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SCOTUS: Circuit precedent did not create “clearly established federal law” for AEDPA purposes

Lopez v. Smith, USSC No. 13-946, 10/6/14 (per curiam), reversing Smith v. Lopez, 731 F.3d 859 (9th Cir. 2013); docket

When a state prisoner seeks federal habeas relief on the ground that a state court, in adjudicating a claim on the merits, misapplied federal law, a federal court may grant relief only if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). We have emphasized, time and again, that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), … prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is “clearly established.” …. Because the Ninth Circuit failed to comply with this rule, we reverse its decision granting habeas relief to respondent Marvin Smith. (Slip op. at 1).

Smith was charged with homicide, and the state had two theories of prosecution: That he committed the crime directly, or that he was an aider-and-abettor. At trial the state principally relied on the theory that Smith himself delivered the fatal blow, but at the close of evidence the prosecutor asked for, and was given, an aiding-and-abetting instruction. The Ninth Circuit granted habeas relief on the ground Smith didn’t have sufficient notice he could be convicted either as a principal or as an aider-and-abettor, though it pointed to no Supreme Court case holding as much. Instead, it cited three cases that stand for the general proposition that a defendant must have adequate notice of the charges against him, viz.Russell v. United States, 369 U.S. 749, 763–64 (1962), In re Oliver, 333 U.S. 257, 273–74 (1948), and Cole v. Arkansas, 333 U.S. 196, 201 (1948). Not good enough, says the Court:

This proposition is far too abstract to establish clearly the specific rule respondent needs. We have before cautioned the lower courts—and the Ninth Circuit in particular—against “framing our precedents at such a high level of generality.” Nevada v. Jackson569 U.S. ___, ___(2013) (per curiam). None of our decisions that the Ninth Circuit cited addresses, even remotely, the specific question presented by this case. (Slip op. at 5).

Given the lack of Supreme Court case law, the Ninth Circuit relied heavily on one of its own decisions, Sheppard v. Rees, 909 F.2d 1234 (9th Cir. 1989). This is no good, either:

….AEDPA permits habeas relief only if a state court’s decision is “contrary to, or involved an unreasonable application of, clearly established Federal law” as determined by this Court, not by the courts of appeals. 28 U.S.C. § 2254(d)(1). The Ninth Circuit attempted to evade this barrier by holding that Sheppard “faithfully applied the principles enunciated by the Supreme Court in Cole, Oliver, and Russell.” 731 F.3d, at 868. But Circuit precedent cannot “refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that this Court has not announced.” Marshall [v. Rodgers], 569 U.S. [___,] ___ [(2013) (per curiam)]. Sheppard is irrelevant to the question presented by this case: whether our case law clearly establishes that a prosecutor’s focus on one theory of liability at trial can render earlier notice of another theory of liability inadequate. (Slip op. at 6).

The Ninth Circuit also held that the state courts made an unreasonable determination of fact in holding that Smith had sufficient notice of the aider-and-abettor theory, but the Court rejects this characterization: “The Ninth Circuit believed that the events [in Smith’s case] failed to measure up to the standard of notice applicable in cases like this. That ranked as a legal determination governed by § 2254(d)(1), not one of fact governed by § 2254(d)(2).” (Slip op. at 8). As the Court has just explained, this legal determination isn’t based on Supreme Court precedent, so it can’t support a grant of relief.

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