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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.