Monday, February 7, 2011

Harrington v. Richter, 131 S.Ct. 770 (2011)

In an emphatic and harsh review of the case in Harrington v. Richter, the Supreme Court again reprimanded the Ninth Circuit for its failure to abide by Congressional rules enacted in the Anti Terrorism & Effective Death Penalty Act restricting federal collateral review of state court decisions in criminal cases (AEDPA; 28 U.S.C. 2254). In a unanimous decision written by Justice Kennedy, he criticized the Ninth Circuit's refusal to apply the Act and the appellate court's failure to apply Supreme Court precedent.

Justice Kennedy intially dismisses the Ninth Circuit decision holding that on habeas corpus review of state court decisions the federal court applies a de novo standard in the absence of any written opinion issued by the state court.  AEDPA neither requires written opinions nor does Supreme Court precedent, and every other Circuit Court has rejected the Ninth Circuit interpretation. AEDPA permits  a federal court to reverse a state court decision on habeas corpus only if it finds an unreasonable application of Supreme Court law or an unreasonable interpretation of facts whether the state court writes a decision or not.

At its core, Harrington is an "ineffective counsel" case.  The Ninth Circuit had criticized the defense lawyer who had not submitted evidence of a blood sample found at the scene of the crime but otherwise effectively cross examined witnesses and presented a reasonable defense to the crime of murder.  Justice Kennedy administers another lesson to the Ninth Circuit on trial advocacy. 

The seminal case of "ineffective counsel" is Strickland v. Washington, 466 U.S. 668 (1984 ) a case invoked repeatedly by the Ninth Circuit in previous cases when the court is unable to find any other reason for reversal.  Kennedy skewers the Ninth Circuit application of Strickland, and writes "the pivotal question in determining whether counsel was ineffective] is whether the state court's application of the Strickland standard was unreasonable [under AEDPA.] This is different from asking whether defense counsel's performance fell below Strickland's standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of 28 U.S.C. 2254(d) 'an unreasonable application of federal law is different from an incorrect application of federal law' (citation omitted). A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself."

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