SCOTUS to En Banc 9th Circuit: “No.”

November 17th, 2014

Some things in the universe are constant. The sun rises in the east, sets in the west, and the Supreme Court will reverse the 9th Circuit on Habeas. Today, in Glebe v. Frost, the Court reversed the en banc 9th Circuit in a habeas case.

Plus SCOTUS goes all millenial and responds, briefly, to the 9th Circuit’s argument with a one-word rejoinder: “No.”

Attempting to bridge the gap between Herring and this case, the Ninth Circuit cited two Circuit precedents— United States v. Miguel, 338 F. 3d 995 (CA9 2003), and Conde v. Henry, 198 F. 3d 734 (CA9 2000)—for the propo- sition that “preventing a defendant from arguing a legiti- mate defense theory constitutes structural error.” 757 F. 3d, at 916. As we have repeatedly emphasized, how- ever, circuit precedent does not constitute “clearly estab- lished Federal law, as determined by the Supreme Court.” §2254(d)(1); see, e.g., Lopez v. Smith, 574 U. S. ___, ___ (2014) (per curiam) (slip op., at 6). The Ninth Circuit acknowledged this rule, but tried to get past it by claiming that circuit precedent could “ ‘help . . . determine what law is “clearly established.”’” 757 F. 3d, at 916, n. 1. But neither Miguel nor Conde arose under AEDPA, so neither purports to reflect the law clearly established by this Court’s holdings. The Ninth Circuit thus had no justifica- tion for relying on those decisions. See Parker v. Mat- thews, 567 U. S. ___, ___ (2012) (per curiam) (slip op., at 13).

The second rationale for the Court of Appeals’ decision is no more sound than the first. The Ninth Circuit rea- soned that, by allowing the prosecution to argue that it had proved the elements of the crimes, but “prohibit[ing]” the defense from responding that it had not, the trial court in effect “forc[ed] defense counsel to concede his client’s guilt.” 757 F. 3d, at 917. By extracting this “conce[ssion],” the Ninth Circuit continued, the trial court “relieved the State of its burden of proving guilt beyond a reasonable doubt,” “shifted the burden of proof to Frost,” and even “directed [a] verdict on guilt”—all “unquestionably struc- tural [errors].” Id., at 917–918.

No. The trial court, to begin, did not prohibit the de- fense from arguing that the prosecution failed to prove the elements of the crime. It instead precluded the defense from simultaneously contesting reasonable doubt and claiming duress. Reasonable minds could disagree whether requiring the defense to choose between alternative theo- ries amounts to requiring the defense to concede guilt. Still more could they disagree whether it amounts to eliminating the prosecution’s burden of proof, shifting the burden to the defendant, or directing a verdict. In addi- tion, even if the trial court’s ruling somehow “forced” the defense “at least tacitly [to] admit the elements of the crimes,” id., at 913, the Ninth Circuit still would have no basis for ruling as it did. It goes much too far to suggest that our cases clearly establish that this supposed extrac- tion of a “taci[t] admi[ssion]” is structural error, when they classify the introduction of a coerced confession only as trial error, Arizona v. Fulminante, 499 U. S. 279, 310 (1991).

Update: BTW, the Twitter consensus is this was an opinion by the Chief.