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Criminal Appellate & Post-Conviction Services

Petition to Watch: Ryan v James and Whether the Court Will Extend Harrington & Cullen - Updated

Many US citizens have been turned back for having a single drunk driving conviction. Under Canadian law, a drunk driving is consider an “hybrid offense” and can be prosecuted as a felony (“indictable”) offense. This has meant that an American with a comparable offense was deemed inadmissible to Canada (but could get waivers after jumping through hoops and paying fees). Recently, the Canadian Border Services Agency (“CBSA”) released its Operational Bulletin 389. This provides for streamlined (and free) waivers to individuals who have one criminal conviction (not a sex or child pornography offense) where no jail or prison was imposed. Read More...

Sixth Circuit Affirms Grant of Habeas Based on Failure to Hire Expert

Congratulations goes out to Plymouth Attorney Carole M. Stanyar for her win in the Sixth Circuit in Couch v Booker, Sixth Circuit No. 09-2230 which upheld Judge Arthur Tarnow’s grant of a habeas corpus below. Couch v Booker, 650 F Supp 683 (ED Mich, 2009).

Defense counsel failed to fully explore a causation defense. The defense attorney consulted with a noted pathologist, but failed to give him the full file. Because of this, a vital causation defense was missed. The Michigan Court of Appeals denied the Defendant an evidentiary hearing and affirmed the conviction. The federal court held an evidentiary hearing, and found that counsel was ineffective. The Sixth Circuit upheld the conviction finding that the Michigan Court’s decision was objectively unreasonable. The Court found that the ruling of was an unreasonable application of clearly established federal law. Critically, the Sixth Circuit found that the presumption of strategy afforded to an attorney’s decision could only take place after counsel did the required investigation.

Credit goes to my friend Patrick Rose at for spotting this ruling. He has a much more extensive discussion of the ruling

Over Deference to State Court's Non-Opinions

On January 19th, 2011, the Court decided Harrington v Richter, Supreme Court NO. 09-587. The basic holding was not that disturbing. The Court held that the defense lawyer was not deficient in failing to consult blood evidence when planning strategy for trial. Justice Kagan did not participate in the consideration or decision of the case. What is particularly disturbing about this decision is that the Court’s appears to have held that the AEDPA’s presumption against overturning a state court’s decision on the merits (unless the ruling is unreasonable) applies to summary orders where the state court did not share its reasoning. The Court stated that where the state court’s decision is not accompanied by an explanation, the habeas petitioner has the burden of proving that “there was no reasonable basis for the state court to deny relief.” The Court stated “this is so whether or not the state court reveals which of the elements in a multipart claim it found insufficient. In other words, federal courts must now ask if there was a hypothetical ruling which would justify the state court’s actions. If the answer to this question is “yes,” then the federal court must uphold the state court. I hope I am reading this ruling incorrectly, but I don’t think so.

On the same day, the Court also handed down
Premo v Moore which overturned another Ninth Circuit grant of a habeas corpus finding that that the Court did not afford sufficient deference to the ruling of the Oregon Supreme Court. Collectively, it sounds like the Court is attempting to send a message to the Ninth Circuit similar to the message it sent the Sixth Circuit last year.

SCOTUS Set to Rule in G'tmo Case

SCOTUS Blog is predicting that the U.S. Supreme Court is set to rule on an attempt by Guantanamo Bay detainees to keep open their option of challenging their transfers to countries where they fear torture, death, or further detention. SCOTUS Blog is predicting that the Court will remand the matter to the lower court for further proceedings as it has done in other related cases. The (sub)case likely to force expedited treatment involves an Algerian national, Ahmed Belbacha, who is close to transfer. Last month, in a still-classified order, a federal judge in Washington, D.C., wiped out an earlier order that barred Belbacha’s transfer to Algeria until after his attorneys had a chance to pursue a challenge. Belbacha’s attorneys are now trying to get the order put back into effect, so that the prisoner stays at Guantanamo for the time being. (He was cleared for release by the Pentagon more than three years ago; he is now in his eighth year as a detainee). A new thread in this case involves four of the seven Chinese Muslim Uighurs who were involved in “Kiyemba I,” and the Court decided on March 1 that lower courts should examine new factual developments involving the status of those seven, each of whom now has or previously had an offer to be re-settled somewhere other than in their homeland, China.

Berghuis v Smith Argued Today in SCOTUS

Today, the United States Supreme Court will hear oral arguments in Berghuis v Smith, Supreme Court No. 08-1402. At issue is the validity of a Kent County policy which resulted in under representation of African Americans on the jury. To hear a discussion of the case by Mr. Berghuis’s counsel and the attorney for the Kent Scheidegger of the Criminal Justice Legal Foundation (who filed a friend of the court brief defending the Warden), click here. The podcast is in mp3 format.

SCOTUS Finds that Pennsylvania’s Fugitive Disentitlement Rule is a Valid State Procedural Default Rule

On Tuesday, the United States Supreme Court decided Beard v. Kindler , Supreme Court No. 08-992. Chief Justice Roberts authored the opinion of the Court; Justice Kennedy concurred, joined by Justice Thomas.  Justice Alito (formerly from the Third Circuit) took no part in this case. The case dealt with whether Pennsylvania’s discretionary fugitive disentitlement rule was an independent and adequate state basis for the dismissal. The Court ruled that it was. Read More...

The Strange Case of Abdul Hamid Salam Al-Ghizzaw

Scotusblog has an interesting article on Afghani shop keeper Abdul Hamid Salam Al-Ghizzaw. Seventeen months after he won the right to challenge his detention, the case has not moved forward. His attorney is back before the United States Supreme Court seeking his release. The Justice Department under President Obama is apparently not much better than under President Bush on this issue. They are seeking to gag his attorney from talking about anything in the case. To read the non-censored parts of his attorney’s blog, click here.

More on Reconciling Porter and VanHook

Linda Greenhouse of the New York Times had an interesting article called “Selective Empathy” on the Porter ruling previously reported here. We are in agreement that there is a tension between the Porter ruling and the Court’s other recent per curiam ruling in Bobby v. Van Hook discussed here and here. As the title of Ms. Greenhouse’s piece states, her premises is that the Court genuinely felt sorry for Korean War Veteran George Porter, Jr. For reasons stated below, I suspect that the difference was the quality of the underlying state opinions Read More...

Michigan Attorney General's Office is on the Roll!

In the practice of law, you develop a begrudging respect for an adversary who does a good job. You don’t love to admit it, but you know what it happens. Conservative blogger (and Supreme Court brief amicus writer) Kent Scheidegger at Crime and Consequences recently blogged about what I had been privately thinking concern the Michigan Attorney General’s third grant of certiorari in as many months. Read More...

SCOTUS Hears Another Michigan Habeas Case

Last month we reported that the United States Supreme Court took two Attorney General appeals from the Sixth Circuit’s grant of habeas corpuses. On Monday, the Court agreed to hear yet another Michigan Attorney General appeal. The issue presented in Renico v. Lett, Supreme Court No. 09-338, is:

“Whether the Sixth Circuit erred in holding that the Michigan Supreme Court failed to apply clearly established precedent by denying habeas relief on double jeopardy grounds when the state trial court declared a mistrial after the foreperson said that the jury was not going to be able to reach a verdict.” Read More...

SCOTUS Finds Death Penalty Counsel Ineffective for Failing to Put on Post Traumatic Stress Evidence in Mitigation Hearing

The Supreme Court found that a criminal defense attorney was ineffective in failing to use evidence of “post-traumatic stress disorder.” In a summary order the Court  overturned the death sentence of a Florida veteran whose “combat service unfortunately left him a traumatized, changed man,” as the Court put it in Porter v. McCollum, Supreme Court No. 08-10537, involving Korean war veteran George Porter, Jr. Read More...

Sixth Circuit Remands Michigan Habeas for Determination of Whether Counsel Improperly Denied the Defendant Right to Public Trial

The Sixth Circuit reversed a district court's denial of a writ of habeas corpus and ordered the district court to hold an evidentiary proceeding to determine whether the defendant was denied his right to a public trial and effective counsel. Johnson v Sherry, — F3d —, 2009 WL 3789995 (6th Cir Nov 13, 2009). Read More...

SCOTUS Peremptorily Reverses a Habeas IAC Holding

In Wong v. Belemontes, Supreme Court No. 08-1263, the Court summarily reversed the grant of a habeas corpus to a death penalty prisoner based on ineffective assistance of counsel in the sentencing phase. The issue in the case was whether capital trial counsel failed to present sufficient mitigation evidence at the capital sentencing phase. The ruling appears very limited. Reading the Court's opinion, the Court seems to say that a jury would probably have given the prisoner the death penalty even if all the evidence had been presented.

SCOTUS to Clarify What is a "Sucessive Petition" Under 2244(b)?

The U.S. Supreme Court granted certiorari today to hear Magwood v. Culliver, Supreme Court No. 09-158. The Court limited the cert granted to one question: "When a person is resentenced after having obtained federal habeas relief from an earlier sentence, is a claim in a federal habeas petition challenging that new sentencing judgment a “second or successive” claim under 28 U.S.C. § 2244(b) if the petitioner could have challenged his previous sentence on the same constitutional grounds?" A review of the Eleventh Circuit's ruling below shows that the issue may be a little more nuanced than the Statement of Questions presented. The Eleventh Circuit ruled that issues which arose at a resentencing could be challenged on a new habeas corpus without it being deemed sucessive, but that legal errors which could have been litigated in the first habeas corpus cannot be challenged even though the error was repeated at the second sentencing. The Eleventh Circuit overturned a grant of habeas corpus to the prisoner. The cert was granted to the prisoner. Here are links to the cert petition, the State's answer, and the Petitioner's reply.

SCOTUS Blasts Overreliance on ABA Standards For Assessing Prevailing Professional Norms

The U.S. Supreme Court made clear in a Nov. 9 per curiam opinion that the American Bar Association's Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases may not be treated as setting the standard of prevailing professional norms when a court is assessing a Sixth Amendment claim of ineffective assistance of counsel. The court reversed a grant of habeas corpus relief to an Ohio death-row inmate that was predicated on the circuit court's determination that counsel for the petitioner at his trial more than two decades ago failed to satisfy the 2003 ABA standards for uncovering and presenting mitigating evidence. Bobby v. Van Hook, U.S., No. 09-144, 11/9/09. The Legal Times Blog has a nice discussion on this ruling.

SCOTUS Hears Arguments on AEDPA Deference

This past Wednesday, the U.S. Supreme Court heard oral arguments in Wood v. Allen, trying to come up with a working definition of AEDPA deference in habeas corpus cases.Petitioner’s trial teams had three attorneys (one of which had less experience than the others). This lawyer handled the penalty phase, during which he failed to present mitigation evidence, obtained from a competency evaluation, of Wood’s significant mental impairments. It is unclear from the oral arguments what standard the Court will ultimately adopt. It appears that he entire Court was very concerned about articulating a standard that would not further complicate habeas proceedings.  What standard they will ultimately choose, however, was in no way clear.


SCOTUS Hears Two Michigan Habeas Cases

The United States Supreme Court has granted certiorari to hear two Michigan habeas corpus cases. In Berghuis v. Smith, the Sixth Circuit ruled that the Michigan Supreme Court acted contrary to clearly established United States Supreme Court law when it rejected a Sixth Amendment challenged the racial composition of Mr. Smith’s jury. The Sixth Circuit held that the jury did not reperesente a fair cross-section utilizing the comparative disparity test for evaluating the difference between the number of African-Americans in the community versus in the the jury selection panel. The United States Supreme Court has agreed to hear whether this ruling is erroneous. Berghuis v Smith, Supreme Court No. 08-1402. The case is currently scheduled for oral arguments on January 20, 2010.

In Berghuis v Thompkins, the Court has granted certiorari to determine whether the Sixth Circuit improperly expanded MIranda to prevent an officer from trying to persuade a defendant to cooperate where the officer tried to persuade the defendant to cooperate. The Defendant had been read his MIranda rights and had neither invoked them nor waived them. An ineffective assistance of counsel issue was also presented in the State’s petition for certiorari, but does not appear to be part of the order granting certiorari. An oral argument does not appear to be set in this case. Since cert was granted on the same day as Berghuis v Smith, orals will probably be in late January or early February.

SCOTUS Hears Habeas Procedural Default Case With a Twist

This week the Court will hear oral arguments in Beard v. Kindler, Supreme Court No. 08-992. The issue is whether a partially enforced fugitive absconder rule constitutes adequate and independent grounds to justify Pennsylvania’s upholding of Joseph Kindler conviction. Mr. Kindler escaped twice from prison. A Pennsylvania state court held, and the state supreme court agreed, that Kindler waived his right to appeal when he fled. But the Third Circuit disagreed and affirmed the district court’s grant of habeas relief.In Beard, the Court will consider when state courts have resolved an inmate’s claims on “adequate grounds” such that federal courts may not review that inmate’s habeas claims. In particular, the Court will consider whether a state procedural default rule like Pennsylvania’s is “inadequate” solely because it is discretionary

SCOTUS Hears Equitable Tolling Case

The Supreme Court has agreed to consider whether "gross negligence" by a state-appointed defense attorney in a death penalty case provides a basis for extending the time to file a federal habeas challenge, in a case where the habeas plea was filed late despite repeated instructions from the client.Mr. Holland, a prisoner on Florida's death row, filed a petition for a writ of habeas corpus in a Florida Federal District Court. The district court dismissed the petition as untimely because it was filed beyond the one-year statute of limitations period. On appeal, Holland argued that he was entitled to equitable tolling of the limitations period for filing his federal habeas petition because of egregious conduct by his counsel during his post-conviction proceedings.Last August, a three-judge panel on the 11th U.S. Circuit Court of Appeals released a per curiam opinion affirming the district court's rejection of an extension to file the challenge. Noting: "Petitioner has offered no reason to believe an evidentiary hearing would help him demonstrate the required extraordinary circumstances to warrant equitable tolling," the appeals court held that: “"no allegation of lawyer negligence or of failure to meet a lawyer's standard of care -- in the absence of an allegation and proof of bad faith, dishonesty, divided loyalty, mental impairment, or so forth on the lawyer's part -- can rise to egregious attorney misconduct that would entitle the Petitioner to equitable tolling" under the AEDPA.”On Oct. 13, the Supreme Court agreed to review the case. Oral arguments are expected to be scheduled for some time early next year . The questions presented include: Whether "gross negligence" by a state-appointed defense attorney in a death penalty case provides a basis for extending the time to file a federal habeas challenge, in a case where the habeas plea was filed late despite repeated instructions from the client. Holland v Florida, Supreme Court No. 09-5327. To read the cert petition, click here. (Updated November 4th).

New Detainee Case Hearing for SCOTUS

SCOTUS Blog notes that Chief Justice John G. Roberts, Jr., on Friday cleared the way for the filing in November of a new Guantanamo Bay detainee case, further testing the power of federal judges to weigh or limit transfers of prisoners from that U.S. military prison. The new case is now due to be filed by Nov. 10 in the case of Kiyemba v. Obama — the same title, though with somewhat different issues, as the case the Court on Oct. 20 agreed to hear in docket 08-1234.These cases will explore the limits of last year’s ruling in Boumediene v. Bush, which confirmed a constitutional right for Guantanamo prisoners to challenge their continued detention.

Drafter of AEDPA Tells New York Times that the Court's Are Reading it Too Harshly

With the execution of Troy Davis looming in Georgia, he found a strange ally in former Republican Representative Robert Barr. In an Op-Ed piece in today’s New York Times, Mr. Barr stated that federal courts have abdicated too much of their sovereignty in refusing to consider this claim.

There is compelling evidence that death row inmate Troy Davis may be innocent, but federal and state courts have consistently refused to hear the evidence. Mr. Davis has exhausted all conventionlal challenges to his conviction, Mr. Davis has resorted to an original writ of habeas corpus in the United States Supreme Court. If that petition fails, Mr. Davis will be executed. In refusing to hear Mr. Davis’s appeals, courts have relied on provisions contained in the 1996 Anti-Terrorism Act (“AEDPA”) and held that they are barred from hearing the petition. Mr. Barr argues that the courts have misread the law. For more information on Mr. Davis’s case, please see his website which contains many of the opinions and a nice time line of the case.


Federal Defender's Can Represent State Capital Defendants in Clemency Proceedings

The federal statute, 28 USC 2253, that requires state prisoners to obtain a certificate of appealability before challenging a district court ruling in habeas corpus proceedings does not apply to appeals of orders denying requests for federally appointed counsel. The statute governs only final orders that dispose of a habeas corpus proceeding's merits. Federally appointed counsel are authorized to represent clients in state clemency proceedings and are entitled to compensation for that representation. Harbison v Bell, SCOTUS No 07-8521.

Sixth Circuits Finds Limits to Circumstantial Evidence Cases

The United States Supreme Court is hearing oral arguments in Pearson v Callahan, Supreme Court No. 07-751, which could greatly expand the authority of the police to search an individual’s home. Several federal appellate courts have adopted a doctrine referred to as the “consent once” exception to the Fourth Amendment. Under this doctrine, a single consent to search is deemed continuing as a matter of law unless it is expressly revoked. In a case coming out of the Tenth Circuit police are arguing that consent to allow an undercover informant into a home early in the evening constitutes consent for the police to break into the home later in the evening. Surprisingly, the officers have a significant amount of authority on their side. Under this approach, if the police can trick their way into the foyer they may have consent to search the bedroom. This case is scary.

Linda Greenhouse from the New York Times summarized the doctrine as follows:

Several federal circuits have adopted what has come to be called a consent-once-removed exception to the Fourth Amendment’s warrant requirement. The theory is that a suspect who consents to the entry of someone who is really an agent of the police is also, albeit unknowingly, agreeing to let the police enter as well. The police do not need a warrant to enter and search a home if they have the permission of a person authorized to give it.

To read Linda Greenhouse’s complete analysis of the issue,
click here. For the SCOTUS blog summary of the case and complete access to the briefs, click here. This case is a civil case and there is also a qualified immunity issue.

Sixth Circuit Finds Racial Disparity in Grand Rapids' Jury Selection System

7th Circuit Says Vienna Convention Argument is Still Valid

Article 36 of the Vienna Convention on Consular Relations requires the United States to inform a foreign national of his/her right to consular access (to talk to his home country’s embassy or consulate) upon arrest. Vienna Convention on Consular Relations, art. 36, April 24, 1962, 21 U.S.T. 77, 596 U.N.T.S. 261. In Sanchez-Lllamas v. Oregon, 548 U.S. 331, 336 (2006), the United States Supreme Court ruled that a violation of Article 36 did not require suppression of evidence. See also Medellin v. Texas, 552 U.S. __, 128 S. Ct. 1346, 1355, 170 L.Ed.2d (2008). Despite repeated orders from the International Court of Justice, Texas executed two suspects earlier this year where the evidence was clear that the convictions were based on confessions obtained in violation of the suspects rights to diplomatic access. Based on Sanchez-Llamas and these developments, many member of the bar (including this one) believed that this issue was not going to prevail in any domestic court.

On September 8, 2008, a Seventh Circuit panel ruled to the contrary in a published decision. In Osagadie v United States, Seventh Circuit No. 07-113, the Court recognized the continuing viability of the Article 36 issue. The Court first recognized the importance of Article 36:

The adoption of the Vienna Convention by the international community was “the single most important event in the entire history of the consular institution.” LUKE T. LEE, CONSULAR LAW AND PRACTICE 26 (2d ed. 1991). When the United States ratified the treaty in 1969, it became the “supreme Law of the Land.” U.S. CONST. art. VI, cl. 2.

The Court then went onto stress the importance of the treaty:

Foreign nationals who are detained within the United States find themselves in a very vulnerable position. Separated from their families and far from their homelands, they suddenly find themselves swept into a foreign legal system. Language barriers, cultural barriers, lack of resources, isolation and unfamiliarity with local law create “an aura of chaos” around the foreign detainees, which can lead them to make serious legal missteps. Linda A. Malone, From Breard to Atkins to Malvo: Legal Incompetency and Human Rights Norms on the Fringes of the Death Penalty, 13 WM. & MARY BILL RTS. J. 363, 392-93 (2004). In these situations, the consulate can serve as a “cultural bridge” between the foreign detainee and the legal machinery of the receiving state. William J. Aceves, Murphy v. Netherland, 92 AM. J. INT’L L. 87, 89-90 (1998).

The Court went onto note while there is some overlap with the function of a lawyer, the overlap is not complete. There are somethings that an embassy or a consulate are uniquely qualified to do:

Of course, we assume that lawyers here are equipped to deal with language barriers; we also assume they are familiar with the law. Sometimes, however, the assistance of an attorney cannot entirely replace the unique assistance that can be provided by the consulate. The consulate can provide not only an explanation of the receiving state’s legal system but an explanation of how that system differs from the sending state’s system. See Linda Jane Springrose, Note, Strangers in a Strange Land: The Rights of Non-Citizens Under Article 36 of the Vienna Convention on Consular Relations, 14 GEO. IMMIGR. L. J. 185, 195 (1999). This assistance can be invaluable because cultural misunderstandings can lead a detainee to make serious legal mistakes, particularly where a detainee’s cultural background informs the way he interacts with law enforcement officials and judges.

The Court noted that Sanchez-Llamas was a good example of the help that a consulate can provide:

Sanchez-Llamas 2 provides a striking example. In Sanchez-Llamas, Bustillo’s defense was that another man, “Sirena,” had committed the crime. Sirena, however, had fled back to Honduras; he was nowhere to be found. “Bustillo did not learn of his right to contact the Honduran consulate until after conviction, at which time the consulate located additional evidence supporting this theory, including a critical taped confession by Sirena.”

Thus far, the Court’s opinion matches the position articulated by dissents and the International Court of Justice. Now here is where the decision gets interesting. The Court stated that Sanchez-Llamas stated that the Government was required to provide a remedy for a violation and the remedy was to internalize this violation into our domestic law. While violation of a Vienna Convention Claim would not be a self-standing violation of the Constitution or federal law requiring suppression of a confession, it could be a Fifth Amendment or a Sixth Amendment violation.


W]e must address the Government’s argument that Sanchez-Llamas forecloses foreign nationals from bringing ineffective assistance of counsel claims based on Article 36 violations. A close reading of Sanchez-Llamas suggests otherwise. While the Court rejected the argument that the treaty itself required suppression as a remedy, the Court stressed that there were other means of “vindicating Vienna Convention rights.” Sanchez-Llamas, 548 U.S. at 350, 126 S. Ct. 2669. Specifically, the Court stated that a defendant could raise an Article 36 violation as a part of a broader constitutional challenge, such as a challenge to the voluntariness of a statement under the Fifth Amendment. Id., 126 S. Ct. 2669; see also United States v. Ortiz, 315 F.3d 873, 886 (8th Cir. 2002). More importantly, the Court suggested that the Sixth Amendment could also serve as a vehicle for vindicating Article 36 rights. In a telling passage, the Court noted that an attorney’s failure to raise an Article 36 violation would not be “cause” for overriding a state’s procedural default rules, unless “the attorney’s overall representation falls below what is required by the Sixth Amendment.” Sanchez-Llamas, 548 U.S. at 357 & n.6, 126 S. Ct. 2669 (emphasis added).

Osagiede is a testament to the value of persistence. Mr. Osagiede prevailed on an argument that most lawyers would have rejected.

Sixth Circuit Reverses Conviction Based on Actual Conflict of Interest

The Sixth Circuit reversed a habeas petitioner’s murder conviction where he was denied his right to effective assistance of counsel was violated at trial and on appeal because of his state attorney’s actual conflict of interest. Boykin v Webb, Sixth Circuit No. 06-5775.


AEDPA Deference and "Objectively Reasonable Silence"

One of the most important, but dry areas of appellate law is the “standard of review.” Every experienced appellate lawyer knows that which standard of review is applied to a case often dictates whether an appellant wins or loses. This term, the United States Supreme Court (in Bell v Cone) is going to decide the sticky question which arises in many habeas corpus cases – how much deference is owed to a state court which cannot be bothered to talk about the issue.

The writ of habeas is the main vehicle which state prisoners use to challenge their convictions in federal court when there is a good argument that the conviction was obtained in violation of the federal laws or the constitution. The writ has been used to challenge such unjust convictions as that of former boxer and current international civil rights activist “Hurricane Rubin Carter.”

In 1996, in the wake of the Oklahoma Federal Courthouse bombing, Congress passed the Anti-Terrorism and Effective Death Penalty Act. For the first time in the history of the writ of habeas corpus. Congress in its infinite wisdom believed that weakening the power of federal courts to hear such actions would deter the likes of individuals such as Timothy McVeigh.

One of the key provisions of the act was to provide that a federal court must defer to the ruling of a state court unless is to contrary to clear United States Supreme Court holding or is objectively unreasonable. This provision has been interpreted by federal courts to hold that state court rulings which are only contrary to decisions of lower federal courts or which are contrary to the reasonable import (but not clear US Supreme Court holding) must be upheld unless the state court’s interpretation of the law is clearly unreasonable. A good example of this principle is shown in the Court’s 2006 decision in Carey v Musladin. In that case, the victim’s family wore buttons to court with a message calling for justice in memory of the victim. The defendant in the state case had successfully convinced the lower federal appellate court that this conduct violated his constitutional right to a fair trial. The United States Supreme Court reversed. Justice Thomas, writing for a six justice majority , found that the conduct of this group of non-parties might have violated the defendant’s constitutional rights, but no clear U.S. Supreme Court decision had held this. They therefore reinstated the conviction. Three Justices wrote separately, raising questions about allowing spectators to engage in courtroom activity that arguably might impair trial fairness.

A question which has remained unanswered is what federal courts are required to do with state court rulings which are either completely unresponsive to the federal question or where the ruling is so summary that it is impossible to discern the mental process of the state judge(s) who decided the case. Are federal courts required to create a hypothetical state court ruling and defer to it? Or are federal courts permitted to decide the issue for the first time? In Bell v Kelly, the Court has agreed to examine some part of this quandary. The Court has granted certiorari to consider:

“1) whether the deferential 28 U.S.C. § 2254(d) standard should apply to a claim resting on evidence that the state court did not consider and was thus introduced for the first time on federal habeas”

Oral arguments are scheduled for November 12th. Mr. Bell’s brief on the merits is available here. The Government’s brief has not been filed yet. The SCOTUS Wiki description of the case and other key documents in the case is available here.

Suicide Note Confessing to Murder is Inadmissible in Accomplices Murder Trial

According to the Detroit News, U.S. District Court Judge Victoria Roberts on Wednesday ordered a new trial for 36-year-old Sharee Miller of Mount Morris. Roberts ruled it was wrong to allow a suicide note by Jerry Cassaday into evidence.Prosecutors say Sharee Miller persuaded Cassaday to kill her husband, Bruce. Cassaday later killed himself and left a note implicating Sharee Miller. She was sentenced to life in prison in the 1999 slaying. Judge Roberts granted the habeas corpus because the admission of the note violated the defendant’s Sixth Amendment right to a new trial under Crawford. Genesee County prosecutor David Leyton told The Flint Journal he would urge an appeal of the judge's order.
Update: For a copy of the ruling, click here.
miller v stovall