The Volokh Conspiracy

In a divided opinion, the U.S. Court of Appeals for the Sixth Circuit struck down Michigan’s Proposal 2, aka the “Michigan Civil Rights Initiative.” Proposal 2 was a successful ballot initiative that provides that the state, including state educational institutions, may not “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting.” Judge Cole, joined by Judge Daughtrey, held that the proposal is unconstitutional under the Equal Protection Clause. Specifically, the initiative is invalid under Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969) because it “unconstitutionally alters Michigan’s political structure by impermissibly burdening racial minorities.” Judge Gibbons dissented. The decision in Coalition to Defend Affirmative Action v. Regents of the University of Michigan is here.

I am quite confident this is not the last we have heard of this case, and will be quite surprised if this decision is ultimately sustained. Given the panel and the holding, I think there is a reasonable likelihood of it going en banc, and if this opinion is not overturned en banc, I would think that this case — or perhaps the similar case challenging the equivalent California initiative — will go to the Supreme Court.

UPDATE: According to this story, Michigan Attorney General Bill Schuette will file a petition for rehearing en banc.

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.

A notice on the website for the U.S. Court of Appeals for the Sixth Circuit announces that the three-judge panel to hear the appeal in Thomas More Law Center v. Obama, another challenge to the constitutionality of the individual mandate, will consist of Circuit Judges Boyce F. Martin, Jr. and Jeffrey S. Sutton, and District Court  Judge James L. Graham, of the Southern District of Ohio, sitting by designation.  The argument is scheduled for the afternoon of June 1.  Audio of the argument will be posted on the court’s website later that day.

[Thanks to Professor Kent Barnett for the tip.]

The Cincinnati Enquirer reports on the string of cases in which the Supreme Court has reversed the U.S. Court of Appeals for the Sixth Circuit.  As the Enquirer story notes, the Sixth Circuit has batted 0-15 over the past three Supreme Court terms.  This is quite remarkable. No other Circuit has been reversed so consistently over this period.  As I noted here, it’s also quite unusual to see a single Circuit reversed so consistently in a single area, such as criminal procedure and habeas rights, as the Sixth was last term.

What’s causing the Sixth Circuit’s poor record?  I am reluctant to read too much into the numbers, as it could be just dumb luck.  The Supreme Court reverses more often than it affirms lower court opinions, and the number of cases is small enough that it’s not clear they establish a trend.  That said, I would offer some observations:

• Some of the judges on the Sixth Circuit are unquestionably out-of-step with the Supreme Court on habeas review, and this likely accounts for the high number of recent reversals in habeas cases.
• The lack of collegiality among a handful of the judges on the Sixth Circuit likely plays a role as well.  It’s not just that some of the judges on the court don’t work well together.  Rather, it is clear that some of the judges do not trust all of their colleagues — some have said as much in print — and this lack of trust could make it more difficult to resolve disagreements about what existing law requires in specific cases.  These sorts of discussions require that the participants believe all are operating in good faith.

If I am correct, then I would expect the Sixth Circuit’s record to improve in the years ahead.  There’s only so long that a Circuit (or judges on a Circuit) can resist Supreme Court precedent, and the confirmation of new judges to the Sixth will help breakdown any bad feelings amongst some of the more senior judges on the court.

Last week, the U.S. Court of Appeals for the Sixth Circuit denied a petition for rehearing en banc in Mitts v. Bagley, a habeas case in which a divided panel granted a writ of habeas corpus on the grounds that the jury instructions were unconstitutional under the standard set forth in Justice Stevens sole concurring opinion in Smith v. Spisak.  Interestingly enough, the order denying rehearing was accompanied by an opinion concurring in the petition denial explaining why the case was not en banc-worthy, even though it was incorrect.

The opinion by Judge Sutton, which whom Judge Kethledge, declares up front that “with all respect to the panel majority, this case was not decided correctly,” and proceeds to explain the initial panel’s mistake.  The second part of Judge Sutton’s opinion,however, explains that a three-judge panel’s error, by itself, does not justify en banc review.  As he explains:

While the Federal Rules of Appellate Procedure provide one option—en banc rehearing—it is not a preferred one.  En banc rehearing is “not favored and ordinarily will not be ordered.” Fed. R. App. P. 35(a).  “The decision to grant en banc consideration is unquestionably among the most serious non-merits determinations an appellate court can make, because it may have the effect of vacating a panel opinion that is the product of a substantial expenditure of time and effort by three judges and numerous counsel.  Such a determination should be made only in the most compelling circumstances.” . . .

Most of the traditional grounds for full court review are not “compelling” here. There is no circuit split.  No other circuit to my knowledge (or for that matter to the parties’ knowledge) has invoked this ground for relief or otherwise disagreed with it. This is not an important federal question, at least under Appellate Rule 35(a), since the Ohio courts stopped giving this instruction in 1996.  . . .  There is no intra-circuit conflict. . . . Nor is this a case in which a large number of judges on the court have come to doubt the validity of our own precedent.

That leaves one other possibility—that disagreement with the panel’s decision on the merits warrants en banc review.  In the run-of-the-mine case that ground rarely suffices, else many cases a year would be decided in panels of 16, a rarely satisfying, often unproductive, always inefficient process.  No one thinks a vote against rehearing en banc is an endorsement of a panel decision, as other judges have said and as my explanation in this case confirms.  “By declining to rehear a case, we do not sit in judgment on the panel; we do not sanction the result it reached . . . [w]e decide merely that . . . review by the full court is not justified.” . . .

If the goal is to produce consistent and principled circuit law, moreover, it is fair to wonder whether a process that requires a majority of circuit judges to sit in judgment of two or three colleagues does more to help than to deter that objective, particularly when the central ground for review is mere disagreement on the merits.  The judges of a circuit not only share the same title, pay and terms of office, but they also agree to follow the same judicial oath, making them all equally susceptible to error and making it odd to think of the delegation of decisionmaking authority to panels of three as nothing more than an audition.  Saving en banc  review for “the rarest of circumstances,” particularly when the leading ground for review is disagreement on the merits, thus “reflects a sound, collegial attitude,” one worth following here. . . .  Skepticism about the value of meritsbased en banc review reflects one other thing:  We are not the only Article III judges concerned with deciding cases correctly.  Sometimes there is nothing wrong with letting the United States Supreme Court decide whether a decision is correct and, if not, whether it is worthy of correction.

In many states, convicted felons lose the right to vote, at least temporarily. In Tennessee, restoration of a felon’s voting rights is conditioned upon payment of court-ordered victim restitution and child support obligations. Is this unconstitutional? A divided panel of the U.S. Court of Appeals for the Sixth Circuit thinks not. In Johnson v. Bredesen, Judge Cook, joined by district judge Ludington (sitting by designation) rejected claims that the Tennessee requirement violates the 14 Amendment’s Equal Protection Clause, the 24th Amendment, and the Ex Post Facto and Privileges or Immunities Clauses of the United States and Tennessee Constitutions. Judge Moore penned a 39-page dissent which begins:

A state under current law may curtail a felon’s right to vote, or even forever deny it, but once a state enacts a process by which a felon may regain suffrage, that process must comport with the demands of the Constitution. Contrary to the majority’s conclusion, I would hold that Tennessee Code § 40-29-202(b) and (c) violate the Equal Protection Clause of the U.S. Constitution and the Ex Post Facto Clause of the Tennessee Constitution. I further believe that the Plaintiffs have alleged sufficient factual matter to state a claim for relief under the Twenty-Fourth Amendment to the U.S. Constitution such that dismissal on the pleadings was improper. For the following reasons, I must respectfully dissent.

Tennessee Code § 2-19-143 and § 40-20-112 disenfranchise all persons who have been convicted of “infamous” crimes, i.e., felonies. Those felons denied the right to vote are “eligible to apply for a voter registration card and have the right of suffrage restored” if they receive a pardon, are discharged from custody after serving the maximum sentence imposed, or are granted a final discharge from supervision by the relevant county, state, or federal authority. Tenn. Code Ann. § 40-29-202(a)(1)–(3) (2006).  Notwithstanding this provision, however, there are two pecuniary preconditions to reenfranchisement: “[A] person shall not be eligible to apply for a voter registration card and have the right of suffrage restored, unless the person has paid all restitution to the victim or victims of the offense ordered by the court as part of the sentence,” id. § 40-29- 202(b), and “unless the person is current in all child support obligations,” id. § 40-29- 202(c). Prior to 2006, felons adjudged to have committed infamous crimes were eligible to vote upon the completion of their sentences despite any outstanding financial obligations.

In the instant case, the Plaintiffs are individuals who have completed the imprisonment associated with the felonies for which the State was authorized to abridge their right to vote. Yet because of their inability to pay outstanding restitution and/or child-support arrears, the State continues to deny them the right of suffrage to which they otherwise would be entitled automatically were the law the same now as it was at the time of their convictions and initial disenfranchisement. It is indisputable that the Plaintiffs are now unable to access the ballot box simply because they are too poor to pay.

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.

This morning the Supreme Court released its opinion in Renico v. Lett.  By a vote of 6-3, the Court overturned a decision by the U.S. Court of Appeals for the Sixth Circuit granting habeas relief to Reginald Lett, who had been convicted of murder in Michigan. Chief Justice Roberts’ majority opinion begins with the following summary:

This case requires us to review the grant of a writ of habeas corpus to a state prisoner under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d). The District Court in this case issued the writ to respondent Reginald Lett on the ground that his Michigan murder conviction violated the Double Jeop-ardy Clause of the Constitution, and the U. S. Court of Appeals for the Sixth Circuit affirmed. In doing so, how-ever, these courts misapplied AEDPA’s deferential standard of review. Because we conclude that the Michigan Supreme Court’s application of federal law was not unreasonable, we reverse.

Justice Stevens dissented, joined by Justice Sotomayor in full and Justice Breyer in part.

Of note, this is the fourth  reversal of a Sixth Circuit decision granting a prisoner’s habeas petition this term.  The other three were Berghuis v. Smith, Smith v. Spisak and Bobby v. Van Hook.  One more Sixth Circuit habeas case remains, Berghuis v. Thompkins.  Will the Supreme Court reverse in all five?  We’ll see.

This morning the U.S. Court of Appeals for the Sixth Circuit issued an opinion in United States v. Taylor, affirming the district court’s suppression of evidence (a handgun and ammunition) found in a shoebox.  Judge Gilman wrote the opinion for the court, joined by Judge Daughtrey.  Judge Kethledge dissented.  His dissenting opinion begins:

The majority today extends to shoeboxes a degree of Fourth Amendment protection that our court has previously afforded to luggage. I agree that our precedents permit this extension, but I do not think they compel it. I dissent because I think the extension unwise.

The apartment’s tenant here gave consent for the officers to search it. I think that consent ought to be effective as to an unsecured container on the premises, absent a clear indication that some other person exclusively controls the container. Luggage might routinely meet that test, but shoeboxes I think should not, absent some unusual circumstance not present here. It should take more than a shoebox to vitiate a resident’s consent to search the premises.

This morning, the Supreme Court unanimously reversed the U.S. Court of Appeals for the Sixth Circuit in Berghuis v. Smith.  The Court held, in an opinion by Justice Ginsburg, that the Sixth Circuit had erroneously concluded that the Michigan Supreme Court’s rejection of criminal defendant Diapolis Smith’s Sixth Amendment claim involved an unreasonable application of clearly established federal law, as is required to grant a habeas petition under the Anti-Terrorism and Effective Death Penalty Act (AEDPA).  Smith had argued that jury selection in his trial had violated his Sixth Amendment right to an impartial jury drawn from a representative cross-section of the community.

Of note, this is the third reversal of a Sixth Circuit decision granting a crminal defendant’s habeas petition this term.  The first two were Smith v. Spisak and Bobby v. Van Hook.  Two more Sixth Circuit habeas cases remain, Renico v. Lett and Berghuis v. Thompkins.  As I noted here, in all five cases, the Sixth Circuit granted the habeas petition.  Will the Supreme Court reverse in all five?  We’ll see.  Three down, two to go.

This morning the U.S. Court of Appeals for the Sixth Circuit issued an opinion in Demings v. Nationwide Life Insurance, Co., affirming the dismissal of a proposed class action. Of note, the opinion was authored by Associate Justice (Ret.) Sandra Day O’Connor, sitting by designation.

UPDATE: LAst August, Jess Bravin had this piece on Justice O’Connor’s continuing service on the appellate bench.

The Supreme Court released one opinion today — and it was not the eagerly anticipated Citizens United.  The Court released another habeas decision instead.  In Smith v. Spisak, a unanimous Court reversed the U.S. Court of Appeals for the Sixth Circuit’s grant of death-row inmate Frank Spisak’s habeas petition.  Justice Breyer wrote the opinion, and Justice Stevens wrote an opinion concurring in part and concurring in the judgment.

All nine justices agreed that even if Spisak’s trial counsel had been ineffective at the penalty phase, there was no reasonable probability that he was prejudiced by this fact.  The Court also held that the trial court’s mitigation jury instructions did not violate clearly established Federal law. Justice Stevens disagreed on this latter point, but nonetheless concluded Spisak was not entitled to relief because his conduct had so “alienated and ostracized the jury, and his crimes were monstrous” that there was no reasonable probability of a different outcome.

This is the second reversal of a Sixth Circuit decision granting a habeas petition this term.  (The first was Bobby v. Van Hook.)  Three more Sixth Circuit habeas cases remain, Renico v. Lett, Berghuis v. Thompkins, and Berghuis v. Smith.  Of note, all five cases involve the review of pro-defendant appellate decisions.

I previously blogged on the Spisak case here.

[NOTE: As initially posted, I inadvertantly omitted one of the cases.]

On Friday, in Johnson v. Sherry, a divided panel of the U.S. Court of Appeals for the Sixth Circuit vacated the district court’s denial of William Johnson’s petition for a writ of habeas corpus and remanded the case for additional proceedings to determine whether Johnson received inadequate assistance of counsel.  In his habeas petition, Johnson maintained that his representation had been constitutionally inadequate because his attorney failed to object to the temporary exclusion of the public from his murder trial.  Judge Clay delivered the opinion of the court, joined by Judge Cole.

Judge Kethledge dissented from the court’s judgment.  His dissenting opinion begins:

In defending a murder charge, it is a bad idea, I think, to leave the judge with a smoldering suspicion that your client had a role in killing two of the prosecution’s key witnesses before trial. A lawyer who minimizes that danger—by consenting to, rather than fighting, closure of the courtroom during the testimony of three surviving witnesses, out of a total of 18 testifying witnesses in the case—does not thereby render constitutionally ineffective assistance of counsel. That is all the more true, in my opinion, when there is not a shred of evidence that the closure had the slightest effect on the trial’s outcome.

The majority concludes otherwise. The majority suggests that the closure fight here was one worth having—indeed, that it was constitutionally mandated—its ethereal upside and concrete downside notwithstanding. The majority then sidesteps the absence of any actual prejudice resulting from Johnson’s consent to the closure—and with it, the plainly stated actual-prejudice requirement of Strickland v. Washington, 466 U.S. 668 (1984)—by holding that Johnson need not show any prejudice at all in support of his ineffective-assistance-of-counsel claim. That holding is not supported by “clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1), which means that we are without power to impose it on the Michigan state courts in this habeas case. I respectfully dissent.

It seems to me the majority’s opinion is a bit of a stretch, and Judge Kethledge has the better of the argument under existing law.  The Supreme Court has been anything-but-bashful in reviewing alleged ineffective assistance of counsel claims of late.  (See, for instance, today’s per curiam opinion in Wong v. Belmontes and last week’s decision in Bobby v. Van Hook.) So, even though this is not a capital case, I would not be surprised were this case reversed en banc if not by the Supreme Court.