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Is the Sixth Circuit the New Ninth (At Least in Habeas Cases)?

By on June 1, 2010 10:44 am in Habeas, Sixth Circuit, Supreme Court

With today’s decision in Berghuis v. Thompkins the Supreme Court has once again reversed the U.S. Court of Appeals for the Sixth Circuit in a habeas case.  Indeed, this is the fifthsuch reversal this year.  In each case, a panel of the Sixth Circuit granted a prisoner’s habeas corpus petition.  In each case, the Supreme Court reversed.  Three of these decisions were unanimous (Berghuis v. Smith, Smith v. Spisak and Bobby v. Van Hook), one was 6-3 (Renico v. Lett).  Today’s decision was 5-4.  Overall, this means the Circuit could only muster 7 of 45 available votes in support of its decisions.

It’s hardly unheard of for a single circuit to be reversed five or more times in a single term.  The number of cases up for review in any given year is a sufficiently small and unrepresentative sample to preclude drawing any sweeping conclusions.  Still, it is unusual to see a circuit fare so poorly in a single area of the law in a single term, and in such a uniform direction.

The spate of reversals is also notable because the Sixth Circuit has been so divided in habeas cases of late.  As I’ve chronicled over the past several years (see, e.g., here, here and here), the judges on the Sixth Circuit are deeply split over the proper standard of review in habeas cases, particularly when the death penalty is involved.  Indeed, the Circuit released yet another divided panel decisionin a habeas case this morning.   The uniformity of the reversals suggest that one side in the Sixth Circuit’s habeas disputes has the better of the argument, at least under existing law.  If current law is too restrictive on this score — and it may well be — then it [...]

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Sixth Circuit Now 0-4 in Habeas Cases This Term

By on May 3, 2010 10:19 am in Habeas, Sixth Circuit, Supreme Court

This morning the Supreme Court released its opinion in Renico v. Lett.  By a vote of 6-3, the Court overturned a decision by the U.S. Court of Appeals for the Sixth Circuit granting habeas relief to Reginald Lett, who had been convicted of murder in Michigan. Chief Justice Roberts’ majority opinion begins with the following summary:

This case requires us to review the grant of a writ of habeas corpus to a state prisoner under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2254(d). The District Court in this case issued the writ to respondent Reginald Lett on the ground that his Michigan murder conviction violated the Double Jeop-ardy Clause of the Constitution, and the U. S. Court of Appeals for the Sixth Circuit affirmed. In doing so, how-ever, these courts misapplied AEDPA’s deferential standard of review. Because we conclude that the Michigan Supreme Court’s application of federal law was not unreasonable, we reverse.

Justice Stevens dissented, joined by Justice Sotomayor in full and Justice Breyer in part.

Of note, this is the fourth  reversal of a Sixth Circuit decision granting a prisoner’s habeas petition this term.  The other three were Berghuis v. Smith, Smith v. Spisak and Bobby v. Van Hook.  One more Sixth Circuit habeas case remains, Berghuis v. Thompkins.  Will the Supreme Court reverse in all five?  We’ll see. [...]

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Is a Shoebox Like a Suitcase?

By on April 13, 2010 10:26 am in Criminal Procedure, Sixth Circuit

This morning the U.S. Court of Appeals for the Sixth Circuit issued an opinion in United States v. Taylor, affirming the district court’s suppression of evidence (a handgun and ammunition) found in a shoebox.  Judge Gilman wrote the opinion for the court, joined by Judge Daughtrey.  Judge Kethledge dissented.  His dissenting opinion begins:

The majority today extends to shoeboxes a degree of Fourth Amendment protection that our court has previously afforded to luggage. I agree that our precedents permit this extension, but I do not think they compel it. I dissent because I think the extension unwise.

The apartment’s tenant here gave consent for the officers to search it. I think that consent ought to be effective as to an unsecured container on the premises, absent a clear indication that some other person exclusively controls the container. Luggage might routinely meet that test, but shoeboxes I think should not, absent some unusual circumstance not present here. It should take more than a shoebox to vitiate a resident’s consent to search the premises.

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Sixth Circuit 0-3 in Habeas Cases This Term

By on March 30, 2010 10:41 am in Habeas, Sixth Circuit

This morning, the Supreme Court unanimously reversed the U.S. Court of Appeals for the Sixth Circuit in Berghuis v. Smith.  The Court held, in an opinion by Justice Ginsburg, that the Sixth Circuit had erroneously concluded that the Michigan Supreme Court’s rejection of criminal defendant Diapolis Smith’s Sixth Amendment claim involved an unreasonable application of clearly established federal law, as is required to grant a habeas petition under the Anti-Terrorism and Effective Death Penalty Act (AEDPA).  Smith had argued that jury selection in his trial had violated his Sixth Amendment right to an impartial jury drawn from a representative cross-section of the community.

Of note, this is the third reversal of a Sixth Circuit decision granting a crminal defendant’s habeas petition this term.  The first two were Smith v. Spisak and Bobby v. Van Hook.  Two more Sixth Circuit habeas cases remain, Renico v. Lett and Berghuis v. Thompkins.  As I noted here, in all five cases, the Sixth Circuit granted the habeas petition.  Will the Supreme Court reverse in all five?  We’ll see.  Three down, two to go. [...]

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Justice O’Connor’s Latest Opinion

By on February 3, 2010 1:49 pm in Sixth Circuit

This morning the U.S. Court of Appeals for the Sixth Circuit issued an opinion in Demings v. Nationwide Life Insurance, Co., affirming the dismissal of a proposed class action. Of note, the opinion was authored by Associate Justice (Ret.) Sandra Day O’Connor, sitting by designation.

UPDATE: LAst August, Jess Bravin had this piece on Justice O’Connor’s continuing service on the appellate bench. [...]

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Court Reverses in Smith v. Spisak

By on January 12, 2010 10:58 am in Criminal Procedure, Habeas, Sixth Circuit, Supreme Court

The Supreme Court released one opinion today — and it was not the eagerly anticipated Citizens United.  The Court released another habeas decision instead.  In Smith v. Spisak, a unanimous Court reversed the U.S. Court of Appeals for the Sixth Circuit’s grant of death-row inmate Frank Spisak’s habeas petition.  Justice Breyer wrote the opinion, and Justice Stevens wrote an opinion concurring in part and concurring in the judgment.

All nine justices agreed that even if Spisak’s trial counsel had been ineffective at the penalty phase, there was no reasonable probability that he was prejudiced by this fact.  The Court also held that the trial court’s mitigation jury instructions did not violate clearly established Federal law. Justice Stevens disagreed on this latter point, but nonetheless concluded Spisak was not entitled to relief because his conduct had so “alienated and ostracized the jury, and his crimes were monstrous” that there was no reasonable probability of a different outcome.

This is the second reversal of a Sixth Circuit decision granting a habeas petition this term.  (The first was Bobby v. Van Hook.)  Three more Sixth Circuit habeas cases remain, Renico v. Lett, Berghuis v. Thompkins, and Berghuis v. Smith.  Of note, all five cases involve the review of pro-defendant appellate decisions.

I previously blogged on the Spisak case here.

[NOTE: As initially posted, I inadvertantly omitted one of the cases.] [...]

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“It Is a Bad Idea . . . to Leave the Judge with a Smoldering Suspicion . . .”

By on November 16, 2009 11:00 pm in Criminal Procedure, Habeas, Sixth Circuit

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

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When Ineffective Assistance Becomes Malpractice

By on November 5, 2009 9:47 am in Habeas, Sixth Circuit

Ineffective assistance of counsel is a common habeas petition claim, particularly in capital cases.  This has led me to wonder whether legal representation that is constitutionally deficient should presumptively constitute legal malpractice.  After all, for a capital defendant, effective assistance of counsel can be a matter of life and death.  Yet it is rare that defense attorneys are sanctioned for providing inadequate assistance to capital defendants.

One reason for the lack of sanctions may be that the threat of sanctions could discourage attorneys from representing capital defendants, making it more difficult for them to get proficient counsel.  On the other hand, I have also heard it claimed that the low likelihood of sanctions gives defense attorneys an incentive to “tank” bad cases, such as by providing sub-par performance at the penalty phase after losing at the guilt phase, so as to plant grounds for appeal. Such conduct would be worthy of sanction for sure, but I don’t know how often it occurs, if at all.  But what of shoddy or negligent legal work?  Should that be sanctionable too?

Yesterday the U.S. Court of Appeals for the Sixth Circuit decided Johnson v. Mitchell, an appeal from a district court’s denial of habeas relief for convicted murderer Gary Van Johnson. The three-judge panel, in an opinion by Judge Martha Craig Daughtrey, denied six of Johnson’s seven claims, yet granted relief on an ineffective assistance claim. Based on the facts described by the Court, if there’s a case in which a lawyer should be sanctioned for inadequate assistance, this would be it.

The key facts are these.  Johnson was initially convicted in 1983 and sentenced to death.  A new attorney represented Johnson on appeal, arguing (among other things) that Johnson had received ineffective assistance of counsel during the penalty phase of his [...]

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When Did Sex Offenders Have to Register?

By on October 13, 2009 9:54 am in Criminal Law, Sixth Circuit

This morning, in United States v. Cain, the U.S. Court of Appeals for the Sixth Circuit split over whether a sex offender convicted prior to the enactment of the federal Sexual Offenders Registration and Notification Act (SORNA) was required to update his sex offender registration before the  Attorney General adopted regulations implementing the law’s registration requirement and specifying the applicaiton of the requirment to pre-SORNA offenses.  Judge Rogers, joined by Judge Guy, held for the defendant, concluding there was no obligation to register prior to the adoption of the regulations.  Judge Griffin dissented.

The law at issue was part of the Adam Walsh Child Protection and Safety Act of 2006.  The Supreme Court already has one case this term concerning this law (United States v. Comstock).  Could this make for a second? [...]

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Good Luck, Mike

By on October 13, 2009 8:42 am in Habeas, Sixth Circuit, Supreme Court

This morning, at the U.S. Supreme Court, my colleague Michael Benza will argue on behalf of the respondent in Smith v. Spisak.  He will argue that the U.S. Court of Appeals for the Sixth Circuit correctly granted a writ of habeas corpus to death row inmate Frank Spisak due to constitutionally defective jury instructions and ineffective assistance of counsel.  The case raises a thorny AEDPA issue which has gotten most of the attention, but I think the ineffective assistance claim is more interesting.  Basically, the case raises the question whether a closing argument can be so defective and counter-productive that it constitutes ineffective assistance of counsel.  Quite a few prominent trial advocacty experts think so.  If so, Spisak could be that case.

UPDATE: I have a PDF of the closing argument in the mitigation phase  but I’m having trouble posting it.  Check back to see if I’ve figured it out.  Here is a PDF of the full closing from the mitigation phase of the trial.

Meanwhile, here’s an early report on the oral argument.

UPDATE: Here’s the transcript. [...]

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