In a per curiam ruling issued today (available at pp. 8-20 of the order list), the Supreme Court reversed a divided Ninth Circuit panel’s grant of habeas relief. Justices Breyer, Sotomayor, and Kagan noted their dissent, without any accompanying explanation.
The Court’s ruling slams the panel majority—opinion written by Judge William Fletcher, joined by Judge Michelle Friedland—and vindicates the dissent of Judge John B. Owens (an Obama appointee). The Court’s ruling also vindicates Judge Carlos Bea’s powerful dissent from denial of rehearing en banc, which eleven of his colleagues, including Owens, joined.
Indeed, the Court quotes with obvious approval Bea’s assessments that “the panel majority cast aside . . . AEDPA’s highly deferential standard of review,” that it applied a “de-novo-masquerading-as-deference approach” that the “Supreme Court has repeatedly condemned,” that “there [was] no ignoring the obvious conclusion that a reasonable jurist could conclude that [the prisoner] Kayer was not in fact prejudiced by his counsel’s failings in this case, and more. (AEDPA, the Antiterrorism and Effective Death Penalty Act of 1996, restricts the power of federal courts to grant habeas relief.)
That makes it all the more amusing that Fletcher—who seems eager to fill the late Stephen Reinhardt’s robe as the most lawless member of the Ninth Circuit—and Friedland wrote a 20-page concurrence in the denial of rehearing en banc in which they implausibly maintained that their panel opinion had given “all appropriate deference” to the state-court habeas proceedings required by AEDPA.
Some excerpts from the Supreme Court’s ruling (underlining added; some citations omitted):
In this case, the Court of Appeals erred in ordering issuance of a writ of habeas corpus despite ample room for reasonable disagreement about the prisoner’s ineffective-assistance-of-counsel claim. In so doing, the Court of Appeals clearly violated this Court’s AEDPA jurisprudence….
The Ninth Circuit resolved this case in a manner fundamentally inconsistent with AEDPA. Most striking, the panel “essentially evaluated the merits de novo, only tacking on a perfunctory statement at the end of its analysis asserting that the state court’s decision was unreasonable.” In other words, it appears “to have treated the unreasonableness question as a test of its confidence in the result it would reach under de novo review.” More specifically, the panel concluded de novo that “there is a reasonable probability Kayer’s sentence would have been less than death,” and then simply appended the statement that “the state [postconviction review] court was unreasonable in concluding otherwise.” Indeed, the panel repeatedly reached conclusions—such as that the “evidence presented to the [postconviction] court established the statutory mitigating circumstance of mental impairment” and that there was a “causal connection between Kayer’s mental impairment and the crime”—without ever framing the relevant question as whether a fairminded jurist could reach a different conclusion.