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Sixth Circuit Doesn't Always Divide on Habeas:

It may sometimes appear that the judges on the U.S. Court of Appeals for the Sixth Circuit are hopelessly divided in habeas corpus cases, particularly those involving ineffective assistance of counsel claims. (No doubt, my frequent blog posts on such divided opinions may feed that impression.) Yet the judges often do agree in such cases, and Brown v. Smith is a good example (even if all three judges did not join the same opinion). The three judge panel, consisting of Chief Judge Boggs and Judges Moore and Clay, was unanimous in reversing the lower court's denial of Michael Brown's habeas opinion. Here is the opening of Chief Judge Boggs' opinion, joined by Judge Moore:

Michael Brown, who was convicted of sexually molesting his teenage daughter, appeals the district court's denial of his habeas petition. He argues that his trial attorneys' failure to investigate and obtain records related to his daughter's counseling sessions—which records would have undermined her credibility—denied him the effective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1994). The district court, applying the standard of review mandated under the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), agreed that Brown's counsels' performance was deficient, but held that Brown had not been prejudiced thereby. For the reasons that follow, we hold that AEDPA deference does not apply to this case, and, judging under a de novo standard, we conclude that Brown was indeed prejudiced by his trial counsels' deficient performance. We therefore reverse.

Judge Clay wrote a concurring opinion in which Judge Moore also joined.

Allan (mail):
Prediction: This will go en-banc and there will be a sharply split decision. This is the 6th Circuit, after all.
12.31.2008 11:23am
Steve:
I disagree with the prior prediction. When you have Judge Boggs writing a pro-defendant decision, that's a pretty clear signifier that you don't have a close case.
12.31.2008 12:02pm
Soronel Haetir (mail):
I would be far more impressed with a unanimous en banc denial than a non-split panel granting a writ.
12.31.2008 12:14pm
Jon Roland (mail) (www):
This and other cases illustrates how current judicial underestanding has departed from the original understanding of habeas corpus and the other common law writs. Today it is being treated like a motion to show cause with the burden on the petitioner. That is not the way it is supposed to work, if we followed the practice established by the founding era:

When someone files for a writ of habeas corpus he is noticing the court, and when he completes the process by noticing the official, no further action by the court is needed to get the official to produce the prisoner and prove his authority to detain that prisoner, who then has 3-20 days to provide such proof, depending on distance from the courthouse, or to release the prisoner if he fails to do so. The writ to release the prisoner issues by default if the proof is not provided or the court does not hold a hearing. The burden is on the official to prove his authority, and on the court to decide whether that proof is adequate. It is the official, not the petitioner or the prisoner, who has the right of oyer (fair hearing). If either the official refuses to respond or the court refuses to hear the case, it becomes the duty of the people, as militia, to seize the prisoner and release him, and to overcome any opposition to that, by force of arms if necessary.

It is similar for the broader writ of quo warranto, which requires proof of authority for any official action or to hold an office, or for the other common law writs, such as mandamus, prohibito, procedendo, or certiorari. We have come a long way from original understanding on these.
12.31.2008 12:20pm
Crunchy Frog:
Jon Roland: Your point being...? How about addressing the issue as applied in the real world of today, instead of some original understanding Fantasyland that might have existed 200 years ago?

As much as I dislike ineffective assistance habeas claims, it seems in this case the petitioner has a point.
12.31.2008 12:55pm
OrinKerr:
Jon,

If you're going to follow the original understanding, wouldn't you say that the federal courts have no business at all reviewing state criminal judgments? That's a modern notion, not one that existed at the founding.
12.31.2008 12:59pm
Soronel Haetir (mail):
Also, I seem to recall seeing a picture of the book with a cover showing a Klansman dressedup in robes. Even someone who was fully illiterate likely would have no trouble recognizing that.
12.31.2008 1:00pm
Soronel Haetir (mail):
Sigh, my last post was of course intended for the Don't Judge a Book by its Cover thread. Sorry about that.
12.31.2008 1:06pm
Jon Roland (mail) (www):
Crunchy Frog:
Jon Roland: Your point being...?


Either way the court decides in such cases it is still maintaining a misrepresentation of how the process is supposed to work, and the lawyers arguing the cases are probably contributing to that by failing to understand it themselves or explain it to the judges (who cannot be presumed to have a correct historical understanding of law) in their argument. Inadequate counsel indeed!

Original understanding is not a fantasyland. It is the law.
12.31.2008 1:06pm
Jon Roland (mail) (www):
OrinKerr:
Jon, If you're going to follow the original understanding, wouldn't you say that the federal courts have no business at all reviewing state criminal judgments? That's a modern notion, not one that existed at the founding.


A federal court does not (properly) review a state court judgment in habeas corpus. That would be on a writ of certiorari, for which there has always been a power of review if there is a federal question, and the 14th Amendment extended federal question jurisdiction to state courts even if it didn't have it previously.

By original 1789 practice (which is not the same as understanding), it would be sufficient to prove authority for a detention by a state official for a habeas corpus in federal court that there was a state court order to do that, and would mainly be available for detentions without such an order.

Part of the problem with corrupted understanding or deprecation of the prerogative writs has become the overuse of habeas corpus for situations in which it is the other writs that are supposed to be used instead.
12.31.2008 1:21pm
Meh Neh:
Part of the problem with corrupted understanding or deprecation of the prerogative writs has become the overuse of habeas corpus for situations in which it is the other writs that are supposed to be used instead.

Is that really what you want to hang your hat on, that if we don't return to some dated understanding of the writ of habeas corpus, then lawyers will continue to win meritorious claims but will do so by invoking the wrong writ?

Before you know it, attorneys will be pleading Trover in claims that obviously warrant a pleading of Assumpsit! It will be chaos, I tell you. Chaos!
12.31.2008 2:22pm
Jon Roland (mail) (www):
Meh Neh:
Before you know it, attorneys will be pleading Trover in claims that obviously warrant a pleading of Assumpsit! It will be chaos, I tell you. Chaos!


Cute, but pleading correctly is important. Getting justice for your client by any means is not enough. It is also more likely that if the correct forms are not used you will not get a just outcome, and mess up jurisprudence for other people's cases. Lawyers have a duty to the integrity of the system as well as to their clients.
12.31.2008 3:12pm
Dave N (mail):
Jon Roland,

Federal courts do not have special "supervisory" authority over state courts.

As the Supreme Court noted in 1997:
Interpretation of federal law is the proprietary concern of state, as well as federal, courts. It is the right and duty of the States, within their own judiciaries, to interpret and to follow the Constitution and all laws enacted pursuant to it, subject to a litigant's right of review in this Court in a proper case. The Constitution and laws of the United States are not a body of law external to the States, acknowledged and enforced simply as a matter of comity.
Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 275(1997).

As the First Circuit noted this year:
First, the Constitution recognizes that state court judges may interpret the Constitution and binds them to compliance with the Constitution, notwithstanding contrary state law. U.S. Const. art. VI, cl. 2 ("This Constitution, and the Laws of the United States ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."). The U.S. Constitution does not displace state judicial systems, nor does it subject state judicial decisions to direct review by the lower federal courts. Rather, from the beginning we have had in this country two essentially separate legal systems. Each system proceeds independently of the other with ultimate review in the Supreme Court of the federal questions raised in either system.
Evans v. Thompson, 518 F.3d 1, 5 (1st Cir. 2008) (punctuation and citations omitted).

Evans goes on to note:
Congress did not grant federal question jurisdiction to the lower federal courts for roughly the first century of our country's history, instead counting on the state courts to handle such cases when the parties were not diverse. Nor did Congress extend the writ of habeas corpus to all persons in state custody "in violation of the Constitution, or of any treaty or law of the United States" until 1867.

The writ of habeas corpus does not empower lower federal courts to conduct direct review on appeal from state criminal convictions: that authority is reserved for the Supreme Court. Petitioner here has already received a full trial, appeal, and collateral review before a state court bound by the Constitution, and he has exercised his option to seek direct review before the Supreme Court of his state court conviction. The interests of comity and finality must ... be considered in determining the proper scope of habeas review.
Id. (citations omitted).

I am certain you knew all of this. But lest any other reader give your views currency, I thought a few citations to the contrary were in order.
12.31.2008 6:44pm
Jon Roland (mail) (www):
Dave N:
Jon Roland, Federal courts do not have special "supervisory" authority over state courts.

And there is nothing in what I wrote that could be reasonably contrued to say that. However, the jurisdiction to remove a state case to federal jurisdiction includes the jurisdiction to decide a habeas corpus or other prerogative writ.

I regard the prerogative writs as rights, deriving from the right to a presumption of nonauthority, that stem from the constitution of society that precedes and is superior to the written constitution of government, and one of the unenumerated rights of the Ninth Amendment.
12.31.2008 6:57pm
Dilan Esper (mail) (www):
Lawyers have a duty to the integrity of the system as well as to their clients.

True enough, but "the integrity of the system" doesn't mean "Jon Roland's conception of the meaning of the Constitution". The Supreme Court has said that habeas is the proper remedy for a state's confinement of a prisoner on a conviction resulting from ineffective assistance of counsel (and you can even argue that Congress has acquiesced to this in creating the procedural rules set out in the AEDPA), and lawyers have the duty to seek this remedy if it is available for their client, whether it offends Jon Roland's beliefs about what the Constitution and laws should mean or not.
12.31.2008 8:12pm
Soronel Haetir (mail):
John R,

Is there some reason why the archaic names have important meaning to you? Could they not have created The Writ of Mistake Correction or something and come to the same result?

Your argument on this seems akin to someone arguing for strong separation between courts of law and equity. Just because that's how the institutions originally formed is there some special reason they must remain forever so?
12.31.2008 10:05pm
Jon Roland (mail) (www):
Dilan Esper:
The Supreme Court has said that habeas is the proper remedy for a state's confinement of a prisoner on a conviction resulting from ineffective assistance of counsel

And nothing I've written here is in conflict with that. The SC was correct. But only to release the prisoner, not to reverse other elements of the proceedings such as the decisions on motions on points of law or the jurisdiction of the state court in doing so. It is not a review of the legal merits, but of the process, which is found not to be "due" without effective counsel. The effect is to require a new trial, with effective counsel, if the state wants to pursue the case further. If counsel is effective then there could be yet another due process violation that would make habeas suitable. However, if, say, the statute under which he is charged is unconstitutional, then another kind of writ is needed,. Habeas is not for challenging the constitutionality of state statutes, judicial rules, etc. Quo warranto or certiorari are more likely to be correct for that.
12.31.2008 11:51pm
Jon Roland (mail) (www):
Soronel Haetir:
Jon R, Is there some reason why the archaic names have important meaning to you? Could they not have created The Writ of Mistake Correction or something and come to the same result?

The advantage of sticking to old terms (aside from the fact that some of them appear, or are referenced, in the Constitution), is that they unequivocally invoke a long chain of usages of the terms, some of which go back more than 1000 years, and sometimes we need to examine that background to correctly understand them. Modern lawyers being what they are, if we changed the terms too many of them would undoubtedly go off like drunken sailors to build a whole new and corrupt jurisprudence based on them. I may criticize stare decisis as binding precedent on constitutional questions, but it is highly valuable for understanding legal terms we inherited and that were incorporated into the Constitution.

Your argument on this seems akin to someone arguing for strong separation between courts of law and equity. Just because that's how the institutions originally formed is there some special reason they must remain forever so?

That separation is not necessary to protect the due process rights of parties, which is why the two kinds of relief have been brought together into the same courts (except in Arkansas to some degree). There is not even a due process necessity to keep civil and criminal cases separated. They could in principle be merged as long as the different rules of evidence and standards of proof could be maintained. As a practical matter that is probably not feasible, at least with the same jury, and using different juries for different phases of the trial could be awkward.

A more serious due process issue arises from trying more than one defendant together, sharing the same counsel. That has given rise to much injustice.

There are practical problems with merging law and equity, however, because it can lead to denying standing on grounds that make sense for law but not for equity, or to rendering decisions that pretend to be constructions of the constitution when they are more competently or honestly represented as equity or prudential decisions.
1.1.2009 12:13am
Jon Roland (mail) (www):
P.S. on the holding of the SC on the suitability of habeas for ineffective assistance of counsel. It was correct given the way the case was argued, but that did make habeas the only remedy in such cases. It would be better to establish certiorari on due process or even privileges and immunities. Sometimes precedents take us onto less theoretically sound tracks.
1.1.2009 12:25am
Todd Shanker (mail):
Jon Roland: Habeas is not for challenging the constitutionality of state statutes, judicial rules, etc. Quo warranto or certiorari are more likely to be correct for that. A federal court does not (properly) review a state court judgment in habeas corpus. Lawyers have a duty to the integrity of the system as well as to their clients.

Jon -- I am kind of baffled by the discussion on this case. I handled the case in Federal District Court and on appeal. We never challenged the constitutionality of any statute. My client filed a pro se habeas petition. I was appointed thereafter. My duty is always to my client, and in doing so, the integrity of the system is preserved and fortified. Is your point ultimately that I should have "established certiorari on due process," rather than followed the existing law surrounding the habeas filing of my client? Generally, i think when people attack ideas as emanating from "ivory towers," they just disagree with (or fear) deeper thought on an issue. But on this one, geez. I don't know if you are a professor (you do sound professorial), or an actual litigator, or both, but on this particular case, you seem to be pontificating without real world context. My client's habeas petition has now been granted by the Sixth Circuit, with a far from molly-coddling Chief Judge writing the opinion. PS It is my understanding that the extaordinary writ of quo warranto is instituted by a prosecutor on behalf of citizens. I think it is fairly obvious that had I, a defense attorney, sought that route, or waited around for that remedy, I would be more grossly incompetent than the trial attorneys were in this case (representing Mr. Brown). Happy New Year to all!
1.2.2009 11:59am
Jon Roland (mail) (www):
Todd Shanker:
Jon -- I am kind of baffled by the discussion on this case. I handled the case in Federal District Court and on appeal.

I am not arguing that you had a realistic alternative in that case. I am arguing for reform of the system so that you would have more theoretically sound alternatives available. We need to find ways to achieve that other than by allowing ourselves to wander away from consitutional compliance by a kind of Markov process (random walk). That will take political action and the writing of a lot of law review articles, moving the judicial culture in the right direction.

Quo warranto is supposed to be available to any person, just like habeas corpus. It is one of the rights demanded by the New York ratifying convention that got lumped into the 9th Amendment.
1.4.2009 6:31pm

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