On Friday, in Johnson v. Sherry, a divided panel of the U.S. Court of Appeals for the Sixth Circuit vacated the district court’s denial of William Johnson’s petition for a writ of habeas corpus and remanded the case for additional proceedings to determine whether Johnson received inadequate assistance of counsel. In his habeas petition, Johnson maintained that his representation had been constitutionally inadequate because his attorney failed to object to the temporary exclusion of the public from his murder trial. Judge Clay delivered the opinion of the court, joined by Judge Cole.
Judge Kethledge dissented from the court’s judgment. His dissenting opinion begins:
In defending a murder charge, it is a bad idea, I think, to leave the judge with a smoldering suspicion that your client had a role in killing two of the prosecution’s key witnesses before trial. A lawyer who minimizes that danger—by consenting to, rather than fighting, closure of the courtroom during the testimony of three surviving witnesses, out of a total of 18 testifying witnesses in the case—does not thereby render constitutionally ineffective assistance of counsel. That is all the more true, in my opinion, when there is not a shred of evidence that the closure had the slightest effect on the trial’s outcome.
The majority concludes otherwise. The majority suggests that the closure fight here was one worth having—indeed, that it was constitutionally mandated—its ethereal upside and concrete downside notwithstanding. The majority then sidesteps the absence of any actual prejudice resulting from Johnson’s consent to the closure—and with it, the plainly stated actual-prejudice requirement of Strickland v. Washington, 466 U.S. 668 (1984)—by holding that Johnson need not show any prejudice at all in support of his ineffective-assistance-of-counsel claim. That holding is not supported by “clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C. § 2254(d)(1), which means that we are without power to impose it on the Michigan state courts in this habeas case. I respectfully dissent.
It seems to me the majority’s opinion is a bit of a stretch, and Judge Kethledge has the better of the argument under existing law. The Supreme Court has been anything-but-bashful in reviewing alleged ineffective assistance of counsel claims of late. (See, for instance, today’s per curiam opinion in Wong v. Belmontes and last week’s decision in Bobby v. Van Hook.) So, even though this is not a capital case, I would not be surprised were this case reversed en banc if not by the Supreme Court.
Dave N says:
I agree, particularly since Wong had this language (page 13):
While the cases are different, the requirement that a petitioner prove the Strickland–prejudice prong is the same.
Wow, an appellate court had its holding undermined by the Supreme Court on the same day the appellate court issued its opinion. THAT may be one for the books.
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November 16, 2009, 11:24 pmCornellian says:
I’m surprised at the implication from the dissent that the majority appears to regard anything that could be done as something that must be done, lest assistance of counsel be rendered ineffective. Surely the right to counsel doesn’t mandate the right to counsel of limitless diligence.
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November 16, 2009, 11:50 pmKazinski says:
I would think the counsel should face disciplinary action if his performance was so ineffective that the verdict is eventually reversed. It seems that “ineffective assistance of counsel” often provides nothing more than a convenient excuse when there aren’t other grounds available for a reversal in capital cases. I think requiring mandatory and automatic sanctions against the counsel in such cases would deter its abuse. And for those worried about due process for the attorneys, you’d think that two appellate judges out of three deciding as a matter of law that the counsel was ineffective would provide all the due process necessary.
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November 17, 2009, 12:20 amNathanM says:
Any force in Judge Kethledge’s “smouldering suspicion” argument seems predicated on a low opinion of the trial judge.
Surely a judge can be expected to be professional enough not to permit suspicions, however smoldering, arising from something other than admitted evidence bias his conduct in a capital murder trial.
Judge Kethledge says that “Johnson’s counsel deflected the trial judge from a line of inquiry—as to why, exactly, these three witnesses were so terrified to testify against Johnson—that almost certainly would have reflected poorly on his client.”
If the evidence that could have been admitted had the trial judge not been so deflected was admissible at trial surely the prosecutor would have admitted it. If it was inadmissible, the judge ought to ignore it at trial.
The prosecutor said that ‘all three witnesses were “literally terrified” and were “cowering, refusing to come to court, even under threat of being arrested, because they [were] afraid for their lives.”’
Assuming the trial judge did his job properly, it seems to me the potential upside in defeating the prosecutor’s motion is that three crucial eyewitnesses may not testify. I can see no downside to Mr. Johnston. In contrast, consenting strengthen’s the prosecution case with absolutely no benefit to the defence. I can’t see why any reasonable defence lawyer would consent unless the outcome of the motion was a foregone conclusion.
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November 17, 2009, 12:44 amNathanM says:
Aside from that counsel has no standing to appear before those two judges to defend his conduct? It’s hard to think of a more clearcut violation of due process than denying the person in jeopardy the chance present a defence.
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November 17, 2009, 12:49 amDave N says:
Kazinski,
You obviously don’t practice in the Ninth Circuit. Particularly with respect to the penalty phase, I have seen cases that 7 state supreme court justices, a state trial judge, a federal district judge, and one of the dissenters on the federal court of appeals panel who ALL think the defendant was tried properly, fairly, and with effective counsel at both the trial and penalty phase — yet in your view that should all be for naught because 2 Clinton or Carter appointees thought otherwise.
It is not the attorneys but the judges who are abusing the process.
Oh, and as a side note, Johnson v. Sherry, while a travesty, is not a capital case.
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November 17, 2009, 1:23 amKazinski says:
In jeopardy for their occupation but not their life and freedom, that would be unconstitutional. But the Judges shouldn’t be able to have their cake and eat it too, if as a matter of law, the counsel was ineffective, are they just going to let them inflict their incompetence on the next client? Or does “professional courtesy” outweigh public good? But I think we both know the Attorney (new of course) that argued the appeal and the Judges figure that ineffective assistance of counsel will be the story they stick too, precisely because they know there will be no real repercussions to the original attorney. In fact future clients will know that the attorney will be willing to take one for the team.
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November 17, 2009, 1:48 amSteve says:
Kazinski, do you really think that if we adopt a rule that counsel in ineffective assistance cases get disbarred, or burned at the stake or whatever, somehow liberal judges like Reinhardt will stop ruling for criminal defendants (like “oh no, I’d really like to save this poor fellow from death row, but if it’s going to get a lawyer punished I suppose I have to let him fry”)? The more likely outcome is that any time a judge stretches the law, some lawyer is going to wind up as collateral damage.
I’m pretty confident that you, and the others who press this argument in the comments, don’t actually believe there is an inadequate defense being rendered in all these cases.
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November 17, 2009, 2:13 amKazinski says:
Steve:
No I don’t think that the Judges really believe that as a matter of law that there is ineffective counsel, but they are finding as a matter of law that there is. So there should be consequences. I think what would actually happen is that they would find other, spurious, grounds for reversal, that may be more easily dealt with, to get justice back on track.
The penalties need nor be overly onerous either, maybe just a 10 year disability to practice in federal court within the circuit. Then they can still earn a living but not burden the circuit with their incompetence.
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November 17, 2009, 2:27 amDave N says:
I realize you are just being provocative, but I am sure you realize most state defense attorneys, particularly those working for public defender agencies, don’t practice in federal court anyway.
On a serious note, if there was proof that an attorney DELIBERATELY tanked a case, I would have no problem at all with that attorney being disbarred.
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November 17, 2009, 3:03 amDavid Nieporent says:
You know, I thought the majority’s reasoning was utterly ludicrous (*), but I also thought the same thing you did here. It’s clear that there was no prejudice to the defendant resulting solely from the exclusion, but there may have been from the effects of the exclusion. If there were actually a legal way to prevent the key witnesses against the defendant from testifying, that it might well be ineffective assistance to help the prosecution to get them to testify. Obviously if it were likely that the judge would have in fact granted the prosecution’s request anyway — something for which there was no finding — then that changes things.
(*) The fact that the majority pretends not to understand what “outcome determinative” means is rather strange.
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November 17, 2009, 5:05 amMahan Atma says:
The dissent writes:
Where was the evidence supposed to come from given that the district court denied the defendant an evidentiary hearing on the matter?
Note that the appellate court didn’t make any finding of prejudice — it remanded to the district court to hold an evidentiary hearing on the issue.
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November 17, 2009, 6:09 amMahan Atma says:
It was the district court that failed to make any such finding. Please explain why it was “utterly ludicrous” for the appellate court to remand it to the district court precisely for this purpose.
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November 17, 2009, 6:13 amMahan Atma says:
By the way, I think it’s rather offensive for Judge Kethledge to conclude that asserting your constitutional right to a public trial is equivalent to implying your client played a role in killing witnesses.
Kethledge seems to believe that the defendant had no legitimate, non-intimidation reasons for wanting the courtroom to remain open — or at least that the trial judge was incapable of granting the defendant this basic presumption.
Either way, it doesn’t demonstrate much faith in our public system of justice.
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November 17, 2009, 6:23 amDavid Nieporent says:
You need to take another look at the opinion. The appellate court remanded for a hearing on whether partial closure of the trial was justified, not a hearing on whether the trial court would have granted the request in the absence of the defense counsel’s consent. The appellate court wanted to “presume” that closure was prejudicial, notwithstanding the Strickland standard — that the defendant has to show that there was a reasonable probability that the outcome of the trial would have been different.
Moreover, there’s a logical inconsistency in the finding you suggest. In order to find prejudice, the district court would need to find both that (a) if the courtroom weren’t closed, the witnesses would have been too scared of defense retaliation to testify, and (b) closing the courtroom wasn’t justified. No court is going to make both of those findings.
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November 17, 2009, 6:28 amDavid Nieporent says:
First, notwithstanding the majority’s claim, at no time was the trial closed to the public — only to a handful of the defendant’s family members.
Second, I think it rather Liberal to suggest that acknowledging reality is “offensive.”
Actually, you have it backwards. He seems to believe that the defendant had legitimate reasons for agreeing to allow it to be partially closed. Namely, to avoid a hearing by the trial court, at which point it might well have come out that in fact the defendant had some illegitimate reasons for wanting the courtroom to remain open.
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November 17, 2009, 6:36 amMahan Atma says:
Same difference. You have to assume the trial judge would have acted constitutionally had the defense objected.
If the closure was not justifiable (and it most likely wasn’t), but the trial court would have granted it even over the defense’s objection, that would have been structural error. You can’t say there’s no prejudice because the judge simply would have violated the defendant’s rights anyway.
There’s no contradiction here. The legal question of whether the courtroom should be closed does not hinge on whether the witnesses are too scared to testify. How do you know their fear was justifiable?
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November 17, 2009, 6:40 amMahan Atma says:
What “reality”? What evidence do you have that the defendant played a role in killing witnesses?
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November 17, 2009, 6:44 amMahan Atma says:
And the evidence to support this conclusion is... that the ammunition came from the same lot?? Come on...
The whole point of having an evidentiary hearing in the district court is to resolve these factual unknowns. Why is it so ludicrous to ask that the district hold such a hearing?
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November 17, 2009, 6:46 amMahan Atma says:
(By the way, re the ammunition: I know from experience that all kinds of questionable “evidence” comes in at sentencing hearings, where it isn’t subjected to the same scrutiny that evidence gets at trial.)
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November 17, 2009, 6:53 amDavid Nieporent says:
Me personally? I don’t. But Kethledge explains why it was.
And of course it hinges on whether the witnesses were too scared to testify; the first Waller factor is “an overriding interest that is likely to be prejudiced.” Key witnesses refusing to testify because they’re scared of retaliation from the defendant sounds pretty clearly like it satisfies that factor. (True, were their fear totally unreasonable, it probably would not, but it’s not as if they feared voodoo curses from the defendant.)
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November 17, 2009, 7:06 amDavid Nieporent says:
“The” ammunition? Which ammunition is that? Oh, the ammunition used to kill witnesses against the defendant.
The “same lot” as what? Oh, the same lot as the ammunition used to kill the victim.
“Come on” is right. This is not a trial; the judge doesn’t need to find beyond a reasonable doubt that the defendant was responsible for killing the witnesses against him.
The “reality” that “asserting your constitutional right to a public trial [in that context] is equivalent to implying your client played a role in killing witnesses.” The issue is not whether the defendant killed witnesses; the issue is whether keeping that issue from being addressed is a strategic decision that helps protect your client from prejudicing the court against him.
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November 17, 2009, 7:15 amDavid Nieporent says:
Certainly. But this wasn’t a trial. This was (or would have been) a hearing on whether to close the courtroom. Surely you’re not suggesting that the trial court would have — or should have — held a Daubert hearing on whether the ammunition actually came from the same lot, just to determine whether the witnesses were reasonable in fearing for their lives if they testified, just to determine whether to close the courtroom.
Surely surely you’re not suggesting that the District Court should have held a Daubert hearing on whether the ammunition actually came from the same lot, just to determine whether the witnesses were reasonable in fearing for their lives if they testified, just to determine whether the defendant’s counsel was justified in consenting to partial closure of the courtroom, just to determine whether the trial court was reasonable in partially closing the courtroom.
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David Schwartz says:
It would not have been ludicrous to insist on such a hearing. But it would have been risky, and there was no clear benefit to the defendant regardless of outcome. So it was quite sensible trial strategy not to ask for such a hearing — identifiable risk for no identifiable gain — and certainly not constitutionally deficient representation not to press the issue.
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November 17, 2009, 12:27 pmSteve says:
Judge Kethledge was a law school classmate of mine and I have the greatest respect for his intellect. However, I think he draws exactly the wrong conclusion here. From the prosecutor’s disclosure that two key witnesses had been murdered just prior to the preliminary exam, I’m pretty sure the judge already had a “suspicion.” By consenting to the closure of the courtroom — even after the judge explicitly said that he expected defense counsel to object! — counsel effectively legitimated the suspicion, making it appear as if the prosecution had good cause to ask for this extraordinary relief.
The colloquy between the majority and the dissent regarding the issue of prejudice is a bit difficult for me to follow. But while I’m not sure precisely what the petitioner was required to prove at this stage regarding prejudice, the most obvious point is not that the jury would have reached a different verdict had the defendant’s family been in the courtroom and everything else remained the same; the point is that if the judge hadn’t granted the request to close the courtroom, maybe those eyewitnesses wouldn’t have agreed to testify at all. I understand that no ethical lawyer wants to feel like he’s a party to intimidation of witnesses or anything like that, but it seems like defense counsel played ball with the prosecution a little too much.
Also, if an open courtroom is such an important fair trial right, I wonder if prejudice doesn’t have to be presumed at some level. After all, it’s always going to be difficult or impossible to establish that your trial would have had a different outcome if a given spectator had been allowed to observe. But doesn’t that effectively mean you can never vindicate your public-trial right once the trial has completed?
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November 17, 2009, 12:30 pmDavid Schwartz says:
Steve: Let me just say that, paradoxically, I completely agree with you. There’s sound trial strategy reasons to press the issue. But there’s also sound trial strategy reasons not to press the issue. I don’t see any way failure to press can meet the very high standards for Constitutionally deficient representation.
This is not the right case to argue the prejudice angle because the conduct was reasonable trial strategy. In a case where the Judge insists on closure, we can have the prejudice argument. I agree that if the judge errs in closing the trial in any significant way, prejudice should be presumed.
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November 17, 2009, 2:55 pmMahan Atma says:
How large was that lot? What if ammunition from that lot was sold in every gun store in Michigan? What would it prove that the ammunition came from the same lot, then?
These are the kinds of things that are not in the record. If they were, Kethledge would have mentioned them.
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November 17, 2009, 6:31 pmMahan Atma says:
You’re confused. Read the opinion: The “evidence” that the ammunition came from the same lot was introduced at the defendant’s sentencing hearing.
That’s the “evidence” Kethledge’s dissent relies on. And it’s the only fact he is relying on.
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November 17, 2009, 6:33 pmMahan Atma says:
Again, you’re confused. I’m talking about holding an evidentiary hearing in the federal district court in which the defendant filed his habeas petition.
The defendant is now asking for that hearing, so he must not think it’s so risky. And that’s precisely the hearing the appellate remanded to the district court with instructions to conduct:
My question to you is why you think it is “ludicrous” to do so ?
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November 17, 2009, 6:37 pmDavid Nieporent says:
I guess it’s possible that I am confused, but I’m not confused about that; I’m aware of that. How is that relevant to my point? As Kethledge points out, it did come out at sentencing; it would have come out at a hearing on whether to close the courtroom, if the defense opposed the prosecution’s request.
No; he’s relying on the fact that two witnesses against the defendant were murdered. You seem to think that the prosecution has to prove that the defendant is guilty of their murders before the court can be closed.
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November 17, 2009, 6:44 pmMahan Atma says:
The prosecution has a heavy burden to get the courtroom closed. The simple fact that the witnesses were murdered doesn’t cut it unless there’s sufficient evidence the defendant and/or someone he is associated with had some role in it.
The only fact in “evidence” is to support that claim is the “evidence” introduced at the sentencing hearing that the ammunition came from the same lot. Again, how big was the lot? What was the availability of that ammunition to other people in the area? What is the quality of the forensics underlying this evidence?
I would bet you dollars-to-donuts that none of that is on the record, because it was a fact introduced at the sentencing hearing, not the trial.
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November 17, 2009, 6:57 pmMahan Atma says:
It doesn’t matter; the point is that regardless of what might have happened at trial, the “ammunition from the same lot” evidence is too weak for Kethledge to hinge his argument on it now.
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November 17, 2009, 7:01 pmMahan Atma says:
What they are saying is that the Michigan Court of Appeals misapplied the phrase: The defense attorney’s decision may well have been “outcome determinative”, because if he had decided to object, and the trial court improperly overruled the objection, it would have been structural error — prejudice would be presumed, and the conviction would have been reversed.
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November 17, 2009, 7:19 pmMahan Atma says:
The discussion about prejudice is confusing because there are two different standards, arising under two different claims.
If the defense attorney had objected at trial, and the court improperly overruled him, then prejudice would be presumed for the purposes of evaluating that claim on appeal or habeas.
However, the defense attorney waived the objection at trial. Now the second type of claim arises: That the defense attorney was ineffective for failing to object. For that type of claim, under Strickland, there must be some showing of prejudice.
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November 17, 2009, 7:32 pmMahan Atma says:
By the way, I spent some time researching the facts of the murder of the witnesses — and I’d bet you anything that Kethledge is really basing his opinion on facts that aren’t in the record.
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November 17, 2009, 7:38 pmDavid Nieporent says:
Uh, what? You may have missed this, but the defendant was convicted. It’s not risky now; he has nothing to lose. That has nothing to do with whether it was risky at the time. That’s the problem with judges second-guessing trial strategy. Ineffective assistance is always a heads-I-win-tails-you-lose situation: take a gamble, and if it works, great, and if it doesn’t, you have an issue for appeal, where some appeals court judges will buy anything.
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November 17, 2009, 7:45 pmMahan Atma says:
He was convicted for the murder of Carlos Davis, not the two witnesses. There’s no statute of limitations for murder, so he could still be charged in the latter cases. (Note that someone else was already convicted for the murder of Crowe, but Johnson could certainly be charged with conspiracy.)
I don’t know how likely it is that an additional conviction would affect the prison term he actually serves, but he was “only” sentenced to 35–60 for the Davis murder, so it could at least hypothetically lengthen his sentence — or at least worsen the conditions in which he is kept.
So no, I don’t think he has “nothing to lose”.
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November 17, 2009, 8:06 pmMahan Atma says:
^^^ Also, it’s possible that he could get charged federally, and subject to the death penalty for murders committed in furtherance of drug trafficking.
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November 17, 2009, 8:14 pmDavid Nieporent says:
The burden isn’t as heavy as you seem to think. (Particularly since the judge did not actually close the courtroom at all, but simply briefly excluded a couple of people.) The prosecution does not need to prove that the defendant had some role in it. That’s not the standard. The reason for partially closing the courtroom was not because of the murders, but because the surviving witnesses were scared to testify because of the murders. A step removed.
If, if, if. If he had decided to object, and if the objection was overruled, and if the overruling was improper. But the Michigan Court of Appeals was discussing Strickland, not Waller, and the Strickland standard is prejudice, not structural, so the MCoA didn’t misapply any phrase.
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November 17, 2009, 8:21 pmDavid Nieporent says:
If the government could prove b.a.r.d. that he was guilty of murdering the witnesses, they’d have done it; they’re not going to gain a conviction based on an evidentiary hearing (*) on a six-year old case. Come on; nobody is going to not appeal a conviction carrying a certain 35–60 year sentence on the off chance that it lengthens his potential maximum sentence if he loses. He’s got nothing to lose. (Worsen the conditions? To what?)
(*) Which, as I noted above, would not be about whether he murdered the witnesses.
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November 17, 2009, 8:29 pmMahan Atma says:
No, the Sixth Circuit is basically pointing out that if the defense attorney had objected, the standard for prejudice would be under Waller, not Strickland.
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November 17, 2009, 8:50 pmMahan Atma says:
BTW, I reject the proposition that someone has to have “something to lose” to legitimate their constitutional claim.
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November 17, 2009, 9:04 pmMahan Atma says:
Can you point to a single case in which an appellate court held that the prosecution could close the courtroom — even partially close it — on the sole basis that one or more witnesses were afraid to testify?
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November 17, 2009, 9:09 pmDavid Nieporent says:
The sole basis? Surely the fact that the witnesses were afraid to testify because other witnesses had been murdered is actually two facts (or three, since two witnesses had been murdered), not one, so it isn’t actually a “sole” basis.
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November 17, 2009, 9:22 pmDavid Nieporent says:
Who said anything about that? You claimed that because he’s willing to have a hearing now, such hearing must not have been risky, so it must have been error by his attorney. But the fact that it’s not risky now doesn’t mean it wasn’t risky then.
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November 17, 2009, 9:31 pmMahan Atma says:
OK, let’s be specific:
I’m responding to your argument: you claimed no court could hold that closure of the court was justified while also finding that “if the courtroom weren’t closed, the witnesses would have been too scared of defense retaliation to testify.” That’s an exact quote.
That implies that if one or more defense witnesses are too scared of defense retaliation to testify, closure is necessarily justified. (And mind you, that says nothing about whether the witnesses’ fear is objectively justified, because the court here could well find that it wasn’t.)
Can you point me to a single appellate court that made such a holding?
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November 17, 2009, 9:41 pmDave N says:
What I don’t understand is why the prosecution didn’t slap a subpoena on the family members and ask that they all be excluded as trial witnesses.
He could decide whether or not he wanted them to actually testify at a later point.
BTW, I agree with David Nieporent’s analysis of the case, and I suspect this ruling will not survive.
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November 17, 2009, 10:00 pmMahan Atma says:
That would be abuse of process, a fact that would become eminently clear to the judge as soon as the prosecutor filed a response to their motions to quash, if not sooner.
I’ll bet you this opinion stays on the books. Keep in mind that the appellate court is not granting the petition. After all, the court did not hold that the defense attorney’s actions constituted ineffective assistance of counsel. All they are doing is remanding to the district court for an evidentiary hearing to develop the record on the factual issues underlying the claim.
I still haven’t heard anybody explain why it’s such a terrible idea to do so.
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November 17, 2009, 10:42 pmDave N says:
It would not be an abuse of process if they could testify to something substantive: Was the Defendant with you on the day in question? Can you provide him with an alibi? Can you authenticate this document/photograph with his signature/image?
You don’t have to be overly creative to make someone a witness to SOMETHING dealing with the case. So yes, there might be a “Motion to Quash,” but a smart prosecutor could win the motion.
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November 18, 2009, 12:02 amDave N says:
Oh, and as I noted in the FIRST comment, the panel appears to have shifted the prejudice burden for IAC claims — something Wong expressly criticized the Ninth Circuit for doing as being contrary to Strickland.
This one gets reversed.
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November 18, 2009, 12:04 amMahan Atma says:
Nobody shifted the Strickland burden because nobody held that there was ineffective assistance of counsel under Strickland. All the appellate court did was remand to the district court for an evidentiary proceeding.
If you look at the AEDPA provisions, you’ll see that the standards for granting evidentiary hearings are not the same as the standard for satisfying Strickland.
Now, I don’t know all the ins and outs of what this particular petitioner did in the state courts to try to develop the factual basis for this claim (or whether it was even possible, given that he’d have to go outside the record), but I DO at least know that this is what matters for AEDPA purposes, not the Strickland burden of proof.
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November 18, 2009, 12:16 amDave N says:
As Judge Kethledge noted in his dissent (and I gathered the same from reading the majority opinion):
Wong clearly held the majority’s position was wrong.
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November 18, 2009, 12:50 amDave N says:
BTW, as a habeas practitioner for the last 12 years, I fully understand the hurdle required for an evidentiary hearing in federal habeas corpus — and they are not easy to hurdles.
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November 18, 2009, 12:53 amMahan Atma says:
Regardless of how high the hurdles are:
Show me the rule that says the petitioner has the burden to satisfy the Strickland prejudice standard in order to get an evidentiary hearing on a Strickland claim.
As you must know as a habeas practitioner, the second prong of 2254(e) only applies if the petitioner “fails the develop the factual basis” of the claim in state court, which is something entirely different from what Strickland requires. No?
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November 18, 2009, 1:44 amDave N says:
You miss the point. Regardless of whether he is entitled to an evidentiary hearing, the Court of Appeals then set forth the analytic framework for the District Court to follow on remand — a frameork for analyzing the IAC claims which is at odds with Strickland and with Wong.
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November 18, 2009, 1:57 amMahan Atma says:
They didn’t set forth anything at odds with Strickland. They say that they’re sending back for an evidentiary hearing, after which Johnson will have to show prejudice (citing to Coleman and Strickland). They then suggest why the Strickland prejudice standard might be satisfied if the defense attorney’s would-be objection was a valid one.
There’s nothing at odds with Strickland in this.
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November 18, 2009, 12:18 pmMahan Atma says:
BTW, if you don’t like that analysis, you can point to the obvious fact that it’s basically dicta, seeing as there is not actually any holding on the IAC claim.
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