berghuis v. Thompkins, the Sixth Circuit appears to be more of an outlier, as the combined vote to overturn is habeas decisions would be 33-3.