Amicus Curiae Brief — Williams v. Taylor

Supreme Court, Uf

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OFsiG2 OR Wal) GLEAN

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No. 98-8384

IN THE

Supreme Court of the United States

TERRY WILLIAMS,

Petitioner,

VS.

JOHN B. TAYLOR, Warden, Sussex I State Prison,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Fourth Circuit

BRIEF AMICUS CURIAE OF THE

CRIMINAL JUSTICE LEGAL FOUNDATION

IN SUPPORT OF RESPONDENT

KENT S. SCHEIDEGGER

Attorney of Record

CHRISTINE M. MURPHY

Criminal Justice Legal Fdn.

2131 L Street

Sacramento, CA 95816

Phone: (916) 446-0345

Fax: (916) 446-1194

E-mail: cjlf@cjlf.org

Attorneys for Amicus Curiae

Criminal Justice Legal Foundation

~ BEST AVAILABLE COPY

QUESTIONS PRESENTED

1. In applying 28 U.S. C. §2254(d)(1), what kinds of

challenges to state court decisions are evaluated under

“contrary to... clearly established Federal law,” and what

kinds are evaluated under “unreasonable application of

clearly established Federal law’?

2. What standard is used to determine if an application is

“unreasonable”?

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TABLE OF CONTENTS

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I

Section 2254(d) is a modified rule of res judicata ........ 2

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B. Tradition—Goenerally ........ccccccccccecess 6

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II

The Courts of Appeals have unanimously rejected the thesis

that review of mixed questions is unchanged......... 1]

Ill

“Contrary to” governs rule selection, “unreasonable

application” governs rule application, and “clearly

established” qualifies both ............6.0.000 005. 19

IV

There is nothing remotely unconstitutional about a modified

PED cocebeeeectddevesceccensseeess 27

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The state court correctly identified and reasonably applied the

DURE: cc cvcccecevescouseenseuaneunausy 29

TABLE OF AUTHORITIES

Cases

Agostini v. Felton, 521 U.S. 203, 138 L. Ed. 2d 391,

Se SE oe digenvhundadeewneadonss 7

Allen v. McCurry, 449 U. S. 90, 66 L. Ed. 2d 308,

ee ED cb dxntascueesenseedebieeeeds 7

Almendarez-Torres v. United States, 523 U. S. 224,

140 L. Ed. 2d 350, 118 S. Ct. 1219(1998) .......... 27

Angel v. Bullington, 330 U. S. 183, 91 L. Ed. 832,

EE nerves ceenbwedseecesabadeesss 7

Arizona v. California, 460 U. S. 605, 75 L. Ed. 2d 318,

Ns SEED db ecddedkenseesueecuaceuses 7

Ayala v. Speckard, 131 F. 3d 62 (CA2 1997) .......... 12

Ayala v. Speckard, 89 F. 3d 91 (CA2 1996) ........... 12

Baker v. General Motors Corp., 522 U. S. 222,

139 L. Ed. 2d 580, 118 S. Ct. 657 (1998) ............ 6

Breard v. Greene, 523 U. S. 371, 140 L. Ed. 2d 529,

i i cn, cs coecknededadusecenseeee 10

Brecht v. Abrahamson, 507 U.S. 619, 123 L. Ed. 2d 353,

See et CUE cb eancedssbsducdanees 6, 21, 24

Brown v. Allen, 344 U. S. 443, 97 L. Ed. 469, 73 S. Ct. 437

DT cucisdvvekabdadessesekscuok eh kunwes 8, 10, 26

Bui v. DiPaolo, 170 F. 3d 232 (CAI 1999) ......... 13,14

Butler v. McKellar, 494 U. S. 407, 108 L. Ed. 2d 347,

Se a, DEED a < Gucdenosduches ans saes 23, 25

Canales v. Roe, 151 F. 3d 1226 (CA9 1998) ........ 16, 17

vi

Caspari v. Bohlen, 510 U. S. 383, 127 L. Ed. 2d 236,

kk Er ee eee 24

Castille v. Peoples, 489 U. S. 346, 103 L. Ed. 2d 380,

i ic. ¢cosesuehenbnedetesuesans 5

Christianson v. Colt Indus. Operating Corp., 486 U. S. 800,

100 L. Ed. 2d 811, 108 S. Ct. 2166 (1988) ........... 7

Coleman v. Thompson, 501 U.S. 722, 115 L. Ed. 2d 640,

Se ED cs coxudeencsuussssecees 8, 10

Darr v. Burford, 339 U. S. 200, 94 L. Ed. 761,

ES 6 as cccddes deudutinsehecendades 9

Drinkard v. Johnson, 97 F. 3d 751 (CAS 1996)......... 12

Ex parte Hawk, 321 U.S. 114, 88 L. Ed. 572,

es en ED eo cdudcdnesuiwedendetsawceces 10

Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717 (1880) .... 6

Ex parte Watkins, 3 Pet. (28 U.S.) 193,

Sa hes ee keene 8

Fay v. Noia, 372 U. S. 391, 9 L. Ed. 2d 837,

a a ah eae 8, 1U

Furman v. Wood, 169 F. 3d 1230 (CA9 1999) ...... 17, 23

Green v. French, 143 F. 3d 865 (CA4 1998) ........... 12

Houchin v. Zavaras, 107 F. 3d 1465 (CA10 1997) ...... 17

In re Wood, 140 U. S. 278, 35 L. Ed. 505,

ne el. ee kueuetorwaues 10

Jones v. United States, 527 U.S. __

(No. 97-9361 June 21, 1999) .......... 0. cee eee 30

Kuhlmann v. Wilson, 477 U. S. 436, 91 L. Ed. 2d 364,

Se ee GCE, SRO EROEED cece ccccccecoccccvccesess 16

Vii

LaFevers v. Gibson, No. 98-6302

ee 18

Lambrix v. Singletary, 520 U. S. 518, 137 L. Ed. 2d 771,

EN encebddacukavesnetanevesn 25

Lindh v. Murphy, 521 U. S. 320, 138 L. Ed. 2d 481,

Se EE ov oni id ccacthucnanssnasauer 12

Lindh v. Murphy, 96 F. 3d 856 (CA7 1996) ........... 12

Lockhart v. Fretwell, 506 U. S. 364, 122 L. Ed. 2d 180,

PEED Cos ccovctunbdanbdbusnacases 29

Long v. Humphrey, No. 98-3409 (CA8 July 14, 1999) ... 18

Matteo v. Superintendent, 171 F. 3d 877

| 5, 14, 15, 16, 22, 23, 27

McCleskey v. Zant, 499 U. S. 467, 113 L. Ed. 2d 517,

i ened eed eked eden ie 8,9

McCulloch v. Maryland, 4 Wheat. (17 U. S.) 316,

Sc ET nee e ee cece edheeasaneune 28

Miller v. Champion, 161 F. 3d 1249 (CA10 1998) ...... 17

Miller v. Fenton, 474 U. S. 104, 88 L. Ed. 2d 405,

Ne NTT ee CES ehuees 23

Mills v. Duryee, 7 Cranch (11 U.S.) 481,

a a ls a es a 7

Montana v. United States, 440 U. S. 147,

59 L. Ed. 2d 210, 99 S. Ct. 970 (1979) ............. 28

Morales v. Calderon, 85 F. 3d 1387 (CA9 1996) ....... 11

Neelley v. Nagle, 138 F. 3d 917(CA11 1998) .... 6,12, 19

1. Cases too new to be in the printed F. 3d are cited in a “vendor neutral”

format.

vill

Nevers v. Killinger, 169 F. 3d 352 (CA6 1999) ........ 18

Nix v. Whiteside, 475 U. S. 157, 89 L. Ed. 2d 123,

Pe ED bcc cccceseuceneescuseocasss 29

O’Brien v. Dubois, 145 F. 3d 16 (CAI 1998) ....... 13, 22

O’Dell v. Netherland, 521 U.S. 151, 138 L. Ed. 2d 351,

i ie te Ce ee ea rl oe 25

Parker v. Champion, 148 F. 3d 1219 (CA10 1998) ...... 17

Parts and Elec. Motors, Inc. v. Sterling Elec., Inc.,

es ET SED bev cckcducesecesesssces 25

Patterson v. McLean Credit Union, 491 U. S. 164,

105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989) ........... 5

Pennsylvania v. Bruder, 488 U.S. 9, 102 L. Ed. 2d 172,

es ee EE Ho cb benddabhaecedesseseedis 24

Reed v. Ross, 468 U.S. 1, 82 L. Ed. 2d 1,

ee EE i cevduecesewssceeceosseses 10

Saffle v. Parks, 494 U. S. 484, 108 L. Ed. 2d 415,

Py es CED oc nutceveCénesedvensssseés 25

Salinger v. Loisel, 265 U. S. 224, 68 L. Ed. 989,

es SE 6. 0dncecdbednddewadenscecct cax 8

Sanders v. United States, 373 U.S. 1, 10 L. Ed. 2d 148,

Se SED dé vetuecasbasauccesseocdeusé: )

Sawyer v. Smith, 497 U. S. 227, 111 L. Ed. 2d 193,

a ek EEE bobo cnecceseunnessesees 19, 20

Smalls v. Batista, No. 98-2526 (CA2 July 30, 1999)..... 12

Stone v. Powell, 428 U.S. 465, 49 L. Ed. 2d 1067,

SEE cone Se ne cakveduaceiebaves 3, 10

Strickland v. Washington, 466 U. S. 668,

80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984) ..... 15, 16, 29

iX

Strickler v. Greene, 527 U.S. _, 119 S. Ct. 1936

i? tic cease eased be eebecedseseeeseceses 30

Teague v. Lane, 489 U. S. 288, 103 L. Ed. 2d 334,

CE accicdeeaecevesscecss 2, 10,11

Thompson v. Keohane, 516 U.S. 99,

133 L. Ed. 2d 383, 116 S. Ct. 457 (1995) ........ 16, 28

Vendo Co. v. Lektro-Vend Corp., 434 U. S. 425,

54 L. Ed. 2d 659, 98 S. Ct. 702 (1978) .............. 7

Vieux v. Pepe, No. 98-1864 (CAI July 19, 1999) .... 14,24

Williams v. Commonwealth, 360 S. E. 2d 361

DE PL UESGATSEAEDS UGE EERO RORS G0Aes ences |

Williams v. Taylor, 163 F. 3d 860 (CA4 1998) .......... 2

Williams v. Warden, 487 S. E. 2d 194 (Va. 1997) .... 2, 30

Wright v. West, 505 U. S. 277, 120 L. Ed. 2d 225,

112 S. Ct. 2482 (1992) ........ 2, 5, 9, 13, 16, 20, 21, 22

United States Statutes

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ee ee ete ssaeeeeneee ses 5,9

i ED cic beciecnneecnctoesesens 5

EE nh ANG h sob 0b04 00s seteeere Passim

Act of May 26, 1790, ch. 11, 1 Stat. 122 ............... 6

Miscellaneous

eos § PPPSTITITIOET TLE 4

141 Cong. Rec. (daily ed. June 7, 1995)... . . 3, 4, 8, 18, 21

142 Cong. Rec. (1996)... 00... 0c. cece cece. 15, 21, 22

Forsythe, The Historical Origins of Broad Federal Habeas

Review Reconsidered, 70 Notre Dame L. Rev. 1079

DP cstesnsescnneausesis (on bea baasacuenenl 10

Liebman & Ryan, “Some Effectual Power”: The Quantity

and Quality of Decisionmaking Required of Article III

Courts, 98 Colum. L. Rev. 696

Dy cessauanhendeneuasaeasees 3, 10, 11, 20, 27, 28

Monaghan, Constitutional Fact Review,

ee GD, Us SEU, APU ccc cccccccscccsccccs 20

Peller, In Defense of Federal Habeas Corpus Relitigation,

16 Harv. C.R.-C.L. L. Rev. $79 (1962) .............. 9

S. 1657, 103d Cong., Ist Sess. (1993) ................. 4

Scheidegger, Habeas Corpus, Relitigation, and the

Legislative Power, 98 Colum. L. Rev. 888

i bhénninnkéeseeiess ei ee ieee ee is bes Passim

Thompson, Congress OKs Broad Reform of “Great Writ,”

L. A. Daily Journal, Apr. 19, 1996 ................. 11

2. The daily edition is cited here because the permanent edition for this

date is not yet available. Undesignated Congressional Record citations

are to the permanent edition.

INTEREST OF AMICUS CURIAE

The Criminal Justice Legal Foundation (CJLF)' is a non-

profit California corporation organized to participate in

litigation relating to the criminal justice system as it affects the

public interest. CJLF seeks to bring the constitutional pro-

tections of the accused into balance with the rights of the victim

and of society to rapid, efficient, and reliable determination of

guilt and swift execution of punishment.

This case involves the proper interpretation of Congress’s

landmark reform of habeas corpus law in the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). This law, if

properly implemented, will greatly reduce unnecessary delay in

the enforcement of capital punishment and reduce the number

of correct criminal judgments erroneously overturned on federal

habeas. These changes would advance the rights of victims and

society which CJLF was formed to protect.

SUMMARY OF FACTS AND CASE

Fourteen years ago, Terry Williams robbed elderly Harris

Stone, striking him on the chest and back with a mattock,

killing him. Williams v. Commonwealth, 360 S. E. 2d 361,

363-364 (Va. 1987). A few months later, he committed “a

vicious and brutal malicious wounding of an elderly lady . . .

that caused extensive brain damage and left her a ‘vegetable.’ ”

Id., at 370. He had an extensive record of other crimes. /bid.

Following affirmance of his death sentence on direct appeal,

there was a state habeas proceeding. The principal claim was

ineffective assistance of counsel in the penalty phase for failure

to present evidence of a “ ‘deprived and abused upbringing’ ”

1. Rule 37.6 Statement: This brief was written entirely by counsel for

amicus, as listed on the cover, and not by counsel for any party. No

outside contributions were made to the preparation or submission of

this brief.

Both parties have given written consent to the filing of this brief.

and omitting a character witness. Williams v. Warden, 487

S. E. 2d 194, 197 (Va. 1997). The Virginia Supreme Court

rejected the claim, finding that petitioner had not established “a

‘reasonable probability’ that the result of the proceeding would

have been different, nor any probability sufficient to undermine

confidence in the outcome.” /d., at 199.

On federal habeas, the District Court granted relief, but the

Fourth Circuit reversed the grant. Williams v. Taylor, 163 F.3d

860, 862-863 (CA4 1998). Applying 28 U. S. C. §2254(d)(1),

the court held that the state court’s assessment of reasonable

probability was not unreasonable. 163 F. 3d, at 868.

SUMMARY OF ARGUMENT

The new statutory standard is a rule of prior adjudication,

i.e., a modified rule of res judicata. It is not a codification or

modification of Teague v. Lane, and that case still applies as an

independent limitation. The courts of appeals which have

addressed the question have unanimously held that Wright v.

West-type claims, applying settled legal standards to case-

specific facts, are evaluated under the “unreasonable applica-

tion” branch of the statute. The correct method for applying the

statute is largely that outlined by the Eleventh Circuit in Neelley

v. Nagle. The statute is constitutional beyond serious question

and precludes relief in this case.

ARGUMENT

I. Section 2254(d) is a modified rule of res judicata.

A. Plain Meaning.

Betore examining the trees, it is worthwhile to step back

and see which forest we are in. The scope and application of a

rule are illuminated by the nature of the rule. The scope of

Teague v. Lane, 489 U. S. 288 (1989) was determined in part

by its nature as a rule of retroactivity and not a standard of

review. See Wright v. West, 50S U. S. 277, 307 (1992) (Ken-

nedy, J., concurring in the judgment). In the same way, the

proper scope of the new statutory rule is determined in part by

its nature.

The place to begin, as Senator Biden noted in the debate, is

at the top. See 141 Cong. Rec. $7842 (daily ed. June 7, 1995).-

“An application for a writ of habeas corpus on behalf of a

person in custody pursuant to a judgment of a State court shall

not be granted with respect to any claim adjudicated on the

merits in State court proceedings unless... .” 28 U.S.C.

§ 2254(d) (emphasis added).

This states the general rule. What follows the “unless” are

exceptions to the general rule. This rule is a prohibition against

granting relief to a party who has already litigated and lost the

same claim. This is a rule of prior adjudication. It falls into the

same family of rules as the doctrines of res judicata, law of the

case, successive petitions, and Stone v. Powell, 428 U.S. 465

(1976). “The general principle in this language in the Hatch bill

is that Federal courts shall not grant a claim that was adjudi-

cated in State court proceedings. That is what is at the top.”

141 Cong. Rec. $7842 (daily ed. June, 7, 1995) (statement of

Sen. Biden); Scheidegger, Habeas Corpus, Relitigation, and the

Legislative Power, 98 Colum. L. Rev. 888, 946 (1998).

The attempts to pound the square peg of § 2254(d) into the

round hole of retroactivity typically focus on the exceptions and

ignore the rule. For example, Liebman & Ryan, “Some

Effectual Power”: The Quantity and Quality of Decision-

making Required of Article II] Courts, 98 Colum. L. Rev. 696,

866-868 (1998) quote the main body of subsection (d) along

with paragraph (1), but then never mention the general rule in

their statutory analysis. See also Brief for Petitioner 26-39

(same); Brief for the American Civil Liberties Union as Amicus

Curiae 4-13 (same) (“ACLU Brief”). These arguments are

2. This article is cited throughout this brief out of necessity, not hubris.

To stay within the page limit, the discussion is thin in spots, referring

to the article for a more complete discussion.

mistaken on their own terms. More fundamentally, though, it

would be exceedingly odd for Congress to have expressed the

basic nature of the rule in the exceptions rather than the main

rule.

If Congress were going to codify or modify Teague and

enact a rule of retroactivity, one would expect the topics of

retroactivity, time, and choice of governing law to be placed

front and center, i.e., something like this:

“(a) RETROACTIVE APPLICATION OF NEW RULES—

“ *Sec. 2257. Law applicable

“ ‘In cases subject to this chapter, all claims shall be

governed by the law as it was when the petitioner’s convic-

tion became final. A court considering a claim under this

chapter shall consider intervening decisions by the Supreme

Court of the United States which establish fundamental

constitutional rights.’.” S. 1657, 103d Cong., Ist Sess.

§ 304(a) (1993).

One would further expect that when such a bill reached the

floor, the Teague decision and other retroactivity cases would

~ be prom i xt in the debate. That is what happened in the

debate on S. 1657, supra, which really was a retroactivity

provision. See 139 Cong. Rec. 29,444-29,449 (1993). That is

not what happened in the debate over S. 735. Teague was not

even mentioned on the floor. The same Senators (Hatch, Biden.

and Specter) who debated Teague and retroactivity in consider-

ing S. 1657 debated the present measure at length without

mentioning Teague. 141 Cong. Rec. S7831-S7849 (daily ed.

June 7, 1995). The best the other side can point to is a few

ambiguous impromptu responses by witnesses to a question in

a committee hearing. See ACLU Brief 27, n. 47. A weaker

example of legislative history is difficult to imagine.

The word actually used on the floor was not “retroactivity,”

but “deference.” “As one commentator accurately recounts, in

both houses of Congress section 2254(d) ‘was called a “defer-

ence” standard by every member who spoke on the question,

opponents as well as supporters.’ ” Matteo v. Superintendent,

171 F. 3d 877, 890 (CA3 1999) (en banc). The word “defer-

ence” is important, because that is the kind of rule that the

concurring Justices in West emphatically declared that Teague

was not. Wright v. West, supra, 505 U. S., at 304 (O’Connor,

J., concurring in the judgment); id., at 307 (Kennedy, J.,

concurring in the judgment). Both the supporters and oppo-

nents understood that this bill took the step that the Court

considered, but did not take, in West. In light of the case law

under the prior statute, and Congress’s arguable ratification of

it in 1966, see id., at 294-295 (plurality opinion), the step was

properly one for Congress rather than the Court to take. See id.,

at 305-306 (O’Connor, J., concurring in the judgment); see also

Patterson v. McLean Credit Union, 491 U. S. 164, 172-173

(1989) (statutory interpretation precedents have special weight

as stare decisis, precisely because Congress can abrogate

them); Scheidegger, supra, 98 Colum. L. Rev., at 888-889.

The language of subsection (d) closely tracks the language

of subsection (b), the exhaustion rule. That is because they are

similar rules. Subsection (a) states the exclusive ground for

granting federal habeas relief to a state convict: “that he is in

custody in violation of the Constitution or laws or treaties of the

United States.” Subsections (b) and (d) state reasons for not

reaching the underlying claim, based on what did or did not

happen in state court. Section (b) forbids relief if the prisoner

has not fairly presented his claims to state courts, with certain

exceptions. See Castille v. Peoples, 489 U.S. 346, 351 (1989).

Subsection (d) forbids relief if the state courts have decided the

claims against the prisoner, with certain exceptions.

In both subsections, the exceptions deal with gross deficien-

cies in the state process. If state process is absent or ineffective,

it need not be exhausted. 28 U. S. C. §2254(b)(1)(B). Ifa state

court fails to apply a clearly established Supreme Court

precedent or applies it unreasonably, its judgment does not bar

relief. § 2254(d)(1); Neelley v. Nagle, 138 F. 3d 917, 924

(CAI11 1998). But if the state provides effective process, the

state court recognizes the correct rule of law, and the state court

reasonably applies the rule to the facts, then that decision

stands, subject only to review by higher state courts and by this

Court on certiorari. This rule is the natural result of principles

recognized by this Court. “Direct review is the principal

avenue for challenging a conviction .... ‘The role of federal

habeas proceedings, while important . . . , is secondary and

limited.’ ” Brecht v. Abrahamson, 507 U. S. 619, 633 (1993)

(quoting Barefoot v. Estelle, 463 U.S. 880, 887 (1983)).

“We may mystify any thing. But if we take a plain view of

the words of the [statute], and give to them a fair and

obvious interpretation, we cannot fail in most cases of

coming to a clear understanding of its meaning. We shall

not have far to seek. We shall find it on the surface, and not

in the profound depths of speculation.” Ex parte Siebold,

100 U.S. 371, 393 (1880).

The nature of this rule is plain and found on the surface. It

forbids granting a claim previously rejected by a coordinate

court, unless an exception applies. It is a rule of prior adjudica-

tion, not a rule of retroactivity or choice of law.

B. Tradition —Generally.

Far from being a radical innovation, the new rule brings

federal habeas for state prisoners back toward the mainstream

of Anglo-American jurisprudence. The procedure is still

unique, but it is less anomalous than it was before.

The traditional general rule is res judicata. State court

judgments have res judicata effect in federal court. That has

been the rule, if not from day one, at least from year two. The

first Congress, in its second session, enacted the Full Faith and

Credit Act. See Baker v. General Motors Corp., 522 U. 8. 222,

232, n. 4(1998); Act of May 26, 1790, ch. 11, 1 Stat. 122; 28

U.S.C. § 1738; Scheidegger, supra, 98 Colum. L. Rev., at 912.

This statute applies to federal courts as much as state courts.

Mills v. Duryee, 7 Cranch (11 U.S.) 481, 485 (1813). It applies

to federal questions as well as state-law questions, and it does

not permit reexamination of the merits. “That the adjudication

of federal questions by the [state court] may have been errone-

ous is immaterial for purposes of res judicata.” Angel v.

Bullington, 330 U. S. 183, 187 (1947); see also Allen v.

McCurry, 449 U.S. 90, 103 (1980) (no right to relitigate in

federal court).

In cases where res judicata does not apply, relitigation of an

issue may be barred by the “law of the case” doctrine. “Under

this doctrine, a court should not reopen issues decided in ear’ ier

stages of the same litigation.” Agostini v. Felton, 521 U. S.

203, 236 (1997). This “doctrine applies as much to the deci-

sions of a coordinate court in the same case as to a court’s own

decisions.” Christianson v. Colt Industries Operating Corp.,

486 U. S. 800, 816 (1988); Scheidegger, supra, 98

Colum. L. Rev., at 914, and n. 158.

The doctrine is more flexible than res judicata, however,

Arizona vy. California, 460 U. S. 605, 618 (1983), and it does

not stop a court from reconsidering an issue if the prior decision

“is clearly erroneous and would work a manifest injustice.” /d.,

at 618, n. 8 (emphasis added); Agostini, supra, 521 U. S., at

236. The term “clearly” is important here. Upon finding the

decision of the first court to be plausible, the inquiry of the

coordinate court ends. Christianson, supra, 486 U. S., at 819.

Unlike res judicata, law of the case depends on the relative

status of the courts in question. A higher court hearing an

appeal is not bound by a decision of a lower court. See id., at

817. Conversely, a lower court is not entitled to declare the

higher court decision clearly erroneous and disregard it. See

Vendo Co. v. Lektro-Vend Corp., 434 U. S. 425, 427-428

(1978).

On one point, amicus ACLU is exactly right: “Inferior

federal courts and state courts are co-equals; both answer only

to this Court.” ACLU Brief 4; see also Scheidegger, supra, 98

Colum. L. Rev., at 898-899. T’ e problem is that since Brown

v. Allen, supra, 344 U. S. 443 (1953), they have not been

treated as co-equals. Congress has acted to correct that anom-

aly, based squarely on the premise that “[s]tate courts, in many

respects, are just as good, if not better, than the Federal

courts—in these areas, just as good.” 141 Cong. Rec. $7846

(daily ed. June 7, 1995) (statement of Sen. Hatch).

Congress did not exactly adopt the coordinate-court law-of-

the-case doctrine in § 2254(d). It crafted a new rule. Yet the

rule is closely analogous to law of the case, and it proceeds on

a similar premise. In essence, Congress has told the federal

district and circuit courts to stop treating the state courts as

lower courts and start treating them as coordinate courts.

C Tradition—Habeas.

Courts and commentators sometimes blithely assert that res

judicata has never applied in habeas corpus. See, e.g., Fay v.

Noia, 372 U.S. 391, 423 (1963), overruled on other grounds,

Coleman v. Thompson, 501 U.S. 722, 750 (1991). At common

law, that was true of the output of habeas but not the inputs.

That is, a prior denial in habeas did not preclude a successive

petition. See McCleskey v. Zant, 499 U.S. 467, 479 (1991). It

is not true, though, that the habeas court was free to ignore the

res judicata effect of other judgments, especially a judgment of

conviction. Ex parte Watkins, 3 Pet. (28 U.S.) 193, 203, 209

(1830) holds unambiguously to the contrary. See Scheidegger,

supra, 98 Colum. L. Rev., at 928-932 (discussing Watkins).

The subsequent history has been discussed many times and

need not be repeated here. Suffice it to say that before Brown

v. Allen. supra, this Court had developed two discretionary

rules of prior adjudication. First, contrary to the common law

rule, a judge presented with a successive petition could, but

need not, consider the prior denial, even to the point of giving

it controlling weight. Salinger v. Loisel, 265 U. S. 224, 231

(1924); see McCleskey, supra, 499 U. S., at 481-482.

Second, Darr v. Burford, 339 U. S. 200, 214 (1950),

overruled on other grounds, Fay v. Noia, supra, 372 U. S., at

435-436, acknowledged that the adjudication on direct review

would not be res judicata. However, Darr held unequivocally

that following state review and denial of certiorari, the habeas

court “may decline to examine further into the merits because

they have already been decided against the petitioner. [Foot-

note citing Salinger.| Thus there is avoided . . . repeated

adjudications of the same issues by courts of coordinate

powers.” Id., at 215 (emphasis added).

Words can hardly be more clear. Darr was a rule of prior

adjudication, albeit a flexible, discretionary one. The persistent

myth that denial of habeas relitigation in this era was based on

a substantive theory of due process rather than a rule of prior

adjudication, see, e.g., Peller, In Defense of Federal Habeas

Corpus Relitigation, 16 Harv. C.R.-C.L. L. Rev. 579, 663

(1982), is just that—a myth.

The Salinger rule of successive petitions evolved from one

of amorphous discretion to the very lax rule of Sanders v.

United States, 373 U.S. 1, 17-18 (1963), to the more structured

rule of McCleskey, supra, 499 U. S., at 493, and finally into the

codified rule of 28 U. S. C. §2244(b). The effect of the prior

state adjudication of the claim has followed a similar, though

not parallel, evolution. Brown, supra, effectively reduced the

state decision to a mere precedent from another jurisdiction,

albeit a particularly pertinent one. See Wright v. West, SOS

U. S. 277, 305 (1992) (O’Connor, J., concurring in the judg-

ment). In §2254(d), Congress has done with Darr just what

McCleskey and § 2244(b) did with Salinger, it has restored the

spirit of the pre-1953 discretionary rule but replaced it with a

structured and more tightly limited rule.

Throughout American history, the availability of federal

habeas for state prisoners has varied as a function of confidence

in state courts relative to federal courts. It was forbidden in the

beginning, when federal courts were a feared innovation. See

Scheidegger, supra, 98 Colum. L. Rev., at 932. It was expan-

10

sive during Reconstruction, see Forsythe, The Historical

Origins of Broad Federal Habeas Review Reconsidered, 70

Notre Dame L. Rev. 1079, 1117-1118 (1995), retracted in the

late nineteenth century, see, e.¢ , /n re Wood, 140 U. S. 278,

285-286 (1891), expanded again in the 1950s and 1960s during

the civil rights struggle, see Brown, supra; Fay v. Noia, supra,

and retracted again in the last quarter of this century in Stone v.

Powell, 428 U.S. 465 (1976), Teague, supra, Coleman, supra,

and other cases.

The enactment of a qualified prior adjudication bar is the

next logical step in this evolution. It takes us back to the

principle that relitigation is the exception and finality of

judgments is the rule. See Ex parte Hawk, 321 U.S. 114, 118

(1944) (per curiam) (“not ordinarily re-examine”). It does so

based on the recognition that state courts today are far different

from what they were in 1953 or 1963, that they warrant more

confidence, and that their judgments deserve more respect.

D. Teague Survives.

There were some comments after AEDPA that the rule of

Teague had been supplanted. See, e.g, Liebman & Ryan,

supra, 98 Colum. L. Rev., at 866. This is wishful thinking by

the rule’s intractable opponents. See Scheidegger, supra, 98

Colum. L. Rev., at 959, n. 500.

Breard v. Greene, 523 U.S. 371, 377 (1998) (per curiam)

sets that claim to rest. Teague remains as an independent

limitation on the scope of habeas relief. Where the state court

has ruled on the merits, Teague will overlap with § 2254(d)(1).

There are, however, a number of situations when Teague will

continue to have independent force.

In Breard, petitioner claimed novelty as cause for his

default. /hid.; cf. Reed v. Ross, 468 U.S. 1, 14-15 (1984).

Teague effectively shuts down this route, unless one of its

exceedingly narrow exceptions applies. Teague also has

independent force when the federal court has decided, rightly or

1]

wrongly, that a state’s procedural default rule is not adequate

and independent. Claims defaulted on appeal in the nation’s

largest state are presently in this status. See Morales v.

Calderon, 85 F. 3d 1387, 1393 (CA9 1996), cert. denied sub

nom. Calderon v. Morales, 519 U.S. 1001 (1996). The class

of claims to which Teague applies but § 2254(d)(1) does not

remains significant.

Congress could not possibly have intended to withdraw

Teague’s protection from this entire class of claims. That

would be contrary to the entire thrust and purpose of the bill.

The judicially created limitation of retroactivity and the

legislatively created limitation of prior adjudication stand as

independent grounds for decision. In many cases both apply,

but each reaches claims that the other does not.

Il. The Courts of Appeals have unanimously rejected the

thesis that review of mixed questions is unchanged.

When the AEDPA passed Congress, the legislative counsel

for amicus ACLU acknowledged what all involved understood

at the time: that the bill had fundamentally changed habeas

corpus, and that federal courts would no longer be able to

overturn state court decisions for mere disagreement. Thomp-

son, Congress OKs Broad Reform of “Great Writ,” L. A. Daily

Journal, Apr. 19, 1996, p. 8, col. 2. Amicus CJLF agreed with

the ACLU’s assessment of the magnitude of the change, though

disagreeing on its desirability. /bid.

Now petitioner, with the support of the ACLU and others,

would have this Court believe that the long, bitter debate over

this Act was much ado about not very much, that supporters and

opponents were both mistaken, and that the Act does little more

than tinker at the edges of Teague v. Lane, 489 U. S. 288

(1989). See Brief for Petitioner 32-33; ACLU Brief 2;

Liebman & Ryan, supra, 98 Colum. L. Rev., at 867-873.

The most important area of dispute involves the “mixed

question” situation, where the applicable rule is clearly estab-

lished but general in its terms, and the dispute involves the

application of that rule to specific facts. Petitioner claims that

the AEDPA left this area unchanged, and he claims five circuits

in support. Brief for Petitioner 39, n. 20. Actually, this thesis

has been unanimously rejected by the circuits which have

considered it.

As petitioner acknowledges, the Fourth, Fifth, Seventh, and

Eleventh Circuits are contrary to his position. See Brief for

Petitioner 40; Drinkard v. Johnson, 97 F. 3d 751, 767-768

(CAS 1996) (“unreasonable application” clause applies to

mixed questions of law and fact); Lindh v. Murphy, 96 F. 3d

856, 870 (CA7 1996), rev'd on other grounds, 521 U. S. 320

(1997) (same); Neelley v. Nagle, 138 F. 3d 917, 924 (CAI11

1998) (following Drinkard); Green v. French, 143 F. 3d 865,

870 (CA4 1998) (largely the same, with different analysis for

factually indistinguishable cases).

Other circuits have taken different analytical approaches.

However, when we look carefully at how those approaches are

applied to decide actual cases, we see that the differences are

more apparent than real. “Most importantly, all the circuits with

a defined position agree that when the state court applies the

correct general rule to specific facts, its decision stands if it is

reasonable, and mere disagreement is insufficient for collateral

attack.

Petitioner relies on Ayala v. Speckard, 89 F. 3d 91 (CA2

1996) for the Second Circuit's position in favor of “plenary”

relitigation of such claims. However, the Second Circuit

subsequently granted rehearing en banc. The en banc court

rendered its decision after Lindh v. Murphy, 521 U. S. 320

(1997), and hence did not need to discuss the AEDPA. See

Ayala v. Speckard, 131 F. 3d 62 (CA2 1997). The panel

decision in Ayala therefore has no value as precedent, and the

Second Circuit has not since taken a definite stand. See Smalls

v. Batista, No. 98-2526, text accompanying n. 5 (CA2 July 30,

1999) (noting but not taking position in circuit split).

13

The first court of appeals case to expressly disagree with

Drinkard and Lindh was the First Circuit opinion in O'Brien v.

Dubois, 145 F. 3d 16 (CAI 1998). O'Brien held that “the

habeas court asks whether the Supreme Court has prescribed a

rule that governs the petitioner’s claim.” /d., at 24. If so, the

court proceeds with the “contrary to” prong and otherwise goes

to the “unreasonable application” prong. /bid.

Despite its superficial similarity to the Liebman approach,

in actual application the First Circuit is closer to Drinkard and

Lindh. \ts “contrary to” analysis is limited to specific rules, id.,

at 25, and if “no Supreme Court precedent is dispositive of a

petitioner's claim,” ibid., the First Circuit proceeds to “unrea-

sonable application.” “This reduces to a question of whether

the state court's derivation of a case-specific rule from the

[Supreme] Court’s generally relevant jurisprudence appears

objectively reasonable.” /bid.

Applying the standard to O’Brien’s Confrontation Clause

claim of restricted recross-examination, the court found the

general rule of effective cross-examination insufficiently

specific for the “contrary to” branch. The state court’s resolu-

tion was plausible, and that was sufficient to deny relief under

§ 2254(d)(1). /d., at 27.

Bui v. DiPaolo, 170 F. 3d 232 (CAI 1999) eliminates any

doubt that the First Circuit does not support petitioner’s thesis.

On Bui's Confrontation Clause claim, the state and federal

courts agreed that the relevant legal principles reduced the

question to whether Bui had made a sufficient foundational

showing of witness bias to entitle him to cross-examination on

the point. The question of whether evidence is sufficient to

meet a particular legal standard is the quintessential “mixed

question,” the kind involved in Wright v. West, 50S U.S. 277

(1992). Bui examined the state court’s determination for

reasonableness. 170 F. 3d, at 244. The court expressly rejected

the notion that the AEDPA standard was “one of plenary

review,” holding that such a transformation of the standard

would amount to defiance of Congress’s will. /d., at 243.

14

“When, as now, a petitioner can show only that rational

minds might differ over how to apply certain general constitu-

tional principles fo the specific circumstances of his case, the

current habeas corpus standard of review does not allow a

federal court to invalidate a state conviction.” /d., at 246

(emphasis added). The First Circuit has thus fully rejected the

notion that review of mixed questions remains “plenary.”

Most recently, the First Circuit applied its O'Brien approach

to an ineffective assistance claim in Vieux v. Pepe, No. 98-1864

(CAI July 19, 1999). The court held that “the petitioner may

succeed under the ‘contrary to’ clause only if Supreme Court

caselaw directly governs the claim and the state court got it

wrong.” /d., part III, para. 6. The federal court noted that the

state court “conducted a proper Strickland analysis.” /d., part

IV, para. 2. That is, it correctly recognized the governing rule.

See ibid. In this case, unlike the typical Strickland case, the

assessment of the attorney’s performance involved a question

of “pure” law regarding the federal wiretapping statute. With

no Supreme Court precedent on the latter point, Vieux evaluated

the state decision under “unreasonable application.” /d., part

IV, paras. 9-10. In a footnote, the court reiterates that nearly all

Strickland claims will pass the “contrary to” stage. /d., n. 2.

Hence, the main question in such cases will be the “unreason-

able application” analysis.

The circuit position generally most favorable to habeas

petitioners is that of the Third Circuit in Matteo v. Superinten-

dent, 171 F. 3d 877 (CA3 1999) (en banc). Yet even the Third

Circuit is closer to the state’s interpretation than it is to the

petitioner's.

Matteo \argely follows O'Brien, supra. It asks, under the

“contrary to” prong, whether “applicable Supreme Court

precedent . . . resolves the petitioner’s claim.” /d., at 888

(emphasis added). Still following the First Circuit, Matteo

rejects the idea that “ ‘a general standard that covers the

claim’ ” is sufficient for “contrary to” review. /bid. (quoting

O'Brien, 145 F. 3d, at 24). West-type claims, applying general

15

standards to specific facts, are thus excluded from “contrary to”

review and move over to “unreasonable application.”

The court quotes Senator Specter in the floor debate saying,

“ *Unless it is unreasonable, a State court’s decision applying

the law to the facts will be upheld.’ ” /d., at 890 (emphasis

added); see 142 Cong. Rec. 7799 (1996). Matteo also specifi-

cally rejects the notion that “contrary to” review is “plenary” as

petitioner uses that term. “This standard precludes granting

habeas relief solely on the basis of simple disagreement with a

reasonable state court interpretation ....” Matteo, 171 F. 3d,

at 888. For claims evaluated under “unreasonable application,”

which will be most of them, Matteo reaffirms that mere

disagreement is not enough. “To hold otherwise would

resemble de novo review, which we believe is proscribed by the

statute.” Id., at 889 (emphasis added).

For its standard, Matteo settles on this: “whether the state

court decision, evaluated objectively and on the merits, resulted

in an outcome that cannot reasonably be justified.” /d., at 891.

Matteo says its standard will result in the granting of more

petitions than the First Circuit’s “outside the universe of

plausible, credible outcomes.” /d., at 889. Amicus believes that

the reality is similar to the situation which existed in ineffective

assistance cases before Strickland v. Washington, 466 U. S.

668, 696-697 (1984), when the differing formulations of the

performance standard rarely changed the outcome of the case.

The Matteo court’s approach to the issue in the case

illustrates the extent of the change wrought by the AEDPA.

Matteo’s claim involved a phone call he made from jail, which

was taped by police with the consent of the other party, Lub-

king. 171 F. 3d, at 882-884. The elements of Matteo’s Sixth

Amendment claim were established in Supreme Court prece-

dent: “(1) the right to counsel must have attached at the time of

the alleged infringement; (2) the informant must have been

acting as a ‘government agent’; and (3) the informant must have

engaged in ‘deliberate elicitation’ of incriminating information

from the defendant.” /d., at 892 (citing Maine v. Moulton, 474

16

U. S. 159, 170-171 (1985) and United States v. Henry, 447

U. S. 264, 269-270 (1980)); see also Kuhlmann v. Wilson, 477

U.S. 436, 459 (1986).

If the Third Circuit followed petitioner’s view of the statute,

it would have conducted “plenary ‘contrary to’ review,”

because “Supreme Court law had specifically designed a rule

for the claim when the state court acted... .” Brief for

Petitioner 38. There is no “absence of prescribed law” here, cf.

id., at 39, and hence, according to petitioner, no basis for

“unreasonable application” review.

The Matteo court did just the opposite. It declared that the

rule quoted above was not specific enough “to merit ‘contrary

to’ review” and proceeded to “unreasonable application.” 171

F. 3d, at 893. Yet the rule in question is surely no less specific

than the rules in the preeAEDPA “mixed question” cases where

de novo review was applied. See Strickland, supra, 466 U. S..,

at- 698 (ineffective assistance of counsel); Wright v. West,

supra, 505 U. §S., at 295 (lead opinion) (sufficiency of the

evidence; de novo standard assumed and applied); Thompson v.

Keohane, 516 U.S. 99, 102 (1995) (Miranda, question of when

suspect is in “custody”). Indeed, the issue before the court in

Matteo was governed by a rule more specific than the rules in

Strickland and West, and comparable to the one in Thompson.

If specificity is the criterion for choosing between “contrary to”

and “unreasonable application,” as the First and Third Circuits

hold, and if the rule at issue in Matteo falls on the nonspecific

side of the line, then all of the recent de novo/mixed question

cases would also fall on that side.

Petitioner cites Canales v. Roe, 151 F. 3d 1226, 1229, n. 2

(CA9 1998) for the proposition that the Ninth Circuit requires

plenary review of Strickland claims. Brief for Petitioner 39, n.

20. That decision merely states that the Strickland test is

17

“clearly established,” a proposition never in dispute.’ A far

better example of the Ninth Circuit position on this issue is

Furman v. Wood, 169 F. 3d 1230 (CA9 1999). Furman

reaffirmed the Ninth Circuit’s acceptance of the

Drinkard/Lindh analysis, i.e., that mixed questions are gov-

erned by the “unreasonable application” prong. /d., at 1232.

Applying the statute to the state court’s decision on the Strick-

land claim, Furman reviewed the state court’s holdings on both

performance and prejudice and found them reasonable. /d., at

1235. That is sufficient to bar relief under the statute. /bid.

In the Tenth Circuit, petitioner relies on Miller v. Cham-

pion, 161 F. 3d 1249, 1253 (CA10 1998). Brief for Petitioner

39, n. 20. Miller is a curious opinion. It quotes the new

standard, 161 F. 3d, at 1253, but never applies it. For the

proposition that ineffective assistance claims are mixed

questions and hence reviewed de novo, Miller simply cites

Parker v. Champion, 148 F. 3d 1219, 1221 (CA10 1998),

which does not mention the AEDPA at all. 161 F. 3d, at 1254.

There is no discussion of § 2254(d)(1) in either Parker or Miller

and no attempt to distinguish or criticize decisions from other

circuits holding that the statute had changed the rule. The

actual holding of Miller was that the petitioner had tried to

develop the facts in state court, was denied the opportunity to

do so, and hence was entitled to an evidentiary hearing in

federal court. /d., at 1253, 1259. Given that circumstance,

§ 2254(d)(1) is only tangential to the case, so the lack of

discussion may be understandable.

Other Tenth Circuit cases before and since Miller have

addressed the statute, and they paint a different picture.

Houchin v. Zavaras, 107 F. 3d 1465, 1470 (CA10 1997)

3. The actual holding of Canales is that petitioner's claim, a variation on

the claim presently before this Court in Roe v. Ortega, No. 98-1441,

was not Clearly established. 151 F. 3d, at 1231. Hence there was no

need to go into a detailed examination of how to apply the statute to a

straight Strickland claim.

18

declared that the “AEDPA increases the deference to be paid by

the federal courts to the state court’s factual findings and legal

determinations.” LaFevers v. Gibson, No. 98-6302 (CA10 June

16, 1999) interprets § 2254(d)(1) as allowing an exception to

claim preclusion only “if: (1) the state court decision is in

square conflict with Supreme Court precedent which is control-

ling on law and fact or (2) if its decision rests upon an objec-

tively unreasonable application of Supreme Court precedent fo

new facts.” Id., part Ill, para. 2 (emphasis added). Manifestly,

Wright v. West-type cases applying established standards to

case-specific facts would fall under the second prong.

The Sixth Circuit has declined to take sides while noting,

consistently with the position in this brief, that there is less to

the circuit split than meets the eye. In Nevers v. Killinger, 169

F. 3d 352, 357-362 (CA6 1999), the court reviewed the

positions of the other circuits. Nevers then held that fact-

intensive, case-specific applications of established rules fall

under “unreasonable application” under either approach. /d., at

360-361.

Finally, in Long v. Humphrey, No. 98-3409 (CA8 July 14,

1999), the Eighth Circuit took an approach similar to Nevers.

The “manifest necessity” standard for ordering a mistrial over

the defendant’s objection is a fact-intense, case-specific mixed

question, and it falls wader the “unreasonable application”

prong under either Drinkard or O’Brien. Id., para 7.

In summary, then, ten of the eleven numbered circuits have

ruled on the question of how to evaluate, under § 2254(d),

claims involving clearly established but general rules as applied

to cas2-specific facts, when no Supreme Court case is factually

indistinguishable. The circuits have unanimously concluded

that such cases fall under the “unreasonable application” prong.

19

Ill. “Contrary to” governs rule selection,

“unreasonable application” governs rule application,

and “clearly established” qualifies both.

In Neelley v. Nagle, 138 F. 3d 917, 924-925 (CA11 1998),

the Eleventh Circuit summarized the framework for applying 28

U.S. C. §2254(d)(1) this way:

“Thus, as we read the statute, a court valuating a habeas

petition under § 2254(d)(1) must eng «ge in a three-step

process: First, the court must ‘survey the legai !andscape,’

using an inquiry similar to that under Teague, .o ascertain

the federal law applicable to the petitioner’s claim that is

‘clearly established’ by the Supreme Court at the time of the

state court’s adjudication. Second, the court must determine

whether the state court adjudication was contrary to the

clearly established Supreme Court case law, either because

the state court failed to apply the proper Supreme Court

precedent, or because the state court reached a different

conclusion en substantially similar facts. If the state court’s

decision is not contrary to law, the reviewing court must

then determine whether the state court unreasonably applied

the relevant Supreme Court authority. The state court

decision must stand unless it is not debatable among

reasonable jurists that the result of which the petitioner

complains is incorrect.”

This statement of the rule is consistent with the language,

history, and intent of the statute, and it provides a straightfor-

ward framework for analyzing habeas claims under the statute.

With a few qualifications and explanations, amicus submits it

should be adopted.

Section 2254(d)(1) contains two branches which share a

common trunk. The trunk is the requirement that the rule in

question be “clearly established” by Supreme Court case law.

The term “clearly established” appears in Teague case law in

Sawyer v. Smith, 497 U.S. 227 (1990), which borrows it from

20

the qualified immunity cases. /d., at 236 (quoting Anderson v.

Creighton, 483 U.S. 635, 639 (1987)).

Although the new statute is not a rule of retroactivity, it

does share this element with the Teague line. “Clearly estab-

lished” requires a certain degree of specificity of the rule of law

to be applied. The principle of reliability in capital sentencing,

for example, is not specific enough to be an established rule.

See ibid.

If the determination of whether there is a clearly established

Supreme Court precedent governing the case is a Teague-like

inquiry, as the borrowing of the term from Sawyer strongly

implies, then it makes sense that this determination involves the

same step of the decision-making process as Teague. There are

“three distinct functions” in this process: “law declaration, fact

identification, and law application.” See Monaghan, Constitu-

tional Fact Review, 85 Colum. L. Rev. 229, 234 (1985).

Teague, being a doctrine of retroactivity, necessarily addresses

rules, i.¢., law declaration rather than law application. See

Wright v. West, 505 U. S. 277, 307 (1992) (Kennedy, J.,

concurring in the judgment).

While “contrary to law” review in some contexts encom-

passes both law declaration and law application, see Brief for

Petitioner 34, n. 17, in this case Congress has created a separate

clause for application. Amicus ACLU claims support from the

fact that the Senate’s modification of the House language lacks

the prepositional phrase “to the facts” after the word “applica-

tion.” ACLU Beier 29. This, they would have the Court

believe, worked a complete transformation of the subject matter

of the second branch, changing the subject from application of

law to fact into an unrelated inquiry about deriving new rules

from existing ones. See also Liebman & Ryan, supra, 98

Colum. L. Rev., at 871-872.

There are several answers to this contention. First, the

attachment of the prepositional phrase “to the facts” is not

essential to the meaning of “application” in this coniext. Justice

OOO em Ue —

21

Kennedy’s opinion in Wright v. West, supra. * 5 U. S., at 308,

refers to “specific applications” without awuing “to the facts.”

Pre vessor Monaghan’s influential article, see supra, at 20,

likewise refers to “law application” without appending “to the

facts.” Indeed, Professor Monaghan himself interpreted this

language as applying to mixed questions, and Senator Cohen

read his letter to that effect on the floor of the Senate. 141

Cong. Rec. $7839 (daily ed. June 7, 1995).

Second, none of the people involved in the transformation

from the House to the Senate version saw the deletion of “to the

facts” as transforming “application” from mixed questions to

something else. The language emerged from “very extended

negotiations” between Senator Specter and Senator Hatch, id.,

at $7803, both of whom confirmed that the bill applied a

reasonableness standard to the state court’s application of the

law to the facts. 142 Cong. Rec. 7772-7773 (1996) (statement

of Sen. Hatch); id., at 7799 (statement of Sen. Specter). While

“application” can have a different meaning, the people who

made the change from the House to the Senate version did not

intend one.

Third, a rule that lower federal courts could overturn state

decisions on mere disagreement with their application of

established law, while the zone of disagreement on law declava-

tion is protected from such interference, would be incompatible

with the basic nature of § 2254(d) as a rule of prior adjudica-

tion. The underlying premise is that one bite at the apple, with

review up the appellate chain, is normally all a litigant gets,

with exceptions to prevent injustice when the normal mecha-

nism seriously malfunctions. .

This premise is consistent with this Court’s “long history of

distinguishing between collateral and direct review [citation]

and confining collateral relief to cases that involve fundamental

defects or omissions inconsistent with the rudimentary,

demands of fair procedure [citations}.” Brecht v. Abrahamson,

507 U. S. 619, 640 (1993) (Stevens, J., concurring) (emphasis

added). This was precisely Senator Hatch’s point. “After all,

22

Federal habeas review exists to correct fundamental defects in

the law. After the State court has reasonably applied Federal

law, it is hard to say that a fundamental defect exists.” 142

Cong. Rec. 7772 (1996). Collateral attack on a final judgment

is a drastic remedy, reserved for egregious errors. Simple

disagreement on close questions regarding the application of

settled law to varying facts does not rise to that level.

Unlike retroactivity, nothing in the principle of respect for

prior adjudications by coordinate courts excludes that principle

from the law application portion of the decision. “The comity

interest [in Teague] is not, however, in saying that since the

question is close the state-court decision ought to be deemed

correct because [the lower federal courts]* are in no better

position to judge. That would be the real thrust of a principle

based on deference.” Wright v. West, supra, 505 U. S., at 308

(Kennedy, J., concurring in the judgment). That is indeed the

real thrust of § 2254(d). See supra, at 4, 8.

The First Circuit in O'Brien v. Dubois, 145 F. 3d 16, 22

(CAI 1998), objected that reading this branch to refer to mixed

questions was “embroidery of the statute’s text.” In reality, it

is right there in the word “application.” Furthermore, this

interpretation does not scavenge language discarded by the

Senate from the House version, because the Senate kept the key

operative word, “application,” discarding only a prepositional

phrase the negotiators evidently considered surplusage.

As the Third Circuit noted, the Fourth Circuit’s “catalogue”

of various situations warranting “contrary to” or “unreasonable

application” treatment would be difficult to apply in practice.

Matteo v. Superintendent, 171 F. 3d 877, 888 (CA3 1999) (en

banc). Yet the First/Third Circuit approach has a similar

difficulty. The line between rules specific enough for “contrary

4. The opinion actually says “we” here, but this Court's plenary review

authority on certiorari to state courts remains unimpaired. This statute

is about the relative roles of the state and lower federal courts.

lO 5 la ei

MA ee

23

to” treatment versus thuse that warrant “unreasonable applica-

iion” is not well definea. See supra, at 13-16.

Amicus CJLF submits that the simple approach is the best

one. “Contrary to” applies to law declaration, as Professor

Monaghan called it, or “pristine legal standard{s],” in the words

of Miller .. Fenton, 474 U.S. 104, 114 (1985). “Unreasonable

application” applies to “law application,” also known as “mixed

questions of law and fact.” Identifying the rule of law and then

applying the law to the facts is a familiar two-step process,

which all members of the profession have been doing since law

school. Analyzing habeas claims in this way will present the

fewest difficulties.

Some decisions have indicated that this bifurcation ap-

proach applies a radically different level of scrutiny to the two

aspects of the state decision. See Matteo, 171 F. 3d, at 887.

Properly applied, it does not. “Contrary to” must be read in

conjunction with the “clearly established” requirement.

Because this is a Teague-like inqwiry, it incorporates the

principle of Butler v. McKellar, 494 U. S. 407, 415 (1990) that

susceptibility to debate among reasonable minds is enough to

render a rule “new” for Teague and not “clearly established” for

§ 2254(d)(1). Thus, the basic test of reasonableness applies to

both branches of § 2254(d)(1).

“Contrary to” review is not de novo review of the underly-

ing claim. The federal court does exercise independent

judgment, but it exercises that judgment on whether the

prerequisite for an exception to the prior adjudication bar has

been met, i.e., whether the state court decision is contrary to

clearly established Supreme Court precedent. See Scheidegger,

supra, 98 Colum. L. Rev., at 959.

In making this determination, the precedents of the federal

circuits are not irrelevant, cf. Furman v. Wood, 169 F. 3d 1230,

1232 (CA9 1999), but neither is the circuit’s own precedent

controlling, or even particularly weighty. Instead, as under

Teague when properly applied, a survey of the entire legal

24

landscape is called for, state as well as federal precedents must

be considered. Caspari v. Bohlen, 510 U. S. 383, 395 (1994).

The mere existence of conflicting precedent does not per se

disqualify a rule from “clearly established” status, because

some opinions fail to give careful thought to their holdings.

However, a substantial split with reasoned opinions on both

sides would establish that neither side is “clearly established.”

See Vieux v. Pepe, No. 98-1864, n. 4, and accompanying text

(CAI July 19, 1999) (applying similar reasoning, albeit under

“unreasonable application” rather than “clearly established”).

Conversely, unanimity among numerous reasoned opinions that

a Supreme Court precedent does apply to a particular situation

could render a perfunctory holding applying a different rule

“contrary to . . . clearly established federal law.”

Some complaints have been made that virtually no habeas

petitions will be granted under such a standard. See, e.g,

ACLU Brief 9 (“virtually null set”). On the eve of the twenty-

first century, cases that warrant relitigation of claims already

addressed should be rare. Federal habeas is for “fundamental

defects.” Brecht v. Abrahamson, supra, 507 U. S., at 640

(Stevens, J.. concurring), and our state courts and state correc-

tive mec anisms have evolved to the point that few fundamen-

tal defects go uncorrected. Federal habeas is a safety net for

situations that should never occur, but do on occasion. Both

state and federal courts have been known to fail to apply clearly

established Supreme Court precedent. See, e.g, Pennsylvania

v. Bruder, 488 U.S. 9, 11 (1988) (per curiam).

Petitioner asks, “What review is required, though, when at

the time the state court acted, there was no rule for resolving the

claim to which its ‘decision’ could be ‘contrary?’ ” Brief for

5. There are Teague cases in the circuits granting habeas relief based

solely on the circuit’s own rule as an “old” rule, rather than surveying

the entire legal landscape. (aspari makes clear these cases are wrongly

decided, see Scheidegger, supra, 98 Colum L. Rev., at 948, and n. 433,

and Congress has simply confirmed that.

oN ee

25

Petitioner 36-37. He follows this question with language from

Lambrix vy. Singletary, 520 U. 8. 518, 529, n. 3 (1997) describ-

ing a state of the law in which Lambrix held that the rule was

new and the claim was Teague-barred. /d., at 538. The answer

is not “unreasonable application,” as petitioner suggests; the

answer is “none.” In such cases the rule in question is not

“clearly established.” This trunk is common to both the

“contrary to” and “unreasonable application” branches. If there

is no clearly established rule to which the state decision could

be “contrary,” there is also no rule of which it could be an

“unreasonable application.”

The final question is how to judge “unreasonable applica-

tion.” As noted supra, at 15, amicus CJLF doubts that the

various verbal formulations for the “unreasonable application”

branch will really matter in practice. For colorful expression,

it would be hard to beat the definition of “clearly erroneous” in

Parts and Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F. 2d

228, 233 (CA7 1988): “To be clearly erroneous, a decision

must strike us as more than just maybe or probably wrong; it

must... strike us as wrong with the force of a five-week old,

unrefrigerated dead fish.” However, Congress used the word

“unreasonable” and the best source for the meaning of that

word would seem to be the reasonableness concept in existing

habeas case law. That is the standard of Butler, supra, 494

U. S., at 415, “susceptible to debate among reasonable minds.”

See also Saffle v. Parks, 494 U. S. 484, 490 (1990); O'Dell v.

Netherland, 521 U.S. 151, 164 (1997) (“reasonable jurist,”

post-AEDPA but applying same standard).

In summary, then, the habeas court should proceed in three

steps, as the Eleventh Circuit said in Neelley. See supra, at 19.

1) Conduct a Teague-like survey of Supreme Court opin-

ions first, then the rest of the “legal landscape,” to deter-

mine if the rule petitioner asserts and its applicability to the

present case are “clearly established,” which is equivalent

to “dictated by precedent.”

a) No: the paragraph (1) exception to the general rule

of preclusion of §2254(d) is inapplicable. Unless

paragraph (2) applies, the claim is barred.

b) Yes: proceed to step 2.

2) Did the state court apply the clearly established rule of

daw?

a) No: the prior adjudication does not bar the claim.

Proceed to the “merits” under pre-AEDPA law, i.e., 28

U.S. C. §2254(a) as previously construed.

b) Yes: proceed to step 3.

3) Was the state court’s application of that rule to the facts

of the case reasonable, i.e¢., within the limits “susceptible to

debate among reasonable minds”?

a) Yes: the claim is barred on the ground it has previ-

ously been adjudicated, unless § 2254(d)(2) applies.

b) No: the claim is not barred on this ground. Proceed

to the merits, if there is anything left to decide.

This straightforward approach, faithfully followed, will

substantially advance Congress’s goal of speeding up habeas

review, by ending the second-guessing of state courts on close

questions and reserving collateral relief for cases of fundamen-

tal error. See supra, at 21-22; see Brown v. Allen, 344 U. S.

443, 537 (1953) (Jackson, J., concurring in the result) (needles

and haystacks). In Appendix A, we reprint the Tenth Circuit's

unpublished disposition of an appeal to illustrate the proper

application in a typical habeas case, where petitioner is simply

judge-shopping his marginal claim past a second set of judges.

The federal court reviews the state decision, sees that it applied

the correct standard for the claim, and checks that the decision

on the facts is a reasonable one. Case dismissed.

he

OI a ge Oe

27

IV. There is nothing remotely unconstitutional about a

modified rule of res judicata.

This Court denied certiorari on question 4, the claim that the

Statute, as applied by the Fourth Circuit, is unconstitutional.

That claim is not “certworthy,” as there is no split of authority.

The issue was fully briefed to the Third Circuit in Matteo v.

Superintendent, 171 F. 3d 877 (CA3 1999) (en banc). Yet even

though the majority expressly adopted a “deference” standard,

id., at 890, not a single judge of the en banc court thought the

supposed unconstitutionality of “deference” was even worth

discussing.

Despite the denial of certiorari on the point, petitioner raises

it on the basis of construing statutes to avoid constitutional

questions. The definitive answer is given by Almendarez-

Torres v. United States, 523 U. 8. 224, 238 (1998):

“The doctrine seeks in part to minimize disagreement

between the Branches by preserving congressional enact-

ments that might otherwise founder on constitutional

objections. It is not designed to aggravate that friction by

creating (through the power of precedent) statutes foreign

to those Congress intended, simply through fear of a

constitutional difficulty that, upon analysis, will evaporate.

Thus, those who invoke the doctrine must believe that the

alternative is a serious likelihood that the statute will be

held unconstitutional. Only then will the doctrine serve its

basic democratic function of maintaining a set of statutes

that reflect, rather than distort, the policy choices that

elected representatives have made.”

Litigants must not be empowered to subvert the democratic

process and have courts twist statutes beyond recognition

simply by conjuring up specious constitutional hobgoblins.

That would be the effect of accepting this argument in this case.

The constitutional argument is made at great length in

Licbman & Ryan, supra, and refuted in CJLF’s response article,

Scheidegger, supra. If the Court wishes to consider the

28

constitutional question, we simply refer to the article for a full

discussion. There is, however, one point we will include here.

In Montana v. United States, 440 U. S. 147, 149-151

(1979), the question presented was one of a state tax which, in

practice, fell entirely on the federal government. The case thus

involved the same issue as the great case of McCulloch v.

Maryland, 4 Wheat. (17 U.S.) 316 (1819). There had been a

prior judgment in state court against federal contractors in

privity with the government. 440 U. S., at 151.

This Court had jurisdiction, i.e., the power to decide the

case, and the Court did decide the case. It decided, however,

without reaching the underlying claim. It decided on the

ground that the issue had been previously decided. See id., at

164. Thus, a prior judgment of a state court can be the basis of

decision in a subsequent suit in federal court, even in the

Supreme Court, even on an issue as momentous as McCulloch,

and even against the United States itself.

If that is so, is there any reason that a prior state decision

cannot be the basis for decision in a case such as Thompson v.

Keohane, 516 U. S. 99 (1995)? In that case, the underlying

question was whether the conviction of a clearly guilty mur-

derer should be thrown out, not because of any contention his

confession was actually involuntary, but only because his un-

Mirandized statement was made at a time when he might or

might not have been in “custody.” See id., at 101-102.

For over two centuries, Congress has directed that, for most

cases, state judgments are res judicata in federal courts. See

supra, at 6. The legitimacy of its authority to do so is beyond

question. Why is this statute, extending a rule of prior adjudi-

cation to cases like Thompson, any different? Is it because

Congress chose not to impose full-blown res judicata, but

instead required that the state court decision be reasonable? See

Liebman & Ryan, supra, 98 Colum. L. Rev., at 781-782, and n.

389 (purporting to distinguish Full Faith and Credit Act as

“quantitative” versus “qualitative” control). Unless the

29

Constitution forbids compromise, it does not force Congress to

choose between de novo relitigation and completely abolishing

federal habeas for state prisoners. See Scheidegger, supra, 98

Colum. L. Rev., at 892-893, 921, 957-958. The compromise

contained in 28 U.S. C. §2254(d), under any of its interpreta-

tions in the courts of appeals, is well within the power of

Congress to specify the preclusive effect of state judgments in

federal courts.

V. The state court correctly identified and reasonably

applied the governing rule.

Under Strickland v. Washington, 466 U. S. 668, 694 (1984),

the general test for the prejudice element of an ineffective

assistance claim is whether the “result of the proceeding [has

been] rendered unreliable ....” For most cases, this is

equivalent to a showing of “a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding

would have been different.” /bid. The focus is not entirely on

the trial jury, however: “When a defendant challenges a death

sentence . . . the question is whether there is a reasonable

probability that, absent the errors, the sentencer—including an

appellate court, to the extent it independently reweighs the

evidence—would have concluded that the balance of aggravat-

ing and mitigating circumstances did not warrant death.” /d.,

at 695 (emphasis added). In addition, there are cases holding

that the prejudice requirement has not been met even if a

different approach would have produced a different result,

where that result would have been a malfunction of the system.

See Nix v. Whiteside, 475 U. S. 157, 175 (1986) (perjury);

Lockhart v. Fretwell, 506 U. S. 364, 369 (1993) (argument of

law, plausible then but now clearly meritless).

Whether the kind of assessment of the evidence that the

Virginia Supreme Court conducted here amounts to the

appellate reweighing endorsed by Strickland is a question that

should be answered in a case that actually turns on it. So, too,

is the question of whether a hung penalty jury is a malfunction

30

of the system within the Whiteside/Fretwell rationale. See

Jones v. United States, 527 U.S. __ (No. 97-9361 June 21,

1999) (slip op., at 8) (noting deadlock as jury’s inability to

fulfill its role, not as a normal operation of the process).

This is not the case, however. At the bottom line, the

Virginia Supreme Court decided that petitioner had not met the

“straight” Strickland requirement. After reviewing the evi-

dence, the court concluded there was “ ‘no reasonable probabil-

ity that the omitted evidence would have changed the conclu-

sion...” Williams v. Warden, 487 S. E. 2d 194, 200 (Va.

1997) (quoting Strickland, 466 U. S., at 700). Whatever

alternative holdings or dicta may be in the court’s opinion, if

this holding passes muster under the statute then habeas relief

was properly denied.

Applying the three-step test outlined supra, at 25, Strickland

is clearly established and was applied by the state court. The

only question is whether the application was susceptible to

debate among reasonable minds. As this Court recently

emphasized while discussing an equivalent standard in Strickler

v. Greene, 527 U.S. __, 119 S. Ct. 1936, 1953 (1999), the test

is not “reasonable possibility” but rather “reasonable probabil-

ity,” and the difference matters. Given the height of this hurdle,

the decision of the Virginia Supreme Court is not unreasonable.

CONCLUSION

The decision of the Court of Appeals for the Fourth Circuit

should be affirmed.

August, 1999

Respectfully submitted,

KENT S. SCHEIDEGGER

Attorney for Amicus Curiae

Criminal Justice Legal Foundation

IIT silicone lata tieanenenenteieeateeinamainetintnettetaeheainentll Sommerer a A TTT TRE Ie (eee en

U. S. 10th Circuit Court of Appeals

DODSON v SCOTT

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DAVID LEE DODSON, | No. 97-6320

(D.C. No. 97-CV-727)

Petitioner-Appellant, | (Western District of

~. Oklahoma)

H.N. SCOTT,

Respondent-Appellee.

ORDER AND JUDGMENT'

Before BALDOCK, EBEL and MURPHY, Circuit Judges.

David Lee odson was convicted of rape in the first degree,

anal sodomy. ape in the second degree by instrumentation, and

oral sodomy. ,”. 1 at 2; R. 14 at 1.) He appeals the district

court’s denial of nis petition for a writ of habeas corpus, see 28

U.S.C. § 2254 (West. Supp. 1997), and its denial of his request

for a certificate of appealability, see 28 U. S. C. §2253(c)(2)

(West Supp. 1997). (R. 16, R. 24.) We grant a certificate of

appealability only upon a “substantial showing of the denial of

a constitutional right.” 28 U. S. C. §2253(c)(2).

Because Dodson’s petition was filed after April 24, 1996, it is

subject to the provisions of the Antiterrorism and Effective

Death Penalty Act (AEDPA). See Lindh v. Murphy, 117 S. Ct.

A-2

2059, 2068 (1997). Under AEDPA’s amendments to § 2254, we

may only grant a writ of habeas corpus if the state’s adjudica-

tion of petitioner’s claim:

(1) resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States; or

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.

28 U.S. C. § 2254 (West Supp. 1997).

Dodson claims that the evidence presented at trial was insuffi-

cient to support his conviction. Consequently, the appropriate

Supreme Court case is Jackson v. Virginia, 443 U.S. 307, 319

(1979) (“[T]he relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.”’). The Oklahoma Court

of Criminal Appeals recognized the applicability of Jackson,

and its determination was not “contrary to” or “an unreasonable

application of” Jackson’s holding. See Dodson v. State, No.

F-83-767, at 4-5 (Okla. Crim. App. Dec. 18, 1986) (unpub-

lished). (R. 12, Ex. C at 4-5.)

Dodson has not made a substantial showing of the denial of a

constitutional right as required by 28 U. S. C. §2253(c)(2)

(West Supp. 1997). Dodson’s request for a certificate of

appealability is DENIED and his appeal is DISMISSED.

The mandate shall issue forthwith.

ENTERED FOR THE COURT

David M. Ebel

Circuit Judge

A-3

FOOTNOTES

1. After examining appellant’s brief and the appellate record,

this panel has determined unanimously that oral argument

would not materially assist the determination of this appeal.

See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case

is therefore ordered submitted without oral argument. This

order and judgment is not binding precedent, except under

the doctrines of law of the case, res judicata, and collateral

estoppel. The court generally disfavors the citation of orders

and judgments; nevertheless, an order and judgment may be

cited under the terms and conditions of 10th Cir. R. 36.3.