Previously published in the New York Law Journal
The right of state court prisoners to petition the federalcourts for habeas corpus goes back to 1867. The willingness of federal courts to correct unjust state court outcomes reached a pinnacle during a roughly two-decade period that began in the civil rights era, but the tide then began to turn the other way. More recently, in 1996, Congress passed a statute, the Antiterrorism and Effective Death Penalty Act (AEDPA) that further limited the availability of habeas relief. And in the years since, the Supreme Court, by narrowly interpreting one of AEDPA's important provisions, came close to completely choking off the ability of many state court prisoners to get relief, even where it was beyond dispute that the state court conviction resulted from a deprivation of constitutional rights. But as explained below, as the result of a very recent Supreme Court decision in Lafler v. Cooper, 132 S. Ct. 1376 (2012), the skies for habeas petitioners may have significantly brightened.
So far, Cooper has been extolled for something else—its expansion of the right to effective assistance of counsel in the plea bargaining context. But Cooper may ultimately be better known for the far-reaching way it alters the landscape for all kinds of habeas claims.
Paths to Relief
Before explaining Cooper's revolutionary potential, a brief detour into AEDPA's weeds is necessary. Specifically, at 28 U.S.C §2254(d)(1), the statute sets forth two very different standards of review for federal courts when a state court judgment's constitutionality is challenged. First, and under many circumstances, a habeas petitioner cannot prevail unless the judgment was an "unreasonable application" of clearly established federal law. A state court's application of federal law is not "unreasonable" because it is merely wrong. Instead, as the Supreme Court recently held, the "unreasonable application" prong requires deference to state court judgments such that relief may be granted only if there exists an error about which there is no "possibility for fair minded disagreement."1
In other words, the state court must have botched things pretty badly for a prisoner to later obtain relief in federal court under the "unreasonable application" prong.
But there is a second path to relief under AEDPA that exists when a state court judgment is "contrary to" federal law. In that circumstance, a habeas petitioner receives de novo adjudication of his claim, not constrained by any deference to how the state court adjudicated that claim in the first place.2Thus, the key to a successful habeas petition may be satisfaction of the criteria for having one's claim reviewed under the easier to satisfy "contrary to" prong. And that's where Cooper appears to usher in a sea change.
'Cooper'
Cooper concerned habeas petitioner Anthony Cooper's claim that his attorney provided constitutionally deficient representation by advising the rejection of a relatively lenient plea offer to the charge of assault "with intent to murder." The attorney's advice was afflicted by a mistaken belief that shooting a person "below the waist" was somehow inconsistent with the "intent to murder" element of the charge. The Supreme Court held that the petitioner's ineffective assistance of counsel claim should be reviewed in federal court under the easier to satisfy "contrary to" prong rather than the deferential "unreasonable application" clause simply because the state court (Michigan's Court of Appeals) had botched its application of the pertinent legal standard.
Specifically, the Michigan court had rejected Cooper's claim based on the idea that Cooper had "knowingly and intelligently" rejected the plea offer. But the standard for review of ineffective assistance of counsel claims, articulated in Strickland v. Washington,3 is whether the attorney rendered deficient performance that prejudiced the client, not whether the client acted "knowingly and intelligently" upon the lawyer's advice.
To be sure, whether the client acted "knowingly and intelligently" when he followed his lawyer's advice to decline a lenient plea deal could be seen as part of the broader Strickland question of whether the lawyer's advice had been prejudicially deficient.4 But, however viewed, the knowing and intelligent standard is not the Strickland standard. The Supreme Court concluded that merely by applying a standard different from the governing one, the state court had acted in a manner contrary to federal law.
Certainly, Cooper did not create the opportunity for non-deferential habeas review out of whole cloth. A dozen years ago, the Supreme Court interpreted the "contrary to" clause of AEDPA as applying "if the state court applies a rule that contradicts the governing law set forth in our cases."5 The question that remained was, what precisely does it take for a state court to "contradict the governing" law as set forth by the Supreme Court?
Cooper answers that question by holding when a state court applies a standard that is merely different from the standard set forth by the Supreme Court, that is enough, even if the state court does not explicitly reject or contradict the federal standard. In short, when the state court selects a standard to apply and does so, if it falls short of its obligation to apply the correct standard, on later habeas review the state court decision loses the deference it would have been accorded, had the standard been applied correctly.
Henceforth, it appears that when a state court is found to have applied a standard of review to a federal claim different from the correct standard, the state court will be found to have acted contrary to federal law and its decision will therefore not be accorded any deference on habeas review. Paradoxically, state court decisions that summarily rule on the merits of a claim without explanation will continue to receive deferential review under the unreasonable application prong6 but the more state courts go to the trouble of articulating and applying what they believe to be the pertinent legal standard, the more likely it will be that the state court will stumble into error along the way, opening up the path to de novo review later in federal court under the "contrary to" prong.
Any doubt regarding Cooper's significance should be put to rest by the dissenting opinion. Justice Antonin Scalia, joined by three other justices, protested that Cooper's claim should have been analyzed under the deferential "unreasonable application" standard rather than the non-deferential "contrary to" prong and pointed out why this choice between standards of review was likely pivotal to the outcome of the case.7 In arguing for deferential review Scalia did not hide his irritation with the majority; Scalia opined that the state court had expressed the Strickland ineffective assistance standard "with a good deal more accuracy than the Court's opinion."8
Scalia did acknowledge that the state court's application, as distinguished from its description, of the Strickland standard was lacking. That is, the portion of the state court opinion characterizing Cooper as having "knowingly and intelligently" rejected the plea bargain was not a clear application of either of Strickland's two prongs (deficient performance and resulting prejudice). But ultimately, Scalia concluded that the Supreme Court's decision to apply non-deferential review based upon a relatively minor ambiguity in the state court's analysis (in Scalia's eyes) was an improper "penal[ty]" imposed on "a state court for its opinion-writing technique," "inconsistent with the presumption that state courts know and follow the law."9
Thus, the majority and dissenting opinions reflect very different views about how a federal court is to proceed when a state court correctly states the legal standard pertinent to a federal claim but its opinion creates doubt about whether the standard ultimately applied is the correct one. In those circumstances, while the dissenters would have resolved the ambiguity in the state court's favor, the court's majority concluded otherwise: an apparent failure to apply the correct standard is such a failure that should not be sanitized by presuming, appearances to the contrary, that the state court got it right.
In sum, Cooper is likely to be a boon for a not insignificant class of habeas petitioners. Those who can show that the challenged state court decision seems to misapply the pertinent standard will receive de novo review under the habeas statute's "contrary to" prong, and consequently, will be more likely to prevail in their quest for a writ of habeas corpus.
Footnotes
1.Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).
2.Williams v. Taylor, 529 U.S. 362, 389-90 (2000).
3.Strickland v. Washington, 466 U.S. 668, 687 (1984).
4.As Justice Scalia noted in his dissent, the standard applied by the Michigan Court was "not a model of clarity." Cooper, 132 S. Ct. at 1396.
5.Williams, 529 U.S. at 405.
6.Harrington, 131 S. Ct. at 784; Childers v. Floyd, 642 F.3d 953, 979 (11th Cir. 2011).
7.Cooper, 132 S. Ct. at 1396.
8.Id.
9.Id.
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Going Vinny
