Cliff Gardner

INTRODUCTION

For many years prior to 1996, a state defendant seeking habeas relief in federal court had one primary goal: establish that a prejudicial constitutional error had occurred at trial.[1] The role of the federal courts was simple -- review the merits of the petitioner's claim and, if such an error had occurred, grant the writ.

In the last 25 years, however, courts erected an increasingly complex series of largely procedural hurdles to federal habeas relief. Principles such as the procedural default or Teague doctrines, if not designed or intended to frustrate a habeas petitioner's chance for relief, certainly had that effect.[2] Because of these doctrines, habeas litigation increasingly focused on these "affirmative defenses" which the state could raise to prevent federal courts from reviewing the merits of constitutional claims and granting habeas relief. Despite this shift in focus, however, habeas petitioners could not lose sight of the fact that -- after all was said and done -- in order to get relief they still had to convince a federal judge that a prejudicial constitutional violation had occurred in their case. That remained the ultimate goal of habeas litigation prior to 1996.

On April 24, 1996, the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") became law. Included in that act was an amendment to 28 U.S.C. § 2254(d) to provide as follows:

"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 that was adjudicated on the merits in State court proceedings unless the adjudication of the 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."

At the outset, it is important to note that neither § 2254(d)(1) nor (d)(2) articulate a standard which must be met in order to obtain relief. Moreover, although § 2254(d) has often been referred to as a "standard of deference" or a "standard of review," it is nothing of the sort. Instead, and just like the procedural default or Teague doctrines habeas petitioners have been litigating for years, § 2254(d) simply defines a universe of state decisions as to which "relief may not be granted."

Under the plain terms of § 2254(d), habeas corpus relief may not be granted for claims adjudicated on the merits in state court proceedings unless the state court decision was (1) "contrary to" federal law, (2) an "unreasonable application of" federal law or (3) based on an "unreasonable determination of the facts." A habeas litigant who shows that the state court's resolution of a constitutional claim violated § 2254(d)(1) or (d)(2) must still establish a prejudicial constitutional violation in order to get relief. Thus, just as in dealing with affirmative defenses such as Teague and default, habeas litigants must remember that the overarching focus of the litigation is not § 2254(d), but the independent injustice and prejudice of the constitutional violation in the case. The provisions of § 2254(d) -- like the procedural default and Teague rules -- are simply another hurdle to relief which must be cleared. The forest should not be lost for the trees.

That having been said, it is fair to say that as much as any other provision of AEDPA, § 2254(d) has caused consternation in the defense community. It has now been nearly seven years since AEDPA was enacted. Fortunately, recent decisions from the United States Supreme Court, as well as the Circuit Courts of Appeal, suggest an approach to establishing that a state court decision is "unreasonable" within the meaning of § 2254(d)(1) or (d)(2).[3]

The approach is simple. Where there is a state court opinion which addresses the merits of the constitutional issue (as opposed to a post-card or summary denial without reasoning), a detailed analysis of the state court opinion is in order. Whether this analysis is done before the discussion of the merits of the constitutional claim or after may depend on the facts and needs of an individual case. Wherever it occurs, under current case law, a habeas petitioner can establish that a state decision is unreasonable (and that § 2254(d) is no bar to relief) by showing that in resolving the constitutional claim the state court (1) failed to consider facts which it should have considered, (2) considered facts which it should not have considered, (3) considered facts which were wrong or (4) resolved facts important to the claim in the absence of any inquiry directed to reliably discovering those facts.[4]

I. THE FAILURE TO CONSIDER FACTS WHICH SHOULD BE CONSIDERED IN RESOLVING A CONSTITUTIONAL CLAIM.

The starting point for any analysis of § 2254(d) must be the Supreme Court's decision in Williams v. Taylor, 529 U.S. 362 (2000), where the Supreme Court applied § 2254(d)(1). In order to understand how Williams's application of § 2254(d)(1), it is important to analyze in some detail both the facts and the state court decisions involved.

In Williams, defendant had been sentenced to death in Virginia. At the penalty phase of trial, his lawyer urged the jury to spare his life by relying on the fact that defendant had turned himself in and confessed to the crime.[5] In state habeas proceedings, defendant cited Strickland v. Washington, 466 U.S. 668 (1984) and argued that his trial lawyer was ineffective for failing to investigate or present mitigating evidence.[6] After an evidentiary hearing, the trial court recommended that sentencing relief be granted.[7]

The state supreme court refused to grant relief. In its statement of facts, the state supreme court referred to the single theory defense counsel had relied on at the trial itself -- the "early acceptance of responsibility" theory. The state court summarized the trial court's finding, noting that the trial court found that defense counsel presented little evidence in mitigation and that there was evidence showing that petitioner had "a deprived and abused upbringing; that he may have been a neglected and mistreated child; that he came from an alcoholic family; and that he was borderline mentally retarded." The state court also noted that counsel could have presented evidence showing that defendant (1) did well in structured environments and (2) had family members who would have testified to his redeeming qualities.[8]

In finding the error harmless, the state court discussed at length the aggravating evidence.[9] In discussing the mitigation, the court noted that "[a]t most, this evidence would have shown that numerous people, mostly relatives, thought that defendant was nonviolent and could cope very well in a structured environment."[10] The court did not, in this part of its opinion, say anything about the mitigation theory which trial counsel had presented during the penalty phase of trial.[11]

When the case reached the United States Supreme Court, six justices concluded that the Virginia Supreme Court's decision was an "unreasonable application of"

Strickland.[12] According to Justice Stevens' plurality opinion, the state court's prejudice analysis "failed to evaluate the totality of the available mitigation evidence -- both that adduced at trial and the evidence adduced in the habeas proceeding in reweighing it against the evidence in aggravation."[13] This was so because in analyzing prejudice, the state court had talked about the strength of the state's case but failed to discuss the mitigation which had been presented at trial. Had the trial evidence been considered in conjunction with the new evidence, it might have "alter[ed] the jury's selection of penalty."[14]

Of course, as discussed above, the state court had mentioned defense counsel's trial arguments when it discussed the facts of the case.[15] But it had not discussed or considered this evidence in that portion of its opinion where it assessed the prejudicial impact of counsel's failure to present mitigation.[16]

In her concurrence, Justice O'Connor (joined by Justice Kennedy) agreed with the plurality's conclusion, although for slightly different reasons.[17] Justice O'Connor noted that the new evidence would have shown that defendant (1) had a "nightmarish childhood" including beatings by father, social services custody as a youth after parents imprisoned for beating kids, (2) was borderline mentally retarded, (3) came from an alcoholic family, (4) had friends and family who would have testified to redeeming qualities and (5) had a history of good conduct when in a structured environment.[18] Significantly, however, this evidence was exactly what the state supreme court had described when it summarized the trial judge's ruling.[19] Nevertheless, citing page 26 of the state court's opinion, Justice O'Connor held the state court's decision unreasonable because it "reveals an obvious failure to consider the totality of the omitted mitigation evidence. See 254 Va. at 26."[20]

The page which Justice O'Connor cites is significant. As discussed above, at the page of the state court opinion which Justice O'Connor cites (page 26), the state court in its harmless error analysis said the new evidence would "at most" have shown that defendant was nonviolent and could cope well in a structured environment. In Justice O'Connor's view, the state court's failure to discuss in its harmless error analysis the other mitigating evidence which could have been presented in mitigation -- including defendant's harsh upbringing, his mental retardation and his alcoholism -- rendered the state decision unreasonable.[21]

In other words, the "unreasonable application" prong of § 2254(d) will not bar relief where the state court fails to consider facts which it should have considered in resolving a constitutional claim. In applying this rule, it is perfectly proper to conclude that a state court's failure to discuss certain evidence means the state court did not consider the evidence. Even where a state court describes certain evidence in its statement of facts, but does not discuss that evidence in the specific context of the constitutional claim at issue, § 2254 will not bar relief. Put simply, under Williams, the failure to consider evidence which should be considered in addressing a constitutional claim renders the state conclusion unreasonable.[22]

II. CONSIDERATION OF FACTS WHICH ARE IRRELEVANT TO THE CONSTITUTIONAL CLAIM, WRONG, OR UNRELIABLE BECAUSE OF THE ABSENCE OF PROCESS DESIGNED TO RELIABLY DETERMINE THOSE FACTS.

Not surprisingly, the principle applied in Williams -- that a state court's failure to consider evidence which should be considered in addressing a constitutional claim renders the state decision unreasonable -- has been applied by lower federal courts as well.[23] But the lower courts have found state court decisions unreasonable in other situations as well. For example, where a state court resolves a constitutional issue by considering facts which have no logical relevance to the claim being litigated -- in some ways the exact converse of Williams -- the state decision will be considered unreasonable and § 2254(d)(1) will not bar relief.[24]

Schultz v. Page, provides a useful example. There, defendant was charged and convicted of murder. Prior to trial, defense counsel asked that defendant be examined for (1) fitness to stand trial and (2) sanity at the time of the offense.[25] The trial court granted the first request but not the second.[26] On appeal in state court he contended that the refusal to provide him with a mental health examination directed towards sanity at the time of the crime constituted a due process violation.[27] The state court rejected this claim because (1) the prosecution "did not order psychiatric care to bolster its case" and (2) defendant had been examined to see if he was competent to stand trial.[28]

As to the first of these points, the federal court correctly recognized that "the State's decision to order a psychiatric examination of a defendant has little to do with an indigent defendant's right . . . to have a mental health expert assist in the preparation of his defense."[29] The fact that the state decides not to examine a defendant, thereby signaling an intent not to use psychiatric evidence against the defendant may not "be used by a court to determine that an indigent defendant is not entitled to an examination when the defendant initiates the request for one."[30] Thus, the state court's "belief that [this fact] is in some way relevant [to the constitutional issue] is unfounded."[31]

As to the second point on which the state court relied -- the fact that defendant had been examined to see if he was competent to stand trial -- the federal court correctly noted that this competency examination "did nothing to evaluate [petitioner's] sanity at the time of the crime."[32] The federal court found it "difficult to understand why the Illinois appellate court considered a fitness examination sufficient for purposes of determining [petitioner's] sanity at the time of the crime."[33] Ultimately, the federal court concluded that the state court's rejection of the claim was "an unreasonable application of clearly established United States Supreme Court precedent . . . ."[34]

Thus, § 2254(d) will not bar relief where, in resolving a constitutional claim, a state court either (1) fails to consider facts which it should consider or (2) considers facts which it should not consider. But even these two categories are not exclusive. As several other courts have concluded, a state court's consideration of facts which are demonstrably wrong also shows that the state decision is unreasonable; in this situation too § 2254(d) will not bar relief.[35]

Ellis v. Mullin[36] provides a useful example of this approach. There, defendant was convicted of murder and sentenced to death. Prior to trial, he was examined by a psychiatrist who was asked to give an assessment of defendant's competency "at the time of the shootings."[37] This psychiatrist wrote a report containing a number of helpful conclusions about defendant's mental state "at the time of the incident."[38] Because the psychiatrist had died prior to trial, defendant sought to introduce the report.[39] The trial court excluded the report.[40] On appeal, defendant argued that the trial court's exclusion of evidence violated his right to present evidence as to his sole defense theory of the case -- that he was insane at the time of the crime.[41] The state court rejected this argument concluding that the psychiatrist's report was directed not to sanity the time of the crime, but to competency at the time of trial.[42] The federal court found this conclusion was an "unreasonabl[e] determin[ation of] the facts" within the meaning of section 2254(d)(2) precisely because the report had been directed at (and contained conclusions directly addressing) petitioner's mental state "at the time of the shootings."[43]

In arguing that a state court decision is unreasonable, it is also important that habeas litigants consider the fairness of the process which lead to the state court decision. A state court's conclusion may be found unreasonable when based on factual assumptions which have been made in the absence of an appropriate inquiry which could have determined those facts.[44]

In Dyas v. Poole defendant was convicted of murder.[45] During trial, she was kept in leg chains.[46] On appeal in state court, defendant argued that the shackling had violated her constitutional rights.[47] The state court agreed there was error, but found it harmless because the record did not show that jurors had seen the shackles.[48] In subsequent state post-conviction proceedings, defendant sought a hearing to resolve whether jurors saw her in shackles.[49] State courts denied a hearing. Defendant then sought relief in federal court. The Ninth Circuit granted relief, holding that "the state courts' determination that the jury could not have seen the shackles during trial was unreasonable in the absence of any inquiry to establish the facts concerning what the jury could see."[50]

III. WOODFORD V. VISCIOTTI, __ U.S. __, 123 S.CT. 357 (2002) DOES NOT ALTER THE GENERAL APPROACH IN DEALING WITH § 2254(D).

As the above discussion makes clear, both the Supreme Court and the circuit courts have set forth a framework for approaching the "unreasonable application" prong of § 2254(d) which may be useful to many litigants. The Supreme Court's recent decision in Woodford v. Visciotti, ___ U.S. ___, 123 S.Ct. 357 (2002) does not change this approach.

In Visciotti, a Ninth Circuit panel held the state supreme court's application of Strickland was unreasonable within the meaning of § 2254(d)(1).[51] This was based on the panel's view that (1) the state court did not take into account the totality of the mitigating evidence or consider the prejudice from some of counsel's actions and (2) the aggravation was not overwhelming.[52]

The United States Supreme Court disagreed in a unanimous, per curiam opinion. Significantly, however, nothing in Visciotti suggests a retrenchment from Williams.

In reversing the Ninth Circuit, the Supreme Court first noted that -- contrary to the panel's conclusion -- the state supreme court did describe "all of the mitigating evidence, and all of counsel's prejudicial actions."[53] The United States Supreme Court went on to note that the state supreme court's prejudice analysis had referred back to an earlier, lengthy description of the undiscovered mitigating evidence.[54] According to the High Court, the state court had gone even further, specifically discussing defendant's lay and expert testimony in its Strickland prejudice analysis.[55] Thus, the state decision in Visciotti was not unreasonable.

The Visciotti decision is entirely reconcilable with Williams. According to Justice Stevens (writing for four justices), the state decision in Williams was unreasonable because in assessing the prejudice from counsel's failure to present mitigation, the state court failed to refer to (or consider) the cumulative impact of the evidence which counsel had presented at trial along with the evidence which he failed to present. In Justice O'Connor's view (writing for two justices), the state decision in Williams was unreasonable because, although the state court catalogued the entirety of the missing mitigation in stating the facts of the case, when it came time actually to assess prejudice from counsel's failure to present this evidence, the state court discussed only a part of this newly discovered evidence. Visciotti stands in stark contrast to Williams, involving a state court prejudice analysis which not only referred back to a "lengthy detailed discussion about the undiscovered mitigating evidence," but which went further and specifically discussed the mitigation in connection with the prejudice conclusion.

CONCLUSION

Williams and its progeny establish several ways for a habeas petitioner to establish that a state decision addressing and rejecting a federal constitutional claim is unreasonable within the meaning of § 2254(d). All require a detailed analysis of the state court opinion. Under current case law, the state court decision will be considered unreasonable if the state court either (1) failed to consider facts which it should have considered, (2) considered facts which it should not have considered, (3) considered facts which were wrong or (4) resolved facts important to the claim in the absence of any inquiry directed to discovering those facts.

These four approaches are undoubtedly not the only methods of establishing that a state decision is unreasonable. For purposes of expanding the situations in which a state court decision will be held unreasonable, counsel should keep in mind that the four current approaches have one element in common: all rely on a flaw in the state court decision which impacts the reliability of that decision. It follows that in every case -- even those which do not involve the specific flaws identified in the cases discussed above -- counsel should look for similar flaws in the state court decision-making process. These flaws can be substantive (as where a state court refuses to consider relevant facts or considers facts which are wrong) or procedural (as where a state court resolves a factual dispute without an appropriate hearing). Where such flaws exist in the state court decision, counsel should be certain to bring them to the attention of the federal court deciding the case and argue that they render the state decision unreasonable.

Ultimately, however, establishing that a state court's rejection of a constitutional claims was "unreasonable" will not necessarily result in a grant of relief. In litigating cases under § 2254(d), habeas counsel should keep in mind that it is no different from any other affirmative defense which the state can present. While these defenses have to be met, they should not deter counsel from the ultimate goal: obtaining relief by affirmatively establishing a prejudicial constitutional violation.[56]

ENDNOTES

[1]. See, e.g., Townsend v. Sain, 372 U.S. 293, 318 (1963)(noting that the federal judge "may not defer to [the state court's] findings of law. It is the district judge's duty to apply the applicable federal law to the state court fact findings independently."); Brown v. Allen, 344 U.S. 443, 506-508 (1953)(separate opinion of Frankfurter, J.)

[2]. The procedural default doctrine generally precludes relief on federal claims where petitioner or his counsel failed to follow a state procedural rule. See, e.g., Wainwright v. Sykes, 433 U.S. 72 (1977). The Teague doctrine precludes relief on federal claims which depend on new rules of constitutional law, requiring that state convictions undergoing federal habeas review be judged according to the federal law in existence when the state conviction became final. See, e.g., Teague v. Lane, 489 U.S. 288 (1989).

[3]. An analysis of the "contrary to" prong of § 2254(d)(1) is beyond the scope of this article. Interested practitioners should know, however, that a number of courts have addressed this prong. See, e.g., Williams v. Taylor, 529 U.S. 362, 392-394, 414; Visciotti v. Woodford, ___ U.S. ___, 123 S.Ct. 357, 359-360 (2002); Packer v. Early, ___ U.S. ___, 123 S.Ct. 362 (2002); Wade v. Terhune, 202 F.3d 1190, 1196-1197 (9thth Cir. 2000); Dyas v. Poole, ___ F.3d ___, 2003 C.D.O.S. 600, 601 (9th Cir. 2003). In this area, too, the case law is developing a framework for arguing that a state court decision is "contrary to" federal law within the meaning of § 2254(d)(1).

[4]. Under recent Ninth Circuit authority, a federal habeas petitioner must first establish that his or her constitutional rights were violated. Then the habeas petitioner must demonstrate that the state court decision denying relief was contrary to or an unreasonable application of federal law. See, e.g., Van Tran v. Lindsey, 212 F.3d 1143, 1154 (9th Cir. 2000). Other circuits have suggested a contrary methodology, requiring the § 2254(d) analysis to precede any analysis of the merits. See Valdez v. Cockrell, 274 F.3d 941, 954 n. 19 (5th Cir.2001); Bell v. Jarvis, 236 F.3d 149, 160 (4th Cir.2000) (en banc). In Lockyer v. Andrade, ___ U.S. ___, 123 S.Ct. 1166 (2003) the Supreme Court disagreed with the approach mandated in Van Tran, making clear that AEDPA did not require the federal courts to embrace any single methodology for resolving habeas cases: "[w]e disagree with [the methodology mandated in Van Tran]. AEDPA does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under § 2254(d)(1) - whether a state court decision is contrary to, or involved an unreasonable application of, clearly established Federal law." Id. at 1172. Thus, although Andrade permits petitioners the flexibility to perform the § 2254(d) analysis either before or after an analysis of the merits of the constitutional claim, some type of § 2254(d) analysis of the state court decision is required.

[5]. Williams v. Warden, 254 Va. 16, 22 (1997).

[6]. Williams v. Warden, supra, 254 Va. at 19-20.

[7]. 254 Va. at 19<.

[8]. Id. at 22.

[9]. Williams v. Warden, supra, 254 Va. at 25-26.

[10]. Id. at 26<.

[11]. Id. at 24-26.

[12]. Williams v. Taylor, supra, 529 U.S. at 397 (Stevens, J, joined by Justices Souter, Ginsberg and Breyer) and 413-416 (O'Connor, J., joined by Kennedy).

[13]. 529 U.S. at 397.

[14]. 529 U.S. at 397-398.

[15]. See Williams v. Warden, supra, 254 Va. at 22.

[16]. Id. at 24-26.

[17]. 529 U.S. at 413-415.

[18]. 529 U.S. at 415.

[19]. See Williams v. Warden, supra, 254 Va. at 21.

[20]. Williams v. Taylor, supra, 529 U.S. at 416.

[21]. 529 U.S. at 416.

[22]. The Supreme Court reached a similar decision in Wiggins v. Smith, ___ U.S. ___, 123 S.Ct. 2527 (2003). There, defendant was convicted of capital murder and sentenced to death. Defendant argued that his trial lawyer provided ineffective assistance by ceasing his penalty phase investigation into defendant's background after receiving (1) the state's presentence investigation report ("PSI") and (2) additional information about defendant contained in Department of Social Service records ("DSS records"). The state courts rejected the claim. In finding this decision objectively unreasonable, the Supreme Court noted that the state courts had failed to consider (1) "whether the known evidence would lead a reasonable attorney to investigate further," (2) "the reasonableness of the investigation said to support [defense counsel's] strategy", and (3) "whether the decision to cease all investigation upon obtaining the PSI and DSS records actually demonstrated reasonable professional judgment." 123 S.Ct. at 2538.

[23]. See Bradley v. Duncan, 315 F.3d 1091 (9th Cir. 2002)(defendant argued that state court's failure to give an entrapment instruction violated Due Process, state court rejected the argument; held, the state court decision was unreasonable within the meaning of § 2254(d)(1) where the state court "failed to consider the facts relevant to the due process prejudice prong . . . ."); Brown v. Sternes, 304 F.3d 677, 692-694 (7th Cir. 2002)(in a Strickland case, the state court's failure to discuss facts which show counsel's actions to be below the standard of care renders the state decision unreasonable); Marshall v. Hendricks, ___ F.3d ___, 2002 WL 31018600 (3rd Cir. 2002)(in a Strickland case, the state court's failure to discuss the evidence defense counsel neglected to present in its prejudice analysis renders the state decision unreasonable); Ouber v. Guarino, 293 F.3d 19 (1st Cir. 2002)(in a Strickland case, state court's conclusion that there was no prejudice from counsel's blunder in promising defendant's testimony but failing to present it s was unreasonable where state court failed to consider the fact that two prior juries had heard defendant testify and been unable to reach a verdict); Roche v. Davis, 291 F.3d 473 (7th Cir. 2002)(in a Strickland case, the state court's failure to consider whether shackles were visible to the jury in assessing prejudice from counsel's failure to object renders the state decision unreasonable); Moore v. Purkett, 275 F.3d 685 (8th Cir. 2001)(state reviewing court upheld the trial court's ban on oral communications between defendant and counsel because trial court permitted defendant to write to counsel; held, this decision was unreasonable because state court ignored the fact that defendant was unable to write well enough to communicate with counsel in writing); Johnson v. Carroll, ___ F.Supp.2d ___, 2003 WL 1220237 (D.Del. 2003)(state court's resolution of judicial bias claim was unreasonable where the state court failed to consider the impact of statements made to the judge shortly before sentencing).

[24]. Schultz v. Page, 313 F.3d 1010, 2002 WL 31839218 (7th Cir. 2002).

[25]. 2002 WL 31839218 at *3-4.

[26]. Id. at * 4-6.

[27]. Id. at *6.

[28]. Id. at *7.

[29]. Id. at *14.

[30]. Id. at *15.

[31]. Id. at *15.

[32]. Id. at *16.

[33]. Id. at *17.

[34]. Id. at * 22. Accord Greene v. Lambert, 288 F.3d 1081, 1092 (9th Cir. 2002)(defendant was charged with sexual assault and kidnaping of his psychiatric therapist, although he raised an insanity defense the trial court excluded testimony about his state of mind from an expert, from the victim who observed him during the offense and from defendant himself about his history of multiple personalities, the state reviewing court upheld the ruling because the expert was unable to assess petitioner's sanity; held, state court's conclusion was unreasonable because the "[t]he expert's inability to assess the sanity of Petitioner's overall personality system did not bear . . . on Petitioner's right to describe his own state of mind at the time of the attack or on Petitioner's right to present the victim's testimony about her observations."); Darks v. Mullin, ___ F.3d ___, 2003 WL 1861527 (10th Cir. 2003)(in a first degree murder case, state court refused to instruct on lesser included offenses and state reviewing court held the error harmless because there was sufficient evidence to support the murder conviction; held, the state court decision was objectively unreasonable because the question was not whether there was sufficient evidence to support a murder conviction, but whether there was sufficient evidence to require instructions on the lesser included offense); Lancaster v. Adams, ___ F.3d ___, 2003 WL 1524231 (6th Cir. 2003)(in denying defendant's Batson motion, trial court relied on the fact that after the motion had been brought, the prosecutor did not challenge a black juror who was called; held, reliance on this fact was objectively unreasonable because the presence of a black juror does not logically or legally justify the discriminatory striking of others). See also Penry v. Johnson, 532 U.S. 782 (2001)(defendant introduces evidence of mental retardation, argues that trial court's instructions were unconstitutional because they did not permit the jury to give effect to this evidence, state court upholds instructions reasoning that the jury could give effect to defendant's evidence by nullifying its answer to any of three special questions posed to the jury in the penalty phase; held, the state court's decision was unreasonable because, even if the state court's reasoning was correct, the conclusion that the jury's ability to nullify satisfies the Eighth Amendment requirement that jury's be permitted to consider mitigating evidence is "illogical").

[35]. See, e.g., Ellis v. Mullin, 312 F.3d 1201, 1207 (10th Cir. 2002).

[36]. 312 F.3d 1201.

[37]. 312 F.3d at 1207.

[38]. 312 F.3d at 1204.

[39]. 312 F.3d at 1204.

[40]. Ibid.

[41]. 312 F.3d at 1204-1205.

[42]. 312 F.3d at 1205, citingEllis v. State, 867 P.2d 1289, 1296-1297 (Okla. 1992).

[43]. 312 F.3d at 1207. Accord Smith v. Wiggins, supra, 123 S.Ct. at 2539 (state court held that trial counsel was not ineffective for failing to investigate defendant's history of sexual abuse because records in defense counsel's possession discussed the abuse; held, this was objectively unreasonable because, in fact, the records did not discuss the abuse and state court "based its conclusion, in part, on a clear factual error . . . ."); Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir. 1997)(en banc)(in state court, defendant raised a juror misconduct claim, state court rejects the claim by relying on the fact that the misconduct was not reported for more than two years, evidence before the state court actually showed that the misconduct was reported within days; held, the state court's decision was unreasonable and § 2254(d)(2) would pose no bar to relief); Brown v. Sternes, supra, 304 F.3d at 695 (state court held that trial counsel was not ineffective for failing to investigate defendant's mental health records; held, the state decision was unreasonable and § 2254(d)(1) would not bar relief because the state court relied on defense counsel's statement that defendant was lucid "at all times" when, in fact, defense counsel actually stated defendant was lucid during "my conversations with him."); Sawyer v. Hofbauer, ___ F.3d ___, 2002 WL 1816081 (6th Cir. 2002)(state court's rejection of petitioner's Brady claim was unreasonable and § 2254(d)(1) would not bar relief where the state court erroneously described the evidence which had been suppressed).

[44]. Dyas v. Poole, ___ F.3d ___, 2003 C.D.O.S. 600 (9th Cir. 2003).

[45]. 2003 C.D.O.S. at 600.

[46]. Ibid.

[47]. Id. at 601.

[48]. Ibid.

[49]. Ibid.

[50]. Ibid. In finding the state decision unreasonable, Dyas cited § 2254(d)(1). Ibid. Given that the state courts had reached a conclusion about the jury's ability to see the shackles in the absence of a hearing designed to determine this fact, the court could just as easily have found that the state decision was an "unreasonable determination of the facts in light of the evidence presented in the State court proceeding" under § 2254(d)(2). Ultimately, the distinction may not be important -- § 2254(d) poses no bar to relief whether the state decision is unreasonable under (d)(1) or (d)(2). Accord Marshall v. Hendricks, supra, ___ F.3d ___, 2002 WL 31018600 (defendant raises a Strickland claim and requests a hearing to show that counsel had no tactical reason for his conduct, state court refuses hearing and concludes that counsel could have had tactical decision for his actions; held, state court's conclusion was unreasonable in light of failure to afford a hearing to determine whether, in fact, counsel had a tactical reason for his conduct).

[51]. Visciotti v. Woodford, 288 F.3d 1097 (2002).

[52]. 288 F.3d at 1118.

[53]. 123 S.Ct. at 360-361.

[54]. 123 S.Ct. at 361.

[55]. 123 S.Ct. at 361.

[56]. The approach recommended in this article -- requiring a detailed analysis of the state court opinion -- necessarily presumes that the state courts have issued an opinion addressing the constitutional issue. That is not always the case.

Where a state court refuses to reach the merits of a constitutional claim, as where the claim is denied on procedural grounds, federal courts review the claim as if 2254(d)(1) did not apply. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002); Appel v. Horn, 250 F.3d 203, 210 (3d Cir.2001); Mercadel v. Cain, 179 F.3d 271, 274‑275 (5th Cir.1999). As discussed above, this "de novo" review means that in order to grant relief, a federal court simply has to find prejudicial error. Laboa v. Calderon, supra, 224 F.3d at 983, n.4; Dubria v. Smith, 224 F.3d 995, 1000 (9th Cir. 2000); Jones v. Meyer, 899 F.2d 883, 884 (9th Cir. 1990).

Sometimes, a state court will resolve a constitutional claim in a summary fashion (as by a postcard denial of a habeas petition). Several points are clear about this situation.

First, the Ninth Circuit has rejected the argument that the absence of a reasoned decision permits federal review of such cases "de novo." Pirtle v. Morgan, supra, 313 F.3d at 1167; Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). Instead, like Glen Close in "Fatal Attraction," § 2254(d) may not be ignored.

Yet because there is no reasoned state court opinion to examine, the habeas petitioner is precluded from performing an analysis of the state decision to establish that it was unreasonable. A strict application of § 2254(d) in this situation -- where the absence of a state court decision prevents petitioners from establishing that the state decision is unreasonable -- would permit states to "insulate[] [their judgments] from habeas review in federal courts simply by failing to provide any reasoned explanation for the disposition." Delgado v. Lewis, supra, 223 F.3d at 982. The Ninth Circuit has rejected this approach as well. Ibid.

Thus, in this situation, while § 2254(d) may not be ignored, neither may it be applied in the same way it would be had there been a reasoned state opinion addressing the claim. Instead, in this situation the Circuit has held that an "independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law." Pirtle v. Morgan, supra, 313 F.3d at 1167; Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).

Yet the Ninth Circuit has not made clear in practical terms how the "clearly erred" hurdle differs from the § 2254(d) hurdle. Although the "clearly erred" hurdle requires a review of the state court record, this process is not a distinguishing feature -- even in cases in which § 2254(d) applies, the federal court is still required to review the state court record in assessing whether the state decision is "unreasonable." See Depetris v. Kuykendall, 239 F.3d 1057, 1063 (9th Cir. 2001)(state court issued a reasoned decision addressing the merits of petitioner's constitutional claim, Ninth Circuit "independently review[s]" the state court record in concluding that state court's decision was unreasonable under § 2254(d)(1).)

It is, of course, possible that the Ninth Circuit intended that the distinction be substantive. Thus, while the § 2254(d) hurdle requires a petitioner to show that the state decision was "contrary to or an unreasonable application of" of federal law (or involved an unreasonable determination of facts), the "clearly erred" hurdle simply requires a petitioner to show that the state court "clearly erred" in finding no constitutional error. Assuming that the former standard poses higher hurdle to relief, this explanation makes sense theoretically, and could be fleshed out in practical terms by case law making clear how "clear error" is demonstrated.

The problem with this explanation is that according to the Ninth Circuit, an examination of whether the state court "clearly erred" is simply a way to "determine whether the state court's decision was objectively reasonable." Delgado v. Lewis, supra, 223 F.3d at 982. The "objectively unreasonable" language of Delgado suggests the Circuit's view that even when there is a postcard denial in state court, the "strictures of AEDPA" apply in some way. See Palazzolo v. Gorcyla, 244 F.3d 512, 516 (6th Cir. 2001)("[I]ndependent review, however, is not a full, de novo, review of the claims, but remains deferential because the court cannot grant relief unless the state court's result is not in keeping with the strictures of the AEDPA.") And indeed, the Ninth Circuit has stated in some cases that Delgado's "clearly erred" test is simply a way of applying a more "relaxed" version of AEDPA, requiring deference to the state court's decision. See Pirtle v. Morgan, supra, 313 F.3d at 1167. In other cases, however, the Ninth Circuit has taken exactly the opposite position, noting that the "clearly erred" standard does not "require[] [a federal court] to defer to a state court's decision . . . ." Fisher v. Roe, 263 F.3d 906, 913 (9th Cir. 2001).

Whatever else may be said about Delgado's "clearly erred" standard, it seems clear that in some as-yet undefined way (1) it is less beneficial to the state than an untempered version of § 2254(d) and (2) it is less beneficial to the petitioner than de novo review. How these differences will translate into practical terms for habeas litigants remains a mystery.