Mimesis Law
3 June 2020

Habeas Schmabeas: Scalia’s Hunger For Deterrence

Dec. 1, 2015 (Mimesis Law) — Damnit all, the Sixth Circuit has done it again. Ignoring the Supreme Court’s directive that the writ of habeas corpus is for entertainment purposes only, it foolishly reversed a man’s conviction. As Justices Scalia, Thomas, and Alito pointed out in dissenting from the Court’s denial of cert, this simply is not done.

First, a little detail about the case. A man named Charles Miller was killed in 1988. In 1999, police began speaking to his former associates, and spoke to a man, Charles Dean Lamp, who admitted that he had murdered Miller and led police to his property, where the body was buried. So far, so good.

But Lamp claimed that the defendant, Junior Blackston, had made him do it, along with another man named Simpson. Both Lamp and Simpson testified against Blackston at trial. Lamp received a reduced sentence and a manslaughter plea, while Simpson received total transactional immunity for his testimony.

The State spoke to Blackston’s former girlfriend, to see if she remembered anything about the 11-year-old incident. Initially, she said that Blackston had been at home with her that night. Then, when the State offered to dismiss an array of charges against her and her boyfriend, she remembered that Blackston had made a bunch of incriminating comments about blowing someone’s head off.

So Blackston had a trial, where he was convicted. But, because the trial court made a mistake informing the jury about the extent of Simpson’s immunity deal, he got a do-over.

Both Simpson and the former girlfriend then recanted, saying that their testimony had been induced by fear of the actual murderer (Lamp), and by overwhelming prosecutorial pressure.

Neither of these witnesses were willing to testify again, likely because of the serious risk that the State would take their deals off the table, or even charge them with perjury if they said that Blackston was innocent. They both came to the stand and refused to answer questions.

The State then simply read their prior testimony to the jury verbatim. Now, it was Blackston’s turn to cross-examine. But, once again, neither witness was willing to talk to his lawyer.

So, he did exactly what the State had done. He attempted to read their prior sworn statements (in the form of affidavits saying that he was innocent) to the jury. But the State stamped its feet and said it wasn’t fair. In response, the judge excluded the evidence.

After the Michigan Court of Appeals was twice reversed for attempting to give Blackston a new trial, the Supreme Court of Michigan ruled that the trial court made the right decision. Evidence of innocence would only mislead the jury.

So the Sixth Circuit reversed, saying that the right of confrontation allows an opportunity to rebut the testimony of a witness even when that witness is “unavailable.”

In this case, the only effective way to confront the witnesses whose testimony was read to the jury was to submit their other sworn testimony, which tended to establish that Blackston had been at home with his family when Miller was killed.

And Scalia was not happy with the result.

That will not do. The Sixth Circuit seems to have acquired a taste for disregarding AEDPA…We should grant certiorari to discourage this appetite. (Citations omitted).

The AEDPA that Scalia is referencing is a set of rules, enacted in 1996, that make it almost impossible for a prisoner to challenge his imprisonment in federal court. Although, in theory, the Constitution prohibits the suspension of the writ of habeas corpus except in times of rebellion or invasion, there is apparently nothing stopping Congress from nibbling around the edges a bit.

See, to get your conviction reversed on a federal habeas claim, it’s not enough to prove that the jury was given bewildering jury instructions, or that the prosecution put on ten hours of victim impact testimony, or that the judge shot at you from time to time with a BB gun that he pumped surreptitiously under his robe.

What you have to do is prove that, at the earliest opportunity, you brought up a strong constitutional claim, and that the State court unreasonably ruled against you.

And it can’t be just any run of the mill constitutional claim either. You don’t win just because that exact issue was already resolved by your state’s supreme court, or by the federal circuit that you live in. Instead, you have to establish that your claim is one of those rare, special constitutional issues that the Supreme Court has expressly decided on, and that your conviction was based on an unreasonable reading of that Supreme Court precedent.[1]

Here, Scalia says, the Sixth Circuit made the Confrontation Claim too broad and vague by talking about a defendant’s “general” right not to have the government hide essential exculpatory evidence from the finder of fact, rather than finding a Supreme Court case exactly on point addressing the issue. Even though, as Scalia concedes, the trial court was probably wrong to exclude the evidence, it’s not the job of habeas corpus to free people just because they were wrongfully convicted.

Hell, if you take Scalia at his word, it’s not even really the job of habeas corpus to free people who are certainly innocent of any crime, so long as they have received due process.

Scalia’s threat to “discourage” the Sixth Circuit’s appetite for reversing convictions was not idle. Because habeas, which was once called “The Great Writ,” has been legislated into a shadow of its former self, the Sixth Circuit has been reversed numerous times for helping sympathetic defendants with strong constitutional claims.

The reality of habeas is best summarized by Justice Sotomayor, as reported in Slate.

“What a wonderful system we’ve created,” she says, speaking with a kind of angry intensity that makes the room go a little quieter. “Even when a state court is wrong in convicting somebody, so long as they are reasonably wrong, we uphold them,” she says. “And when they are wrong on a legal conclusion applying our test, we jump in and reverse them.” In other words, when a judge’s error disadvantages the defendant, the court forgives it. When a judge’s error disadvantages the prosecution, the court corrects it.”

One can only hope that Sotomayor, along with others on the Court, might be hungry for a change.

[1] It’s a bit more complicated than this, actually, probably because it’s designed to be impossible for pro se litigants to navigate. This makes it all the more remarkable that Blackston was pro se when he prevailed in the District Court.

11 Comments on this post.

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  • Richard G. Kopf
    1 December 2015 at 10:14 am - Reply

    Dear Andrew,

    Let’s not forget that the Court denied cert. The Sixth Circuit decision stood.

    As for AEDPA, and for some perspective, the Great Writ had been abused over and over again by a lot of prisoners and that resulted in AEDPA. Furthermore, habeas corpus was never intended to allow a single federal district judge to superintend decisions of state Supreme Courts on the facts or the law, yet prior to AEDPA that was happening all too frequently.

    AEDPA corrected abuses by prisoners, and over-reaching by some federal district judges.* The policy is sound, even if Justice Sotomayor and you don’t like the result in individual cases. Beware of making policy by anecdote.

    Nice bit of writing though! All the best.

    Richard G.Kopf
    Senior United States District Judge (Nebraska)

    *This probably included yours truly.

    • shg
      1 December 2015 at 11:19 am - Reply

      Does the nature of the Great Writ not suggest that if there is to be error, it should be on the side of over-availability rather than under-availability? After all, what use is a remedy that’s unavailable when needed? And to the extent prisoners abused habeas (and no one doubts they did), there are always district court law clerks judges to rein them in.

      • Richard G. Kopf
        1 December 2015 at 12:29 pm - Reply


        While it is true that Jan and Jim (my career law clerks) and Gabi (the pro se clerk I supervise for our little court) are better writers (and thinkers) than I am, it is also true that I have the requisite finely attuned sense of Justice. This is, if you can’t afford it you don’t deserve it. You, of all people, should understand that!

        All the best.


        PS I am ashamed to say, however, that I granted a section 2255 motion the other day vacating a conviction and setting a federal prisoner free. That decision haunts me still.

        • shg
          1 December 2015 at 12:43 pm - Reply

          That decision haunts me still.

          Christmas is coming. As long as you’re haunted, make it worthwhile, Judge.

    • Andrew Fleischman
      1 December 2015 at 11:23 am - Reply

      Judge Kopf,

      It’s absolutely true that the AEDPA prevented abuse by prisoners. And, even with that safeguard in place, I’m sure your habeas staff attorneys are flooded with less than meritorious habeas petitions. Before 1996, it was probably a lot worse.

      The issue, for me at least, is that the AEDPA generally restricts relief to issues decided clearly by SCOTUS. And they suck at deciding issues clearly. So you’ve got people with colorable claims of innocence and a due process violation who are then unable to get relief because an overworked appellate court didn’t have the resources carefully consider their issue below (Georgia’s intermediate appellate court judges are given an insane caseload, requiring at least three opinions a week).

      To me, as a policy matter, even a few anecdotal instances of that happening suggest the need for a change.

      • Richard G. Kopf
        1 December 2015 at 12:42 pm - Reply


        I don’t deny that AEDPA is restrictive and the state appellate courts in many jurisdictions are too overworked to do a good job. That said, I see no viable middle ground between AEDPA and the haphazard process that existed prior to AEDPA.

        For what it is worth, and despite my snarky reply to Scott, in this little corner of the world we take each federal habeas corpus petition very seriously–we look hard at what really happened in the state court system. That was my experience as well when I sat in a federal court in Scott’s home state where, over the course of about a year, I personally wrote 10 habeas opinions (without the help of a clerk). That court, in my experience, had a very strong commitment to a searching examination of each petition even given the restrictive nature of AEDPA.

        All the best.


        • Jonathan Edelstein
          1 December 2015 at 2:14 pm - Reply

          Seems to me that there is a middle ground – keep the “second or successive petition” parts of the AEDPA, which address what pre-AEDPA courts referred to as abuse of the writ, but take away the parts that preclude retroactivity and require deference to state courts, which are based on abstract concerns of federalism that really shouldn’t trump a defendant’s right to a constitutionally adequate trial.

          There’s also an interpretive problem with the “unreasonable application” clause of the AEDPA. The early decisions – the ones that followed Williams v. Taylor – interpreted “unreasonable application” to require some increment above error but not necessarily a great one, and allowed relief where a state court made an obviously incorrect application of a general Supreme Court-derived principle or failed to extend such a principle to a situation where it should apply. More recently, though, the Supremes have collapsed the “unreasonable application” prong onto the “contrary to” prong, and held that a decision is not unreasonable unless there’s a virtually indistinguishable Supreme Court holding and an error so clear that there’s no room for reasonable disagreement. Going back to the Williams v. Taylor interpretation, as opposed to the current “prove the state court was completely out of its mind” reading, would do a lot to restore fairness to the system, although the non-retroactivity principle and the preclusion of reliance on circuit-court precedent are still big problems.

          • Andrew Fleischman
            1 December 2015 at 2:27 pm -

            Good points.

            Also, as Sotomayor pointed out, it’s hard to take the Court’s federalism concerns seriously when it owes no deference to an incorrect interpretation of federal precedent that favors the accused.

            When Ohio ruled that a 4 year-old’s statements to her teacher were testimonial hearsay, there was no Supreme Court precedent directly on point that it was wrong. Yet the Court didn’t hesitate to overturn it.

  • Richard G. Kopf
    1 December 2015 at 5:37 pm - Reply


    Regarding your last comment about the Supreme Court not giving deference to a state court determination that is in error but favors the accussed, aren’t you being slightly disingenuous (as was Justice Sotomayor)? Your (her) “deference” reference was NOT to habeas cases.

    Rather, your (her) reference was to a direct review (via cert. grant) by the Supreme Court reviewing a decision of a state supreme court. For obvious reasons, one would not expect the Court to give deference in those circumstances.

    The Ohio case you refer to (in which Sotomayor joined) is Ohio v. Clarke, 135 S.Ct. 2173 (June 18, 2015) (Three-year-old domestic abuse victim’s statements to teachers at his preschool identifying defendant, who was his mother’s boyfriend, as the person who had caused his injuries were not testimonial, and thus Confrontation Clause did not bar admission of the statements at defendant’s trial on charges including felonious assault and domestic violence, at which victim did not testify because he had been deemed incompetent due to his age; primary purpose of the statements was not to create evidence for defendant’s prosecution, but rather statements occurred in the context of an ongoing emergency involving suspected child abuse, and were aimed at identifying and ending the threat.).

    All the best.


    • Andrew Fleischman
      1 December 2015 at 5:57 pm - Reply

      I’m not saying I disagree with Ohio v. Clarke (though I would hesitate to call the outcry an emergency). Three-year-olds don’t typically say stuff with the intent to get anybody in trouble. Although I anticipated that the defendant would lose, I don’t think there was a case expressly on point saying that young children’s statements aren’t testimonial.

      In context, when I read Sotomayor’s comment, I read it as her thoughts on habeas. Even though the case was a direct appeal, we don’t typically forgive reasonable mistakes of law on direct appeal. Given her track record, I think she was talking about habeas.

      This question here could mark my own lack of understanding, but I’ll put it out there. Why is it bad to second-guess a state court’s interpretation of law on habeas, but reasonable to do so on direct appeal?

      • Richard G. Kopf
        1 December 2015 at 7:10 pm - Reply


        Great question. My answer: On “direct appeal,” the problem of “finality” is not nearly as pronounced as when the offender has been heard all the way to the Supreme Court, whereas in a habeas case the offender asks for a second, third, etc., bite of the apple.

        All the best.