Instant Analysis: Cullen v. Pinholster

April 4th, 2011

Justice Thomas, writing for the Court in Cullen v. Pinholster, held that “review under §2254(d)(1) is limited to the record that was beforethe state court that adjudicated the claim on the merits.” The actual split it of this 81 page opinion is somewhat confusing. Here is how the Reporter breaks down the division:

THOMAS, J., delivered the opinion of the Court, in which ROBERTS,C. J., and SCALIA and KENNEDY, JJ., joined in full; in which ALITO, J., joined as to all but Part II; in which BREYER, J., joined as to Parts I and II; and in which GINSBURG and KAGAN, JJ., joined as to Part II. ALITO, J., filed an opinion concurring in part and concurring in the judgment. BREYER, J., filed an opinion concurring in part and dissenting in part. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG and KA-GAN, JJ., joined as to Part II.

Justice Thomas, joined by Chief Justice Roberts, and Justice Scalia and Kennedy joined the opinion in full. Justice Alito joined all but Part II, whereas Justice Ginsburg and Justice Kagan only joined part II. Justice Breyer joined Parts I and II. So by my count we have six votes for Part I (Thomas, Roberts, Scalia, Kennedy, Alito, and Breyer), seven votes for Part II (Thomas, Roberts, Scalia, Kennedy, Breyer, Ginsburg, and Kagan). Sotomayor dissented as to everything, joined by Ginsbug and Kagan to her Part II. Breyer dissented in part. So there are 5 votes for the judgment to be reversed, 4 votes for it to be affirmed. Phew, I think that’s it.

I’ll update this post as I make my way through the opinion.

Justice Thomas Part I

There are six votes for Part I (Thomas, Roberts, Scalia, Kennedy, Alito, and Breyer). This section merely lays out the facts.

Justice Thomas Part II

There are seven votes for Part II (Thomas, Roberts, Scalia, Kennedy, Breyer, Ginsburg, and Kagan). Alito did not join Part II.

In short, a federal district court sitting in habeas review can only consider the factual record presented to the state court that had originally adjudicated the claim on the merits.

We first consider the scope of the record for a §2254(d)(1) inquiry. The State argues that review islimited to the record that was before the state court that adjudicated the claim on the merits. Pinholster contends that evidence presented to the federal habeas court may also be considered. We agree with the State.
We now hold that review under §2254(d)(1) is limited to the record that was before the state court that adjudicatedthe claim on the merits. Section 2254(d)(1) refers, in thepast tense, to a state-court adjudication that “resulted in”a decision that was contrary to, or “involved” an unreasonable application of, established law. This backwardlooking language requires an examination of the statecourt decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time⎯i.e., the record before the state court.

In a footnote, Thomas rejects Sotomayor’s dissenting position that it would “it would not be “so different” from some other tasks that courts undertake.”

What makes the consideration of new evidence strange is not how “different” the task wouldbe, but rather the notion that a state court can be deemed to have unreasonably applied federal law to evidence it did not even knowexisted. We cannot comprehend how exactly a state court would haveany control over its application of law to matters beyond its knowledge.Adopting JUSTICE SOTOMAYOR’s approach would not take seriouslyAEDPA’s requirement that federal courts defer to state-court decisionsand would effectively treat the statute as no more than a “ ‘mood’ that the Federal Judiciary must respect,” Terry Williams, 529 U. S., at 386

Justice Thomas also chided the 9th Circuit for misinterpreting several precedents:

The Court of Appeals wrongly interpreted Williams v. Taylor, 529 U. S. 420 (2000) (Michael Williams), as supporting the contrary view. . . . The Court of Appeals’ reliance on Holland v. Jackson, 542 U. S. 649 (2004) (per curiam), was also mistaken.

At the conclusion of Part II, Thomas noted:

Although we might ordinarily remand for a properly limited review, the Court of Appeals also ruled, in the alternative, that Pinholster merited habeas relief even on the state-court record alone. 590
F. 3d, at 669. Remand is therefore inappropriate, and weturn next to a review of the state-court record.

And this is where the Court, and the majority parts company.

Justice Thomas Part III

There are five votes for this part: Thomas, Roberts, Scalia, Kennedy, and Alito.

The Court found the 9th Circuit’s alternate holding erroneous.

The Court of Appeals’ alternative holding was also erroneous. Pinholster has failed to demonstrate that the California Supreme Court unreasonably applied clearly established federal law to his penalty-phase ineffective assistance claim on the state-court record. Section 2254(d)prohibits habeas relief.

Pinholster has not shown that the California SupremeCourt’s decision that he could not demonstrate deficient performance by his trial counsel necessarily involved an unreasonable application of federal law.

Even if his trial counsel had performed deficiently, Pinholster also has failed to show that the California Supreme Court must have unreasonably concluded that Pinholster was not prejudiced.

Thomas also attackes Sotomayor’s standard of review on habeas, which amounts to little more than “her own sense of ‘prudence’” (another word for empathy).

At bottom, JUSTICE SOTOMAYOR’s view is grounded in little more than her own sense of “prudence,” post, at 26 (internal quotation marks omitted), and what appears to be her belief that the only reasonable mitigation strategyin capital cases is to “help” the jury “understand” the defendant, post, at 35. According to JUSTICE SOTOMAYOR, that Pinholster was an unsympathetic client “compound[ed], rather than excuse[d], counsel’s deficiency” inpursuing further evidence “that could explain why Pinholster was the way he was.” Post, at 30. But it certainly can be reasonable for attorneys to conclude that creatingsympathy for the defendant’s family is a better idea because the defendant himself is simply unsympathetic.

Alito Concurring in Judgment

Alito, in a brief 1-page concurring opinion, concurred in Judgment, but only joined Part I of the majority’s opinion. In fact, he also joined Part I of Sotomayor’s dissent.

Although I concur in the Court’s judgment, I agree withthe conclusion reached in Part I of the dissent, namely,that, when an evidentiary hearing is properly held in federal court, review under 28 U. S. C. §2254(d)(1) must take into account the evidence admitted at that hearing.As the dissent points out, refusing to consider the evidencereceived in the hearing in federal court gives §2254(e)(2) an implausibly narrow scope and will lead either to resultsthat Congress surely did not intend or to the distortion of other provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, and the law on “cause and prejudice.” See post, at 9–12 (opinion of SOTOMAYOR, J.).
Under AEDPA evidentiary hearings in federal court should be rare. The petitioner generally must have madea diligent effort to produce in state court the new evidence on which he seeks to rely. See §2254(e)(2); Williams v. Taylor, 529 U. S. 420, 433–434 (2000). If that requirementis not satisfied, the petitioner may establish the factualpredicate for a claim in a federal-court hearing only if,among other things, “the facts underlying the claim would be sufficient to establish by clear and convincing evidencethat but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” §2254(e)(2)(B).

Alito adopts Judge Kozinski’s dissent from en banc opinion, and finds that an evidentiary hearing should not be held in this case.

I would hold that the federalcourt hearing should not have been held because respondent did not diligently present his new evidence to the California courts. And I join all but Part II of the opinion of the Court, as I agree that the decision of the state court represented a reasonable application of clearly established Supreme Court precedent in light of the state-court record.

Breyer concurring in part, dissenting part (not in Judgment)

Breyer’s two-page opinion spells out (thankfully) what he joins, and what he does not join.

I join Parts I and II of the Court’s opinion. I do not joinPart III, for I would send this case back to the Court of Appeals so that it can apply the legal standards that Part II announces to the complex facts of this case.

So even though Breyer would not reverse and remand under the terms the Majority does, he does wish to reverse the case. However, he agrees with the Court’s approach, even if he does not join the judgment.

Sotomayor Dissent Part I

Sotomayor wrote a 41 page dissent. Justice Alito agrees, but did not join, Part I of the dissent.

Under the Court’s novel interpretation of §2254(d)(1), however, federal courts must turn a blind eye to new evidence in deciding whether a petitioner hassatisfied §2254(d)(1)’s threshold obstacle to federal habeasrelief—even when it is clear that the petitioner would be entitled to relief in light of that evidence. In readingthe statute to “compe[l]” this harsh result, ante, at 9, the Court ignores a key textual difference between§§2254(d)(1) and 2254(d)(2) and discards the previous understanding in our precedents that new evidence can, in fact, inform the §2254(d)(1) inquiry. I therefore dissent from the Court’s first holding.

Note that the dissent is not “respectful.”

However, at the end, she “respectfully dissent[s].”

I cannot agree with either aspect of the Court’s ruling. I fear the consequences of the Court’s novel interpretation of §2254(d)(1) for diligent state habeas petitioners with compelling evidence supporting their claims who were unable, through no fault of their own, to present thatevidence to the state court that adjudicated their claims. And the Court’s conclusion that the California Supreme Court reasonably denied Pinholster’s ineffectiveassistance-of-counsel claim overlooks counsel’s failure to investigate obvious avenues of mitigation and the contrast between the woefully inadequate mitigation case they presented and the evidence they should and would havediscovered. I respectfully dissent.

The Court first holds that, in determining whether astate-court decision is an unreasonable application of Supreme Court precedent under §2254(d)(1), “review . . . is limited to the record that was before the state court that adjudicated the claim on the merits.” Ante, at 9. New evidence adduced at a federal evidentiary hearing isnow irrelevant to determining whether a petitioner hassatisfied §2254(d)(1). This holding is unnecessary to promote AEDPA’s purposes, and it is inconsistent with theprovision’s text, the structure of the statute, and ourprecedents.

To understand the significance of the majority’s holding,it is important to view the issue in context. AEDPA’s entire structure—which gives state courts the opportunityto decide factual and legal questions in the first instance—ensures that evidentiary hearings in federal habeas proceedings are very rare.

These considerations lead me to agree with the courts ofappeals that have concluded that a federal court should assess the reasonableness of a state court’s application of clearly established federal law under §2254(d)(1) in lightof evidence properly admitted in a federal evidentiary hearing.

Sotomayor Dissent Part II

Justice Ginsburg and Kagan joined this opinion.

Sotomayor explicitly disagrees with the Majority’s Part III in Part II of her dissent (joined by Ginsburg and Kagan).

I also disagree with the Court that, even if the §2254(d)(1) analysis is limited to the state-court record,respondent Scott Pinholster failed to demonstrate that theCalifornia Supreme Court’s decision denying his ineffec tive-assistance-of-counsel claim was an unreasonable application of Strickland v. Washington, 466 U. S. 668 (1984). There is no reason for the majority to decide whether the §2254(d)(1) analysis is limited to the statecourt record because Pinholster satisfied §2254(d)(1) oneither the state- or federal-court record.

Sotomayor Dissent Part III

This part is all Sotomayor, she wrote for herself.

The state-court record on its own was more than adequate to support the Court of Appeals’ conclusion that the California Supreme Court could not reasonably have rejected Pinholster’s Strickland claim. The additional evidence presented in the federal evidentiary hearing only confirms that conclusion.