Argument recap: Court hears arguments on ineffective assistance and habeas corpus.

By Adam Schlossman
on Oct 13, 2010 at 1:33 pm

Eight Justices of the Supreme Court (Justice Elena Kagan was recused) heard argument Tuesday on two questions: (1) Did the Ninth Circuit err in finding that a lawyer provided ineffective assistance to a criminal defendant accused of murder by declining to investigate or introduce expert testimony regarding blood stains at the crime scene? (2) Is a California Supreme Court decision upholding a criminal conviction entitled to deference when challenged in a federal habeas proceeding if the state court summarily denied the defendant relief with no reasoning?  If oral argument is any indication, it seems likely that the State of California will prevail on the first issue, and probably will prevail on the second as well.

The Supreme Court itself added the second question when it granted the State of California’s certiorari petition, seeking to determine the effect of a California Supreme Court order simply stating that the “[p]etition for writ of habeas corpus is DENIED.”  Because the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) limits federal courts’ authority to grant habeas relief where a state court adjudicated the habeas petitioner’s claim “on the merits,” the Justices began their questioning of Harry Colombo, who represented the State, by asking how they could be sure the denial was on the merits.  Justice Ginsburg noted that the California Supreme Court had explicitly said in other denials that it was acting “on the merits” or had based its decision “on procedural grounds.”  Both she and Justice Sotomayor asked whether, when the court did not indicate the basis for its action, it was impossible to tell whether the court’s members were split about the basis for action so the denial was neither on the merits nor based on a procedural bar.  Colombo argued that under existing Ninth Circuit law, California Supreme Court silent denials are presumptively an adjudication on the merits absent a contrary indication.  That answer seemed to satisfy Justice Kennedy, who was one of the first to question Colombo on this subject.  Justice Alito suggested that respondent Joshua Richter may have waived the argument that the California Supreme Court’s disposition was not on the merits because he raised the argument for the first time in merits briefing before the Court. 

On the merits, it seemed that Justices Ginsburg and Sotomayor were open to Richter’s ineffective assistance claim under Strickland v. Washington, noting the importance of the blood evidence to his theory of the defense.  But Justice Kennedy came to Colombo’s defense, suggesting valid reasons why effective defense counsel might wish simply to poke holes in the prosecution’s case rather than affirmatively introduce expert evidence.  Kennedy noted the weaknesses of the state’s eyewitness, a drug dealer nicknamed “Gunner,” and said it seemed to be a “perfectly legitimate strategy” to rely on cross-examination rather than to retain an expert and risk turning up evidence that might foreclose possible defense theories.  Justices Scalia and Alito’s questions likewise indicated that they believed counsel’s reliance on cross-examination to be a reasonable course.  Even Justice Ginsburg, who was relatively sympathetic to Richter’s merits argument, seemed open to Colombo’s contention that even if counsel’s assistance were ineffective, Richter was not prejudiced because of the strong physical evidence implicating him in the crime.

Richter’s counsel, Cliff Gardner, began by disputing the strength of evidence against his client but encountered a skeptical Court.  The Chief Justice expressed doubt that the evidence supported Richter’s theory of events, and Justices Scalia and Alito indicated that elements of the defense theory were nonsensical.  The Chief Justice suggested that it would be difficult to cabin a ruling favoring Richter, noting the many other types of experts whose testimony could potentially have been helpful to his theory of the defense.  Justice Sotomayor also indicated that she thought Richter had not explained away physical evidence refuting the defense theory. 

Questioning Gardner about the effect of the silent denial, Justice Breyer characterized as “fairly strong” the argument that the Ninth Circuit had long construed the California Supreme Court’s silent denials as action on the merits; he thought it “significant” that the California Supreme Court had not contradicted that interpretation “over a course of 30 years.”  Breyer also noted that interpretation “in most cases will benefit a defendant,” because presuming that a silent denial is on the merits “will avoid the question of whether there’s an adequate and independent” state procedural bar that prevents a court from granting habeas relief.  Justice Sotomayor also cited a California Supreme Court opinion that she read to say that unless the court “invoke[s] the procedural bar we are not applying it.”  Justice Ginsburg noted that Richter had not sought certification to clarify the meaning of the California Supreme Court’s silent denial while the case was pending before the lower courts, suggesting possible skepticism of Gardner’s interpretation of the silent denial.

Both Justice Breyer and Justice Sotomayor noted during Colombo’s rebuttal that Richter had argued for the first time in merits briefing that the denial was not on the merits.  It appears that they considered that fact to be an indication that Richter had not waived that argument, because he had addressed it as soon as the Court raised the question, but Colombo argued that “if this was a legitimately disputed question it could have been addressed much earlier.”

It seems likely that, at a minimum, the Chief Justice and Justices Scalia, Kennedy, Thomas, and Alito will reject the ineffective assistance claim even if the California Supreme Court did not act “on the merits” and the state court determination thus is not entitled to AEDPA deference.  However, it seems quite possible that at least that group, plus Justice Breyer, will conclude the silent denial is action “on the merits.”