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VI.
CERTIFICATES OF APPEALABILITY B
AEDPA ''
102 & 103, codified at 28 U.S.C. ' 2253
and Fed. R. App. P. 22(b). The AEDPA alters the
procedures by which state and federal prisoners may appeal the
district court=s
denial of 28 U.S.C. '' 2254
or 2255 relief. Before
enactment of the AEDPA, a state prisoner in a ' 2254
habeas corpus proceeding could appeal if a notice of appeal was filed
and a federal judge issued a Acertificate
of probable cause@
(ACPC@).
Issuance of a CPC indicated that the prisoner demonstrated a Asubstantial
showing of the denial of [a] federal right@
with respect to at least one issue before the district court.
Barefoot v. Estelle, 463 U.S. 880, 893 (1983).
The CPC itself, however, did not need to indicate the issue or
issues which met the Barefoot standard, and once a CPC was
granted, appellate review of all issues before the district court was
available. Moreover,
under pre-AEDPA law, federal prisoners in ' 2255
proceedings could appeal without obtaining a CPC; a ' 2255 appeal was perfected simply by
filing a notice of appeal. See
28 U.S.C. '
2253 (1995); Fed. R. App. P. 22(b) (1995). Sections 102 and 103 of the
AEDPA modify the means by which state and federal prisoners obtain
appellate review. Section
102 amended 28 U.S.C. '
2253 to state as follows: '
2253. Appeal. (a)
In a habeas proceeding or a proceeding under section 2255
before a district judge, a final order shall be subject to review, on
appeal, by the court of appeals for the circuit in which the
proceeding is held. (b)
There shall be no right of appeal from a final order in a
proceeding to test the validity of a warrant or to remove to another
district or place for commitment or trial a person charged with a
criminal offense against the United States, or to test the validity of
such person=s
detention pending removal proceedings. (c)(1)
Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals from
-- (A)
the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court;
or (B)
the final order in a proceeding under section 2255. (2)
A certificate of appealability may issue under paragraph (1)
only if the applicant has made a substantial showing of the denial of
a constitutional right. (3)
The certificate of appealability under paragraph (1) shall
indicate which specific issue or issues satisfy the showing required
by paragraph (2). 28 U.S.C. '
2253 (as amended by AEDPA '
102). AEDPA ' 103
amended Fed. R. App. P. 22(b), which was again amended in 1998. The 1998 amendments were intended to bring the rule into
conformity with 28 U.S.C. ' 2253
following enactment of the AEDPA, as well as certain post-AEDPA court
decisions interpreting the rule.[1]
The current version of Rule 22(b) states: Rule 22.
Habeas Corpus and Section 2255 proceedings. *
* * (b) Certificate
of Appealability. (1)
In a habeas corpus proceeding in which the detention complained
of arises from process issued by a state court, or in a 28 U.S.C. '
2255 proceeding, the applicant cannot take an appeal unless a circuit
justice or a circuit or district judge issues a certificate of
appealability under 28 U.S.C. '
2253(c). If an applicant
files a notice of appeal, the district judge who rendered the judgment
must either issue a certificate of appealability or state why a
certificate should not issue. The
district clerk must send the certificate or statement to the court of
appeals with the notice of appeal and the file of the district-court
proceedings. If the
district judge has denied the certificate, the applicant may request a
circuit judge to issue the certificate.
(2)
A request addressed to the court of appeals may be considered
by a circuit judge or judges, as the court prescribes.
If no express request for a certificate is filed, the notice of
appeal constitutes a request addressed to the judges of the court of
appeals. (3)
A certificate of appealability is nor required when a state or
its representative or the United States on its representative appeals. Fed. R. App. P. 22(b) (as amended by AEDPA '
103 and April 24, 1998, eff. Dec. 1, 1998). These amendments make
several changes from pre-AEDPA law.
First, a certificate of appealability (ACOA@),
rather than a CPC, is now required to perfect an appeal.
Second, a COA is now required for federal prisoners seeking to
appeal the denial of a section 2255 motion.[2]
Third, to obtain a COA, the applicant must make a Asubstantial
showing of the denial of a constitutional right,@ whereas the Barefoot standard
speaks of the denial of a Afederal@
right.[3]
Fourth, a COA must specify which issues satisfy the standard.[4]
A. The
COA Requirement Applies Only to Prisoner Appeals in Habeas Corpus and '
2255 Proceedings. A certificate of
appealability is required to appeal
a Afinal
order in a habeas corpus proceeding in which the detention complained
of arises out of process issued by a State court@
or a Afinal
order in a proceeding under section 2255.@[5]
Accordingly, a COA is required for a state prisoner seeking to
appeal the district court=s
denial of relief in a habeas corpus proceeding under '' 2254 or 2241,[6]
and for a federal prisoner seeking to appeal the denial of a motion to
vacate sentence under '
2255. No COA is required,
however, when the state or federal governments appeal.[7]
Moreover, no COA
is required to appeal the district court=s denial of:
a 28 U.S.C. ' 2241
habeas corpus petition brought by a federal prisoner;[8]
a recusal motion;[9] claims properly brought
under 42 U.S.C. ' 1983;[10]
a motion under 21 U.S.C. ' 848(q)(4)(B);[11]
an insanity acquitee=s
motion for a discharge hearing and appointment of counsel under 18
U.S.C. ' 4247,[12]
or where the district court denies a petitioner=s
equitable motion to vacate a prior judgment denying habeas relief.[13]
In such cases, only a notice of appeal need be filed in order
to perfect an appeal.
B. Standard
for Issuance of a COA.
1.
Substantive issues. A COA may be issued only
upon a Asubstantial
showing of the denial of a constitutional right.@[14]
AExcept
for substituting the word >constitutional=
for the word >federal,=@
' 2253 simply codifies the pre-AEDPA
standard for issuance of a CPC to state prisoners in ' 2254 habeas proceedings, that is,
the standard announced in Barefoot v. Estelle.[15]
To obtain a COA under this standard, the applicant Amust
make a substantial showing of the denial of a constitutional right, a
demonstration that, under Barefoot, includes showing that
reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner or
that the issues presented were >
Aadequate to deserve encouragement to
proceed further@.=[16]
A petitioner Aneed
not establish that he will win on the merits in order to obtain a COA;
he need only demonstrate that the questions he raises are debatable
among reasonable jurists.@[17]
Courts will resolve doubts about whether to grant a COA in
favor of the petitioner, and may consider the severity of the penalty
in making this determination.[18]
In a capital case, any doubts as to whether a COA should issue
are to be resolved in favor of the petitioner.[19] However, because a COA may
issue only upon a showing of the denial of a constitutional right,
a COA may be denied to applicants who have not demonstrated that the Aright@
at issue is Aconstitutional.@[20]
2.
Preliminary Procedural Questions.
That a COA may issue only
for the denial of a constitutional right also raised questions as to
what happens when the district court denies relief on the basis of a
preliminary procedural question, such as that the petition is
time-barred or contains unexhausted claims.
These questions were recently answered in Slack.
There, the Court announced the inquiry federal courts should
undertake in such circumstances: When the district court denies a
habeas petition on procedural grounds without reaching the prisoner=s
underlying constitutional claim, a COA should issue when the prisoner
shows, at least, that jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a
constitutional right and that jurists of reason would find it
debatable whether the district court was correct in its procedural
ruling.[21] Accordingly, there are Atwo
components@
involved in whether a COA should issue when the district court has
dismissed the petition on procedural grounds:
Aone
directed at the underlying constitutional claims and one directed at
the district court=s
procedural holding.@[22]
Each is part of a Athreshold inquiry@ the court must undertake in
determining whether a COA should issue.[23]
Issuance of a COA on an
applicant=s
underlying constitutional claims does not, however, guarantee
consideration of these claims. Although
it is true that a COA should not issue unless the court determines
that the application states a valid claim of the denial of a
constitutional right, it is also true that a court Awill
not pass upon a constitutional question although properly presented by
the record, if there is also present some other ground upon which the
case may be disposed of.@[24] C. Procedures
for Obtaining a COA. Despite some initial
confusion as the result of the AEDPA=s
sloppy use of language, it is now clear that a district court may
issue a COA.[25]
Indeed, in every circuit to decide the question but the
Seventh, to appeal the denial of relief, an application for a COA must
first be filed in the district court.[26]
If the district court grants a certificate on all issues on
which the applicant wishes to appeal, the applicant need not seek a
second certificate from the court of appeals.[27]
If the district court denies certification, a COA may be
requested from the court of appeals.[28]
Section 2253 does not require that a petitioner move for a COA,
although the better practice is to do so.[29]
Both the district court and the court of appeals may construe
either a request for a certificate of probable cause,[30]
or a notice of appeal,[31]
as a request for a COA. Note,
however, that the district court may deny a COA sua sponte without
prior briefing and argument by counsel.[32] If both the district court
and the court of appeals deny a COA, a petition for writ of certiorari
may be filed in the United States Supreme Court seeking review of that
denial.[33]
D.
Specification of Issues
in a COA.
Before the AEDPA, there was
no requirement that a CPC specify the issues that could be appealed.
This is not so in cases where a COA is required.
Section 2253(c)(3) states:
AThe
certificate of appealability . . . shall indicate which specific issue
or issues satisfy the showing required. . . .@
Accordingly, a ' 2254 petitioner or '
2255 movant seeking a COA must make a substantial showing of the
denial of a constitutional right as to every issue on
which an appeal is sought. The
district court must review the COA application issue by issue and, if
a COA is granted, specifically indicate which claims meet the standard
for issuance of a COA. The Third, Fifth, Sixth,
Eighth, Ninth and Eleventh Circuits have held that issues not
specified in a COA cannot be raised on appeal.[34]
Thus, if a district court in one of these circuits certifies
some but not all issues for which certification is sought, the
applicant must ask the court of appeals to expand the COA to include
the remaining issues and the circuit court will review only those
issues on which broader certification is granted.[35]
In these circuits, the filing of a notice appeal or inclusion
of issues in the briefing on appeal is not sufficient to obtain review
of those issues denied certification by the district court.[36]
The Seventh and Tenth Circuits appear willing to consider
requests for an expanded COA presented in the opening brief rather
than by separate motion.[37]
Indeed, the Seventh Circuit has treated an appellate brief
arguing an issue not specified in the district court=s
COA as an implicit request for a COA on that issue from the court of
appeals.[38]
The Second Circuit has been of two minds on this matter.[39] Some courts of appeal will
remand a case to the district court if the COA does not specify the
issues warranting review.[40]
Of course, where petitioner presented only one issue below, no
such remand is necessary.[41]
Other courts may vacate the certificate, and independently
determine whether a certificate is warranted.[42]
Ambiguous certificates will be liberally construed in favor of
appellate review.[43] VII.
EXHAUSTION -- AEDPA ' 104(1),
codified at 28 U.S.C. '
2254(b).
AEDPA '
104(1) amends 28 U.S.C. ' 2254(b)
to change the rules regarding the exhaustion of state remedies by
state prisoners. Section
2254(b) now states: (b)(1)
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not
be granted unless it appears that -- (A) the
applicant has exhausted the remedies available in the courts of the
State; or (B)(i)
there is an absence of available State corrective process; or (ii)
circumstances exist that render such process ineffective to
protect the rights of the applicant. (2)
An application for a writ of habeas corpus may be denied on the
merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State. (3)
A State shall not be deemed to have waived the exhaustion
requirement or be estopped from reliance upon the requirement unless
the State, through counsel, expressly waives the requirement. 28 U.S.C. '
2254(b) (as amended by AEDPA '104(1)). A.
Denial of a Petition
Containing Unexhausted Claims.
Under amended '
2254(b)(2), a federal court may now deny a petition on the merits even
though the petition contains unexhausted claims.
This provision has been described as codifying the holding of Granberry
v. Greer, 481 U.S. 129, 134 (1987), and it should be read in
conjunction with Granberry to uncover the standard for
determining when a court should dismiss a petition on the merits
despite failure to exhaust state remedies.[44]
Thus, Aif
the court . . . is convinced that the petition has no merit,@
it may deny the petition under section 2254(b)(2) rather than
requiring exhaustion.[45]
Although ' 2254(b)(2)
makes clear that a federal court can deny a habeas petition containing
unexhausted claims, the converse is not also true; federal courts lack
the power to grant relief on if a petition containing unexhausted
claims absent some exception to the exhaustion requirement.[46]
Thus, if the petition contains an arguably colorable claim, the
court cannot avail itself of section 2254(b)(2).[47]
It is important to note
that section 2254(b)(2) simply provides federal courts the discretion
to deny a petition containing unexhausted claims on the merits;
it does not require courts to determine unexhausted claims.[48]
Where the petition presents a close question, especially one of
state law, the federal courts should be hesitant to rely on section
2254(b)(2) to deny relief.[49] Moreover, section
2254(b)(2) provides only that courts may deny mixed petitions
on the merits; if a court does not elect to deny the entire
application, it must adhere to the total exhaustion rule of Rose v.
Lundy and dismiss the petition in its entirety to allow for
exhaustion of any unexhausted claims.[50] B. Explicit
Waiver of Exhaustion Requirement.
Although pre-AEDPA, a state
could waive the exhaustion requirement implicitly by failing to raise
lack of exhaustion in a timely manner, that is no longer the case.
Under amended section 2254(b)(3), A[a]
State shall not be deemed to have waived the exhaustion requirement or
be estopped from reliance upon the requirement unless the State,
through counsel, expressly waives the requirement.@
(emphasis added). Accordingly,
a state=s
implicit waiver of the exhaustion requirement is no longer
determinative.[51] C.
Exhaustion and AEDPA=s
Second or Successive Petition Provisions.
[52] Any petition filed after a
first petition has been dismissed without prejudice for failure to
exhaust is not considered a Asecond
or successive@
petition under the AEDPA.@[53]
The circuits are split, however, as to whether exhaustion is
required before a court of appeals may authorize the filing of a
second or successive application for habeas relief.[54] VIII.
AEDPA=s
LIMITATION ON THE HABEAS REMEDY B
AEDPA '
104(3), codified at 28 U.S.C. '
2254(d)(1).
For cases to which the
AEDPA does not apply, federal courts are required to resolve de
novo a state prisoner=s
habeas corpus claims. In
such cases, the state court=s
decision on those claims is treated as nothing more than Athe
conclusions of a court of last resort of another jurisdiction.@[55]
In addition, for these cases, federal courts may grant habeas
relief based on legal principles that never bound the state courts,
i.e., federal circuit court authority developed in the absence of
Supreme Court authority on point.
Thus, for cases where the AEDPA is inapplicable, the state
court=s
prior resolution of the same claim in the same case is all but
irrelevant. For cases governed by the
AEDPA, however, the state court decision becomes the focus of federal
court consideration of a '
2254 habeas petitioner=s
entitlement to relief. AEDPA
' 104(3)
amends 28 U.S.C. ' 2254(d),
to create a new limitation on the habeas remedy which Amodifies the role of federal habeas
courts in reviewing petitions filed by state prisoners.@[56]
Section 2254(d) now states: ' 2254.
State custody; remedies in Federal courts * * * (d)
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the claim
-- (1)
resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; * * * 28 U.S.C. ' 2254(d)(1)
(as amended by AEDPA '
104(3)). Section 2254(d)(1) is a
constraint on the power of the federal court to grant relief on claims
adjudicated on their merits by the state courts. It is a limitation on remedy, rather than a true standard of
review. In order to
properly employ ' 2254(d)(1),
the federal court is obligated first to determine if there is a
constitutional violation. If
not, the court need not proceed further to conclude that habeas relief
is not warranted under ' 2254(d)(1).[57]
If, however, the issue before the court is meritorious, the
court must then determine whether habeas provides a remedy by deciding
whether the state court=s
adjudication finding no violation is Acontrary
to@
or an Aunreasonable
application of@
federal law as determined by the Supreme Court.[58] Several courts have raised
the question of whether ' 2254(d)(1)
has abrogated the requirement that federal habeas courts conduct
harmless error analysis using Brecht v. Abrahamson=s[59]
Asubstantial
and injurious effect on the verdict@
standard.[60] A.
Prerequisites for Application of '
2254(d) Standard.
Section 2254(d) states that
A[a]n
application for a writ of habeas corpus . . . shall not be granted
with respect to any claim that was adjudicated on the merits in State
court proceedings unless the adjudication of the claim -- [] resulted
in a decision . . .@
by the state court. Thus,
before the limitations on federal habeas relief enumerated in ' 2254(d)
apply, a federal court must first examine the threshold question of
whether the state court rendered a Adecision@
following an Aadjudicat[ion]
on the merits.@[61]
If no adjudication on the merits was conducted by the state
court, '
2254(d) does not apply, and the federal court reviews petitioner=s
claims de novo.[62]
1.
An Aadjudication@
that Aresulted
in a decision. . .@
No Aadjudication@
has occurred unless the state court=s
decision follows an opportunity to litigate the issue, and reflects
the level of deliberation necessary to resolve the issue.[63]
The federal courts have considered various factors relevant to
the determination of whether a claim was Aadjudicated@
by the state courts, including whether the state courts:
(1) held an evidentiary hearing or otherwise heard
testimony or received evidence from both parties;[64]
(2) heard argument;[65]
(3) appointed counsel;[66]
(4) allowed discovery;[67]
(5) appointed defense experts;[68]
or provided funding for investigation.[69]
However, no court has held that any of these factors is required
for an Aadjudication@
to have occurred. Moreover, to constitute an Aadjudication@
that Aresulted
in a decision,@
it appears that the state court=s
decision need not reflect any action other than the wholesale adoption
of a filing by the State. The
Fourth Circuit has held that the state postconviction court=s
Aalmost
verbatim@
adoption of Athe
state=s
legal memorandum@
was Aunquestionably
an >adjudication=
by the state court,@
and therefore application of ' 2254(d)
was required.[70]
Similarly, the Fifth Circuit has held that a decision of a
state court of appeals explicitly adopting the State=s
findings of fact and conclusions of law qualifies as an Aadjudication@ for purposes of '
2254(d).[71] Indeed, there is a split in
the lower courts as whether the state court need issue detailed
findings of fact and conclusions of law in support of its judgment at
all in order for there to be an Aadjudication@
that Aresulted
in a decision@
for purposes of '
2254(d). Some courts have
considered the presence or absence of a detailed decision to be a
critical factor in determining whether or not an adjudication
occurred.[72]
Others, however, have held that the Act does not require such
detail, and consider a summary denial of relief by the state court to
constitute an Aadjudicat[ion]@
for purposes of ' 2254(d).[73]
But how is '
2254(d) to be applied where there is no opinion disclosing the state
court=s reasons for its actions?[74]
In such circumstances, the federal court must perform its own Aindependent
review@
of the record to determine whether the state court=s
resolution of the petitioner=s
claim was Acontrary
to@
or an Aunreasonable
application of@
clearly established federal law.[75]
Although this independent review is not de novo, the
Fourth and Ninth Circuits consider the distinction between de novo
review and that under ' 2254(d)(1)
Ainsignificant@
when the state court does not offer any rationale for its ruling.[76]
The Tenth and Sixth Circuits, in contrast, describe this review
as Adeferential@
in that they Acannot
grant relief unless the state court=s
result is legally or factually unreasonable@[77]
or otherwise Anot
in keeping with the strictures of the AEDPA.@[78] 2.
An adjudication Aon
the merits@.
Before ' 2254(d)
applies, the state court=s
adjudication must also be Aon
the merits.@[79]
The adjudication of a claim is not Aon
the merits,@
and review will be de novo, if the state court failed entirely
to address a claim properly presented by petitioner;[80]
if the claim was never presented to the state court because the State
waived exhaustion;[81] if the state court denied
a federal constitutional claim solely on the basis of state law;[82]
or if the claim was denied by the state court as the result of a
procedural default.[83]
It is important to note,
however, that Athe
substantive changes in '
2254(d) made by the [AEDPA] made no change in the procedural default
rules.@[84]
Thus, where the state court denies a claim on the basis of a
state procedural rule, even though there is no adjudication Aon
the merits,@
and ' 2254(d)
does not apply, federal habeas relief may nonetheless be unavailable
as a result of the procedural bar.[85] In determining whether a
claim was denied pursuant to a state procedural rule or Aon the merits@
for purposes of '
2254(d), courts have employed the analysis traditionally used in
application of the procedural default doctrine.[86]
Thus, the federal courts will look to the decision of the
highest state court to consider the claim[87]
and consider: what the
state courts have done in similar cases, whether the history of the
case suggests that the state court was aware of any ground for not
adjudicating the case on the merits, and whether the state courts=
opinions suggest reliance upon procedural grounds rather than a
determination on the merits.[88]
When faced with an ambiguous state decision, in an abundance of
caution, the federal court should conclude the adjudication was not Aon
the merits@
and therefore amended ' 2254(d)(1)
does not apply.[89] If the state court overlooks a procedural default and
considers the merits of a claim, although there is no procedural bar,
the new standard of review in '
2254(d) applies because the decision was Aon
the merits.@[90]
Similarly, where the state court denies relief on the basis of
a state procedural rule, but its ruling is so inextricably intertwined
with a decision on the merits of the petitioner=s
claim that it cannot be considered sufficiently Aindependent@
to bar relief under the procedural default doctrine, it constitutes a
decision Aon the merits@
such that ' 2254(d)
applies.[91]
In contrast, where the state court denies a claim solely on the
basis of a state procedural rule that is not sufficiently Aadequate@
to bar federal habeas relief under the procedural default doctrine,
there is neither a procedural default nor an adjudication Aon
the merits,@
and as a result, '
2254(d) does not apply.[92]
3.
An adjudication Ain
State court proceedings.@
Although ' 2254(d)
requires an Aadjudicat[ion]
on the merits in State court proceedings@
as a prerequisite for its application, the Seventh Circuit has applied
' 2254(d)
to habeas petitions challenging decisions made by administrative
bodies, such as those made in prison disciplinary proceedings.[93]
B. Section
2254(d)(1):
The State Court=s
Decision Was A. . . contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of
the United States.@ 1. A.
. . contrary to, or involved an unreasonable application of . . .@
If the prerequisites for
application of '
2254(d) are met, then a habeas petitioner is Aentitled
to relief@[94]
if the state court=s
adjudication resulted in a decision that was Acontrary
to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.@[95]
Since the enactment of the AEDPA, the contours of this A.
. . contrary to, or involved an unreasonable application of . . .@
language were widely debated among the lower federal courts.[96]
However, in April 2000, the Supreme Court resolved this
conflict in (Terry) Williams v. Taylor.[97]
In Williams, the
Court accorded both the Acontrary
to@
and Aunreasonable
application@
clauses independent meaning.[98]
Thus, claims may fit within one of these clauses more Acomfortably@
than the other.[99]
Where, however, a petitioner presents a claim that challenges a
statutory scheme rather than only the outcome in a particular case,
the federal court has an obligation to analyze the claim under both
clauses.[100] a. A.
. . contrary to . . .@ In Williams, the
Supreme Court defined the phrase Acontrary
to@
in ' 2254(d)(1)
as meaning Adiametrically
different,@
Aopposite
in character or nature,@
or Amutually
opposed.@[101]
It concluded that habeas relief may be granted under the Acontrary
to@
clause if the state court: (1)
Aapplies
a rule that contradicts the governing law set forth in [the Supreme
Court=s]
cases,@[102]
or (2) Aconfronts
a set of facts that are materially indistinguishable from a decision
of [the Supreme Court] and nevertheless arrives at a different result.@[103]
The Acontrary
to@
clause, however, does not apply to instances where the state court
identifies and applies the correct rule of law to cases where the
facts are not similar to those in a Supreme Court decision.[104]
Such a construction would Asap[]
the >unreasonable
application=
clause of any meaning.@[105]
The Supreme Court applied
this definition to conclude that the Virginia Supreme Court=s
partial reliance on Lockhart v. Fretwell[106]
to reject Terry Williams=
ineffective assistance of counsel claim rendered its decision Acontrary
to@
Strickland.[107]
The state supreme court incorrectly concluded that Fretwell
modified or somehow supplanted the Strickland prejudice test by
requiring an additional inquiry into fundamental fairness.[108]
Although Fretwell=s
fundamental fairness inquiry may apply in those rare and peculiar
cases where counsel=s
actions had not deprived the defendant of any substantive or
procedural right to which the law entitled him,[109]
it Adid
not justify a departure from a straightforward application of Strickland
when the ineffectiveness of counsel does deprive the defendant
of@
such rights.[110]
Here, there was no dispute that Williams was constitutionally
entitled to present the mitigating evidence his defense attorney
failed to uncover.[111]
Moreover, although the state supreme court also held that the
claim lacked merit under Strickland, it never made clear that
its mistake of law in relying on Fretwell did not taint or
distort its analysis of prejudice under Strickland.[112]
Accordingly, the state court=s
decision was Acontrary
to . . . law@
and Williams was entitled to relief under ' 2254(d)(1).[113]
b. A.
. . unreasonable application of . . .@ The Aunreasonable
application@
clause of ' 2254(d)(1)
allows relief when the state court
decision identifies correctly the governing legal principle but
(1) Aunreasonably
applies the law of [the Supreme] Court@
to the facts of the prisoner=s
case,@
or (2) unreasonably extended Supreme Court law to a new context where
it does not apply or unreasonably refused to extend a Supreme Court
decision to a new context where it should apply.[114]
However, the Court recognized that these categories could
overlap, and that, even for purposes of precise definition, it could
sometimes be difficult to determine, for example, whether a decision
unreasonably extended a rule to a new context or simply contradicted
controlling authority. Similarly,
it may at times be difficult to distinguish between a state court
decision that is contrary to law by virtue of its reaching a different
result upon materially indistinguishable facts, and a particularly
unreasonable application of clearly established law.[115] So what exactly qualifies
as an Aunreasonable
application@
of the law under Williams?
First, the Aunreasonableness@
inquiry is an objective, rather than subjective one:
AThe
federal habeas court should not transform the inquiry into a
subjective one by resting its determination instead on the simple fact
that at least one of the Nation=s
jurists has applied the relevant federal law in the same manner the
state court did in the habeas petitioner=s
case.@[116]
Second, an Aunreasonable@
application of law is different from an Aincorrect@
application of law: Aa
federal court may not issue the writ simply because the court
concludes in its independent judgment that the relevant state-court
decision applied clearly established federal law erroneously or
incorrectly. Rather,
that application must also be unreasonable.@[117]
Third, although Aunreasonable@
is Adifficult
to define,@
Ait
is a common term in the legal world and, accordingly, federal judges
are familiar with its meaning.@[118]
Finally, the Court mentions Brown v. Allen=s[119]
statement that a federal habeas court need only determine whether the
state court=s
adjudication resulted in a Asatisfactory
conclusion,@
implying that a Asatisfactory@
outcome might be equated with a Areasonable@
outcome.[120]
Williams, however, provides little other assistance on
the meaning of the unreasonable application clause.
Nonetheless, the Supreme
Court did not hesitate to conclude that the Virginia Supreme Court=s
application of Strickland
was Aunreasonable@
and Terry Williams was therefore entitled to relief under ' 2254(d)(1).
The facts showed that trial counsel failed to uncover Asubstantial
amounts of mitigation evidence,@
including evidence of severe abuse and neglect suffered by Terry
Williams as a child, that
Williams was borderline mentally retarded, and of Williams=
good conduct in prison.[121]
AThe
consequence of counsel=s
failure to conduct the requisite, diligent investigation into his
client=s
troubling background and unique personal circumstances manifested
itself during [counsel=s]
generic, unapologetic closing argument, which provided the jury with
no reasons to spare petitioner=s
life.@[122]
Indeed, after hearing this evidence, the same state trial judge who
originally found the death sentence appropriate concluded that counsel=s
performance prejudiced Williams.
The Virginia Supreme Court, in contrast, concluded no prejudice
had been shown in light of the aggravating evidence of Terry Williams=s
future dangerousness presented at trial. The Supreme Court concluded
that the Virginia Supreme Court=s
Aprejudice
determination was unreasonable insofar as it failed to evaluate the
totality of the available mitigating evidence B
both that adduced at trial, and the evidence adduced at the habeas
proceeding B
in reweighing it against the evidence in aggravation.@[123]
Although the state supreme court correctly emphasized the
strength of the evidence supporting the future dangerousness
aggravating circumstance, Athe
state court failed even to mention the sole argument in mitigation
that trial counsel did advance B
Williams turned himself in, alerting police to a crime they otherwise
never would have discovered, expressing remorse for his actions, and
cooperating with the police after that.@[124]
Even though such evidence, when coupled with the evidence of
Williams=s
good conduct in prison, may not have defeated the future dangerousness
aggravating factor, Athe
graphic description of Williams=
childhood, filed with abuse and privation, or the reality that he was >borderline
mentally retarded,@
might well have influenced the jury=s
appraisal of his moral culpability.@[125]
Because the Virginia Supreme Court Adid
not entertain th[e] possibility@
that mitigating evidence unrelated to future dangerousness could alter
the jury=s
selection of penalty, Ait
failed to accord appropriate weight to the body of mitigation evidence
available to trial counsel.@[126]
Accordingly, its decision was an Aunreasonable
application@
of Strickland and Williams was therefore entitled to relief
under '
2254(d)(1).[127] It is important to note
that by focusing on the Virginia Supreme Court=s
reference to the wrong legal precedent and its less-than complete
consideration of the record facts, the Supreme Court considered the
quality of the state court=s
review to be important. Indeed,
the Court concludes that its was the mistakes in the process by
which and the thoroughness with which the state court
considered the issue that caused its decision to be unreasonable.[128]
Thus, it appears that only when the state court provides a
convincing explanation of what it did, relying on the correct law and
the relevant facts, can its otherwise incorrect decision be Areasonable@
and Asatisfactory.@ Put another way, the Court focused on the reasonableness of
the state court=s
explanation and rationalization of its outcome, rather than
simply on the reasonableness of the outcome itself.
Post-Williams, the
Ninth Circuit has looked to the doctrine of Aclear
error@
as a source of the Amost
helpful body of precedent@
in determining what constitutes an Aunreasonable
application of federal law.@[129]
Under that Circuit=s view, a state court=s decision involves an Aunreasonable application of clearly
established federal law@
Awhen
our independent review of the legal question does not merely allow us
to ultimately conclude that the petitioner has the better of two
reasonable legal arguments, but rather leaves us with a >firm
conviction=
that one answer, the one rejected by the court, was correct and the
other, the application of the federal law that the court adopted, was
erroneous B
in other words that clear error occurred.@[130]
In close cases, the state court=s
decision cannot be deemed Aunreasonable.@[131] 2. A.
. . clearly established Federal law as determined by the Supreme Court
of the United States.@
Under ' 2254(d)(1),
to obtain federal habeas relief, a petitioner must show that the state
court=s
decision was contrary to or an unreasonable application of, Aclearly
established Federal law as determined by the Supreme Court of the
United States.@
This phrase refers to the holdings of Supreme Court decisions.[132]
Thus, a petitioner Amust be able to point to an
authoritative decision of the Supreme Court in order to secure the
writ.@[133]
If no such Supreme Court authority can be identified, under '
2254(d)(1), the federal courts are without the power to grant habeas
relief.[134] The federal courts have
variously described a rule of law as Aclearly
established@
by Supreme Court precedent when it Adictate[s]@[135]
or Acompels@[136]
a particular result, Agoverns@
the claim,[137]
has Aestablished
. . . standards to guide courts,@[138]
or is Aauthoritative.@[139]
That the rule set forth by the Supreme Court=s
precedent may A>of
necessity require a case-by-case examination of the evidence=
obviates neither the clarity of the rule nor the extent to which the
rule must be been seen as >clearly
established=
by this Court.@[140] Although this statutory
language Abears
only a slight connection to@
the Supreme Court=s
jurisprudence under Teague v. Lane,[141]
Awhatever
would qualify as an old rule under [the Court=s]
Teague jurisprudence will constitute >clearly
established Federal law, as determined by the Supreme Court of the
United States=
under '
2254(d)(1).@[142]
In contrast, a rule of law
is not Aclearly
established@
under '
2254(d)(1) where the Arule@ asserted is not a holding of the
Court but instead dicta[143]
or a simple recitation of background facts,[144]
where the Supreme Court has expressly declined to extend prior
precedent to create such a rule[145]
or has expressly indicated it has not decided the question,[146]
where a plurality of the Supreme Court has expressly rejected the
creation of such a rule,[147] or where the rule
asserted is one of negative implication.[148]
Moreover, because the rule of law must be Aclearly
established,@
federal habeas corpus relief cannot be granted under ' 2254(d)(1)
where the petitioner argues for the development of more favorable law,[149]
or for a rule that would impose a new obligation on the States.[150]
Similarly, because the Aclearly
established@
rule of law must be Adetermined
by the Supreme Court,@
no relief will lie under ' 2254(d)(1)
if petitioner=s
claim for relief relies solely on state law,[151]
or law review articles and treatises.[152]
The analysis becomes more
complicated when a petitioner contends federal habeas relief is
required by a decision of a federal court of appeals.
The statutory text expressly contemplates that the legal
principle at issue must have been recognized by the Supreme Court
itself, and cannot be found solely in lower court decisions.[153]
Nonetheless, a habeas court need not limit itself solely to
Supreme Court case law. A
circuit court decision may represent Aclearly
established Federal law@
if that decision is a Agloss[]
on@[154]
or Aamplification
of@[155]
a decision of the Supreme Court, or Arests
entirely upon Supreme Court precedent.@[156]
Indeed, circuit court decisions Amay
be persuasive authority for purposes of determining whether a
particular state court decision is an >unreasonable
application=
of Supreme Court law, and may also help determine what law is >clearly
established.=@[157]
Thus, it appears a federal court may consider federal court of
appeal decisions explicating Supreme Court precedent in
determining whether the state court=s
decision was contrary to federal law as determined by the Supreme
Court under ' 2254(d)(1).[158]
However, lower court decisions extending Supreme Court
precedent are inadequate to demonstrate entitlement to relief under ' 2254(d)(1).[159]
Examples of Aclearly
established Federal law@
include Strickland v. Washington,[160]
Simmons v. South Carolina,[161]
Brady v. Maryland,[162]
Napue v. Illinois,[163]
Giglio v. United States,[164]
Faretta v. California,[165]
and Davis v. United States.[166]
In addition, the law with respect to probable cause,[167]
and waiver of Fifth Amendment rights,[168]
has been clearly established by the Supreme Court. Finally, the Supreme Court
decision upon which petitioner relies must have been clearly
established at Athe
time of the relevant state-court decision.@[169]
C. Section
2254(d)(2): the
State Court Decision Was an AUnreasonable
Determination of Facts in Light of the Evidence Presented in the State
Court Proceeding.@
Section 2254(d)(2) is
discussed in conjunction with the presumption of correctness afforded
state court fact findings in ' IX.A,
infra. IX.
EVIDENTIARY HEARINGS and PRESUMPTION OF CORRECTNESS OF STATE
COURT FACTFINDINGS B
AEDPA '
104(4), codified at 28 U.S.C. '' 2254(d)(2)
and 2254(e)(1).
For state prisoners, AEDPA '
104(4) alters the presumption of correctness afforded state court
factual determinations, and the circumstances under which a habeas
applicant may obtain an evidentiary hearing in federal court.
A.
Presumption of
Correctness of State Court Factfindings.
[170] Pre-AEDPA, the presumption
of correctness afforded state court findings of fact was codified at 28 U.S.C. ' 2254(d).
Under the AEDPA, factual determinations by the state courts remain
entitled to the presumption of correctness, but that presumption is
recodified in 28 U.S.C. '' 2254(d)(2)
and 2254(e)(1). These
sections state: (d)
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court shall not
be granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the claim
--
*** (2)
resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding. (e)(1)
In a proceeding instituted by an application for a writ of
habeas corpus by a person in custody pursuant to the judgment of a
State court, a determination of a factual issue made by a State court
shall be presumed to be correct.
The applicant shall have the burden of rebutting the
presumption of correctness by clear and convincing evidence. Under new ' 2254(e)(1),
when read in conjunction with amended '
2254(d)(2), the effect of state court factfindings on federal habeas
corpus cases is similar -- although not identical -- to that under
former '
2254(d). New '
2254(d)(2) separates state court findings of fact into two categories:
those that are Aunreasonable,@
and those that are Areasonable.@ Under ' 2254(d)(2),
if the state court decision was based on a factual finding that was Aunreasonable@
in light of the evidence before it, federal habeas relief is
available.[171]
If, however, a state court finding of fact is not winnowed out
by amended '
2254(d)(2) because it is not unreasonable, it is entitled to
the presumption of correctness under amended '
2254(e)(1). The converse
is also true. A[P]roof
by clear and convincing evidence of factual error satisfies (d)(2)=s
>unreasonable determination of the
facts=
requirement.@[172] In cases governed by the
AEDPA the analysis of the effect of state court factfindings involves
a four-step process: B
The federal court must first examine the state court record to
determine whether the state court Aadjudicated@
a factual issue Aon
the merits@
and reached Aa
decision@
resolving that issue.[173]
This appears to require that the state court resolved the
merits of the factual dispute by making an explicit or at least
clearly implicit finding of historical fact[174]
that can be subject to federal review.[175]
It is very similar to the requirement under former law that the
presumption applies only to historical facts determined on the merits
by the state court. B
If the state court adjudication determined the merits of the
factual issue, the question then becomes whether the state court made
a procedurally A[]reasonable
determination@
of the facts.[176]
Although the Areasonableness@
inquiry is more general than the situations carefully delineated in
former ' 2254(d)=s
subsections (requiring, inter alia, a full, fair and adequate
determination of the material facts),[177]
the difference seems to have little practical significance.[178]
A[A]s
to more debatable factual determinations, >the
care with which the state court considered the subject= may be important.@[179]
This does not mean, however, that the state court is required
to hold an evidentiary hearing on factual issues; a paper hearing may
be adequate.[180]
This Areasonableness@
inquiry differs, however, from prior law in one significant respect --
it is limited to the procedures the state court used to reach the
factual determination Ain light of the evidence presented in
the state court proceedings.@[181]
Under former ' 2254(d)(3),
a petitioner could overcome the presumption of correctness by showing
that Athe
material facts were not adequately developed at the State court
hearing,@
even if the failure to develop the facts was attributable to
petitioner. Under the
AEDPA, this is no longer the case.
Any gap in the state court record attributable to petitioner
cannot be a basis for avoiding the presumption of correctness.[182]
B
Next, the federal court must consider whether the state court=s factfinding was a substantively
A[]reasonable
determination@
of the facts Ain
light of the evidence presented in the State court proceeding.@[183]
This inquiry differs slightly from former '
2254(d)(8) which asked whether the factfinding was Afairly
supported by the State court record.@
Any differences, however, seem insubstantial:
where Athe
linchpin of the court=s
reasoning depend[s] upon a demonstrably erroneous factual finding,@
the AEDPA does not prevent relief.[184]
B
Finally, if the state court factfinding qualifies as a Adetermination
of a factual issue made by a State court@
(because it is neither procedurally nor substantively Aunreasonable@
in light of the evidence presented to the state courts), it Ashall
be presumed to be correct@
unless the presumption is rebutted Aby
clear and convincing evidence.@[185]
Under prior law, the presumption could be rebutted by Aconvincing
evidence.@[186]
It appears that this amended language has increased the burden
on habeas petitioners=
challenges to state court factfindings.[187]
Whether or not it has indeed done so, it is clear that
conclusory allegations are insufficient to rebut the presumption.[188]
Nonetheless, if a petitioner demonstrates that the state court=s
factual conclusion was unreasonable, unsupported, or otherwise
incorrect, the presumption is rebutted.[189]
B.
Evidentiary Hearings.
In cases where the AEDPA
does not apply, a habeas petitioner=s
request for an evidentiary hearing is controlled by Townsend v.
Sain.[190]
In Townsend, the Supreme Court held that the district
court must hold an evidentiary hearing (1) if the petitioner=s
allegations, if proved, would entitle petitioner to relief, and (2) if
the state court trier of fact had not reliably found the relevant
facts after a full and fair hearing.[191]
The Townsend court listed six circumstances under which
a federal evidentiary hearing is mandatory.[192]
In Keeney v. Tamayo-Reyes,[193]
the Supreme Court partially overruled Townsend, but only as to Townsend=s
fifth circumstance -- that the material facts were not adequately
developed in the state court hearing.[194]
Under Tamayo-Reyes, in cases where the petitioner had a
state court evidentiary hearing and negligently failed to develop the
material facts in that hearing, the petitioner is entitled to a
federal evidentiary hearing only Aif
he can show cause for his failure to develop the facts in state-court
proceedings and actual prejudice resulting from the failure.@[195]
Tamayo-Reyes also adopted a Anarrow
exception@
to this cause and prejudice requirement:
AA
habeas petitioner=s
failure to develop a claim in state-court proceedings will be excused
and a hearing mandated if he can show that a fundamental miscarriage
of justice would result from failure to hold a federal evidentiary
hearing.@[196] AEDPA creates a new hurdle
for habeas petitioners seeking an evidentiary hearing in federal
court. AEDPA '
104(4) amends 28 U.S.C. '
2254 by creating new subsection (e)(2).
Section 2254(e)(2) specifies the circumstances under which
federal courts may grant evidentiary hearings to habeas petitioners
who have failed to develop the factual basis of their claims in state
court proceedings. That
subsection now states: (e)(2)
If the applicant has failed to develop the factual basis of the
claim in State court proceedings, the court shall not hold an
evidentiary hearing on the claim unless the applicant shows that -- (A) the claim relies on -- (i) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable; or (ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and (B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for constitutional
error, no reasonable factfinder would have found the applicant guilty
of the underlying offense. 28 U.S.C. '
2254(e)(2) (as amended by AEDPA '
104(4)). In cases to which the AEDPA
applies, a habeas petitioner=s
request for an evidentiary hearing is now controlled by a combination
of '
2254(e)(2) and Townsend. The
AEDPA=s
amendments to '
2254(e)(2) create a new hurdle that must be cleared Aif the applicant failed to develop
the factual basis of the claim in State court proceedings.@[197]
Under '
2254(e)(2), a federal court cannot grant a hearing to an applicant who
failed to develop the facts in state court unless the applicant meets
one of the two narrow exceptions in ' 2254(e)(2)(A)
& (B).[198]
On the other hand, if the applicant has not failed to
develop the facts in state court, then the right to a federal
evidentiary hearing is dictated by Townsend (and Tamayo-Reyes).[199]
That is, if the Amaterial facts were not developed,@a
hearing is mandatory, and the district court may at anytime
hold a hearing in its discretion. 1. A.
. . the applicant failed to develop the factual basis of the claim in
State court proceedings.@
One of the two narrow
exceptions in '
2254(e)(2)(A) & (B) must be met only when Athe
applicant has failed to develop the factual basis of the claim in
State court proceedings.@[200]
Accordingly, if the applicant presented the underlying factual
bases of his claims to the state court, then '
2254(e)(2) is not applicable.[201] The Supreme Court
established in (Michael) Williams v. Taylor[202]
that, A[u]nder
the opening clause of ' 2254(e)(2),
a failure to develop the factual basis of the claim is not established
unless there is a lack of diligence, or some greater fault,
attributable to the prisoner or the prisoner=s
counsel.@[203]
Section 2254(e)(2) codifies the threshold diligence requirement
established by the Supreme Court in Keeney v. Tamayo-Reyes, and
requires, Ain
the usual case that the prisoner, at minimum, seek an evidentiary
hearing in state court in the manner prescribed by state law.@[204]
The state court=s failure to allow discovery or grant
investigatory funds requested by petitioner may also demonstrate that
the failure to develop the record in state court was not attributable
to petitioner.[205] In Williams, the
petitioner sought to present evidence concerning three claims: (1) a
claim that the prosecution violated Brady v. Maryland[206]
by failing to disclose a confidential pretrial psychiatric report of a
codefendant/state witness which suggested that the codefendant had
little recollection of the crime; (2) a juror bias claim alleging that
the jury foreperson lied by not disclosing, on vior dire, that
she had been married to the deputy sheriff who was a state=s
witness, and had been represented in her divorce proceeding by the
trial prosecutor; and (3) that the prosecutor committed misconduct by
not revealing his knowledge of the juror=s
possible bias. The Williams Court
found insufficient evidence of diligence regarding the Brady
claim. The psychiatric
report at issue existed prior to trial and was discussed during the
codefendant=s sentencing.
State habeas counsel reviewed the codefendant=s file during the state habeas
proceeding but had not seen the report.
However, a copy of the codefendant=s
sentencing transcript was attached to petitioner=s
state habeas petition. Although
state habeas counsel sent a letter to the prosecution requesting
copies of psychiatric reports of examinations performed upon
prosecution witnesses, when the prosecution declined this request
absent a court order, state habeas counsel took no other steps to
obtain the report, even though Aa
diligent attorney would have done more.@[207] In contrast, the Court
concluded that Apetitioner
has met the burden of showing he was diligent in efforts to develop
the facts supporting his juror bias and prosecutorial misconduct
claims in [state] collateral proceedings.@[208]
The trial record contained no evidence which would have put
state habeas counsel on notice that the jury foreperson had been less
than forthcoming about her relationship with the deputy sheriff, or
had withheld relevant information.
State habeas counsel, concerned about a different juror,
requested funding for an investigator and expert from the state court,
alleging Airregularities@
and Aimproprieties@
with respect to the empaneling of the jury.
The state court denied the motion and dismissed the petition, Adepriving
petitioner of a further opportunity to investigate.@[209]
That petitioner=s funds request was Avague@
was irrelevant; the vagueness was not the fault of petitioner, but of
the juror and prosecutor who withheld information.
Moreover, even though the fact of the juror=s marriage to the deputy sheriff was
a matter of public record, state habeas counsel did not have a duty to
review such files to determine whether jurors responded honestly to
voir dire where the record B
due to the silence of the juror and prosecutor B
provided no basis for such an investigation.[210]
In summary, because Michael Williams Amade
a reasonable effort to discover the claims to commence or continue
state proceedings, ' 2254(e)(2)
will not bar him from developing them in federal court.@[211]
Importantly, the Court
concluded that Michael Williams did not Afail
to develop@
the claims in state court by reason of having neglected to pursue
state remedies. Due to
time limitations on the filing of state postconviction proceedings in
Virginia, no state postconviction remedies remained by the time the
facts came to light. Thus,
that a claim was procedurally defaulted by the state court does not
control whether petitioner is entitled to a federal evidentiary
hearing.[212]
If the facts were developed, or the lack of factual development
is not the failure of petitioner, then ' 2254(e)(2)
does not apply, whether the claim was procedurally defaulted or not.[213]
That does not mean, however, that a federal court is required
to provide an evidentiary hearing to every petitioner with
procedurally defaulted claims who clears the '
2254(e) hurdle. Rather,
such a petitioner must still demonstrate entitlement to a hearing
under Townsend and Tamayo-Reyes.[214] Moreover, even if the
petitioner had a hearing in state court, a federal evidentiary
hearing is not precluded under ' 2254(e)
if the state court failed to resolve the factual issues on which
petitioner=s
claims rest.[215]
Finally, even if an evidentiary hearing is not available under ' 2254(e)(2),
Athe
court still has authority to afford relief under Rule 7 of the Rules
Governing ' 2254
Cases,@
which provides for expansion of the record in federal habeas corpus
proceedings.[216]
ARule
7 has not been supplanted but was instead left intact to function as
it always has alongside the revised ' 2254.@[217]
Note that if facts known to
the petitioner are not developed in the state court proceedings
because the petitioner did not reveal them to state counsel when
asked, then there is a failure to develop these facts under ' 2254(e)(2)
that is attributable to petitioner, and the petitioner must meet the
requirements of ' 2254(e)(2)
in order to be entitled to an evidentiary hearing.[218] 2. Limitations
on evidentiary hearings in federal court if the applicant failed to
develop the facts.
If the petitioner failed to
develop the facts underlying his or her claims in state court
proceedings, then no hearing will be available in federal court unless
the applicant can demonstrate that the Afacts
underlying the claim would be sufficient to establish by clear and
convincing evidence that . . . no reasonable factfinder would have
found the applicant guilty of the underlying offense,@
'
2254(e)(2)(B), and either the claim relies on Aa
new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme Court,@
'
2254(e)(2)(A)(i), or the Afactual
predicate [of the claim] could not have been previously discovered
through the exercise of due diligence,@
' 2254(e)(2)(A)(ii).
These are, to say the least, very demanding requirements, and
they are discussed in detail in '' XII, XIII and XIV, infra.
Indeed, the requirement that a petitioner show Acause@
and Aactual
innocence@
in order to be entitled to an evidentiary hearing in federal court is
more stringent than the requirement that a petitioner show Acause@
or Aactual
innocence@
in order to be allowed to file a second or successive petition in
federal court. Where the factual predicate
for a claim is apparent on the face of the record, a petitioner cannot
demonstrate Adue
diligence.@[219]
In addition, if petitioner seeks a federal evidentiary hearing on
trial counsel=s
failure to present certain evidence at trial, but counsel=s
failure to present that evidence is due to petitioner=s
failure to divulge that information to counsel, petitioner cannot
demonstrate that the evidence could not have previously been discovered
through the exercise of due diligence.[220]
Finally, it appears that '
2254(e)(2)(B)=s
requirement that a petitioner demonstrate that Ano
reasonable factfinder would have found the applicant guilty of the
underlying offense@forecloses
all claims of sentencing error, or any other claim unrelated to
petitioner=s
guilt or innocence.[221]
[1]
Advisory Committee Notes to 1998 Amendment to Fed. R. App. P.
22. [2]
' 2253(c)(1);
Fed. R. App. P. 22(b)(1). [3]
Compare 28 U.S.C. ' 2253(c)(2)
with Barefoot, 463 U.S. at 893. [4]
' 2253(c)(3). [5]
'
2253(c)(1)(A) & (B). [6]
See Montez v. McKinna, 208 F.3d 862, 867-69 (10th Cir.
2000) (requiring COA for state prisoners in ' 2241
habeas proceedings). [7]
Fed. R. App. P. 22(b)(3).
See also Rios v. Wiley, 201 F.3d 257, 262 n.5 (3d Cir.
2000); United States v. Pearce, 146 F.3d 771, 774 (10th Cir.
1998); Lambert v. Blackwell, 134 F.3d 506, 512 n.15 (3d Cir.
1997). [8]
See Murphy v. United States, 199 F.3d 599, 601 n.2 (2d
Cir.1999); Sugarman v. Pitzer, 170 F.3d 1145, 1146 (D.C. Cir.
1999); McIntosh v. United States Parole Commission, 115 F.3d
809, 810 n.1 (10th Cir. 1997); Forde v. United States Parole
Commission, 114 F.3d 878, 879 (9th Cir. 1997); Ojo v. INS,
106 F.3d 680, 681-82 (5th Cir. 1997). [9]
See Trevino v. Johnson, 168 F.3d 173, 177 (5th Cir.), cert.
denied, 120 S. Ct. 22 (1999).
[10]
See Anyanwutaku v. Moore, 151 F.3d 1053, 1057 (D.C.
Cir. 1998). [11]
See Hill v. Johnson, 210 F.3d 481, 487 n.2 (5th Cir.
2000); Clark v. Johnson, 202 F.3d 760, 768 n.1 (5th Cir.
2000), ptn. for cert. filed, No. 99-9327 (U.S. April 25,
2000); Fuller v. Johnson, 114 F.3d 491, 501 n.4 (5th Cir.
1997), cert. denied, 522 U.S. 963 (1997). [12]
See United States v. Budell, 187 F.3d 1137, 1141 (9th
Cir. 1999). [13]
See Fierro v. Johnson, 197 F.3d 147, 150 (5th Cir.
1999), cert. denied, 120 S. Ct. 2204 (2000). [14]
'
2253(c)(2). [15]
Slack,
120 S. Ct. at 1599 (citing Barefoot, 463 U.S. 880, 893
(1983)). [16]
Id. at
1599 (quoting Barefoot, 463 U.S. at 893 & n.4).
Accord Hernandez v. Johnson, 213 F.3d 243, 248 (5th
Cir. 2000); Porter v. Gramley, 112 F.3d 1308, 1312 (7th Cir.
1997), cert. denied, 522 U.S. 1093 (1998); Lucidore v. New
York State Division of Parole, 209 F.3d 107, 112 (2d Cir. 2000),
ptn. for cert. filed, No. 00-40 (U.S. July 5, 2000); Clark
v. Johnson, 202 F.3d 760, 763 (5th Cir. 2000), ptn. for cert.
filed, No. 99-9327 (U.S April 25, 2000); Switzer v. Berry,
198 F.3d 1255, 1258 (10th Cir. 2000); Hughes v. Johnson, 191
F.3d 607, 612 (5th Cir. 1999), cert. denied, 120 S. Ct. 1003
(2000); Lamb v. Johnson, 179 F.3d 352, 355 n.1 (5th Cir.
1999), cert. denied, 120 S. Ct 522 (1999); Cox v. Norris,
133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525 U.S. 834
(1998). [17]
Lucidore v. New York State Division of Parole, 209
F.3d 107, ___ (2d Cir. 2000), ptn. for cert. filed, No. 00-40
(U.S. July 5, 2000). Accord
United States v. Mitchell, ___ F.3d ___, 2000 WL 791804 (D.C.
Cir. June 30, 2000); Clark v. Johnson, 202 F.3d 760, 763 (5th
Cir. 2000), ptn. for cert. filed, No. 99-9327 (U.S April 25,
2000); Switzer v. Berry, 198 F.3d 1255, 1258 (10th Cir.
2000); United States
v. Garza, 165 F.3d 312, 313-314 (5th Cir.), cert. denied,
120 S. Ct. 502 (1999). [18]
See Alexander v. Johnson, 211 F.3d 895, 897 (5th Cir.
2000) (citing Barefoot, 463 U.S. at 893, 103 S. Ct. at 3395);
Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000), ptn.
for cert. filed, No. 99-9327 (U.S April 25, 2000); Lamb v.
Johnson, 179 F.3d
352, 355 n.1 (5th Cir.), cert. denied, 120 S. Ct. 522 (1999);
Fuller v. Johnson, 114 F.3d 491, 495 (5th Cir. 1997), cert.
denied, 522 U.S. 963 (1997); Porter v. Gramley, 112 F.3d
1308, 1312 (7th Cir. 1997), cert. denied, 522 U.S. 1093
(1998). [19]
See Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.
2000); Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000), ptn.
for cert. filed, No. 99-9327 (U.S April 25, 2000); Lamb v.
Johnson, 179 F.3d 352, 355 n.1 (5th Cir.), cert. denied,
120 S. Ct. 522 (1999). [20]
See Buggs v.United States, 153 F.3d 439, 443 (7th Cir.
1998) (declining to issue COA to address errors in the
implementation of the Sentencing Guidelines); Murphy v.
Netherland, 116 F.3d 97 (4th Cir. ) (no COA available to appeal
claim asserting violation of treaty rights), cert. denied,
521 U.S. 1144 (1997). [21]
Slack, 120 S. Ct. at 1604.
[22]
Id. Followed
Franklin v. Hightower, ___ F.3d ___, 2000 WL 780084 (11th Cir.
2000) (applying Slack=s
two-prong test). [23]
Slack, 120 S. Ct. at 1604.
Followed Jefferson v. Welborn, ___ F.3d ___, 2000 WL
862846 (7th Cir. June 29, 2000) (taking a Aquick
look@ at the merits before granting COA on procedural issue). [24]
Slack, 120 S. Ct. at ___.
This principle Aallows
and encourages the court to first resolve procedural issues.@ Id., 120 S. Ct. at
1604. Followed
United States v. Nyhuis, 211 F.3d 1340, 1344 n.4 (11th Cir.
2000). [25]
See Fed. R. App. 22(b)(1).
See also United States v. Mitchell, ___ F.3d
___, 2000 WL 791804 (D.C. Cir. June 30, 2000); Soto v. United
States, 185 F.3d 48, 51 n.3 (2d Cir. 1999);United States v.
Talk, 158 F.3d 1064, ___ (10th Cir. 1998), cert. denied,
525 U.S. 164 (1999); Cox v. Norris, 133 F.3d 565, ___ (8th
Cir. 1997), cert. denied, 525 U.S. 834 (1998); Tiedeman v.
Benson, 122 F.3d 518, 522 (8th Cir. 1997); Arredondo v.
United States, 120 F.3d 639 (6th Cir. 1997); United States v.
Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997); Edwards v. United
States, 114 F.3d 1083, 1084 (11th Cir. 1997); United States
v. Eyer, 113 F.3d 470, 472-474 (3rd Cir. 1997); Houchin v.
Zavaras, 107 F.3d 1465, 1468-1469 (10th Cir. 1997); Lozada v.
United States, 107 F.3d 1011, 1014-1016 (2d Cir. 1997); Lyons
v. Ohio Adult Parole Authority, 105 F.3d 1063, 1068-1072 (6th
Cir.), cert. denied, 520 U.S. 1224 (1997); Else v. Johnson,
104 F.3d 82, 82-83 (5th Cir. 1997); Hunter v. United States,
101 F.3d 1565, 1573-1583 (11th Cir. 1996) (en banc), cert.
denied, 520 U.S. 124 (1997). [26]
Compare Williams v. United States, 150 F.3d 639 (7th
Cir. 1998); with United States v. Mitchell, ___ F.3d ___,
2000 WL 791804 (D.C. Cir. June 30, 2000); and with United States
v. Williams, 158 F.3d 736, ___ n.4 (3d Cir. 1998); and with
Corrao v. United States, 152 F.3d 188, ___ (2d Cir. 1998)
(dismissing appeal without prejudice to its reinstatement after
district court=s
consideration of whether to issue a COA); and with Grant-Chase v.
Comm., New Hampshire Dept. of Corr., 145 F.3d 431 (1st Cir.), cert.
denied, 525 U.S. 941 (1998); and with Kincade v. Sparkman, 117 F.3d 949, 953 (6th
Cir. 1997); and with United States v. Asrar, 116 F.3d 1268,
1270 (9th Cir. 1997); and with Edwards v. United States, 114
F.3d 1083, 1084 11th Cir. 1997); and with Hill v. Johnson,
114 F.3d 78, 81-82 (5th Cir. 1997); and with Muniz v. Johnson,
114 F.3d 43, ___ (5th Cir. 1997); and with Lozada v.
United States, 107 F.3d 1011, 1017 (2d Cir. 1997).
See also 11th Circuit Rule 22-1 (Acounsel
shall apply to the district court for a ruling on a certificate of
appealability@).. [27]
See Grant-Chase v. Comm., New Hampshire Dept. of Corr.,
145 F.3d 431, ___ (1st Cir.), cert. denied, 525 U.S. 941
(1998). [28]
See Fed. R. App. P. 22(b)(1);
United States v. Mitchell, ___ F.3d ___, 2000 WL
791804 (D.C. Cir. June 30, 2000); United States v. Nyhuis,
211 F.3d 1340, ___ (11th Cir. 2000); Edwards v. United States,
114 F.3d 1083, 1084 (11th Cir. 1997). [29]
See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.
2000). [30]
See Byrd v. Henderson, 119 F.3d 34 (D.C. Cir. 1997) (per
curiam); Mata v. Johnson, 99 F.3d 1261, 1265 (5th Cir.
1996), vacated in part on other grounds, 105 F.3d 209 (5th
Cir. 1997); Reyes v. Keane, 90 F.3d 676, ___ (2d Cir. 1996). [31]
Fed. R. App. P. 22(b)(1); United States v. Mitchell,
___ F.3d ___, 2000 WL 791804 (D.C. Cir. June 30, 2000); Hilliard
v. United States, 157 F.3d 444, ___ (6th Cir. 1998); Cox v.
Norris, 133 F.3d 565, ___ (8th Cir. 1997), cert. denied,
525 U.S. 834 (1998); Tiedeman v. Benson, 122 F.3d 518 (8th
Cir. 1997); United States v. Mendoza, 118 F.3d 707 (10th
Cir.), cert. denied, 522 u.S. 961 (1997); United States v.
Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997); Edwards v. United
States, 114 F.3d 1083, 1084 (11th Cir. 1997); Lozada v.
United States, 107 F.3d 1011, 1017 (2d Cir. 1997);
United States v. Orozco, 103 F.3d 389, 392 (5th Cir.
1996); Herman v. Johnson, 98 F.3d 171, 173 (5th Cir. 1996), cert.
denied, 520 U.S. 1123 (1997).
A COA may be construed as a notice of appeal if it contains
the three elements of notice required by Fed. R. App. P. 3(c).
Rodgers v. Wyoming Attorney General, 205 F.3d 1201,
___ (10th Cir. 2000). [32]
See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.
2000). [33]
Hohn v. United States, 524 U.S. 236, 118 S. Ct. 1969,
141 L.Ed.2d 242 (1998). [34]
See United States v. Perales, 212 F.3d 1110,
___ (8th Cir. 2000); United States v. Zuno-Arce, 209 F.3d
1095, ___ (9th Cir. 2000); Coates v. Byrd, 211 F.3d 1225,
1226 (11th Cir. 2000); Fields v. United States, 201 F.3d
1025, 1026 (8th Cir. 2000); Hiivala v. Wood, 195 F.3d 1098,
1102 (9th Cir. 1999), cert. denied, 120 S. Ct. 1281 (2000); Jackson
v. Johnson, 194 F.3d 641, 648 (5th Cir. 1999), cert. denied,
120 S. Ct. 1437 (2000); Hughes v. Johnson, 191 F.3d 607, 612
(5th Cir. 1999), cert. denied, 120 S. Ct. 1003 (2000); Miles
v. Prunty, 187 F.3d 1104, 1106 n.2 (9th Cir. 1999); Baja v.
Ducharme, 187 F.3d 1075, ___ (9th Cir.), cert. denied,
120 S. Ct. 798 (1999); Lamb v. Johnson, 179 F.3d 352, 355 n.1
(5th Cir.), cert. denied, 120 S. Ct. 522 (1999); Boysiewick
v. Schriro, 179 F.3d 616, ___ (8th Cir. 1999), cert. denied,
120 S. Ct. 989 (2000); United States v. Duffus, 174 F.3d 333,
336 n.3 (3d Cir.), cet. denied, 120 S. Ct. 163 (1999); Burns
v. Gammon, 173 F.3d 1089, ___ (8th Cir. 1999); Hunter v.
Bowersox, 172 F.3d 1016, ___ (8th Cir. 1999), cert. denied,
120 S. Ct. 987 (2000); Brown v. Lensing, 171 F.3d 1031, ___
(5th Cir. 1999); Bui v. DiPaolo, 170 F.3d 232, ___ (1st Cir.
1999), cert. denied, 120 S. Ct. 1717 (2000); Warren v.
Smith, 161 F.3d 358, ___ (6th Cir. 1998), cert. denied,
119 S. Ct. 2403 (1999); Chambers v. Bowersox, 157 F.3d 560,
570-71 (8th Cir. 1998), cert. denied, 527 U.S. 1029 (1999);
Carter v. Johnson, 151 F.3d 872, ___ (8th Cir.), cert.
denied, 525 U.S. 1007 (1998); United States v. Kimler,
150 F.3d 429, ___ (5th Cir. 1998); Ramsey v. Bowersox, 149
F.3d 749, 759 (8th Cir. 1998), cert. denied, 525 U.S. 1166
(1999); Murray v. United States, 145 F.3d 1249, 1250 (11th
Cir. 1998); Lackey v. Johnson, 116 F.3d 149, 151-152 (5th
Cir. 1997); In re Certificates of Appealability, 106 F.3d
1306, ___ (6th Cir. 1997). [35]
See United States v. Zuno-Arce, 209 F.3d 1095, ___
(9th Cir. 2000) (declining to reach issues where petitioner failure
to seek broader certification under Ninth Cir. R. 22-1); Harris
v. United States, 204 F.3d 681, 682 (6th Cir. 2000) (declining
to expand COA to include issues other than claim on which district
court granted certification); Tokar v. Bowersox, 198 F.3d
1039, 1045 (8th Cir. 1999) (expanding COA to include five issues not
certified by district court), ptn. for cert. filed, No.
00-5103 (2000); Hiivala v. Wood, 195 F.3d 1098, 1103 (9th
Cir.) (holding that if request to expand COA is filed, merits panel
may expand COA to include issues for review that the motions panel
specifically rejected), cert. denied, 120 S. Ct. 1281 (1999);
Ott v. Johnson, 192 F.3d 510, 513 (5th Cir. 1999), cert.
denied, 120 S. Ct. 1834 (2000); Gatlin v. Madding, 189
F.3d 882, 889 (9th Cir. 1999), cert. denied, 120 S. Ct. 815
(2000); Moreland v. Scott, 175 F.3d 347, ___ (5th Cir.)
(granting COA on one of eight issues on which COA was sought
following district court=s denial of COA), cert. denied, 120 S. Ct. 342 (1999); Bui v.
DiPaolo, 170 F.3d 232, 237 (1st Cir. 1999), cert. denied,
120 S. Ct. 1717 (2000); United States v. Cruz-Mendoza, 147
F.3d 1069, as amended by, 163 F.3d 1149, 1149 (9th Cir. 1998)
(citing recently adopted Ninth Cir. R. 22-1, which states APetitioners
desiring broader certification must file, in the court of appeals, a
separate motion for broader certification . . .@), cert. denied, 120 S. Ct. 516 (1999). [36]
See United States v. Zuno-Arce, 209 F.3d 1095, ___
(9th Cir. 2000) (declining to treat petitioner=s
opening brief as a motion for an expanded COA); Fields v. United
States, 201 F.3d 1025, 1026 n.2 (8th Cir. 2000) (ATo the extent [petitioner] has raised additional issues that are not
within the scope of the COA, they are not properly before us and we
will not address them); Coleman v. Ryan, 196 F.3d 793, 799
(7th Cir. 1999), ptn. for cert. filed, No. 99-9863 (U.S. May
26, 2000); Tompkins v. Moore, 193 F.3d 1327, 1332 (11th Cir.
1999) (AIt is not enough simply to file a brief addressing all of the issues for
which review is sought@), ptn. for cert. filed, No. 99-10113 (U.S. June 12, 2000); Howard
v. O=Sullivan, 185 F.3d 721, 723 (7th Cir. 1999); Richardson v. Bowersox, 188
F.3d 973, 982 (8th Cir. 1999), cert. denied, 120 S. Ct. 1971
(2000); Miles v. Prunty, 187 F.3d 1104, 1106 n.2 (9th Cir.
1999) (ABecause
this issue was not the subject of the COA granted pursuant to 28
U.S.C. ' 2253, and [petitioner] did not move this panel to broaden the scope of
the [COA], the issue is not properly before us.@); Harris v. Bowersox, 184 F.3d 744, 748 (8th Cir. 1999), cert.
denied, 120 S. Ct. 840 (2000); Bui v. DiPaolo, 170 F.3d
232, 237(1st Cir. 1999), cert denied, 120 S. Ct. 1717 (2000);
United States v. Kimler, 150 F.3d 429, 431 (5th Cir. 1998). [37]
See Hooks v. Ward, 184 F.3d 1206, 1210 (10th Cir.
1999); Rogers v. Gibson, 173 F.3d 1278, ___ (10th Cir. 1999),
cert. denied, 120 S. Ct. 944 (2000); Ross v. Ward, 165
F.3d 793, 797 (10th Cir.), cert. denied, 120 S. Ct. 208
(1999); United States v. Simmonds, 111 F.3d 737, 740-741
(10th Cir. 1997); and cases cited in next footnote, infra.
[38]
See Rodriguez v. Scillia, 193 F.3d 913, ___ (7th Cir.
1999) (noting that court of appeals issued COA limited to petitioner=s claim of prosecutorial misconduct, but holding that it Amay
add issues to the certificate if it is deemed necessary,@
and does so); Schaff v. Snyder, 190 F.3d 513, 528 (7th
Cir.1999); Buggs v. United States, 153 F.3d 439, 443 (7th
Cir. 1998); Williams v. Parke, 133 F.3d 971, 975 (7th Cir.
1999); Porter v. Gramley, 112 F.3d 1308, 1312 (7th Cir.
1997), cert. denied, 522 U.S. 1093 (1998); Young v. United
States, 124 F.3d 794 (7th Cir. 1997), cert. denied, 524
U.S. 928 (1998). Until
the court of appeals augments a COA, however, the appellee may
ignore the extra issues in the appellant=s
brief. See Schaff,
190 F.3d at 528 n.16; Sylvester v. Hanks, 140 F.3d 713, 715
(7th Cir. 1998). Moreover,
without an expansion of the certificate to include other issues, the
court Ais
not required to and will not address them, regardless of their
merits.@
Fountain v. United States, 211 F.3d 429, 433 (7th Cir.
2000). [39]
Compare Hurel Guerrero v. United States, 186 F.3d 275,
279 (2d Cir. 1999) (considering on appeal uncertified issues
presented only in briefing) with Soto v. United States, 185
F.3d 48, 53 (2d Cir. 1999) (declining to consider on appeal issues
not specified in district court=s COA). [40]
See United States v. Weaver, 195 F.3d 52, 53 (D.C.
Cir. 1999); Jackson v. Leonardo, 162 F.3d 81, ___ (2d Cir.
1998); Muniz v. Johnson, 114 F.3d 43, 45-46 (5th Cir. 1997); United
States v. Youngblood, 116 F.3d 1113, 1115 (5th Cir. 1997); Lyons
v. Ohio Adult Parole Authority, 105 F.3d 1063, 1076 & n.18
(6th Cir.), cert. denied, 520 U.S. 1224 (1997); Hunter v.
United States, 101 F.3d 1565, 1584 (11th Cir. 1996), cert.
denied, 520 U.S. 1211 (1997). [41]
See Banks v. Horn, 126 F.3d 206, ___ (3d Cir. 1997);
United States v. Eyer, 113 F.3d 470, 474 (3rd Cir. 1997); Muniz
v. Johnson, 114 F.3d 43, 45 n.1 (5th Cir. 1997); Else v.
Johnson, 104 F.3d 82, 83 (5th Cir. 1997) (per curiam). [42]
See Tiedeman v. Benson, 122 F.3d 518 (8th Cir. 1997). [43]
See Furman v. Wood, 190 F.3d 1002, 1005 (9th Cir.
1999) (reviewing all issues for which a COA was requested where the
district court=s
certificate emphasized one issue, but did not purport to exclude the
others). [44]
See Hoxsie v. Kerby, 108 F.3d 1239, 1243 (10th Cir.), cert.
denied, 522 U.S. 844 (1997); Lambert
v. Blackwell, 134 F.3d 506, ___ (3d Cir. 1998). [45]
Hoxsie v. Kerby, 108 F.3d 1239, 1242-1243 (10th Cir.),
cert. denied, 522 U.S. 844 (1997); see West v.
Vaughn, 204 F.3d 53, 63 (3d Cir. 2000) (AWe
may exercise our ability to dispose of habeas cases adversely to a
petitioner regardless of considerations of exhaustion if the merits
are clearly against petitioner@);
Davis v. Kelly, 2 F.Supp.2d 362, 365 (W.D. N.Y. 1998)
(denying relief pursuant to section 2254(b)(2) is appropriate where
all claims in the petition are Awithout merit@);
Lum v. Penarosa, 2 F.Supp.2d 1291, 1293 (D. Hawaii 1998) (Apetition
is clearly without merit@
or Ait is >perfectly
clear= that the petition fails to state >even a colorable claim=.@);
Hogan v. Ward, 998 F. Supp. 290, 293 (W.D. N.Y. 1998)
(unexhausted claims are Apatently frivolous@); Gaylor v. Harrelson, 962 F. Supp. 1498, 1501 (N.D. Ga. 1997) (Awhen
it is >perfectly clear= that the petition fails to present >even a colorable claim.=@); Flores v. Johnson, 957 F. Supp. 893, 929 (W.D. Tex. 1997)
(claims are Awholly
without merit@);
Campos v. Johnson, 958 F. Supp. 1180, 1188 (W.D. Tex. 1997). [46]
See Lambert v. Blackwell, 134 F.3d 506, 515 (3d Cir.
1998); Mercadel v.
Cain, 179 F.3d 271, 276 (5th Cir. 1999); Alexander v. Johnson,
163 F.3d 906, 908 (5th Cir. 1998); Jones v. Jones, 163 F.3d
285, 299 (5th Cir. 1998), cert. denied, 120 S. Ct. 224
(1999); Orraca v. Walker, 53 F.Supp.2d 605, 612 (S.D. N.Y.
1999) (noting court Acan reach merits as to unexhausted claims only if it denies them@);
Goines v. Walker, 54 F.Supp.2d 153, 157 (E.D. N.Y. 1999); Morris
v. Reynolds, 48 F.Supp.2d 379, 385 (S.D. N.Y. 1999); Otero v.
Stinson, 51 F.Supp.2d 415, 422 (S.D. N.Y. 1999); Cowans v.
Artuz, 14 F.Supp.2d 503, 507 (S.D. N.Y. 1998); Fluellen v.
Walker, 975 F. Supp. 565, 569
(S.D. N.Y. 1997); Johnson v. Scully, 967 F. Supp. 113,
115 (S.D. N.Y. 1997); Walker v. Miller, 959 F. Supp. 638, 642
(S.D. N.Y. 1997). [47]
See Jones v. Morton, 195 F.3d 153, 156 n.2 (3d Cir.
1999); Lambert v. Blackwell, 134 F.3d 506, 515 (3d Cir.
1998); Mercadel v. Cain, 179 F.3d 271, 276 (5th Cir. 1999). [48]
See Gatlin v. Madding, 189 F.3d 882, 889 (9th Cir.
1999), cert. denied, 120 S. Ct. 815 (2000); Adelson v.
DiPaola, 131 F.3d 259, 264 (1st Cir. 1997); Nobles v. Johnson,
127 F.3d 409, 423 (5th Cir. 1997); Berger v. Stinson, 97
F.Supp.2d 359, 363 (W.D. N.Y. 2000); Lum v. Penarosa, 2
F.Supp.2d 1291, 1292 (D. Hawaii 1998); Fluellen v. Walker,
975 F. Supp. 565, 568 (S.D. N.Y. 1997); Martin v. Jones, 969
F. Supp. 1058, 1062 (M.D. Tenn. 1997); Johnson v. Scully, 967
F. Supp. 113, 116 (S.D. N.Y. 1997); Gaylor v. Harrleson, 962
F. Supp. 1498, 1499 (N.D. Ga. 1997); Walker v. Miller, 959 F.
Supp. 638, 642 (S.D. N.Y. 1997); Duarte v. Hershberger, 947
F. Supp. 146, 150 (D. N.J. 1996). [49]
See Lambert v. Blackwell, 134 F.3d 506, ___ (3d Cir.
1998); Banks v. Horn, 126 F.3d 206, ___ (3d Cir. 1997); Orraca
v. Walker, 53 F.Supp.2d 605, 612 (S.D. N.Y. 1999).
[50]
See Rockwell
v. Yukins, ___ F.3d ___, 2000 WL 855128 (6th Cir. June 29,
2000); Lines v. Larkins, 208 F.3d 153, 159 & n.8 (3d Cir.
2000); Martin v. Jones, 969 F. Supp. 1058, 1063 (M.D. Tenn.
1997). But see Hooks
v. Ward, 184 F.3d 1206, 1239 n.35 (10th Cir. 1999) (denying
relief on unexhausted claim under ' 2254(b)(2), but remanding other claim to district court for further
consideration). [51]
See Rockwell v. Yukins, ___ F.3d ___, 2000 WL 855128
(6th Cir. June 29, 2000); Lambert v. Blackwell, 134 F.3d 506,
515 (3d Cir. 1998); Mercadel v. Cain, 179 F.3d 271, 275 (5th
Cir. 1999). But see
Moore v. Gibson, 195 F.3d 1152, 1167 (10th Cir. 1999) (stating,
in post-AEDPA case, that A[b]ecause
respondent does not argue that this claim is unexhausted or
procedurally barred, . . .we address the merits of petitioner=s federal claim,@ and citing '
2254(b)(2)), cert. denied, 120 S. Ct. 2206 (2000). [52]
The interaction between the exhaustion doctrine and the AEDPA=s
restrictions on second and successive applications is further
discussed in ' X., infra. [53]
See In re Gasery, 116 F.3d 1051, 1052 (5th Cir.
1997); Christy v. Horn, 115 F.3d 201, 208 (3d Cir. 1997); Benton
v. Washington, 106 F.3d 162, 164 (7th Cir. 1996); Denton v.
Norris, 104 F.3d 166, 167 n.2 (8th Cir. 1997); In re Turner,
101 F.3d 1323, 1323 (9th Cir. 1997); Dickinson v. Maine, 101
F.3d 791, 791 (1st Cir. 1996); Camarano v. Irvin, 98 F.3d 44,
46-48 (2d Cir. 1996). Cf.
Stewart v. Martinez-Villareal, 523 U.S. 637, 644, 118 S. Ct.
1618, 1622, 140 L.Ed.2d 849 (1998) (dicta) (A[N]one of our cases expounding [the exhaustion] doctrine have ever
suggested that a prisoner whose habeas petition was dismissed for
failure to exhaust state remedies, and who then did exhaust those
remedies and returned to federal court, was by such action filing a
successive petition. A
court where such a petition was filed could adjudicate these claims
under the same standard as would govern those made in any other
first petition.@). [54]
Compare Hatch v. State of Oklahoma, 92 F.3d 1012, 1016
(10th Cir. 1996) (concluding exhaustion is not required) with
LaGrand v. Stewart, 170 F.3d 1158, 1161 (9th Cir. 1999) (citing
lack of exhaustion as reason for refusal to allow petitioner to file
second or successive application raising actual innocence claim). [55]
Brown v. Allen, 344 U.S. 443, 458, 73 S. Ct. 397, 97
L.Ed.2d 469 (1953). [56]
(Terry) Williams v. Taylor, ___ S. Ct. ___, 120 S. Ct.
1495, 1518, 146 L.Ed.2d
389 (2000). [57]
See Weeks v. Angelone, ___ U.S. ___, 120 S. Ct. 727,
729, 145 L.Ed.2d 727 (2000) (addressing first whether the issue
before it was meritorious and then, upon determining that there was
no constitutional violation, concluding that the AEDPA barred
relief, rather than asking initially whether the state court
decision was Acontrary
to, or an unreasonable application of clearly established Federal
law@ ); Ramdass v. Angelone, ___ U.S. ___, 120 S. Ct. 2113, ___
L.Ed.2d ___ (2000) (same); Clark v. Stinson, 214 F.3d 315,
___ (2d Cir. 2000); Foster v. Schomig, ___ F.3d ___, 2000 WL
703803 (7th Cir. May 31, 2000). [58]
See (Terry) Williams v. Taylor, ___ U.S. ___,
120 S. Ct. 1495, 1512, 146 L.Ed.2d 389 (2000) (after first
independently determining that the Sixth Amendment had been violated
by counsel=s deficient and prejudicial performance, determining whether Court could
provide a remedy under ' 2254(d)(1), and concluding that habeas provided a remedy because the
state court=s
adjudication offended both prongs of ' 2254(d)(1));
id., 120 S. Ct. at 1505 (Stevens, J., concurring) (noting
such a rule respects the duty of Article III judges to say Awhat
the law is.@)
(citing Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60
(1803)); Tucker v. Catoe, ___ F.3d ___, 2000 WL 763597 (4th
Cir. June 13, 2000); Van
Tran v. Lindsey, 212 F.3d 1143, ___ (9th Cir. 2000). [59]
507 U.S. 619, 113 S. Ct. 1710, 123 F.3d 353 (1993). [60]
Compare Whitmore v. Kemna, 213 F.3d 431, ___ (8th Cir.
2000) (raising, without deciding, question of whether federal habeas
courts must continue to conduct Brecht harmless error
analysis, at least in cases where the state court has already
conducted harmless error review under Chapman v. California,
386 U.S. 18, 87 S. Ct. 824, 17 L.Ed.2d 705 (1967)), with Nevers
v. Killinger, 169 F.3d 352, 371 (6th Cir.) (AWe
think that when the issue before the federal habeas court is the
state court=s finding of harmless error, the test set out by the Supreme Court in [Brecht]
quite precisely captures Congress=s intent as expressed in the AEDPA, and, therefore, continues to be
applicable.@),
cert. denied, 527 U.S. 1004 (1999).
[61]
See Morris v. Cain, 186 F.3d 581, 584 (5th Cir. 1999)
(AA
full and fair adjudication of a petitioner=s
claims in state court is a prerequisite for application of AEDPA=s
review provisions.@);
Jackson v. Johnson, 150 F.3d 520, 530 (5th Cir. 1998);
Drinkard v. Johnson, 97 F.3d 751, 768 (5th Cir. 1996), cert.
denied, 520 U.S. 1107 (1997) (AIn
applying ' 2254(d), as amended by the AEDPA, we must first determine whether
Drinkard=s
claim . . . was adjudicated on the merits in state court
proceedings.@); Whaley v. Thompson, 22 F.Supp.2d 1146, 1158 (D. Or. 1998)
(before ' 2254(d)(1)
is applied, Athe
court must determine whether petitioner=s
claim was >adjudicated on the merits in State court proceedings.=@)
[62]
See Pickens v. Gibson, 206 F.3d 988, ___ (10th Cir.
2000); Miller v. Johnson, 200 F.3d 274, 281 n.4 (5th Cir.
2000), ptn. for cert. filed, No. 99-9891 (U.S. April 3,
2000); Paxton v. Ward, 199 F.3d 1197, 1204 (10th Cir. 1999);
Hooks v. Ward, 184 F.3d 1206, 1223 (10th Cir. 1999); Weeks v.
Angelone, 176 F.3d 249, ___ (4th Cir. 1999), aff=d, 120 S. Ct. 727 (2000); Nobles v. Johnson, 127 F.3d 409, 416
(5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998);
Lockhart v. Johnson, 104 F.3d 54, 57-58 (5th Cir. 1997), cert.
denied, 521 U.S. 1123 (1997). [63]
See Neal v. Gramley, 99 F.3d 841, 843 (7th Cir. 1996)
(section 2254(d)(1) does not apply to state court=s determination of constitutional claim unless Athe
determination was made after the petitioner had a full and fair
opportunity to litigate the issue@),
cert. denied, 522 U.S. 834 (1997); Lindh v. Murphy, 96
F.3d 856, 871 (7th Cir. 1996) (Aa responsible, thoughtful answer reached after a full opportunity to
litigate is adequate@
is required to allow application of ' 2254(d)(1)), reversed in other part, 521 U.S. 320 (1997); Burris
v. Parke, 948 F.Supp. 1310, 1320 (N.D. Ind. 1996) (concluding Athat
the state court=s
decision >cannot be considered a careful and well-reasoned opinion requiring
deference under '
2254(d)=@), aff=d, 116 F.3d 256 (7th
Cir. 1997). [64]
See Fisher v. Lee, ___ F.3d ___, 2000 WL 779055 (4th
Cir. June 19, 2000); Jackson
v. Johnson, 150 F.3d 520, ___ (5th Cir. 1998), cert. denied,
526 U.S. 1041 (1999); Nobles v. Johnson, 127 F.3d 409 (5th
Cir. 1997), cert. denied, 523 U.S. 1139 (1998); Williams
v. Cain, 125 F.3d 269, 277 (5th Cir. 1997), cert. denied,
525 U.S. 859 (1998); Hernandez v. Johnson, 108 F.3d 554, 558
n.3 (5th Cir. 1997) (indicating state court=s determination of a petitioner=s claims must be Amade after the petitioner had a full and fair opportunity to litigation
the issue), cert. denied, 522 U.S. 984 (1997); Neal v.
Gramley, 99 F.3d 841, 843 (7th Cir. 1996), cert. denied,
522 U.S. 834 (1997); Curtis v. Class, 939 F. Supp. 703, 708
(D. S.D. 1996). [65]
See Fisher v. Lee, ___ F.3d ___, 2000 WL 779055 (4th
Cir. June 19, 2000); Hernandez v. Johnson, 108 F.3d 554, 558
n.3 (5th Cir. 1997), cert. denied, 522 U.S. 984 (1997). [66]
See Curtis v. Class, 939 F. Supp. 703, 708 (D. S.D.
1996). [67]
See Fisher v. Lee, ___ F.3d ___, 2000 WL 779055 (4th
Cir. June 19, 2000). [68]
See Fisher v. Lee, ___ F.3d ___, 2000 WL 779055 (4th
Cir. June 19, 2000); Curtis v. Class, 939 F. Supp. 703, 708
(D. S.D. 1996). [69]
See Fisher v. Lee, ___ F.3d ___, 2000 WL 779055 (4th
Cir. June 19, 2000). [70]
Young v. Catoe, 205 F.3d 750, 755 n.2 (4th Cir. 2000),
ptn. for cert. filed, No. 99-10228 (U.S. June 26, 2000).
See Fisher v. Lee, ___ F.3d ___, 2000 WL 779055 (4th
Cir. June 19, 2000). [71]
See Hill v. Johnson, 210 F.3d 481, 485 (5th Cir.
2000). [72]
See Trice v. Ward, 196 F.3d 1151, ___ (10th Cir. 1999)
(finding it Aquestionable
whether the standards of review set forth in ' 2254(d)(1)
apply@
where the state appellate court disposed of petitioner=s
arguments without citing to federal law, and reviewing arguments de
novo), ptn. for cert. filed, No. 99-9518 (U.S. May 10, 2000);
Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir. 1997) (noting
that Court Afeel[s] some reservation@ about applying AEDPA, and ultimately does not apply Act, where state
court held no hearing and did not address Amateriality@
prong of Giglio claim), cert. denied, 523 U.S. 1139
(1998); Williams v. Cain, 125 F.3d 269, 277 (5th Cir. 1997)
(concluding state court Aadjudicated@ petitioner=s
claim where it held hearing and made specific findings), cert.
denied, 525 U.S. 859 (1998); Drinkard v. Johnson, 97 F.3d
751, 768 (5th Cir. 1996) (finding Ano
question@ that claim was adjudicated on the merits where state trial court
entered explicit findings later adopted by Texas Court of Criminal
Appeals in denying relief), cert. denied, 520 U.S. 1107
(1997); Trevino v. Johnson, 168 F.3d 173, ___ (5th Cir.), cert.
denied, 120 S. Ct. 22 (1999) (same); Lindh v. Murphy, 96
F.3d 856, 871 (7th Cir. 1996), reversed in other part, 521
U.S. 320 (1997); Evans v. Rogerson, 77 F.Supp.2d 1014, 1021
(S.D. Iowa 1999) (A[A] federal habeas court should not only review the state court=s
factual findings, but also analyze the thoroughness of its
reasoning. Consequently, a state court=s
failure to address relevant evidence or factual issues, or its
abbreviated analysis of a substantive issue, are factors to consider
in determining the reasonableness of its factual determinations.@);
Campos v. Johnson, 958 F. Supp. 1180, 1185 (W.D. Tex. 1997) (AThe AEDPA places great value upon the factual findings and conclusions
of law made by state courts. . ..@). [73]
See Fisher v. Lee, ___ F.3d ___, 2000 WL 779055 (4th
Cir. June 19, 2000); Barnabei v. Angelone, 214 F.3d 463, 469
(4th Cir. 2000) (Awe
have consistently recognized that even a perfunctory state court
decision constitutes an adjudication >on
the merits= for purposes of federal habeas review,= and A[t]hus,
in such instances, de novo review by a federal habeas court remains
inappropriate under ' 2254(d)@); Van Woudenberg by and through Foor v. Gibson, 211 F.3d 560,
569 (10th Cir. 2000) (same) (applying ' 2254(d)(1) despite conclusion that state=s
summary rejection of petitioner=s
claim Awithout citing state or federal law or referring to any specific [facts]
. . . was cursory@); Pickens v. Gibson, 206 F.3d 988, ___ (10th Cir. 2000);
Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999) (concluding
summary decision that simply provided that Aas a matter of law, Petitioner is not entitled to relief@
is an Aadjudication@
for purposes of ' 2254(d). A[W]e
owe deference to the state court=s
result, even if its reasoning is not expressly stated.@);
Moore v. Gibson, 195 F.3d 1152, 1162 (10th Cir. 1999)
(concluding that state court adjudicated claim even though court
failed to mention the federal basis for the claim and failed to cite
any state or federal law in support of its conclusion), cert.
denied, 120 S. Ct. 2206 (2000); Mueller v. Angelone, 181
F.3d 557, ___ (4th Cir.), cert. denied, 120 S. Ct. 37 (1999);
James v. Bowersox, 187 F.3d 866, ___ (8th Cir. 1999), cert.
denied, 120 S. Ct. 994 (2000); Thomas v. Taylor, 170 F.3d
466 (4th Cir.), cert. denied, 527 U.S. 1016 (1999); Cardwell
v. Greene, 152 F.3d 331, 339 (4th Cir.), cert. denied,
525 U.S. 1037 (1998); Wright v. Angelone, 151 F.3d 151 (4th
Cir. 1998) (holding state court=s
dismissal of habeas petition in a single paragraph without a hearing
constituted an Aadjudication@
under '
2254(d)). [74]
See Barnabei v. Angelone, 214 F.3d 463, ___ (4th Cir.
2000) (noting '
2254(d) Acannot easily be applied@ when A
>there is no indication of how the state court applied federal law to the
facts of the case.=
@)
(quoting Cardwell v. Greene 152 F.3d 331, 339 (4th Cir. ), cert.
denied, 525 U.S. 1037 (1999) (internal citation omitted)). [75]
See Barnabei v. Angelone, 214 F.3d 463, ___ (4th Cir.
2000); Harris v. Stovall, 212 F.3d 940, ___ (6th Cir. 2000); Aycox
v. Lytle, 196 F.3d 1174, 1177-78 (10th Cir. 1999); Schaff v.
Snyder, 190 F.3d 513, 523 (7th Cir. 1999); Delgado v. Lewis,
181 F.3d 1087, 1091 n.3 (9th Cir. 1999), vacated on other grounds,
120 S. Ct. 1002 (2000); Cardwell v. Greene, 152 F.3d 331, 339
(4th Cir.), cert. denied, 525 U.S. 1037 (1999). [76]
See Cardwell v. Greene, 152 F.3d 331, 339 (4th Cir.), cert.
denied, 525 U.S. 1037 (1998); Delgado v. Lewis, 181 F.3d
1087, ___ (9th Cir. 1999), vacated on other grounds, 120 S.
Ct. 1002 (2000); Goins v. Angelone, 52 F.Supp.2d 638, ___ (E.D.
Va. 1999); Royal v. Netherland, 4 F.Supp.2d 540, ___ (E.D.
Va. 1998), aff=d, 188 F.3d 239 (4th Cir.), cert. denied, 120 S. Ct. 465 (1999).
See also Barnabei v. Angelone, ___ F.3d ___, 2000 WL
718344 (4th Cir. June 5, 2000) (commending as appropriate the
district court=s
independent review of the issues raised where the state court=s
decision was perfunctory). [77]
Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999). Accord Van
Woudenberg by and through Foor v. Gibson, 211 F.3d 560, ___
(10th Cir. 2000). [78]
Harris v. Stovall, 212 F.3d 940, ___ (6th Cir. 2000). [79]
28 U.S.C. '
2254(d); Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)
(Athe deferential post-AEDPA standard [in ' 2254(d)(1)] does not apply where the state court did not decide
the claim on the merits@); Hogan v. Gibson, 197 F.3d 1297, 1306 (10th Cir. 1999), ptn.
for cert. filed, No. 99-1976 (U.S. June 8, 2000). [80]
See Hameen v. State of Delaware, 212 F.3d 226, ___ (3d
Cir. 2000) (exercising Apre-AEDPA
independent judgment@
on claim that state court Adid
not pass on, . . . even though it had the opportunity to do so@);
Hogan v. Gibson, 197 F.3d 1297, 1306 (10th Cir. 1999), ptn.
for cert. filed, No. 99-1976 (U.S. June 8, 2000); Hooks v.
Ward, 184 F.3d 1206, 1223 (10th Cir. 1999) (AIn
the absence of a state court adjudication on the merits we believe
we must apply the standard of review that predated the recent
amendments to '
2254); Weeks v. Angelone, 176 F.3d 249, ___ (4th Cir. 1999), aff=d, 120 S. Ct. 727 (2000); Goins v. Angelone, 52 F.Supp.2d 638, 675
n. 32 (E.D. Va. 1999) (AIn those instances in which the merits of a properly presented claim
have not been addressed by the [state court] either on direct review
or in state habeas proceedings, the claim is reviewed de novo.@);
Sweet v. Carter, 22 F.Supp.2d 707, 719 (N.D.Ohio 1998)
(holding that in light of state courts=
failure to address petitioner=s
claims as federal constitutional issues, Athis
Court will address those claims on the merits.@);
Burris v. Parke, 948 F.Supp. 1310, ___ (N.D. Ind. 1996), aff=d, 116 F.3d 256 (7th
Cir. 1997) (same). [81]
See Lockhart v. Johnson, 104 F.3d 54, 57-58 (5th
Cir.), cert. denied, 521 U.S. 1123 (1997). [82]
See Hooks v. Ward, 184 F.3d 1206, ___ (10th Cir. 1999) [83]
See Miller v. Johnson, 200 F.3d 274, 281 (5th Cir.
2000) (AIn
the context of federal habeas proceedings, a resolution (or
adjudication) on the merits is a term of art that refers to whether
a court=s
disposition of the case was substantive, as opposed to procedural.@),
ptn. for cert. filed, No. 99-9891 (U.S. April 3, 2000); Mercadel
v. Cain, 179 F.3d 271, ___ (5th Cir. 1999); Fisher v. Texas,
169 F.3d 295, ___ (5th Cir. 1999); Liegakos v. Cooke, 106
F.3d 1381, 1385 (7th Cir. 1997); Walker v. McCaughtry, 72
F.Supp.2d 1025, ___ (E.D. Wisc. 1999); Braun v. Powell, 77
F.Supp.2d 973, ___ (E.D. Wis. 1999). [84]
Moleterno v. Nelson, 114 F.3d 629, 633-634 (7th Cir.
1997). Accord Welch v. Burke, 49 F. Supp.2d 992, ___ (E.D.
Mich. 1999); Richardson v. Elo, 974 F.Supp. 1100, ___ (E.D.
Mich. 1997); United States ex rel. Webster v. DeTella, 965 F.
Supp. 1124 (N.D. Ill. 1997) (concluding claims must Asurvive@
procedural default before they are reviewed under ' 2254(d));
Breard v. Netherland, 949 F. Supp. 1255, 1262-63 (E.D. Va.
1996), aff=d, 134 F.3d 615 (4th Cir.), cert. denied, 523 U.S. 371 (1998). [85]
See, e.g., Johnson v. Cain, ___ F.3d ___, 2000 WL
791941 (5th Cir. June 19, 2000); Simpson v. Matesanz, 175
F.3d 200, ___ (1st Cir. 1999), cert. denied, 102 S. Ct. 803
(2000). [86]
See, e.g., Simpson v. Matesanz, 175 F.3d 200, ___ (1st
Cir. 1999) (noting that the phrase Aadjudication
on the merits in State court proceedings@
is Ain part a reference to the long-standing rule that federal courts do not
review state court decisions that rest on >independent and adequate state ground[s].@), cert. denied, 102 S. Ct. 803 (2000); Weeks v. Angelone,
176 F.3d 249, ___ (4th Cir. 1999), aff=d,, 120 S. Ct. 1290 (2000); Green v. Johnson, 116 F.3d 1115, ___
(5th Cir. 1997). [87]
See Singleton v. Johnson, 178 F.3d 381,___ (5th Cir.
1999). [88]
See Miller v. Johnson, 200 F.3d 274, 281 (5th Cir.
2000), ptn. for cert. filed, No. 99-9891 (U.S. April 3,
2000); Jackson v. Johnson, 194 F.3d 641, 651 (5th Cir. 1999),
cert. denied, 120 S. Ct. 1437 (2000); Mercadel v. Cain,
179 F.3d 271, ___ (5th Cir. 1999); Singleton v. Johnson, 178
F.3d 381,___ (5th Cir. 1999); Green v. Johnson, 116 F.3d
1115, ___ (5th Cir. 1997) (applying analysis and concluding that the
claims were resolved on the merits); Owens v. Ventura Co.
Superior Court, 42 F.Supp.2d 993, ___ (C.D. Cal. 1999) (relying
on historical practice to conclude that state supreme court=s
denial of petition without written opinion is Apresumed
to be on the merits.@);
Contreras v. Rice, 5 F.Supp.2d 854, ___ (C.D. Cal. 1999)
(same); Thompson v. Johnson, 7 F.Supp.2d 848, ___ (S.D. Tex.
1998) (applying pre-AEDPA procedural default law to conclude that
denial of state habeas application by state court without written
order is an adjudication on the merits where Aa procedural ground for denying the petition does not appear in the
state habeas record.@)
[89]
Jackson v. Johnson, 194 F.3d 641, 651 (5th Cir. 1999),
cert. denied, 120 S. Ct. 1437 (2000).
But see Aycox v. Lytle, 196 F.3d 1174, ___ (10th Cir.
1999) (concluding state habeas petition denied by state court in a
decision which simply stated that Aas
a matter of law@
petitioner was not entitled to relief was an Aadjudication
on the merits.@) [90]
See Weeks v. Angelone, 176 F.3d 249, ___ (4th Cir.
1999), aff=d, 120 S. Ct. 727 (2000). [91]
See Canales v. Roe, 151 F.3d 1226, ___ (9th Cir. 1998)
(holding that state court=s
denial of petitioner=s
belated notice of appeal on grounds that he failed to justify
the delay was, for purposes of '
2254(d), a adjudication Aon the merits@
of petitioner=s
claims that counsel=s
failure to file a notice of appeal prejudiced him and that counsel=s performance deprived him of an appeal). [92]
See Moore v. Parke, 148 F.3d 705, ___ (7th Cir. 1998)
(declining to apply ' 2254(d) where state court denied relief on basis of state procedural
rule that was not Aadequate@
to bar federal habeas review); Liegakos v. Cooke, 106 F.3d
1381, 1385 (7th Cir. 1997) (holding '
2254(d) does not apply where state court denied petitioner=s
collateral attack solely on basis of state procedural rule that was
not Afirmly
established@
under Ford v. Georgia, 498 U.S. 411, 424 (1991)); Burris
v. Parke, 948 F.Supp. 1310, ___ (N.D. Ind. 1996), aff=d, 116 F.3d 256 (7th Cir. 1997) (declining to apply '
2254(d) where state court denied postconviction petition as
successive even though it was Burris=s
first following retrial); Walker v. McCaughtry, 72 F.Supp.2d
1025, ___ (E.D. Wis. 1999); Braun
v. Powell, 77 F.Supp.2d 973, ___ (E.D. Wis. 1999). [93]
See Evans v. McBride, 94 F.3d 1062, 1065 (7th Cir. 1996), cert. denied, 519 U.S. 1131 (1997); Sweeney
v. Parke, 113 F.3d 716, 719 (7th Cir. 1997); Rice v. McBride,
967 F. Supp. 1097 (N.D. Ind. 1997). [94]
(Terry) Williams v. Taylor, ___ U.S. ___, 120 S. Ct.
1495, 1512, 146 L.Ed.2d
389 (2000) (holding petitioner is Aentitled
to relief if the
[state court=s]
decision rejecting his ineffective assistance of counsel was was
either >contrary to, or involved an unreasonable application of,=@
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L.Ed.2d 674 (1984) (emphasis added)). [95]
' 2254(d)(1). [96]
Compare O=Brien
v. Dubois, 145
F.3d 16, 24-25 (1st Cir. 1998); Matteo v. Supt., SCI Albion,
171 F.3d 877 (3d Cir.) (en banc), cert. denied, 120 S.
Ct. 73 (1999); Green v. French, 143 F.3d 865, 868 (4th Cir.
1998), cert. denied, 525 U.S. 1090 (1999); Drinkard v.
Johnson, 97 F.3d 751, 769 (5th Cir. 1996), cert. denied,
520 U.S. 1107 (1997); Nevers v. Killinger, 169 F.3d 352, ___
(6th Cir. 1999), cert. denied, 527 U.S. 1004 (1999); Lindh
v. Murphy, 96 F.3d 856, 871 (7th Cir. 1996), reversed on
other grounds, 521 U.S. 320 (1997); Davis v. Kramer, 167
F.3d 494, ___ (9th Cir. 1999), vacated and remanded on other
grounds, 120 S. Ct. 1001 (2000) (Mem.); Neelley v. Nagle,
138 F.3d 917, 924 (11th Cir. 1998), cert. denied, 525 U.S.
1075 (1999). See
also Rogers v. Gibson, 173 F.3d 1278 (10th Cir. 1999) (declining
to interpret amount of deference owed to state courts under ' 2254(d)(1)),
cert. denied, 120 S. Ct. 944 (2000).
[97]
___ U.S. ___, 120 S. Ct. 1495, 146 L.Ed.2d 389 (2000). [98]
Id., 120 S. Ct. at 1519.
See also Van Tran v. Lindsay, 212 F.3d 1143, ___ (9th
Cir. 2000) (noting Adistinct
meanings@
of Acontrary to@
and Aunreasonable
application@
clauses announced in Williams); LaJoie v. Thompson,
___ F.3d ___, 2000 WL 800973 (9th Cir. June 23, 2000) (same).
[99]
Id., 120 S. Ct. at 1520. [100]
See Hameen v. State of Delaware, 212 F.3d 226, 242 (3d
Cir. 2000). [101]
(Terry) Williams v. Taylor, ___ U.S. ___, 120 S. Ct.
1495, 1519, 146 L.Ed.2d
389 (2000). [102]
Id., 120 S. Ct. at 1519; see id., 120 S. Ct. at
1523 (AUnder
the >contrary to=
clause, a federal habeas court may grant the writ if the state court
arrives at a conclusion opposite to that reached by this Court on a
question of law. . .@). [103]
Id., 120 S. Ct. at 1519-20; see id., 120 S. Ct.
at 1523 (AUnder
the >contrary to=
clause, a federal habeas court may grant the writ . . . if the state
court decides a case differently that this Court has on materially
indistinguishable facts.@).
Accord Ramdass v. Angelone, ___ U.S. ___, 120 S. Ct.
2113, ___, ___ L.Ed.2d ___ (2000)
(opinion of Kennedy, J.) (Aa
state court acts contrary to clearly established federal law if it
applies a legal rule that contradicts our prior holdings or if it
reaches a different result from one of our cases despite confronting
indistinguishable facts.@) [104]
(Terry) Williams v. Taylor, ___ U.S. ___, 120 S. Ct.
1495, 1520, 146 L.Ed.2d 389 (2000). [105]
Id., 120 S. Ct. at 1520. [106]
506 U.S. 364, 113 S. Ct. 838, 122 L.Ed.2d 180 (1993). [107]
(Terry) Williams v. Taylor, ___ U.S. ___, 120 S. Ct.
1495, 1512, 146 L.Ed.2d 389 (2000). [108]
Id., 120 S. Ct. at 1513-14. [109]
In Fretwell, the Supreme Court was unwilling to rule
that a defendant suffered legitimate prejudice from counsel=s
failure to object where an objection would have led to application
of what turned out to be an erroneous interpretation of the law.
[110]
(Terry) Williams v. Taylor, ___ U.S. ___, 120 S. Ct.
1495, 1513, 146 L.Ed.2d 389 (2000). [111]
Id. [112]
Id., 120 S. Ct. at 1515; see also id., 120 S.
Ct. at 1524 (concurring opinion of O=Connor,
J.) (AIt is impossible to determine, however, the extent to which the Virginia
Supreme Court=s
error with respect to its reading of [Fretwell] affected its
ultimate finding that Williams suffered no prejudice.@). [113]
Id., 120 S. Ct. at 1512. [114]
Id., 120 S. Ct. at 1523 (opinion of O=Connor, J.). Accord
Ramdass v. Angelone, ___ U.S. ___, 120 S. Ct. 2113, ___, ___
L.Ed.2d ___ (2000) (opinion of Kennedy, J.) (AThe statute also authorizes federal habeas corpus relief if, under
clearly established federal law, a state court has been unreasonable
in applying the governing legal principle to the facts of the case.
A state determination may be set aside under this standard
if, under clearly established federal law, the state court was
unreasonable in refusing to extend the governing legal principle to
a context in which the principle should have controlled.@); Holman v. Kemna, 212 F.3d 413, 417-418 (8th Cir. 2000)
(holding state court=s
determination that petitioner initiated contact with police and thus
waived his previously-asserted right to counsel was Aunreasonable application@ of clearly established law, where facts found by the state court did
not support its determination). [115]
(Terry) Williams v. Taylor, ___ U.S. ___, 120 S. Ct.
1495, 1521, 146 L.Ed.2d 389 (2000) (opinion of O=Connor,
J.). See Van Tran v.
Lindsey, 212 F.3d 1143, ___ (9th Cir. 2000). [116]
(Terry) Williams v. Taylor, ___ U.S. ___, 120 S. Ct.
1495, 1521-22, 146 L.Ed.2d 389 (2000) (opinion of O=Connor,
J.). In addition to
concluding that the Fourth Circuit=s
adoption of a subjective standard of unreasonableness was improper, Williams
also cites the Fifth Circuit=s
decision in Drinkard v. Johnson, 97 F.3d 751, 769 (1996), cert.
denied, 520 U.S. 1107 (1997), as an example of the improper, and
now forbidden use of a subjective reasonableness standard.
See Williams, 120 S. Ct. at 1522.
Drinkard was followed by the Sixth, Ninth and Eleventh
Circuits in Nevers v. Killinger, 169 F.3d 352 (6th Cir. ), cert.
denied, 527 U.S. 1004 (1999); Baker v. City of Blaine,
205 F.3d 1138, ___ (9th Cir. 2000); Moore v. Calderon, 108
F.3d 261, 265 n.3 (9th Cir.), cert. denied, 521 U.S. 1111
(1997); and Neelley v. Nagle, 138 F.3d 917, 924-25 (11th Cir.
1998), cert. denied, 525 U.S. 1075 (1999).
Following the (Terry) Williams decision, the Sixth,
Ninth and Eleventh Circuits have concluded that Williams overrules
prior circuit law. See McIntyre v. Williams, ___ F.3d ___, ___ n.4, 2000
WL 873301 (11th Cir. June 30, 2000); Harris v. Stovall, 212
F.3d 940, ___ (6th Cir. 2000); Van Tran v. Lindsey, 212 F.3d
1143, ___ n.9 (9th Cir. 2000).
See also Brown v. O=Dea, ___ U.S. ___, 120 S. Ct. 2715, ___ L.Ed.2d ___ (2000) (vacating
decision below, 187 F.3d 572 (6th Cir. 1999), which applied Nevers
v. Killinger=s
interpretation of ' 2254(d)(1)
to deny relief, and remanding for further consideration in light of Williams).
As a result, many outcomes reached in these circuits, as well
as other circuits also employing a subjective standard of
reasonableness, are subject to reevaluation post-Williams.
[117]
(Terry) Williams v. Taylor, ___ U.S. ___, 120 S. Ct.
1495, 1522, 146 L.Ed.2d 389 (2000) (opinion of O=Connor,
J.); id., 120 S. Ct. at 123 (Aan unreasonable application of federal law is different from an
incorrect of erroneous application of federal law.@).
See Van Tran v. Lindsey, 212 F.3d 1143, ___ (9th Cir.
2000) (declining to grant relief on state court=s
incorrect ruling: AAlthough
we believe the ruling was erroneous, it was not >contrary
to= clearly established law; more important, the error did not involve an
unreasonable application of federal law.@); Hameen v. State of Delaware, 212 F.3d 226, ___ (3d Cir. 2000);
Van Woudenberg by and through Foor v. Gibson, 211 F.3d 560,
___ n.4 (10th Cir. 2000). [118]
(Terry) Williams v. Taylor, ___ U.S. ___, 120 S. Ct.
1495, 1522, 146 L.Ed.2d 389 (2000) (opinion of O=Connor,
J.). [119]
344 U.S. 443, 463, 73 S. Ct. 397, 97 L.Ed.2d 469 (1953). [120]
(Terry) Williams v. Taylor, ___ U.S. ___, 120 S. Ct.
1495, 1522, 146 L.Ed.2d 389 (2000) (opinion of O=Connor,
J.). [121]
Id., 120 S. Ct. at 1514-15. [122]
Id., 120 S. Ct. at 1524-25 (opinion of O=Connor, J.). [123]
Id., 120 S. Ct. at 1515. [124]
Id. [125]
Id. [126]
Id., 120 S. Ct. at 1516; see id., 120 S. Ct. at
1525 (opinion of O=Connor,
J.) (AThe Virginia Supreme Court=s decision reveals an obvious failure to consider the totality of the
omitted mitigation evidence.@). [127]
Id., 120 S. Ct. at 1516; see id., 120 S. Ct. at
1525 (opinion of O=Connor,
J.). [128]
Id., 120 S. Ct. at 1524-25 (opinion of O=Connor, J.) (focusing on state supreme court=s
Aerror with respect to its reading of Lockart [v. Fretwell]
and noting state supreme court=s decision Areveals
an obvious failure to consider the totality of the omitted
mitigation evidence@). [129]
Van Tran v. Lindsey, 212 F.3d 1143, ___ (9th Cir.
2000). [130]
Van Tran v. Lindsey, 212 F.3d 1143, ___ (9th Cir.
2000). Followed,
Weighall v. Middle, ___ F.3d ___, 2000 WL 702986 (9th Cir.
June 1, 2000). [131]
See Van Tran v. Lindsey, 212 F.3d 1143, ___ (9th Cir.
2000). [132]
(Terry) Williams v. Taylor, ___ U.S. ___, 120 S. Ct.
1495, 1523, 146 L.Ed.2d 389 (2000) (opinion of O=Connor,
J.); Van Tran v. Lindsey, 212 F.3d 1143, ___ (9th Cir. 2000);
Harris v. Stovall, 212 F.3d 940, ___ (6th Cir. 2000). [133]
Lindh v. Murphy, 96 F.3d 856, 869 (7th Cir. 1996), reversed
in other part, 521 U.S. 320 (1997). See
Hill v. Johnson, 210 F.3d 481, 486 (5th Cir. 2000) (AHill
[does not] point to a Supreme Court decision holding that the
subjective beliefs of the witnesses regarding the possibility of
future favorable treatment are sufficient to trigger the state=s
duty to disclose under Brady v. Maryland, 373 U.S. 83 (1963),
and Giglio [v. United States, 405 U.S. 150 (1972)].@);
Nevius v. McDaniel, ___ F.3d ___, 2000 WL 691103 (9th Cir.
May 31, 2000) (petitioner Aoffers
no authority for the proposition that setting an execution date that
is stayed so that judicial proceedings can be completed amounts to
torture or cruel and unusual punishment . . . under any decision of
the United States Supreme Court.@); Houston v. Roe,
177 F.3d 901, ___ (9th Cir. 1999) (AHouston fails to point to any >clearly established federal law as determined by the Supreme Court=
that prohibits giving a [particular jury instruction].
Consequently, this issue in inappropriate for '
2254(d) review.@),
cert. denied, 120 S. Ct. 1168 (2000). [134]
Dows v. Woods, 211 F.3d 480, 486 (9th Cir. 2000)
(concluding A[i]t
is not appropriate to presume prejudice@
where Athere is simply no Supreme Court precedent holding that prejudice shall
be presumed in circumstances such as those presented@
by petitioner). [135]
(Terry) Williams v. Taylor, ___ U.S. ___, 120 S. Ct.
1495, 1512, 146 L.Ed.2d 389 (2000); Harris v. Stovall, 212
F.3d 940, ___ (6th Cir. 2000). [136]
See Harris v. Stovall, 212 F.3d 940, ___ (6th Cir.
2000); Bocian v. Godinez, 101 F.3d 465, 472 (7th Cir. 1996); Fern
v. Gramley, 99 F.3d 255, ___ (7th Cir. 1996); Neelley v.
Nagle, 138 F.3d 917, ___ (11th Cir. 1998), cert. denied,
525 U.S. 1075 (1999). [137]
See McIntyre v. Williams, ___ F.3d ___, 2000 WL 873301
(11th Cir. June 30, 2000) (Agoverning
federal law set forth by Supreme Court cases@);
Torres v. DuBois, 174 F.3d 43, 46 (1st Cir. 1999) (A>[f]irst,
we must determine whether >the Supreme Court has prescribed a rule that governs the petitioner=s
claim=@) (quoting Ortiz v. DuBois, 145 F.3d 16, 24 (1st Cir. 1998)), cert.
denied, 120 S. Ct. 231 (1999). [138]
Nevers v. Killinger, 169 F.3d 352, 362 (6th Cir.), cert.
denied, 527 U.S. 1004 (1999). [139]
Lindh v. Murphy, 96 F.3d 856, 869 (7th Cir. 1996) (en
banc), reversed in other part, 521 U.S. 320 (1997); Moore
v. Calderon, 108 F.3d 261, 264 (9th Cir.), cert. denied,
521 U.S. 1111 (1997). [140]
(Terry) Williams v. Taylor, ___ S. Ct. ___, 120 S. Ct.
1495, 1512, 146 L.Ed.2d 389 (2000) (quoting Wright v. West,
505 U.S. 277, 308, 112 S. Ct. 2482, ___, 120 L.Ed.2d 225 (1995)
(Kennedy, J., concurring)). [141]
489 U.S. 288, 109 S. Ct. 1060, 103 L.Ed.2d 334 (1989). [142]
(Terry) Williams v. Taylor, ___ S. Ct. ___, 120 S. Ct.
1495, 1523, 146 L.Ed.2d 389 (2000) (opinion of O=Connor,
J.); see id., 120 S. Ct. at 1512.
See also Harris v. Stovall, 212 F.3d 940, ___ (6th
Cir. 2000). [143]
See (Terry) Williams v. Taylor, ___ S. Ct. ___, 120 S.
Ct. 1495, 1523, 146 L.Ed.2d 389 (2000) (holding the phrase Aclearly established Federal law@ Arefers
to the holdings, as opposed to the dicta, of this Court=s
decisions . . .@);
Harris v. Stovall, 212 F.3d 940, ___ (6th Cir. 2000).
See also Moore v. Calderon, 108 F.3d 261, ___ (9th Cir.),
cert. denied, 521 U.S. 1111 (1997). [144]
See Moore v. Calderon, 108 F.3d 261, ___ (9th Cir.), cert.
denied, 521 U.S. 1111 (1997) (concluding that Faretta v.
California, 422 U.S. 806 (1975), A>clearly
established@
[a] rule of law regarding the timeliness of a request@
for self-representation where the Supreme Court=s
Aacknowledgment of the timing of Faretta=s request was neither a recitation of the background facts of the case
nor obiter dictum; instead it is mentioned . . . in the very breath
with which the Court announced its decision.@). [145]
See Mueller v. Angelone, 181 F.3d 557, ___ (4th Cir.
1999) (concluding that Ain
declining to extend [prior precedent], the [Supreme] Court
unambiguously confirmed that it had not in [that prior precedent] >clearly
established=
such a rule@ for purposes of application of ' 2254(d)), cert. denied, 120 S. Ct. 37 (1999). [146]
See Green v. French, 978 F. Supp. 242 (E.D. N.C. 1997)
(no Aclearly
established law@
where Supreme Court has expressly reserved question of whether
denial of defendant=s express request to allocute at sentencing is a constitutional
violation), aff=d, 143 F.3d 865 (4th
Cir. 1998), cert. denied, 525 U.S. 1096 (1999). [147]
See United States ex rel. Hubbard v. Page, 985 F
.Supp. 820, ___ (N.D.Ill. 1997). [148]
See Furman v. Wood, 190 F.3d 1002, 1005 (9th Cir.
1999). [149]
See Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir.
2000) (rejecting petitioner=s
contention that Solem v. Helm, 463 U.S. 277 (1983), was
clearly established precedent supporting his claim; A[B]ecause
the Court in Solem made clear that it intended its holding to
apply only to circumstances of the case and in the context of the
Eighth Amendment, we would be anticipating, rather than following
the Supreme Court, were we to adopt [petitioner=s]
view.@); Holman v. Gilmore, 126 F.3d 876 (7th Cir. 1997), cert.
denied, 522 U.S. 1150 (1998). [150]
See Harris v. Stovall, 212 F.3d 940, ___ (6th Cir.
2000). [151]
See McIntyre v. Williams, ___ F.3d ___, 2000 WL 873301
(11th Cir. June 30, 2000); Muhleisen v. Ieyoub, 168 F.3d 840,
844 n.1 (5th Cir.), cert. denied, 120 S. Ct. 81 (1999). [152]
See Rodriguez v. Zavaras, 42 F.Supp.2d 1059, ___ (D.
Colo. 1999). [153]
See (Terry) Williams v. Taylor, ___ S. Ct. ___, 120 S.
Ct. 1495, 1523, 146 L.Ed.2d 389 (2000) (A' 2254(d)(1)
restricts the source of clearly established law to this Court=s
jurisprudence.@);
Harris v. Stovall, 212 F.3d 940, ___ (6th Cir. 2000)
(concluding it was error for district court Ato
rely on authority other than that of the Supreme Court of the United
States in it analysis under '
2254(d)@). See also Duhaime v.
Ducharme, 200 F.3d 597, 600 (9th Cir. 2000); Schaff v. Snyder,
190 F.3d 513, 522 (7th Cir. 1999); Muhleisen v. Ieyoub, 168
F.3d 840, 844 n.1 (5th Cir.), cert. denied, 120 S. Ct. 81
(1999); Sweeney v. Parke, 113 F.3d 716, 718 (7th Cir. 1997);
Yancey v. Gilmore, 113 F.3d 104, 106 (7th Cir. 1997); Moore
v. Calderon, 108 F.3d 261, 264 (9th Cir.), cert. denied,
521 U.S. 1111 (1997); Devin v. DeTella, 101 F.3d 1206, 1209
n.2 (7th Cir. 1996) (Athe
lower court decisions cited by petitioner cannot carry the day@),
cert. denied, 520 U.S. 1160 (1997); Lindh v. Murphy,
96 F.3d 856, 869 (7th Cir. 1996) (en banc), reversed in
other part, 521 U.S. 320 (1997) (AA conflict between decisions of the Seventh Circuit and the Supreme
Court of Wisconsin would not authorized issuance of the writ under '
2254(d)(1). State
courts must knuckle under to decisions of the Supreme Court, but not
of this court.@). [154]
Evans v. McBride, 94 F.3d 1062, 1065 (7th Cir. 1996), cert.
denied, 519 U.S. 1131 (1997). [155]
Davis v. Kramer, 167 F.3d 494, ___ (9th Cir. 1999), vacated
on other grounds, 120 S. Ct. 1001 (2000) (Mem.); Matteo v.
Supt., SCI Albion, 171 F.3d 877, ___ (3d Cir.) (en banc),
cert. denied, 120 S. Ct. 73 (1999). [156]
Fern v. Gramley, 99 F.3d 255, 260 (7th Cir. 1996). [157]
Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir.
2000). See also Van Tran v. Lindsey, 212 F.3d 1143, ___ (9th
Cir. 2000) (reaffirming Duhaime following the Supreme Court=s
decision in (Terry) Williams);
Lajoie v. Thompson, ___ F.3d ___, 2000 WL 800973 n.6
(9th Cir. 2000) (AIt is appropriate to look to lower court decisions to determine what law
has been >clearly
established=
by the Supreme Court and the reasonableness of a particular
application of that law.@). [158]
See Atley v. Ault, 191 F.3d 865, ___ (8th Cir. 1999) (ATo
the extent that >inferior= federal courts have decided factually similar cases, reference to those
decisions is appropriate in assessing the state court=s
reasonableness of the state court=s
resolution of the disputed issue.@);
Bryson v. Ward, 187 F.3d 1193, 1205 (10th Cir. 1999), cert.
denied, 120 S. Ct. 1566 (2000); Dickerson v. Vaughn, 90
F.3d 87, 90-91 (3rd Cir. 1996) (holding state court decision
contrary to federal law as articulated in Supreme Court case and
court of appeals decisions); Williams v. Johnson, 171 F.3d
300, ___ (5th Cir.), cert. denied, 120 S. Ct. 197 (1999)
(same); O=Brien
v. Dubois, 145
F.3d 16, 25 (1st Cir. 1998) (holding that Ato
the extent that inferior federal courts have decided factually
similar cases, reference to those decisions is appropriate in
assessing the reasonableness vel non of the state court=s
treatment of the contested issue@);
Richardson v. Bowersox, 188 F.3d 973, 978 (8th Cir. 1999)
(same), cert. denied, 120 S. Ct. 1971 (2000); McBride v.
Johnson, 118 F.3d 432 (5th Cir. 1997) (in determining what law
is Aclearly
established,@
under ' 2254(d)(1), court considers seminal Supreme Court case of Morrissey
v. Brewer, 408 U.S. 471 (1972), as well as court of appeals
decisions that have Aadded
some flesh to the basic Morrissey framework@);
Fern, 99 F.3d at 260; Davis v. Kramer, 167 F.3d 494, ___
(9th Cir. 1999) (relying in part on Ninth Circuit precedent that was
Asimply
an amplification of@
the Supreme Court=s
decision in Anders v. California, 386 U.S. 738 (1967)), vacated
on other grounds, 120 S. Ct. 1001 (2000).
[159]
See Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir.
2000) (although relief would be granted under prior court of appeals
precedent, declining to grant relief where that precedent Ainvolved a substantial extension of Supreme Court precedent@
and Awas clearly a new rule@); Lindh, 96 F.3d at 856 (conflict of decisions between the state
court and a federal court of appeals Awould not authorize issuance of the writ under ' 2254(d)(1)@);
Evans v. McBride, 94 F.3d 1062, 1065 (7th Cir. 1996), cert.
denied, 519 U.S. 1131 (1997) (if court of appeals=
decisions Aare extensions of (rather than glosses on) the decisions of the Supreme
Court, they provide a poor foundation for relief under the amended ' 2254@); Devin v. Detella, 101 F.3d 1206, 1209 (7th Cir. 1996)
(rejecting petitioner=s
argument that concepts of due process had Aevolved@
since 1934 Supreme Court decision under which petitioner would not
be entitled to relief), cert. denied, 520 U.S. 1160 (1997); Canales
v. Roe, 949 F. Supp. 762 (C.D.Cal. 1996).
Cf. Rogers v. Gibson, 173 F.3d 1278 (10th Cir. 1999)
(noting that while Ait is questionable whether our decision . . . which expands upon Ake
[v. Oklahoma, 470 U.S. 68 (1985)], is a proper precedent to
apply in '
2254 habeas actions,@
the court declines to decide the issue), cert. denied, 120 S.
Ct. 944 (2000). [160]
(Terry) Williams v. Taylor, ___ S. Ct. ___, 120 S. Ct.
1495, 1511-12, 146 L.Ed.2d 389 (2000) (citing Strickland, 466
U.S. 688, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984)). [161]
Accord Ramdass v. Angelone, ___ U.S. ___, 120 S. Ct.
2113, ___ L.Ed.2d ___ (2000) (opinion of O=Connor,
J.) (citing Simmons, 476 U.S. 1 (1976)). [162]
See Spicer v. Roxbury Corr. Inst., 194 F.3d 547, ___
(4th Cir. 1999) (holding Brady v. Maryland, 363 U.S. 83
(1963), Aand its progeny@ are Aclearly
established federal law@
for purposes of ' 2254(d)). [163]
See Hill v. Johnson, 210 F.3d 481, 488 (5th Cir. 2000)
(citing Napue, 360 U.S. 264, 79 S. Ct. 1173, 3 L.Ed.2d 1217
(1959)). [164]
See Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000)
(citing Giglio, 405 U.S. 150, 92 S. Ct. 763, 31 L.Ed.2d 104
(1972)). [165]
See Moore v. Calderon, 108 F.3d 261, ___ (9th Cir.
1997), cert. denied, 521 U.S. 1111 (1997) (concluding that
Faretta v. California, 422 U.S. ___ (19__), A>clearly
established@
[a] rule of law regarding the timeliness of a request@
for self-representation where the Supreme Court=s
Aacknowledgment of the timing of Faretta=s request was neither a recitation of the background facts of the case
nor obiter dictum; instead it is mentioned . . . in the very breath
with which the Court announced its decision.@); Bribiesca v. Galaza, ___ F.3d ___, 2000 WL 776640 (9th Cir.
June 19, 2000). [166]
See Machacek v. Hofbauer, 213 F.3d 947, ___ (6th Cir.
2000) (rejecting petitioner=s
argument in light of Davis v. United States, 512 U.S. 452,
114 S. Ct. 2350, 129 L.Ed.2d 362 (1994)). [167]
See Van Tran v. Lindsey, 212 F.3d 1143, ___ (9th Cir.
2000) (citing Brinegar v. United States, 338 U.S. 160,
175-176, 69 S. Ct. 1302, 93 L.Ed.2d 1879 (1949); Wong Sun v.
United States, 371 U.S. 471, 479, 83 S. Ct. 407, 9 L.Ed.2d 441
(1963); Dunaway v. New York, 442 U.S. 200, 208 n.9, 99 S. Ct.
2248, 60 L.Ed.2d 824 (1979)). [168]
See Machacek v. Hofbauer, 213 F.3d 947, ___ (6th Cir. 2000) (citing Miranda v. Arizona, 384 U.S. 436, 86 S.
Ct. 1602, 16 L.Ed.2d 694 (1966); Pennsylvania v. Muniz, 496
U.S. 582, 589, 100 S. Ct. 2638, 100 L.Ed.2d 528 (1990); Moran v.
Burbine, 475 U.S. 412, 421, 106 S. Ct. 1135, 89 L.Ed.2d 410
(1986); Johnson v. Zerbst, 304 U. S. 458, 464, 58 S. Ct.
1019, 82 L.Ed. 1461 (1938)). [169]
See (Terry) Williams v. Taylor, ___ S. Ct. ___, 120 S.
Ct. 1495, 1523, 146 L.Ed.2d 389 (2000).
Accord Harris v. Stovall, 212 F.3d 940, ___ (6th Cir.
2000); Schaff v. Snyder, 190 F.3d 513, 522 (7th Cir. 1999)
(citing Yancey v. Gilmore, 113 F.3d 104, 106-07 (7th Cir.
1997)); Banks v. Horn, 63 F.Supp.2d 525, ___ (M.D. Pa. 1999).
See also Muleisen v. Ieyoub, 168 F.3d 840, 844
(5th Cir. 1999) (stating that under '
2254(d)(1), court Acan
grant a writ of habeas corpus only if the state court=s
determination of law, on a de novo review, violated Supreme Court
precedent in existence at the time@
petitioner=s conviction became final), cert. denied, 120 S. Ct. 81 (1999). [170]
The analysis herein is adapted from that contained in 1 J.
Liebman & R. Hertz, Federal Habeas Corpus Practice and
Procedure, ' 20.2c (3d ed. 1998). [171]
See, e.g., Jeffries
v. Wood, 114 F.3d 1484, 1500 (9th Cir.) (en banc), cert.
denied, 522 U.S. 1008 (1997). [172]
See Watkins v. Miller, 92 F.Supp.2d 824 (S.D. Ind.
2000); Evans v. Rogerson, 77 F.Supp.2d 1014, ___ (S.D. Iowa
1999). [173]
' 2254(d)(2)
(as amended). [174]
See Coombs v. State of Maine, 202 F.3d 14, 18 (1st
Cir. 2000) (noting that for purposes of ' 2254(e)(1)=s
presumption of correctness, A>factual
issues= are defined as >basic, primary, or historical facts:
facts Ain
the sense of a recital of external events and the credibility of
their narrators.@=@) (quoting Bryson v. Ward, 187 F.3d 1193, 1211 (10th Cir. 1999))
(additional citations omitted). [175]
See Campbell v. Vaughn, 209 F.3d 280, 286 (3d Cir.
2000); Weaver v. Thompson, 197 F.3d 359, 363 (9th Cir. 1999);
Delgado v. Lewis, 181 F.3d 1087, ___ (9th Cir. 1999), reversed
in other part, 120 S. Ct. 1002 (2000); Jones v. Wood, 114
F.3d 1002, 1013 (9th Cir. 1997); Evans v. Rogerson, 77
F.Supp.2d 1014, 1021 (S.D. Iowa 1999) (A[A] federal habeas court should not only review the state court=s
factual findings, but also analyze the thoroughness of its
reasoning. Consequently,
a state court=s
failure to address relevant evidence or factual issues, or its
abbreviated analysis of a substantive issue, are factors to consider
in determining the reasonableness of its factual determinations.@). [176]
'
2254(d)(2) (as amended). [177]
See former '
2254(d)(1)-(8). [178]
See, e.g., Mayes v. Gibson, 210 F.3d 1284, 1289 (10th
Cir. 2000) (concluding it will review the evidence presented to the
federal court Awithout
deference to the factual findings of the state court.
As [petitioner] was denied an evidentiary hearing into the
matter. . . We are in the same position to evaluate the factual
record as was the state court.@);
Williamson v. Ward, 110 F.3d 1508, 1521 & n.14 (10th Cir.
1997) (finding that petitioner who demonstrated that state court=s
factual determination need not be accorded presumption of
correctness under former ' 2254(d)(8) because not Afairly supported by the record,@ also demonstrated, for same reasons, that state court=s
resolution of the claim was Abased
on an unreasonable determination of the facts in light of the
evidence presented in state court proceedings@
under amended ' 2254(d)(2)); Porter v. Gramley, 112 F.3d 1308, 1316 (7th
Cir. 1997), cert. denied, 522 U.S. 1093 (1998); United
States ex rel. Maxwell v. Gilmore, 37 F.Supp.2d 1078, 1095
(N.D.Ill. 1999) ('
2254(e)(1) does not require that the courts >blindly
apply the presumption of correctness=
if >the trial court never conducted an adequate hearing=). [179]
Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir.) (quoting
Lindh v. Murphy, 96 F.3d 856, 871 (7th Cir. 1996), reversed
in part, 117 S. Ct. 2059 (1997)), cert. denied, 522 U.S.
1008 (1997). See also Burris v. Parke, 948 F. Supp. 1310, 1321
(N.D. Ind. 1996), aff=d, 116 F.3d 256 (7th
Cir. 1997). [180]
See Hill v. Johnson, 210 F.3d 481, 489 (5th Cir.
2000). [181]
' 2254(d)(2);
see United States ex rel. Maxwell v. Gilmore, 37 F.Supp.2d
1078, 1095 n. 12 (N.D.Ill. 1999)
(noting that the state court=s
determination, even when considered in light of the record before
the state court, Aleaves something to be desired@). [182]
Jeffries v. Wood, 114 F.3d 1484, 1500 & n.19 (9th
Cir.), cert. denied, 522 U.S. 1008 (1997); Wilson v. Moore,
999 F.Supp. 783, 787-88 (D.S.C. 1998) (concluding petitioner failed
to properly present her evidence to the state courts where evidence
was presented in state petition that was denied on the basis of a
state procedural bar), aff=d, 178 F.3d 266 (4th Cir. 1999), cert. denied, 120 S. Ct. 191
(1999). [183]
See Fuller v. Johnson, 114 F.3d 491, 501 (5th Cir.), cert.
denied, 522 U.S. 963 (1997) (AAlthough
the record is not as clear as we might like, the trial judge had
enough evidence to make his own factual determination of bias.@);
Watkins v. Miller, 92 F.Supp.2d 824, 837-38 (S.D. Ind. 2000)
(noting that petitioner=s
new DNA evidence definitively excluded the possibility that he, and
only he, raped the victim, yet the state court considered it Acumulative;@
AEvidence that converts an arguable, hotly contested possibility into a
certain fact cannot fairly and reasonably be described as >cumulative.=@); Evans v. Rogerson, 77 F.Supp.2d 1014, 1021 (S.D. Iowa 1999) (Afederal
habeas courts should review a state court=s
factual conclusions and reasoning, survey the applicable records for
relevant evidence, and determine if the factual findings were fairly
supported by the evidence@)
(emphasis in original). [184]
Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir.), cert.
denied, 522 U.S. 1008 (1997). [185]
' 2254(e)(1);
see Hill v. Johnson, 210 F.3d 481, 486 (5th Cir. 2000); Campbelll
v. Vaughn, 209 F.3d 280, 290 (3d Cir. 2000);
Schaff v. Snyder, 190 F.3d 513, 521 n.5 (7th Cir.
1999); Williams v. Parke, 133 F.3d 971, 973 (7th Cir. 1997). [186]
Former '
2254(d). [187]
See Jackson v. Anderson, 112 F.3d 823, 824-825 (5th
Cir. 1997) (new statutory language Aapparently
places a more onerous burden on the petition in that the petitioner
must now rebut the presumption of correctness by clear and
convincing evidence.@), cert. denied, 522 U.S. 1119 (1998); Ashkar v. Class,
152 F.3d 863, 867 (8th Cir. 1998); Pruett v. Norris, 153 F.3d
579, 584 n.6 (8th Cir.1998); Owsley v. Bowersox, 48 F.Supp.2d
1195, 1198 (W.D. Mo. 1999). [188]
See Bryson v. Ward, 187 F.3d 1193, 1204 (10th Cir.
1999), cert. denied, 120 S. Ct. 1566 (2000). [189]
Fisher v. Lee, ___ F.3d ___, 2000 WL 779055 (4th Cir.
June 19, 2000). See
Hooks v. Ward, 184 F.3d 1206, 1223 (10th Cir. 1999) (holding
that petitioner rebutted the presumption of correctness under ' 2254(e)(1)
by demonstrating that the state court=s conclusion that the evidence admitted at trial was insufficient to
raise a reasonable doubt as to Hooks' intent to kill was incorrect);
Berry v. Gramley, 74 F.Supp.2d 808, 814 (N.D. Ill. 1999)
(holding petitioner had rebutted presumption of correctness under ' 2254(e)(1) Anot only by clear and convincing evidence, but by overwhelming and
incontrovertible evidence.@). [190]
372 U.S. 293, 83 S. Ct. 745, 9 L.Ed.2d 770 (1963), overruled
on other grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S.
Ct. 1715, 118 L.Ed.2d 318 (1992). [191]
372 U.S. at 312-313. [192]
372 U.S. at 313-318. The
six Townsend circumstances are: (1) the state did not resolve
the merits of the factual dispute; (2) the state factual
determination is not fairly supported by the record as a whole; (3)
the state factfinding proceeding was not adequate to provide a full
and fair hearing; (4) there is a substantial allegation of newly
discovered evidence; (5) the material facts were not adequately
developed at the state court hearing; and (6) if, for any other
reason, the state did not provide the applicant with a full and fair
hearing on the merits of the factual dispute.
Id. [193]
504 U.S. 1, 5, 112 S. Ct. 1715, 118 L.Ed.2d 318 (1992). [194]
Townsend=s
five other circumstances remain unaffected by Tamayo-Reyes.
Id., 504 U.S. at 5. [195]
Id., 504 U.S. at 11. [196]
Id., 504 U.S. at 11-12 (citing McCleskey v. Zant,
499 U.S. 467, 494 (1991); and Murray v. Carrier, 477 U.S.
478, 496 (1986)). [197]
28 U.S.C. ' 2254(e)(2)
(1999). [198]
Id.; Miller v. Champion, 161 F.3d 1249, 1253
(10th Cir. 1998) (A[W]e
begin by asking whether Mr. Miller has >failed
to develop the factual basis of a claim in state court.=
See 28 U.S.C. '
2254(e)(2). If he has,
we must deny a hearing unless he establishes that one of the two
exceptions set forth in ' 2254(e)(2) applies.@) [199]
See (Michael) Williams v. Taylor, ___ U.S. ___, 120 S.
Ct. 1479, 1489, 146 L.Ed.2d 435 (2000). Accord Fisher v. Lee,
___ F.3d ___, 2000 WL 779055 (4th Cir. June 19, 2000); Mayes v.
Gibson, 210 F.3d 1284, 1287 (10th Cir. 2000); Smallwood v.
Gibson, 191 F.3d 1257, 1266 (10th Cir. 1999), ptn. for cert.
filed, No. 99-9445 (U.S. March 9, 2000); Baja v. Ducharme,
187 F.3d 1075, 1078-79 (9th Cir. 1999), cert. denied, 120 S.
Ct. 798 (2000); Miller v. Champion, 161 F.3d 1249, 1253 (10th
Cir. 1998); Porter v. Gramley, 112 F.3d 1308, 1315 n.6 (7th
Cir. 1997), cert. denied, 522 U.S. 1093 (1998); Love
v. Morton, 112 F.3d 131, 136 (3d Cir. 1997); McNair v. Haley,
97 F.Supp.2d 1270, 1279 (M.D. Ala. 2000).
Williams should spark a reevaluation of prior Third,
Fourth and Fifth Circuit decisions which held that once the
petitioner clears the ' 2254(e)(2) hurdle, the district court=s
determination of whether to hold a hearing is committed to the
district court=s discretion. Such cases
include Campbell v. Vaughn, 209 F.3d 280, 287 (3d Cir.
2000); Clark v. Johnson, 202 F.3d 760, 765 (5th Cir. 2000), ptn.
for cert. filed, No. 99-9327 (U.S. April 25, 2000); Cardwell
v. Greene, 152 F.3d 331, 338 (4th Cir. 1998), cert. denied,
525 U.S. 1037 (1998); McDonald v. Johnson, 139 F.3d 1056,
1060 (5th Cir. 1998); Robinson v. Johnson, 151 F.3d 256, 268
(5th Cir.), cert. denied, 119 S. Ct. 1578 (1998) (same); Murphy
v. Johnson, 205 F.3d 809, 815 (5th Cir. 2000) (same), ptn.
for cert. filed, No. 99-10268 (U.S. March 31, 2000).
[200]
' 2254(e)(2);
see (Michael) Williams v. Taylor, ___ U.S. ___, 120 S. Ct.
1479, 1487, 146 L.Ed.2d 435 (2000); Smallwood v. Gibson, 191
F.3d 1257, 1266 (10th Cir. 1999), ptn. for cert. filed, No.
99-9445 (U.S. March 9, 2000); Baja v. Ducharme, 187 F.3d
1075, 1079 (9th Cir. 1999), cert. denied, 120 S. Ct. 798
(2000). [201]
See Contreras v. Rice, 5 F.Supp.2d 854 (C.D. Cal.
1998); Wilkins v. Bowersox, 933 F. Supp. 1496, ___ (W.D. Mo.
1996), affirmed, 145 F.3d 1006 (8th Cir. 1998), cert.
denied, 525 U.S. 1094 (1999). [202]
(Michael) Williams v. Taylor, ___ U.S. ___, 120 S. Ct.
1479, 146 L.Ed.2d 435 (2000). [203]
Id., 120 S. Ct. at 1488.
Accord Clark
v. Johnson, 202 F.3d 760, 765 (5th Cir. 2000), ptn. for cert.
filed, No. 99-9327 (U.S. April 25, 2000); Smallwood v. Gibson,
191 F.3d 1257, ___ (10th Cir. 1999), ptn. for cert. filed,
No. 99-9445 (U.S. March 9, 2000); Baja v. Ducharme, 187 F.3d
1075, 1078-79 (9th Cir. 1999), cert. denied, 120 S. Ct. 798
(2000); Miller v. Champion, 161 F.3d 1249, ___ (10th Cir.
1998); Cardwell v. Greene, 152 F.3d 331, 337 (4th Cir.), cert.
denied, 525 U.S. 1037 (1998); McDonald v. Johnson, 139
F.3d 1056, 1059 (5th Cir. 1998); Burris v. Parke, 116 F.3d
256, 259 (7th Cir.), cert. denied, 522 U.S. 990 (1997);
Jones v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997);
Love v. Morton, 112 F.3d 131, 136 (3rd Cir.1997).
See also Whaley v. Thompson, 22 F.Supp.2d 1146, 1156
(D.Or. 1998) (failure of state postconviction counsel to develop
facts at the state court proceeding may be attributable to
petitioner). [204]
(Michael) Williams, 120 S. Ct. at 1490.
Accord Mayes v. Gibson, 210 F.3d 1284, 1287-88
n.2 (10th Cir. 2000) (concluding A[t]he
restrictions of ' 2254(e)(2)
do not apply@
where petitioner Araised
the need for an evidentiary hearing in both the Oklahoma Court of
Criminal Appeals on direct appeal and the State district court on
collateral appeal [and] has thus acted diligently to develop the
factual basis of his habeas claim.@); Weaver v. Thompson, 197 F.3d 359, 362 & n.3 (9th Cir.
1999); Trice v. Ward, 196 F.3d 1151, ___ (10th Cir. 1999), ptn.
for cert. filed, No. 99-9518 (U.S. May 10, 2000); Boyd v.
Ward, 179 F.3d 904, ___ & n.10 (10th Cir. 1999), cert.
denied, 120 S. Ct. 1188 (2000); Miller v. Champion, 161
F.3d 1249, 1253 (10th Cir. 1998); Smallwood v. Gibson, 191
F.3d 1257, 1266 (10th Cir. 1999), ptn. for cert. filed,
99-9445 (U.S. March 9, 2000); Berry v. Gramley, 74 F.Supp.2d
808, 809 n.1 (N.D. Ill. 1999); United States ex rel. Maxwell v.
Gilmore, 37 F.Supp.2d 1078, 1090 (N.D.Ill. 1999); see also
Jones v. Wood, 114 F.3d 1002, 1012-13 (9th Cir. 1997) (AWhere, as here, the state courts simply fail to conduct an evidentiary
hearing, the AEDPA does not preclude a federal evidentiary hearing
on otherwise exhausted habeas claims.@) (dicta). But
see Baja v. Ducharme, 187 F.3d 1075, 1079 (9th Cir. 1999) (holding that if state law requires a petitioner to
come forward with affidavits or other evidence to support his
allegations, and the petitioner fails to do so, he may have Afailed to develop the factual basis of his claims in state court
proceedings within the meaning of ' 2254(e)(2)@ notwithstanding the state court=s failure to hold a hearing), cert. denied, 120 S. Ct. 798
(2000). [205]
See Clark v. Johnson, 202 F.3d 760, 765 (5th Cir.
2000), ptn. for cert. filed, No. 99-9327 (U.S. April 25,
2000). [206]
373 U.S. 83 (1963). [207]
(Michael) Williams, 120 S. Ct. at 1492.
See McNair v. Haley, 97 F.Supp.2d 1270, 1280 (M.D.
Ala. 2000) (concluding petitioner failed to develop facts supporting
his claim of racial discrimination in the selection of a grand jury
foreman by making Aonly
one attempt in the original state trial to determine the racial
composition of the grand jury . . . and did not diligently pursue
the easier available alternative of deposing the clerk of court.@) [208]
(Michael) Williams, 120 S. Ct. at 1492. [209]
Id., 120 S. Ct. at 1493. [210]
Id., 120 S. Ct. at 1493-94. [211]
Id., 120 S. Ct. at 1494.
See also McNair v. Haley, 97 F.Supp.2d 1270, 1279___
(M.D. Ala. 2000) (concluding the lack of factual development of
petitioner=s ineffective assistance of counsel claims were attributable to the
state, and explaining that Aa series of state orders B denying him funds to appoint an expert, denying his expert access to
the prison to interview the petitioner in person, and overruling his
objections to these denials B
prevented him from developing the facts.@) [212]
Williams may spark a reevaluation of pre-Williams holdings
that a petitioner may Afail
to develop@ a claim that is procedurally defaulted because it was not presented to
the state courts at all, such as: Breard v. Greene, 523 U.S.
371, 118 S. Ct. 1352, 140 L.Ed.2d 529 (1998); Medlock v. Ward,
200 F.3d 1314, 1323 (10th Cir. 2000), ptn. for cert. filed,
No. 00-5036 (U.S. June 30, 2000); Cook v. Stegall, 56
F.Supp.2d 788, 797 (E.D. Mich. 1999); Banks v. Horn, 49
F.Supp.2d 400, 412 (M.D. Pa. 1999); or because it was not presented
to the state courts at the appropriate time, see Wilson v. Moore,
999 F.Supp. 783 (D.S.C. 1998), affirmed, 178 F.3d 266 (4th
Cir.), cert. denied, 120 S. Ct. 191 (1999); or because it was
not presented to the state courts using the appropriate procedure, see
Smallwood v. Gibson, 191 F.3d 1257, ___ (10th Cir. 1999), ptn.
for cert. filed, No. 99-9445 (U.S. March 9, 2000). [213]
See (Michael) Williams, 120 S. Ct. at 1494; Weeks
v. Angelone, 4 F.Supp.2d 497, 508-510 (E.D. Va. 1998), certification
denied, 176 F.3d 249 (4th Cir. 1999). [214]
See Roberts v. Bowersox, 61 F.Supp.2d 896, 943 (E.D.
Mo. 1999) (requiring petitioner who did not fail to develop facts
underlying procedurally defaulted claim to demonstrate entitlement
to a hearing under Tamayo-Reyes Acause
and prejudice@
standard). [215]
See Campbell v. Vaughn, 209 F.3d 280, ___ (3d Cir.
2000). [216]
McNair v. Haley, 97 F.Supp.2d 1270, 1280-81 (M.D. Ala.
2000). [217]
McNair v. Haley, 97 F.Supp.2d 1270, 1285 (M.D. Ala.
2000). [218]
See Rodriguez v. Zavaras, 42 F.Supp.2d 1052, 1056
(D.Colo. 1999) (holding that petitioner Afailed
to develop@
mitigation evidence of abuse that was not presented by counsel at
trial because counsel and/or counsel=s
investigator asked petitioner about abuse and his background
generally and petitioner Adenied any such abuse and chose not to reveal the evidence that his
counsel now seeks to present@). [219]
See Tokar v. Bowersox, 1 F.Supp.2d 986, 1016 (E.D. Mo.
1998), aff=d, 198 F.3d 1039 (8th Cir. 1999), ptn. for cert. filed, No.
00-5103 (U.S. July 3, 2000). [220]
See Rodriguez v. Zavaras, 42 F.Supp.2d 1052, 1056 (D.
Colo. 1999) (concluding petitioner cannot meet Adue diligence@
standard where mitigating evidence of abuse was not presented in
state court because petitioner did not inform counsel of it). [221]
See Rodriguez v. Zavaras, 42 F.Supp.2d 1052, 1057
(D.Colo. 1999) (the '
2254(e)(2)(B) standard Ais
impossible for Petitioner to meet since he is not contesting the
guilt phase of his trial@).
|