From the intro to this week's edition Leading off this week are two Supreme Court opinions, Premo v. Moore & Harrington v. Richter. Simply put, these were narrow federal habeas opinions with sharp language aimed at the Ninth Circuit. Harrington stands for the proposition that a denial of relief in the state courts, without explanation, is due the same deference as an "adjudication" under section 2254 as a formal opinion for purposes of federal habeas corpus. Premo holds, in this potential capital case that plead to just 25 years, counsel was not ineffective by telling his client to plead guilty prior to a suppression hearing and, even if deficient, there was no error as the confession was admissible. The Wisconsin Public Defender has arguably the best in depth analysis of Harrington v. Richter & Premo v. Moore. Jurist notes as to Harrington that the section of the Antiterrorism and Effective Death Penalty Act (AEDPA) [28 USC § 2254 text] limiting federal review of state court decisions to decisions resulting from an unreasonable application of the law or an unreasonable determination of the facts is applicable to state court orders issued without an accompanying explanation. In an 8-0 decision, the court held that, where a state court's decision is not accompanied by an opinion stating the court's reasoning, the petitioner seeking habeas corpus relief still bears the burden of proving there was not reasonable basis for the state court to deny relief. In its decision, the court also reaffirmed the standard established in Strickland v. Washington for determining the effectiveness of assistance of counsel at trial. The court held that, in order for a person to be successful on a claim of ineffective assistance of counsel, they must prove that their representation "fell below an objective standard of reasonableness" and that the failure of counsel resulted in prejudice. During oral arguments, the respondent argued [JURIST report] that defense counsel's reliance on cross-examination in lieu of forensic evidence violated his Sixth Amendment right to effective assistance of counsel. Justice Anthony Kennedy, writing for the court, rejected the petitioners argument stating that there are "countless ways to provide effective assistance in any given case" and that counsel is given wide latitude to make "tactical decisions" and still remain within the "wide range of reasonable professional assistance." Justice Ruth Bader Ginsburg authored a concurring opinion in which she stated that she did not believe the defense counsel provided the assistance guaranteed by the Sixth Amendment, but that counsel's lapse was not "so serious as to deprive Richter of a fair trial." In Premo, as noted above, the Court reversed a Ninth Circuit grant of habeas relief for ineffective assistance of counsel. Respondent Randy Moore filed the petition for relief on the basis that defense counsel failed to move to suppress a confession that may have been obtained illegally prior to advising him to accept a plea agreement. In an 8-0 decision, the court again applied the Strickland standard, holding that the defense counsel's representation was objectively reasonable. The court stated that it was reasonable for the state court to accept the defense counsel's explanation that a motion to suppress would have been pointless in light of additional admissible statements of guilt by Moore. The court also rejected the Ninth Circuit's application of Arizona v. Fulminante to the instant case, stating that Fulminante cannot be read as applying to the Strickland standard of effectiveness of counsel. Ginsburg wrote a concurring opinion in the case. Also from the Supreme Court, the "Court agreed on Monday to clarify when prison or jail officials must give an inmate warnings about his rights under Miranda v. Arizona, when they take the prisoner out of a cell for questioning about another crime, [ ] Howes v. Fields (10-680)." In a second matter "the Court will decide whether an individual convicted of violating a 2006 federal sex offender law has a right to go to court to challenge the U.S. Attorney General's decision to apply that law to those who were convicted of sex crimes before the law's enactment, [ ] Reynolds v. U.S. (10-6549). The Supreme Court last Tuesday denied cert & lifted the stays discussed last week concerning Cleve Foster and Gayland Bradford. from Texas. The issue before the court was ineffective assistance of counsel and state postconviction remedies. The Court also denied cert on a similar claim in Daniel Cook v. Arizona, 10-7210. In the lower courts, the Sixth Circuit returned to an old favorite in Michael Goodwin v. Johnson: counsel who fails to do a substantial mitigation investigation and relies on the red herring of lingering doubt. "[T]rial counsel chose to rely on residual doubt without conducting an adequate investigation of Goodwin's background." However, "[h]ad Goodwin's counsel interviewed Goodwin's family, they would have learned that he was neglected by his drug-using mother and physically and sexually abused by others. Had they examined his school records, they would have learned about his poor school performance and low IQ. Had counsel examined Goodwin's juvenile court records, they would have learned of his psychological problems and how his chaotic home life contributed to his delinquency. All of this information, in turn, would have suggested the need to have Goodwin psychologically evaluated." Further "[a]fter reweighing the evidence in aggravation against the powerful mitigating evidence that was never presented to the jury, we find that it was objectively unreasonable to find that Goodwin was not prejudiced by his trial counsel's performance. Instead, it is reasonably probable that at least one juror would have voted against death had defense counsel presented the new mitigation evidence." In the news, Hospira has stopped manufacturing sodium thiopental; while the long term effects are unknowable, in the short term the decision has caused some doubt about the ability of at least a few states to execute. As DPIC notes, Leroy White was executed in Alabama on January 13 despite the fact that his trial jury recommended life and that the prosecution, as well as members of the victim's family, had sought a different sentence. As always thanks for reading. -k
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