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Criminal Appellate & Post-Conviction Services

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.

Ms. Greenhouse’s article states that the Court was required to decide the case with deference to the state court ruling under the AEDPA. In my mind, this may be the difference, but not quite how Ms. Greenhouse poses. In Porter, the Court stated that it was not differing to the Florida Court because the Florida Courts glazed over the issue rather than addressing it. The Court wrote:
"Because the state court did not decide whether Porter's counsel was deficient, we review this element of Porter's Strickland claim de novo." Porter v McCollum, — S Ct —, 2009 WL 4110975, at *5 (Nov 30, 2009).”

VanHook was not governed by AEDPA because the case was originally filed in federal court prior to the effective date of the Act. Unlike Porter, however, it appears that the Ohio Court made significant fact finding that supported its ruling and which the Court was prepared to accept. In VanHook, the Sixth Circuit also made a clear mistake by judging counsel’s representation by standards that were promulgated many years after the trial took place. Lastly, a careful reading of the Porter case suggests that Porter’s standby counsel who took over at sentencing had not regrouped from the position of advisor to a pro se litigant bent on self-destruction to the role of advocate. This may easily have influenced the Court.

In the end, whatever personal factors may have played into the Court’s decision making, appellate practitioners and courts will be forced to search for more analytical differences between the two cases. It will be interesting to see how courts circumnavigate this tight rope.