Another Day, Yet Another Habeas Division on the Sixth:

Today the U.S. Court of Appeals for the Sixth Circuit issued yet another divided panel decision in a habeas case. In Simmons v. Kapture, Patrick Simmons filed a petition for a writ of habeas corpus to challenge his guilty plea for "assault with intent to do great bodily harm less than murder" in Michigan state court. According to Simmons, his plea was not knowing and voluntary and he denied effective assistance f counsel at the plea stage. Simmons has initially lost his case, but the Supreme Court accepted cert in the case and remanded it to the Sixth Circuit for reconsideration in light of Halbert v. Michigan (2005), under which Simmons may have been entitled to an attorney for his appeal in state court.

Judge Boyce Martin, joined by Judge Martha Daughtrey, held that Halbert applied retroactively to Simmons because it did not announce a new rule of criminal procedure, and instead merely applied prior holdings. Thus, the panel majority concluded, "Simmons is entitled to a writ of habeas corpus based on the state's failure to appoint him appellate counsel forhis motion for leave to appeal his guilty plea."

District Judge Danny Reeves, sitting by designation, dissented on the grounds that the rule in Halbert should not apply retroctrively to Simmons' case because it was a "new rule" of criminal procedure that was not dictated by prior precedent, and because it coul not satisfy either exception to the bar on retroactive application of such a rule.

Just Dropping By (mail):
Maybe I'm dense, but if SCOTUS tells a lower court to reconsider its earlier ruling in light of a subsequent decision, isn't that pretty much a direct order that the later decision should be considered to have retroactive effect? Otherwise, why bother with ordering reconsideration?
1.26.2007 12:20pm
DaveN (mail):
The fact that the Supreme Court granted certiorari, vacated, and remanded, more likely had to do with its conclusion that (to use habeas lingo) that the issue was "subject to debate among jurists of reason" and a certificate of appealability should have been issued. I would not read any "GVR" as the Supreme Court giving any sort of advisory ruling.

However, given that an en banc 6th Circuit had decided the issue in the manner that Simmons advocated, I am astonished that a certificate of appealability was not granted in the first instance. This is particularly true since the Supreme Court had reversed that ruling on something other than the merits.

All that said, I find myself in agreement with the majority in this case. Since Michigan evidently considers the merits in deciding whether to grant a discretionary appeal after a guilty plea, it appears to me that Douglas v. California controls and that Halbert v. Michigan did not announce a "new rule" for Teague v. Lane retroactivity purposes.
1.26.2007 12:41pm
tbaugh (mail):
But if the rule is new, as the dissent says, an interesting question is whether Teague applies on habeas review, at least with regard to inferior Article II courts. There is nothing in the statute that contains any exceptions. Judge Easterbrook has said that ""...§ 2254(d)(1) means that only rules articulated by the Supreme Court of the United States before the state court rendered its decision may be applied on collateral review.....§ 2254(d)(1) differs from Teague because the new statute closes the escape hatches in Teague." Murillo v Frank, 402 F.3d 786, 789 (CA 7, 2005).
1.26.2007 12:54pm
DaveN (mail):
As a habeas practioner representing the state, I would LIKE Judge Easterbrook's position to be the rule. But what I would LIKE and what the REALITY is are often two different things.

Since adoption of the AEDPA in 1996 and with it the new habeas corpus law, the Supreme Court has ruled on Teague retroactivity several times and the majority has never hinted its agreement with Judge Easterbrook's position. Post-AEDPA Teague decisions like Schriro v. Summerlin and Beard v. Banks would be unnecessary if Teague no longer applied.
1.26.2007 1:06pm
tbaugh (mail):
But it may be that only the US Supreme Court gets to make the Teague call.

The issue was discussed in oral argument in Whorton v Bockting,which remains pending:

JUSTICE ALITO: Is there any language in 2254(d) that could incorporate the Teague exceptions?
MS. FORSMAN: There is not language in 2254(d)(1). The language -- the reason that we know that Congress was cognizant of Teague is that there is language throughout AEDPA, particularly in the sections that we've quoted to you, that are lifted directly from Teague.
JUSTICE ALITO: What would we say if we were to say that 2254(d)(1) accommodates the Teague exceptions, that Congress meant to put them in but just forgot to do it? How would we account for the language?

and later

JUSTICE ALITO: Isn't that making the tail wag the dog, because there's language in the provisions on successive petitions that refers to Teague, that you would read the Teague exceptions into 2254(d)(1) when there's nothing in the language there that can be interpreted to refer to them?
1.26.2007 1:31pm
Kovarsky (mail):

Where are you seeing this was an appeal of a COA?
1.26.2007 6:18pm
Kovarsky (mail):

never mind... wrong link... i see where the COA part is.

But as a habeas practitioner who opposes the state, I'm not sure what Schriro and Beard have to do with 2254(d). 2254(d) applies only to convictions finalized after 1996. Both those sentences became final in the 1980's, so Teague applies, and that's not really controversial at all.

Based on my understanding of several recent oral arguments, the Court seems poised to say formally that Teague doesn't apply to post-'96 state convictions anymore. But they had always used 2254(d) anyways, since it's stricter in every respect. Teague would still, of course, apply to federal prisoners.
1.26.2007 6:33pm