J. Harvie Goes Hat Shopping

November 23rd, 2011

From Judge Wilkinson’s dissent in Elmore v. Ozmint where the newly-liberal 4th Circuit grants a writ to a mentally retarded handyman who was convicted of murder decades ago:

It would be amusing, if it were not so very serious, to imag- ine for a moment the majority’s visit to a haberdashery. The visit would be a fun one, because my friends in the majority would try on every hat in the shop, except, of course, the one that might conceivably fit. Here, the majority dons the head- wear of the jury, the state trial court, the state appellate court, the state post-conviction relief (PCR) court, and the federal district court, but then inexplicably leaves the premises with- out a passing glance at the cap befitting federal appellate judges reviewing under AEDPA the considered judgment of a state court that a defendant’s counsel was not ineffective and that there was no prejudice arising from that counsel’s allegedly deficient performance.

The majority spends a considerable amount of time defend- ing its conclusion that Edward Lee Elmore is entitled to habeas relief on his ineffective assistance of counsel claim. But as Mark Twain is reputed to have said, “The more you explain it, the more I don’t understand it.” SEC v. Chenery Corp., 332 U.S. 194, 214 (1947) (Jackson, J., dissenting). Simply put, the majority’s rejection of the South Carolina PCR court’s determination that defense counsel’s alleged deficiencies did not result in prejudice cannot be squared with the deferential standards required under AEDPA, the facts of this case, or Supreme Court precedent. And in the course of its decision, the majority unjustly impugns the criminal justice system of South Carolina, slanders a deceased man who sim- ply had the misfortune of discovering his neighbor’s mutilated body, and grants habeas relief to a prisoner whom over- whelming evidence suggests brutally raped and murdered an elderly woman in her home. For these reasons, I respectfully dissent.