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Reinhardt Reversed in Buttons Case:
Today the Supreme Court handed down its opinion in Carey v. Musladin, reversing the decision by Judge Reinhardt (surprise!) that had granted federal habeas relief to a murder defendant on the ground that the victim's family wore buttons with pictures of the deceased during the trial. The decision was unanimous as to the result, but there were three very short opinions concurring in the judgment (by Stevens, Souter, and Kennedy) in addition to the brief majority opinion by Justice Thomas.
sammler (mail) (www):
Who writes Justice Stevens's contributions these days? Is this information discoverable?
12.11.2006 12:06pm
magoo (mail):
George Will: "There should be two Supreme Courts, one to reverse the 9th U.S. Circuit Court of Appeals, the other to hear all other cases."
12.11.2006 12:11pm
Mike BUSL07 (mail) (www):
My Admin Professor, who interned at the 9th Circuit, recounts the following story about J. Reinhardt. Sitting in the cafeteria, Reinhardt liked to eat peas, tossing the empty pods toward the not-very-nearby garbage can. He would often miss. Apparently Reinhardt had a tendency to then become rather miffed that lowly interns and clerks seated around him would not pick up after him. It's not that he yelled at anyone about it, but just shot around a lot of dirty looks. The morale of the story, as I understand it, was that Judge Reinhardt is a bit of an ass.
12.11.2006 12:30pm
Realist Liberal:
Thank God I decided not to write my law review note about why this case should be decided. Thanks again to Prof. Kerr who warned me not to do it.
12.11.2006 12:35pm
Realist Liberal:
Thank God I decided not to write my law review note about why this case should be decided. Thanks again to Prof. Kerr who warned me not to do it.
12.11.2006 12:35pm
anonVCfan:
I thought Justice Stevens' contribution was the best one in this case.
12.11.2006 12:55pm
DJR:
Mike,

I would think that a story like that could be a metaphor for something more interesting about Judge Reinhardt than that he is an ass. At a minimum, you have a favorite pastime that requires some accuracy, a tendency toward subpar accuracy, and needing others to clean up the messes he makes. Are we really still talking about peas?
12.11.2006 1:14pm
Go Buckeyes (mail):
Is there a website or other source that would have statistics and numbers regarding how much and how often particular federal judges are reversed or affirmed? or also how often a certain circuit is reversed or affirmed?
12.11.2006 1:22pm
anonVCfan:
Makes me curious about what's coming down in Irons v. Carey, No. 05-15275. The latest docket entry is from June of this year. The prisoner won at the district court, and the CA9 has denied the government's motion to stay its judgment... I don't know what the district court's ultimate ruling was. Is it Judge Reinhardt's intent to make the government lose its case just by letting this one rot?
12.11.2006 1:55pm
AppSocRes (mail):
Judge Reinhardt reversed :: dog bites man.
12.11.2006 3:27pm
DaveN (mail):
Three quick comments about Judge Reinhardt:

1) Judge Reinhardt is Exhibit A as to why we should be thankful that Potter Stewart waited until 1981 to retire.

2) As a government attorney specializing in federal habeas corpus, I had a long standing offer of a free sushi lunch for anyone who could find a single panel decision in which Reinhardt sat in the majority that came down completely on the government's side in a federal habeas corpus case challenging a state conviction. My offer included both published and unpublished decisions. I finally found one unpublished decision that qualified. The elusive holy grail, of course, would be such a decision actually authored by Reinhardt.

3) In order to appeal the denial of federal habeas corpus relief, a state prisoner must secure a "Certificate of Appealability" from either the district court or from a two-judge appellate court panel. I actually have framed in my office the denial of such a certificate for one of my cases where the two-judge panel consisted of the 9th Circuit's two most liberal members, Stephen Reinhardt and Harry Pregerson.
12.11.2006 3:53pm
Falafalafocus (mail):
Again, Justice Thomas goes off the deep end. On page 4 of the opinion, he explains:


"The [California state] Court of Appeal stated that Musladin had to show actual or inherent prejudice to succeed on his claim and cited Flynn, supra, at 570, as providing the test for inherent prejudice.


This is the judiciary run amok, I tell you. The Eighteen Edition of my legal bible, Rule 4.2 explains:


"'Supra' . . . may be used to refer to legislative hearings; books; pamphlets; reports; unpublished materials; nonprint resources; periodicals; services; treaties and international agreements; regulations, directives, and decisions of intergovernmental organizations; and internal cross-references. 'Suprea' . . . should not be used to refer to cases . . . except in extraordinary circumstances, such as when the name of the authority is extremely long . . . ."


As everyone can plainly see, Justice Thomas violates this rule explicitly. Judicial deference, my ***.

Nor is the dissent any better. On page ten, Justice Stevens uses See without italicizing the word. I sure hope that Justice Stevens only wants us to glance at Williams v. Taylor, 529 U.S. 362 (2000), because he sure as heck has not asked us to see it!

I believe that all of us, conservative, liberal, libertarian, and all other shades of gray can agree that if we must debate a living constitution, the least that the Court should do is stick with a nonliving approach to citations!
12.11.2006 4:06pm
OrinKerr:
Falafalafocus,

The Supreme Court does not follow the Blue Book. It has its own internal manual of style that it uses instead of the blue book. The good news is, the Supreme Court's styla manual is more stable than the blue book.
12.11.2006 4:22pm
madisonian (mail):
Falafalafocus:

You ought to take a look at a few more Supreme Court opinions. You'll see that the Court has its own style, which does not follow the Blue Book, according to which signals (like your beloved "see") are not italicized (nor are the "v."s in case names, for that matter) and "supra" may be used to cite previously cited cases. It's not wrong, it's just different.
12.11.2006 4:24pm
madisonian (mail):
You beat me to the punch, Orin!
12.11.2006 4:25pm
Falafalafocus (mail):
I object to the Court's unilateral use of non-bluebook citations on moral principles (which I shall leave unstated). It should join the legal world community on this issue. Perhaps we can push to make it an election issue.
12.11.2006 4:40pm
Anderson (mail) (www):
I understand that there's going to be a motion for rehearing, based on the fact that several justices at the hand-down wore buttons with Reinhardt's face and the "circle-slash" motif superimposed thereon.
12.11.2006 8:08pm
Kovarsky (mail):
Does anybody here care about the actual opinion, like which of the 4 is right?

They would all deny relief, and the moves going on are curious:

(1) the bizzarrely "ironic" holding that "clearly established law" does not include dicta (ironic because that proposition as itself dicta in Williams). this is a coup for the "minimalists" on the court, because its a favorable sort of procedural meta-holding. for everybody that complains about breyer and ginsburg, take not of their signing of this part of the opinion.

(2) i don't understand thomas's first amendment argument at all. first, substantively, it strikes me as a distinction without a difference. the first amendment rights that generally trade off with due process involve the press and public access, not expressive rights of spectators. second, his logic is awful - he reasons from the confusion in lower courts that there was no clear rule from the court. that can't be a credible line of reasoning if the Court takes cases to decide circuit splits to begin with. in other words - courts take cases on which lower courts are split and declare that there was a clearly established rule all the time.

(3) souter seems to do the best job here, and there's another "irony" here. his opinion seems to be the most "minimalist." here's the rule, here's the deference, denied. but he wouldn't sign onto the meta-rule about dicta, which is achieves a minimalist end through non-minimalist means.

i'm a fan of thomas's opinion's generally, but the two thus far this year have been subpar by his standars.
12.11.2006 8:09pm
Kent Scheidegger (mail) (www):
Falafalafocus, why should the legal profession be led around by the nose by its students?! SCOTUS's choice not to use the Bluebook is not unilateral, BTW. The California courts don't use it either. Fortunately, the California "yellow book" is published.

On the case itself, there is a recurring discussion as to how much of the Supreme Court's docket is resolving splits of authority and how much is error correction, taking a case simply because the lower court got it wrong. This case represents a third category: defiance correction. Judge Reinhardt and several of his colleagues know perfectly well that these opinions they keep writing are contrary to the statute -- as it reads, as Congress intended it, and as the Supreme Court has construed it -- but they do it anyway.
12.11.2006 8:13pm
Kovarsky (mail):
the court basically uses the SG style manual.
12.11.2006 8:15pm
OrinKerr:
Kovarsky,

What's the language in Thomas's opinion for the "bizzarrely ironic holding that clearly established law does not include dicta"?
12.11.2006 8:16pm
Kovarsky (mail):
Kent,

If you think anything about AEDPA - its text, its jurisprudence, and ESPECIALLY its intent - is clear, you are sadly mistaken.

i don't know whether the rule was clearly established or not, but even the Majority opinion states that several other circuits go with Reinhardt. In all of these 2254(d) cases where you have to figure out if a rule is "clearly established" and then if its application is "objectively unreasonable," you're talking about statutory requirements for very subjective decisionmaking.

i'm finishing an article on legislative intent and "AEDPA," and I can assure you that it is one of the least internally coherent pieces of legislation ever written. it was piggy back on the oklahoma bombing stuff, and the 1994 contract with america republicans basically just sent all their staffers into a hotel room with the various proposals that had died in various stages of congressional consideration for the last four decades, and then stapled it to the end of the bill. the language in the statute does not come from a common source, it's a kindergarten cut and paste job, and there's a reason it doesn't make any sense.

it's frankly quite irritating, given the well-documented ambiguity of the statute, that people like you seem to want to bludgeon "liberal" judges granting AEDPA relief. all of a sudden, up is down, cats are dogs, and textualists are purposivists. your reading is wrong. this is not defiance correction; it's a vehicle to rule on whether "dicta is binding" is itself dicta. i'd bet my life that's what got breyer and ginsburg, and i'd be surprised if it wasn't what alito and roberts had in mind.
12.11.2006 8:25pm
Elliot Reed:
It's too bad Judge Reinhardt has been passed up for SCOTUS. He's the finest federal judge on the bench today.
12.11.2006 8:29pm
Kovarsky (mail):
Orin,

Here it is:

In Williams v. Taylor, 529 U. S. 362 (2000), we explained that “clearly established Federal law” in §2254(d)(1) “refers to the holdings, as opposed to the dicta, of this Court’s decisions as of the time of the relevant state-court decision.” Id., at 412.

And here's Stevens' response:

Nevertheless, in a somewhat ironic dictum in her Williams opinion, Justice O’Connor stated that the statutory phrase “clearly established Federal law, as determined by the Supreme Court of the United States” refers to “the holdings, as opposed to the dicta, of this Court’s decisions as of the time of the relevant state-court decision.” Id., at 412. That dictum has been repeated in threesubsequent opinions in which a bare majority of the Court rejected constitutional claims that four of us would have upheld. Because I am persuaded that Justice O’Connor’s dictum about dicta represents an incorrect interpretation of the statute’s text, and because its repetition today is wholly unnecessary, I do not join the Court’s opinion.
12.11.2006 8:31pm
Kent Scheidegger (mail) (www):
Kovarsky, I am quite familiar with the legislative history of AEDPA. Briefing cases under it has been among my primary jobs for the last ten years. The drafting problems are largely the result of the language being hammered out in negotiations rather than being the result of a single drafter with a single purpose. Even so, the intent of abolishing de novo review and limiting federal habeas to state decisions that are clearly out of line with Supreme Court precedent, not circuit precedent, comes through clear as a bell.

On your earlier comment, a substantial split in the lower courts is a strong indication that neither branch was clearly established by Supreme Court precedent. In most cases, it makes no difference whether the rule was clearly established before; the Court decides what the rule is and decides the case accordingly. However, there are a few contexts where it matters. People cannot be convicted of crimes unless the law gave fair warning that their conduct was criminal. Many government officials cannot be held liable for rights violations unless the right was clearly established. In this case, a state court decision cannot be overturned on a collateral attack in the lower federal courts unless the state court decision was contrary to or an unreasonable application of clearly established Federal law, as determined by the Supreme Court.

The high court could have established the restriction at issue in this case if it had taken the case on direct review, and Kennedy's opinion suggests that he thinks it should.

The statement about dicta is not dictum. Only holdings "establish" law, not dicta. Stevens is still upset he couldn't hold a majority for the critical portion of Williams v. Taylor. (Note the nonitalicized "v." in accordance with Supreme Court and not Bluebook practice.)
12.11.2006 8:33pm
Kovarsky (mail):
Orin,

I understand the irony this way - you get a minimalist holding about the inapplicability of dicta by making a holding about the role of dicta, which is almost by definition unnecessary to deciding the case on the merits (and is itself, therefore, dicta).
12.11.2006 8:33pm
OrinKerr:
Kovarsky,

But in what sense did this decision "make that a holding"? Hasn't that been held repeatedly in prior Court majority opinions?
12.11.2006 8:40pm
Kovarsky (mail):
Kent,

The drafting problems are largely the result of the language being hammered out in negotiations rather than being the result of a single drafter with a single purpose.

No. You're just incorrect on that. AEDPA derives from various predecessor bills that were intensely negotiated, but AEDPA itself was not. For example, the 2263 et al. stuff derives from the Powell Commission Report, which was not a part of any of the Republican proposals (Kyl, Hatch, or Specter) for years. Most hardline Republicans pushed a model from Paul Bator, called "full and fair," for years, although the "Full and fair" language couldn't get the majority in the Senate without Spector's votes. So even though they kept a bunch of language from those hardline proposals, they dropped "full and fair," which was really the holy grail for the more conservative groups. And Spector, author of the proposal from which much of the limitations stuff comes, didn't care at all about exhaustion, which was ALL the "full and fair people cared about. Spector wanted to boot the exhaustion requirement so that these death cases would stop taking 17 years while federal courts sitting in habeas jurisdiction sent the cases back to the states. The upshot is that your claim about "carefully hammered out compromises" in AEDPA is factually incorrect, with no disrespect meant to your substantial experience.

Even so, the intent of abolishing de novo review and limiting federal habeas to state decisions that are clearly out of line with Supreme Court precedent, not circuit precedent, comes through clear as a bell.

I mean, I think the words come out clear as a bell, and I think that they require what you say they require. I don't know why you have to resort to intent which, as I've said, is not clear.


On your earlier comment, a substantial split in the lower courts is a strong indication that neither branch was clearly established by Supreme Court precedent.

Actually, that's also incorrect. If you look at the cases in Thomas's string cite, many of them are a higher-order disagreement about whether the rule was clearly established (for the purposes of collateral review), not a first-order disagreement about what the rule was more likely to mean.
12.11.2006 8:45pm
Kovarsky (mail):
Orin,

Point of clarification - I don't think that the Court's Musladin discussion of dicta is a holding, I think they are presenting O'Connor's dicta in Williams as a holding.

I see what I think is the point you're getting at - a court can, in Case B, invoke dicta from Case A without believing that it is making a holding in Case B, and without believing that Case A was really a holding in the first place. That might well be correct, but I sure can't tell from reading the case whether the Court thinks it is invoking a holding or not. I'll think about it more on my drive home....
12.11.2006 8:54pm
OrinKerr:
Kovarksy,

My point is that the Supreme Court has made this statement several times in a number of majority opinions. It is well-established blackletter law. I don't know why you think repeating this blackletter law once again somehow is an example of the Court reaching out to "make" this "holding."
12.11.2006 8:59pm
Kent Scheidegger (mail) (www):
your claim about "carefully hammered out compromises"

Huh?!? Where on earth did you get carefully? That word is not in my comment, and I most certainly never said that about 2254(d), which is the provision under discussion.

Senator Specter didn't like the 2254(d) language that passed the House. He and Senator Hatch negotiated the language that was eventually adopted. It is not a masterpiece of draftsmanship, and the claim was made that the difference between the Senate version and the House version was the reinstatement of de novo review.

However, that interpretation cannot stand in light of the Senate debate. Senator Biden had an amendment for the specific purpose of restoring de novo review, and after debate it was defeated.
12.11.2006 9:02pm
Kent Scheidegger (mail) (www):
Regarding splits as an indication that neither branch is clearly established, Caspari v. Bohlen says that about new rules, and Williams v. Taylor makes the connection between clearly established and old rules.
12.11.2006 9:07pm
SimonD (www):
the claim was made that the difference between the Senate version and the House version was the reinstatement of de novo review. However, that interpretation cannot stand in light of the Senate debate. Senator Biden had an amendment for the specific purpose of restoring de novo review, and after debate it was defeated.
Were the House and the President aware of that debate, and did they, respectively, vote on and sign the bill with the understanding you are imputing to a Senate amendment and/or floor debate?

Ah, the perils of resorting to legislative history.
12.11.2006 9:56pm
Kovarsky (mail):
Orin,

It has repeatedly stated that dicta is not binding, or it has repeatedly stated that dicta cannot be "clearly established law" for the purposes of a 2254(d) inquiry?

I am aware that it says the former all the time, but the latter is a stronger proposition the frequent appearance of which I have not observed.
12.11.2006 10:17pm
Kovarsky (mail):
Huh?!? Where on earth did you get carefully? That word is not in my comment, and I most certainly never said that about 2254(d), which is the provision under discussion.

i was paraphrasing you. if you extract the modifier carefully from the claim, then your intent claims weaken. i actually made a stronger claim for you than you did.

Senator Specter didn't like the 2254(d) language that passed the House. He and Senator Hatch negotiated the language that was eventually adopted. It is not a masterpiece of draftsmanship, and the claim was made that the difference between the Senate version and the House version was the reinstatement of de novo review.

However, that interpretation cannot stand in light of the Senate debate. Senator Biden had an amendment for the specific purpose of restoring de novo review, and after debate it was defeated.

It was only defeated after floor statements about how 2254(d) was not the "full and fair" proposal in drag. i'm not arguing for de novo review, and i have no idea why you keep responding as though i am. my point is that you cite legislative intent about the provision as though the judges don't think that, in order to grant relief, there does not have to be an unreasonable application of clearly established Supreme Court law. but that's not what the judges you're chastising think that they're doing. they just determined that the rule was "clearly established." again, the MAJORITY OPINION cites to cases in which other courts found that the rule was clearly established. i'm not saying it is or it isn't, but I'm saying that in light of those circumstances - and without any substantive discussion of the spectator rules that are the case's subject - your reinhardt bashing isn't particularly enlightening.
12.11.2006 10:24pm
Kovarsky (mail):
Were the House and the President aware of that debate, and did they, respectively, vote on and sign the bill with the understanding you are imputing to a Senate amendment and/or floor debate?

The 2254(d) debate is by far the most heavily debated AEDPA provision. Basically, the two polar camps were the "full and fair" people, that wanted to limit rederal review to procedural error, versus people that wanted de novo. specter got the full and fair people to pull the full and fair language, but the merits people were paranoid that the statute was still going to be interpreted as a full and fair rule - that's why they sought the amendment. after it was made clear that the new 2254(d) language was not a full and fair proposal in drag, the amendment that would have changed it to de novo was defeated.

if you look at clinton's signing statement, he says that he trusts that courts will maintain a robust ability to review the merits. i think signing statements are kind of a bogus means of stat interp, but it shows that clinton was well aware of the fault lines. you also have to keep in mind that the rest of the AEDPA was not carefully debated - it was mainly 2254. the republicans rammed it through so aggressively as a rider to the oklahoma bombing response that it doesn't have house or conference reports. only the senate report.

my only point in all of this is that if you believe that statutory purposes matter when you interpret legislation, then certainly there is a spectrum - there are circumstances where evidence of a stated purpose is more or less reliable. AEDPA is on the far, unreliable end of that spectrum because of the way congress passed it.
12.11.2006 10:31pm
SimonD (www):
my only point in all of this is that if you believe that statutory purposes matter when you interpret legislation, then certainly there is a spectrum
I don't, I'm a textualist. I was just winding up Kent. ;)
12.11.2006 10:59pm
Kovarsky (mail):
Orin,

Just to go a little further, inferior Courts don't think in terms of dicta versus not dicta. If the Supreme Court says it, they consider it a holding. If the Court wants to say that something is dicta and therefore not binding under stare decisis, that's another thing; that happens all the time. But lower courts generally aren't in the business of parsing majority opinions for dicta and for holdings

The holding here - that dicta cannot constitute clearly established law for 2254(d) cases - commands lower courts to get into that dicey business. i do think that's strange, and not nearly as commonplace as the ordinary proposition that dicta is not binding.
12.11.2006 11:23pm
OrinKerr:
Kovarsky,

Here is what the Court said in its majority opinion in Yarborough v. Alvarado (2004), which is only one of the several cases that have repeated the point:

****************
We begin by determining the relevant clearly established law. For purposes of 28 U.S.C. § 2254(d)(1), clearly established law as determined by this Court "refers to the holdings, as opposed to the dicta, of this Court’s decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000).
***************
12.12.2006 12:44am
Kent Scheidegger (mail) (www):
the MAJORITY OPINION cites to cases in which other courts found that the rule was clearly established.

I don't think so. The Fourth Circuit case cited says the rule employed by the Ninth Circuit was not clearly established. "Clearly established" is not squarely at issue in the state cases, but all of the state cases that deal with situations similar to the Musladin case deny relief, so they do not find a contrary rule -- the Ninth Circuit's rule -- "established" clearly or otherwise.

the judges don't think that, in order to grant relief, there does not have to be an unreasonable application of clearly established Supreme Court law. but that's not what the judges you're chastising think that they're doing. they just determined that the rule was "clearly established."

The judges I am chastising find state decisions "unreasonable" with little more than mere disagreement, thus paying lip service to AEDPA but applying de novo review in practice. The present case is a prime example. The Ninth Circuit looked to its own precedent and ignored the large body of precedent from other jurisdictions consistent with the state court decision. This returns to my original point. What we have here is not a good-faith attempt to obey and apply the law but rather an intentional disregard of a law they don't agree with.
12.12.2006 12:45am
Kovarsky (mail):
Orin,

That's one of Stevens' footnote cases right? I certainly didn't mean that the Court has ever said it before; i just think that it's very unusual.

The Supreme Court usually parses holdings from dicta when it is determining whether a prior Supreme Court case controls under stare decisis. When a lower court applies Supreme Court majority opinions, the saying goes, "there's no such thing as dicta."

When the Supreme Court sees a case - NOT on collateral review - it's fairly routine for them to say that "no, that stuff was dicta, and we decide the issue here." You almost never see that in the circuits. If the Court wants to call it dicta, the Circuits are fine with that, but they don't do it themselves (circuits, on the other hand, are more comfortable calling circuit precedent "dicta").

There is no precise method for identifying dicta. We all know what it means generally - stuff unnecessary to the "holding." But, as a (good) 2005 Stanford Law Review article whose authors I cannot remember at the moment points out, many times there's really no consensus on what the "holding" is (as might be the case here, where the issue may be stated at several levels of abstraction). Now this isn't that big of deal if lower courts treat supreme court majority opinions as holdings unless instructed otherwise. The Supreme Court decides what is dicta for stare decisis purposes, and that's fine.

It's a whole different ballgame with 2254 though(d). It's not just that dicta is not necessarily binding on a subsequent Supreme Court panel. It's that dicta CANNOT be clearly established law for district and circuit courts. That requires those lower tribunals, when exercising collateral jurisdiction, to formulate coherent dicta/holding dichotomies. And there's just no consensus on that. It's the nature of the collateral jurisdiction that makes the "meta-rule" so unusual.

I didn't mean to imply that the Supreme Court has never done that (Stevens cites a few cases in a FN in his concurrence, of which I believe Alvarado is one), just that it's strange and problematic.
12.12.2006 1:04am
Kovarsky (mail):
correction, 1st para., last sentence:

That's one of Stevens' footnote cases right? I certainly didn't mean that the Court has never said it before; i just think that it's very unusual.
12.12.2006 1:06am
OrinKerr:
Kovarsky,

So the Supreme Court has repeated a position in five majority opinions in only six years, and on its restatement in the fifth opinion you criticize the Court on the ground that the position is a "very unusual" position for the Supreme Court to take? I'm afraid I don't get it.
12.12.2006 1:25am
Kovarsky (mail):
Kent,

I'm beginning to have some trouble understanding what you're saying here.

The judges I am chastising find state decisions "unreasonable" with little more than mere disagreement, thus paying lip service to AEDPA but applying de novo review in practice.

I don't understand. The majority holding was not that there was an "unreasonable application," it was that there was no "clearly existing law." I mean I know the Court says that "there's no unreasonable application of clearly existing law," but Thomas's entire point is that the Supreme Court just hasn't spoken to the subject. I can imagine a rebuttal here but I don't want to spin off onto tangents responding to it.

The present case is a prime example. The Ninth Circuit looked to its own precedent and ignored the large body of precedent from other jurisdictions consistent with the state court decision.

Um, but they're not supposed to look at that law? They're supposed to look at "clearly established Federal Law as established by [the Supreme Court}." I mean, maybe they might want to give extra special attention to cases that would create a circuit split, but the weight of authority in other jurisdictions isn't supposed to mean that much in cases like this.

This returns to my original point. What we have here is not a good-faith attempt to obey and apply the law but rather an intentional disregard of a law they don't agree with.

I still haven't heard you say one word about why Williams and Flynn are so egregiously inapplicable. Those two cases, respectively, say (1) prisoner can't be forced to be tried in pokey scrubs consistent with with the 14th (Williams) and (2) that 4 state troopers can't sit behind the defendent consistent with the 14th (Flynn).

Thomas effectively says, "no no no, it's not clearly established because here, these are not STATE actors." "We haven't addressed whether expressive interests change the 14th Amendment calculus." There doesn't seem to be one iota of language in those two cases that suggests that this would be a distinction with a difference. But Thomas identifies what appears to be a legally insignificant difference and thereby severs language potentially applicable as "clearly established law" by calling it dicta. Maybe I'm dense, I'm not so floored by this distinction that I think a Circuit Court that did not anticipate it - oh, how did you put it - is not makijng a good-faith attempt to obey and apply the law but rather [is intentionally] disregard[ing] a law they don't agree with."

This collapses with the Exchange I'm having with Orin. What is dicta and what is precedent is a dicey, high stakes game. Usually districts and circuits don't have to make those calls about Supreme Court opinions. The majority interpretation of "AEDPA" and "dicta" forces them to.
12.12.2006 1:28am
Kent Scheidegger (mail) (www):
Kovarsky,

More specifically, please specify which of the cases cited in the majority opinion find it clearly established that displays of this type — remembrances of the deceased with no other message — are "inherently prejudicial" requiring reversal with no other showing.

I don't believe any do.
12.12.2006 1:31am
Kent Scheidegger (mail) (www):
I still haven't heard you say one word about why Williams and Flynn are so egregiously inapplicable.

For AEDPA, Williams v. Taylor says, clearly established law is the same thing as dictated by precedent. Certainly it is well within the bounds of reasonable disagreement to believe that actions by the judge implying guilt of the accused have a much more detrimental effect than actions by spectators. That is all it takes for the state decision to come within the protection of 2254(d). The jail garb trial doesn't have to be "egregiously inapplicable." It is enough that reasonable judges could find it distinguishable and not controlling.
12.12.2006 1:44am
Kovarsky (mail):
Orin,

I really don't mean to focus on the numbers, although I think they favor my broader point, as I discuss below

The initial word I used was "bizarre," which expressed what I explained above - the strange situation it puts lower courts in. The other reason I noted the holding, originally, was the composition of the panel that voted for it. Breyer and Ginsburg rejected that position in Alvarez, Lockyer, and Tyler/Cain. They joined it in Williams and Musladin.

Again, "bizarre" was meant to refer to the practice, not the frequence, but I'll address the latter also. You say that 6 opinions since and including Williams have invoked the rule. That sounds like a lot, but not as a fraction of the 2254(d) cases. That suggests that it's being used selectively, if you believe that in each 2254(d) case you've gogt to separate the holding from the dicta in each opinion.

Once you get away from the numbers argument, the logic is "ironic," as justice stevens calls it. The very authority for the proposition that dicta is 2254(d) clearly established federal SC law is itself dicta.
12.12.2006 1:54am
Kovarsky (mail):
Kent,

More specifically, please specify which of the cases cited in the majority opinion find it clearly established that displays of this type — remembrances of the deceased with no other message — are "inherently prejudicial" requiring reversal with no other showing.

I'll do you one better. I'm sure they don't. They also don't say that allowing jewish bailiffs to wear yarmalukes during the prosecution of an anti-semitic murder are "inherently prejudicial." But is that clearly established because they're state actors? I don't know. Seems like a tough question. It seems like it depends on the level of generality at which you state the holding. What's the right level of generality Kent? I'm not sure, and I don't think you're an idiot if you're not sure. What I am sure about is that I'm not prepared to call judges who disagree with me about it usurpers. It's just a tough call.
12.12.2006 2:00am
Kovarsky (mail):
correction, last sentence (to Orin):

The very authority for the proposition that dicta cannot be 2254(d) clearly established federal SC law is itself dicta.
12.12.2006 2:02am
OrinKerr:
Kovarsky,

I agree that the line the court has drawn can be tricky; it always has been. Deference doctrines always require judgment, because they require the court to defer somewhat but neither too much nor too little. But I don't understand why you think the Court is being selective, or why this reasoning is unusual, and I don't see the irony, either. I'm afraid we're going to have to agree to disagree on this one.
12.12.2006 2:05am
Kovarsky (mail):
Orin,

I'm afraid we're going to have to agree to disagree on this one.

Fair enough.

By the way, how do you read the Kennedy Concurrence? First he says that a "clear rule" doesn't require that "While general rules tend to accord courts “more leeway . . .in reaching outcomes in case-by-case determinations,” Yarborough v. Alvarado, 541 U. S. 652, 664 (2004) (plurality opinion), AEDPA does not require state and federal courts to wait for some nearly identical factual patternbefore a legal rule must be applied. Cf. Wright v. West, 505 U. S. 277, 308–309 (1992) (KENNEDY, J., concurring in judgment)."

Then he says,

"The instant case does present the issue whether as a preventative measure, or as a general rule topreserve the calm and dignity of a court, buttons proclaiming a message relevant to the case ought to be prohibitedas a matter of course. That rule has not been clearlyestablished by our cases to date."

I think the best way to read it is that he doesn't think that the rule is clearly established in the sense that the court has to say it expressly, but he thinks the rule is, according to whatever criteria he uses, is not clearly established. I would guess he wrote separately because he did not agree with Thomas's method of determining what is "clearly established," although he provides no alternative. Does that sound right to people?
12.12.2006 2:16am
BFL:
I love that I'm studying for Fed Courts right now and just came across this. The professor mentioned this case in class, and it is possible that he used it as the basis for an exam question (the exam being written already).

In general, I feel like I've got the habeas stuff down pretty well.

I'll be sure to let you all know how the exam goes.
12.12.2006 3:29am
James Fulford (mail):
Judge Sarokin is either famous or infamous, depending on your point of view, for freeing Rubin "Hurricane" Carter. He was played by Rod Steiger in the movie The Hurricane, which was notably inaccurate.

You can read about Sarokin's decision here and here.
12.12.2006 3:58am
James Fulford (mail):
Aargh, my apologies, that was supposed to be in the combox of this post.
12.12.2006 4:02am
Dave N (mail):
Homer nods. Earlier I wrote this paragraph:

2) As a government attorney specializing in federal habeas corpus, I had a long standing offer of a free sushi lunch for anyone who could find a single panel decision in which Reinhardt sat in the majority that came down completely on the government's side in a federal habeas corpus case challenging a state conviction. My offer included both published and unpublished decisions. I finally found one unpublished decision that qualified. The elusive holy grail, of course, would be such a decision actually authored by Reinhardt.

I received an e-mail from another VC reader who pointed to Van Tran v. Lindsey, 212 F.3d 1143 (9th Cir. 2000), as a published habeas opinion authored by Judge Reinhardt that came down on the government's side. Van Tran's reasoning was partially rejected by the Supreme Court in Lockyer v. Andrade, 538 U.S. 63 (2003)--but Van Tran fit my definition and the Holy Grail has been found.

This same reader pointed to several recent unpublished habeas cases also that met my criteria where Judge Reinhardt also sat on the panel (though they postdate my offer). To the extent that I may have inferred that Judge Reinhardt never rules on the government's side, I apologize to both you the VC readers and Judge Reinhardt.

However, I am still unaware of a single capital case where he has.
12.12.2006 9:39am
Kent Scheidegger (mail) (www):
Kovarsky,

Level of generality has been addressed in a couple of Supreme Court AEDPA opinions now and in multiple retroactivity opinions incorporated by reference through Williams v. Taylor. While the line is not clear enough to be beyond reasonable debate in close cases, there are many cases that obviously fall on one side or the other. This is one of them. Given the specificity required by Supreme Court precedent for a rule to be "clearly established" for this purpose, I do not believe it is within the realm of reasonable disagreement to say that Williams or Flynn clearly established the rule the Ninth Circuit applied here, i.e., that displays of the type at issue here are "inherently prejudicial" within the meaning of that line of cases.

Those cases establish a rule that some practices are inherently prejudicial and some are not. Dressing the defendant in jail garb is. Shackling him in the sight of the jury is, unless there is genuinely no alternative. Beefed up security is not. None of these cases involves spectator displays. From the mob-dominated trial cases of old, you could say it is clearly established that spectators holding signs saying "Convict or Die, Jurors" violates the defendant's rights, but that is a far cry from a simple remembrance of the deceased. No Supreme Court precedent even comes close to clearly establishing the rule at issue here, and this is further demonstrated by the large number of similar cases around the country post-Williams that do not find inherent prejudice and affirm in similar circumstances.

I do not say that a judge is acting in defiance of the law because he disagrees with me. I say it when he decides cases in a manner that is obviously contrary to controlling Supreme Court precedent, so obviously as to lead to the conclusion that he is doing it intentionally.
12.12.2006 11:26am
Syllabuss:
Orin -

Does the S. Ct. Clerk's office have a standard for when it will name the author of an opinion below. Sometimes the synopsis will just say "...the Ninth Circuit reversed...." but other times will say "...the Ninth Circuit, Reinhardt, reversed ...."
12.12.2006 11:57am
Kovarsky (mail):
Kent,

While the line is not clear enough to be beyond reasonable debate in close cases, there are many cases that obviously fall on one side or the other. This is one of them. Given the specificity required by Supreme Court precedent for a rule to be "clearly established" for this purpose, I do not believe it is within the realm of reasonable disagreement to say that Williams or Flynn clearly established the rule the Ninth Circuit applied here, i.e., that displays of the type at issue here are "inherently prejudicial" within the meaning of that line of cases.

So, let me summarize: you think it's obvious. I don't really care to go back and forth about this argument any more, although I would say that Justice Thomas's rationale for why there was no "clearly established" law actually lost 3 votes on the supreme court. I don't really want to carry on this conversation anymore though. I'll be content to let you respond, have the last word, and consider ourselves through.
12.12.2006 12:35pm
neilalice:
Dave N.

Van Tran was Reinhardt's --- failed --- Trojan horse. He agreed with the government in result, but his reasoning all but obliterated the 2254(d) language that he chafes against so frequently. This is why SCOTUS nixed Van Tran in Lockyer v. Andrade. They couldn't very well do it in Van Tran itself because, as noted, the government "won."

So though you may feel compelled to pay up, next time make sure the terms of the wager include the qualification that the opinion is not later overruled by the Supreme Court.
12.12.2006 12:43pm
neilalice:
Kovarsky,

Instead of focusing on the unarguably difficult dicta-holding distinction, I think it would help to look at the results of later and following cases. If there's a SCOTUS holding, then the lower courts are bound. If there's only dicta, then different courts may reach different results. Dicta will inevitably create circuit splits, which will one day be resolved by SCOTUS. Same as it ever was.

The existence of a circuit split, though, is strong evidence that reasonable minds can disagree, and have disagreed, about an issue. For habeas under 2254(d), a circuit split is all-but-irrefutable evidence that a state court acted reasonably, no matter which way the court decided the case. This is, I think, Kent's point with Caspari and Williams. Under Teague and 2254(d), any SCOTUS holding (or what O'Connor called an "old rule"), must be honored by the states, which means federal courts are free to grant habeas relief when a state screws up. But if there is only SCOTUS dicta, then the prisoner is prohibited from receiving relief.

Here's the rule of Musladin in practice: If a government attorney can find cases that plausibly demonstrate a split on the habeas issue (i.e., there is no SCOTUS holding although there may be dicta of indeterminate persuasiveness) the government cannot lose, and the prisoner cannot prevail. See Price v. Vincent, 538 US 634 n.2.

This is where Ginsberg and Breyer part company with Stevens and Souter; the former are, properly, willing to accept the existence of a circuit split as proving state-court reasonableness. Kennedy, moreover, continues his sideways march to the middle by saying, sorry Musladin, you should have filed for cert sooner. I'm not sure whether he's serious or simply staking his territory as the fifth vote in a case where it will matter.

Much of the Ninth Circuit will hate Musladin because it means that federal appellate courts lack the power to create criminal law. Which, for some of us, was the point of 2254(d).
12.12.2006 2:47pm
Kovarsky (mail):
Much of the Ninth Circuit will hate Musladin because it means that federal appellate courts lack the power to create criminal law. Which, for some of us, was the point of 2254(d).

This is why I disengage from these discussions.

Circuit splits are not per se evidence of reasonableness if the cases constituting the split are in different procedural postures (collateral v. direct review) or contain different fact patterns. I could just as easily say that any time there's a dissent from a denial of a COA there should be a per se rule that a COA should not issue because, by definition, "reasonable jurists could disagree." But since courts disfavor such circular, gimmicky reasoning, we just go about analyzing it the hard way.
12.12.2006 4:39pm
Kovarsky (mail):
jeez, I can't type, correction,

could just as easily say that any time there's a dissent from a denial of a COA there should be a per se rule that a COA should issue because, by definition, "reasonable jurists could disagree." But since courts disfavor such circular, gimmicky reasoning, we just go about analyzing it the hard way.
12.12.2006 4:40pm
Kovarsky (mail):
fyi, musladin got it's first citation today - for the dicta issue - on page 133 of the 5th circuit's en banc nelson opinion.
12.12.2006 4:45pm
Kent Scheidegger (mail) (www):
This is why I disengage from these discussions.

Not very successfully, it would seem. I thought we were done and passed on your generous invitation to have the last word, but you've offered up a statement I just can't pass on.

Circuit splits are not per se evidence of reasonableness if the cases constituting the split are in different procedural postures (collateral v. direct review) or contain different fact patterns.

Would agree, then, that a substantial split of authority (state high courts counting equally with circuits) is per se evidence of reasonableness where the fact patterns are not significantly different and where any differences in procedural posture cut the other way (i.e., affirmances on direct review v. grants of collateral relief)?
12.12.2006 5:29pm
Kovarsky (mail):
Kent,

No, I would not agree with that. Especially when the circuits are not supposed to look at anything other than supreme court rulings. Look at Abela out of the 6th, an opinion on limitations. It said the state's interpretation was unreasonable, even though 7 other circuits say it was not. I bet you a million dollars that the Supreme Court upholds that interpretation in Lawrence, a case it just heard. Read the transcript, I'm sure you'll agree.

Also, I just don't understand how differences in procedural posture "cut the other way." Circuits being split on whether a ruling is an "unreasonable application of a clearly established law" is different from a split on what, all other things being equal, the law means. I can see an argument for a circuit split on the latter being per se evidence, but not the former. Could you please explain why, without me having to ask a fifth time?
12.12.2006 5:56pm
Kent Scheidegger (mail) (www):
Again, "the latter" is the argument I am making. I'm glad you can see it. If a dozen jurisdictions have held on direct appeal that X is not the law at all, clearly established or otherwise, and there is only scant authority to the contrary, then a circuit holding on habeas that X is clearly established law is in error.

Lawrence is not a 2254(d) case.
12.12.2006 6:26pm
Kovarsky (mail):
Kent,

OK, but I've been emphasizing over and over that I'm talking about the former. We're talking past eachother here, apparently. Disagreement over wehther something is an unreasonable application of clearly established law is a different disagreement - with different implications - than what you're talking about. A case might hold that an 8th amendment case bars a death penalty, but that under aedpa review the state decision is not an unreasonable application of that rule. That's not the same thing as saying that the opposite of the rule is true. And if you're dealing with that situation, Reinhardt's opinion could actually reside very close on the decisional spectrum to those other cases.

No, Lawrence is not a 2254(d) case. i believe i made that clear on my own post when i said it was a "limitations case." it is nonetheless an example of where all the circuits go one way except for 1, but the court might side with the 1. that's all i meant to invoke it for, as my post says.
12.12.2006 6:51pm
Kent Scheidegger (mail) (www):
Sorry, my mistake. I thought we were talking about Carey v. Musladin, a case in which seven of the eight cases on the state's side of the split of authority were direct appeals presenting the straight legal question without the 2254(d) limitation. See majority opinion at 6; see also Souter opinion at 2-3.

Never mind. [Gilda Radner impression here.]
12.12.2006 7:47pm
DaveN (mail):
Other than my two small posts, I have sat back and enjoyed Kurt Scheidegger and Kovarsky's discussion.

I think Neilalice made the most telling point, however, when he placed "clearly established" in the context of Teague v. Lane. Teague provides a fairly straightforward test that appellate courts can readily follow.
12.12.2006 9:12pm
DaveN (mail):
My bad--it is Kent Scheidegger. Mea culpa and doubly bad since I have had professional contacts with him.
12.12.2006 9:17pm
Thomas Ryan (mail):
While recuperating from an eight-hour Volokh exam I was stunned to see even the L.A. Times opinion page has chimed in on the issue. In particular, "[t]he 9th Circuit's image problem is easy grist for conservatives, but should be troubling for liberals and moderates as well." This is about as close as one can get to condemnation of a liberal stalwart from the L.A. Times. How refreshing.
12.12.2006 9:17pm
Kovarsky (mail):
Kent,

Sorry, my mistake. I thought we were talking about Carey v. Musladin, a case in which seven of the eight cases on the state's side of the split of authority were direct appeals presenting the straight legal question without the 2254(d) limitation. See majority opinion at 6; see also Souter opinion at 2-3.

Never mind. [Gilda Radner impression here.]

I don't understand your apoplexy here, particularly by reference to the string citations in the opinion. You keep saying "seven of the eight cases on the state's side of the split of authority were direct appeals presenting the straight legal question." I'm sorry I didn't tick through each case in the comment thread, but I after I found that four of the first five did not actually say what you said they said, I stopped looking. But here goes...

Norris v. Risley, 918 F. 2d, at 830–831 (applying Williams and Flynn to hold spectators’ buttons worn during a trial deprived the defendant of a fair trial);

... favor's reinhardt: "On appeal following remand, the Court of Appeals, Boochever, Circuit Judge, held that presence of women spectators wearing buttons inscribed with words “Women Against Rape” deprived defendant of fair trial, where buttons eroded presumption of innocence, interfered with defendant's constitutional right to cross-examine and confront witnesses, and created unacceptable risk that jury's determination of complaining witnesses' credibility was influenced by courtroom showing of support by women spectators."

In re Woods, 154 Wash. 2d 400, 416–418, 114 P. 3d 607, 616–617 (2005) (enbanc) (applying Flynn but concluding that ribbons worn by spectators did not prejudice the defendant).

this is a STATE court ruling, and it held: "It reached this conclusion because the buttons announced the spectators' conclusion about the defendant's guilt and amounted to “unacceptable risk of ··· impermissible factors” coming into play. Id. at 834. The present circumstance, in our judgment, is distinguishable from Norris. Here, the black and orange ribbons did not contain any inscription. They were simply ribbons that the wearers indicated they wore in memory of the victims. In examining a color copy of the ribbon, it is our view that they do not express any conclusion about Woods' guilt or innocence."

Other courts have declined to extend Williams and Flynn to spectators’conduct. Billings v. Polk, 441 F. 3d 238, 246–247 (CA42006) (“These precedents do not clearly establish that adefendant’s right to a fair jury trial is violated wheneveran article of clothing worn at trial arguably conveys a message about the matter before the jury”);

Ok, um, this IS a 2254(d) case: "Under AEDPA, we may not grant habeas relief “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; or (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.” 28 U.S.C. § 2254(d)."

Davis v. State, No. 07–03–0457–CR, 2006 WL 1211091, *6–7 (Tex. App., May 3, 2006) (“Appellant does not cite any authority holding the display of this type of item by spectators creates inherent prejudice”).

dude, this is an unpublished, intermediate, state appellate opinion. not only that, but the court premises its holding expressly on the failure of the offender show that the jury ever saw the buttons.

Other courts have distinguished Flynn on the facts. Pachl v. Zenon, 145 Ore. App. 350, 360, n. 1, 929 P. 2d 1088, 1093–1094, n. 1 (1996) (in banc).

this case doesn't matter to our dispute.

And still other courts have ruled on spectator-conduct claims without relying on, discussing, or distinguishing Williams or Flynn. Buckner v. State, 714 So. 2d 384, 388– 389 (Fla. 1998) (per curiam); State v. Speed, 265 Kan. 26, 47–48, 961 P. 2d 13, 29–30 (1998); Nguyen v. State, 977; S. W. 2d 450, 457 (Tex. App. 1998); Kenyon v. State, 58 Ark. App. 24, 33–35, 946 S. W. 2d 705, 710–711 (1997); State v. Nelson, 96–0883, pp. 9–10 (La. App. 12/17/97), 705 So. 2d 758, 763.

each one of these is a state case (most of them not even state supreme court cases), and i'm not going through each fact pattern to identify line-by-line the problems with your strange characterization of the cases, the problems with which are already readily apparent.
12.12.2006 10:14pm
Kovarsky (mail):
Dave,

there are important differences between 2254(d) and Teague. The first is that circuit court precedent is no good under 2254(d). The second is that the "clearly established" requirement in 2254(d) is a higher bar than anything in Teague doctrine.

Also, there has long been a question of whether the Court thinks Teague survived as a rule distinct from 2254(d). I forget the name of the case - but it involved the question of whether McFarland was retroactive - apparently had an oral argument where it seemed pretty clear that the judges thought Teague was no longer operative. That's what I heard, though; I haven't read the transcript.
12.12.2006 10:19pm
Dave N (mail):
Kovarsky,

In the most recent oral argument regarding Teague-retroactivity--in Whorton v. Bockting to be precise--there were no such inquiries.

And if Teague is indeed a lower standard, as you suggest, then applying even a Teague standard would have demonstrated the error of the Ninth Circuit's ways in Musladeen.
12.13.2006 10:16am
Kovarsky (mail):
Dave,

Was Whorton the McFarland case?

Also, I don't understand your Teague point. Can you explain how a lower standard for granting habeas relief would have made the 9th circuit ruling "more" erroneous?
12.13.2006 11:14am
neilalice:
Teague still applies post-AEDPA. Horn v. Banks, 536 U.S. 266, 273 (2002). Teague is often irrelevant post-AEDPA because, whenever a state court reaches the merits of a constitutional issue, and thereby triggers the deference provisions of 2254(d), the government receives more protection from 2254(d) than Teague. Although 2254(d) relief may be only based upon SCOTUS holdings, circuit-court authority, as Kovarsky noted, has more relevance under Teague.

Teague may still be important, of course, whenever a state court does not reach the merits of a constitutional claim, such as when a state court finds a claim to be procedurally barred for, say, the defendant's failure to assert it promptly. If a federal court refuses to honor the bar, then Teague is the government's best defense.

A trickier question, which is likely in play in Bockting, is whether the judicially created Teague exceptions for watershed-type rules might also apply to 2254(d). Bockting was a badly fractured decision from the Ninth in which (1) one judge thought that Crawford was a new, watershed rule such that Bockting could receive relief under Teague and 2254(d), (2) one judge thought that Crawford reiterated older authority such that Bockting could receive relief under 2254(d) even though his conviction was final before Crawford was decided, and (3) one judge thought that Crawford was new such that it could not apply retroactively to Bockting under 2254(d).

See if you can spot the holding there because I can't. And yes, the Ninth Circuit refused, over a published dissent, to take this case en banc.
12.13.2006 11:46am
Dave N (mail):
Whorton is the Crawford retroactivity case. Alone among the Circuits, the Ninth decided that Crawford v. Washington should be applied retroactively. As a side note, I suspect that site hosts will be commenting at length on Whorton regardless of which way it is decided.

Posting before 7:30 in the morning is almost never good because the brain is not fully engaged.

As to my Teague point, upon further reflection, I would like to modify it to the extent that if a case does not survive a Teague analysis, 2254(d) is inapplicable, and if a decision is an "old rule" for Teague purposes, then 2254(d) fully applies. Additionally, in Horn v. Banks the Supreme Court held that a Teague analysis comes first and is distinct from 2254(d).

No Teague analysis wsa done in Musladeen because the Ninth Circuit relied on its interpretation of Supreme Court precedent (in Norris).

So in my view, the emerging rule with respect to 2254(d) appears to be, "Did we (the Supreme Court) expressly state the rule?" and is unforgiving of Circuit interpretations of the rule that seem to "stretch" it.
12.13.2006 12:23pm
Kent Scheidegger (mail) (www):
For anyone who still cares at this point, the state spectator-display cases and the reasons why they matter are explained in my brief in the Musladin case, which is available through the CJLF web site at the "www" link in the header of this comment. I was particularly pleased that Justice Souter accepted this point as the first of his reasons for concurring in the judgment. There is no convincing Kovarsky, though, so I will stop trying now.

Dave, the oddity in Horn v. Banks, and its sequel Beard v. Banks, was that the state court decision on the merits came on state collateral review, after announcement of the "new rule." That was why the claim was Teague-barred even though the rule was clearly established at the time of the state court ruling. In the typical case, where the state ruling on the merits is on direct appeal, the Teague analysis need not come before the 2254(d)(1) "clearly established" question, and indeed they will often be the same.
12.13.2006 1:23pm