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Habeas Review – Ineffective Assistance of Counsel – Deference Must Be Given State Court Determination

Harrington v. Richter, USSC No. 09-587, 1/19/11, reversing grant of habeas relief, in 578 F. 3d 944

The 9th Circuit failed to give sufficient deference to the state court’s determination that Richter received adequate representation, requiring reversal of it grant of AEDPA-2254 habeas relief. The principal thrust of the opinion relates to the standard of review, both as to AEDPA habeas generally and ineffective-assistance claims more particularly.

Richter was tried and convicted for murder and other charges related to a robbery. His theory, in brief, was that he was only a bystander, that his codefendant did the shooting, but only in self-defense. He raised a state postconviction claim that his attorney dropped the ball by failing to seek expert testimony on serology and blood spatter which would have shown, he argued, that the physical evidence bolstered his theory of the case. After losing in state court, he filed a 28 U.S.C. § 2254 habeas petition, which was denied by the district court. The 9th granted relief on appeal, but the Court now reverses.

AEDPA deference.

The pivotal question is whether the state court’s application of the Strickland standard was unreasonable. This is different from asking whether defense counsel’s performance fell below Strickland’s standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of §2254(d)(1), “an unreasonable application of federal law is different from an incorrect application of federal law.” Williams, supra ,at 410. A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.

The Court continues in this vein at some length. The AEDPA standard “is difficult to meet,” precisely “because it was meant to be.” Just in case you didn’t get the drift, the Court stresses that 2254 relief is limited to instances “where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with this Court’s precedents.” Still not clear enough? Maybe this will help: “As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” And that’s in relation to AEDPA generally. If the claim, more specifically, is ineffective assistance …

Deference to counsel.

“Surmounting Strickland ’s high bar is never an easy task.” Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (slip op., at 14). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest “intrusive post-trial inquiry” threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U. S., at 689–690. Even under de novo review, the standard for judging counsel’s representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is “all too tempting” to “second-guess counsel’s assistance after conviction or adverse sentence.” Id. , at 689; see also Bell v. Cone, 535 U. S. 685, 702 (2002) ; Lockhart v. Fretwell, 506 U. S. 364, 372 (1993) . The question is whether an attorney’s representation amounted to incompetence under “prevailing professional norms,” not whether it deviated from best practices or most common custom. Strickland  466 U. S., at 690.

Establishing that a state court’s application of Strickland was unreasonable under §2254(d) is all the more difficult. The standards created by Strickland and §2254(d) are both “highly deferential,” id. , at 689; Lindh v. Murphy, 521 U. S. 320, 333, n. 7 (1997) , and when the two apply in tandem, review is “doubly” so, Knowles, 556 U. S., at ___ (slip op., at 11). The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U. S., at ___ (slip op., at 11) . Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under §2254(d). When §2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland’s deferential standard.

Merits. Facing a “high bar,” Richter unsurprisingly turns out not to be a Javier Sotomayor. Blood pattern expertise might have been useful to the defense? Well, “any number of hypothetical experts” might have been useful, and counsel is entitled to marshal investigatory resources without being subjected to second-guessing: “Counsel was entitled to formulate a strategy that was reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies.” Separately: Richter didn’t in any event satisfy his burden of showing prejudice; the expert serology evidence he introduced on his postconviction challenge raised “nothing more than a theoretical possibility that” the State’s version of the crime was inaccurate.

Just how important is the decision likely to be? Kent Scheidegger exultantly aphorizes: “Deference squared = damn near never.” But habeas practitioner Alex Coolman begs to differ: “I don’t think the language of  Harrington regarding the need to defer to state court judgments actually makes that much of a difference.  The principles articulated by Justice Kennedy are merely the standards that are apparent on the face of the statute, and the ‘harsh’ tone of the opinion doesn’t really add anything of significance.” Put On Point in the Coolman camp, albeit for a slightly different reason. According to one study tracking the nearly 20,000 petitions filed in 2004, the success rate at the district court level was about 2%. In other words, there isn’t much room for downward movement, which is really the point: the success rate is already damn near never. And, the gloomy title to his post notwithstanding, Marquette’s Michael O’Hear’s sober observation sounds about right: “Interestingly, though, if readers move beyond the language above, they will see that the Court actually gave Richter’s claims some serious consideration, even though Richter ultimately lost.  As a model for the adjudication of habeas claims, Richter is somewhat less troubling than it is as a source of legal standards.”

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