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SCOTUS: Test for federal habeas relief is even tougher than you thought

Randy White v. Robert Keith Woodall, USSC No. 12-794, 4/23/14, reversing and remanding Woodall v. Simpson, 685 F.3d 574 (6th Cir. 2012); case activity

It’s getting harder and harder to win a habeas case.  Woodall requested an instruction forbidding jurors from drawing adverse inferences from his decision to not testify during the penalty phase of his capital murder trial.  The majority opinion, authored by Scalia, held that SCOTUS precedent requiring a “no adverse inference” instruction was clearly established for the guilt phase of a trial, but not the penalty phase.

You could tell which way this opinion was heading from the get go.  It opens with the quip: 28 U.S.C. §2254(d) is “a provision of law that some federal judges find too confining, but that all federal judges must obey.”  In other words:  “Sixth Circuit, heel!

Woodall pleaded guilty to a brutal murder. The trial court refused his lawyer’s request for a “no adverse inference” instruction during the trial’s penalty phase. The Kentucky Supreme Court affirmed, which prompted his petition for habeas corpus under the AEDPA.  To win in federal court, Woodall had to show that the Kentucky decision was “contrary to, or involved a an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. §2254(d). That requires proof that the “state court’s ruling was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement.”  Slip op. at 4 (citing Harrington v. Richter, 562 U.S.__ (2011)(slip op. at 13).  Think of this as the “No, duh!” test.  It’s pretty hard to meet.

Carter v. Kentucky, 450 U.S. 288 (1981) holds that the 5th Amendment requires the trial court, upon proper request, to give “no adverse inference” instruction during the guilt base of a trial because otherwise the “untutored” jury may infer guilt from the defendant’s refusal to testify.  Meanwhile, Estelle v. Smith, 451 U.S. 541 (1981) holds that the Fifth Amendment’s protections apply to both the guilt and the penalty phases of a defendant’s capital murder trial.  See also Mitchell v. United States, 526 U.S. 314 (1999)(disapproving of trial court drawing adverse inferences from defendant’s silence at sentencing with regard to factual determinations about the details of the crime).  This trio points to one conclusion: the “adverse inference instruction” is required during the penalty phase.  But the majority held that SCOTUS has never decided this specific question in a case on direct appeal, rather than via §2254(d).  Thus, the point is not “beyond any possibility for fair-minded disagreement.” Slip op. at 5 (citing Harrington at 13).

That was harsh but not as harsh as the second holding.  Woodall argued that he was also entitled to federal habeas relief because the state court unreasonably refused to extend the governing legal principle to a context where it should control.  He found support in Williams v. Taylor, 529 U.S. 362 (2000) and Ramdass v. Angelone, 530 U.S. 156 (2000).  But the majority slammed the door on this avenue of relief:

[T]his Court has never adopted the unreasonable refusal-to-extend rule on which respondent relies. It has not been so much as endorsed in a majority opinion, let alone relied on as a basis for granting habeas relief. To the extent the unreasonable-refusal-to-extend rule differs from the one embraced in Williams and reiterated many times since, we reject it. Slip op. at 11.

Perhaps the logical next step from Carter, Estelle, and Mitchell would be to hold that the Fifth Amendment requires a penalty-phase no-adverse-inference instruction in a case like this one; perhaps not. Either way, we have not yet taken that step, and there are reasonable arguments on both sides–which is all Kentucky needs to prevail in this AEDPA case. The appropriate time to consider the question as a matter of first impression would be on direct review, not in a habeas case governed by § 2254(d)(1).  Slip op. at 11-12.

Attorneys, start your cert. petitions!  Sounds like a good issue for SCOTUS review–at least for practitioners handling capital cases.  Footnote 3 to this decision indicates that there is a circuit split over what Estelle and Mitchell really mean.  For Wisconsin lawyers, the case is significant for its elaboration of the federal habeas standard.  See SCOTUSblog’s analysis of the decision here and On Point’s analysis of the decision to grant review here.


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