Friedman Legal Solutions, PLLC

Criminal Appellate & Post-Conviction Services

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.