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Friday, May 18, 2007

Supreme Court Roundup from Aaron Streett

Greetings, sportsfans! The Court managed to produce just a single opinion from its two-week recess, leaving half of its docket still pending as the Term heads into its final 6 weeks. Add to that paltry output 2 CVSGs (which, after all, seek to slough work off on other people) and zero grants, and one wonders precisely which branch of government is getting any work done nowadays. Not to worry, for your fearless sportscaster stands ready to fill the void with unreliable predictions of the probable authors of forthcoming high-profile opinions.

Schriro v. Landrigan, 05-1575

The CA9’s brief one-game winning streak came to a screeching halt with this week’s lone opinion. Respondent prefigured an infelicitous locution lately made infamous by our Commander in Chief when he invited the sentencing judge to “bring on” the death penalty. The judge obliged. Because at this point you may have figured out that Mr. Landrigan sometimes makes bad decisions, you may not be surprised to learn that, earlier in the sentencing, he had prevented his mother and ex-wife from offering mitigating evidence in his behalf. You may likewise be unsurprised to learn that he also told the judge that he did not want his attorney to present any mitigating evidence.  In light of these facts, the district court denied habeas relief on Landrigan’s ineffective-assistance-of-counsel claim without holding an evidentiary hearing. The CA9, however, accepted Landrigan’s argument that his counsel should have investigated other mitigating evidence—regarding his alleged psychological problems—and that Landrigan would have permitted the presentation of that evidence. The CA9 remanded for an evidentiary hearing into whether counsel’s failure to investigate warranted habeas relief.

A divided Supreme Court reversed, with Justice Anthony Kennedy swinging back to the right and CT picking up a rare (for him) writing assignment in a 5-4 case. The Court held that the district court did not abuse its discretion in refusing to grant an evidentiary hearing. Hearings are required only if there is some chance the defendant can produce evidence that can overcome AEDPA’s formidable hurdles. Here, the state court reasonably concluded that Landrigan was dead set against allowing mitigation evidence; therefore, no matter what evidence his attorney might have dug up in a deeper investigation, Landrigan would have prevented it from seeing the light of day. Given that factual finding by the state court, which was entitled to AEDPA deference, it was pointless to hold an evidentiary hearing into whether counsel unreasonably failed to investigate mitigating evidence. CT distinguished cases such as Wiggins v. Smith (2003) and Rompilla v. Beard (2005), because they did not involve defendants who actively thwarted counsel from presenting mitigating evidence. The Court also noted that it had never held that a defendant must “knowingly and intelligently” waive the right to introduce mitigating evidence. In any case, CT wrote, the psychological evidence was largely cumulative of the testimony by Landrigan’s relatives—which Landrigan flatly prohibited—so he could not show prejudice from his attorney’s allegedly defective investigation.

JPS (+ the 3 amigos) dissented. To him, whether Landrigan would have permitted the psychological mitigating evidence, and whether that evidence would have made a difference, are precisely the type of issues that must be tested in an evidentiary hearing. A waiver of the right to introduce mitigating evidence—like any other constitutional right—must be knowing and intelligent, JPS would have held. Landrigan’s alleged waiver was neither, since it relied upon counsel’s woefully inadequate pretrial investigation, which had utterly failed to uncover strong evidence of neurological mental defects. JPS closed his dissent by chiding the majority for failing to “heed Justice Kennedy’s just reminder” in Keeney v. Tamayo-Reyes (1992), that the Court should not make it more likely that habeas courts will base their decisions on inaccurate assessments of the facts.


The Court asked for the views of Clement of Alexandria in two cases. Montana v. Wyoming (137 Orig.) is an original jurisdiction barnburner over rights in the Tongue River, whose name clearly was brought to you by the same group of imaginative cowboys who brought you the Grand Teton mountains. There is nothing like the prospect of wading into an obscure western water dispute to make you appreciate the advice of the Tenth Justice. And even if the Court grants full briefing and argument, it can outsource this one to the intrepid River Master. No such luck with Republic of the Philippines v. Pimentel (06-1204), which asks whether a foreign government with sovereign immunity may be an “indispensable party” under Federal Rule of Civil Procedure 19(b). More painful details if cert is granted.

Opinion Watch

Four cases remain from the December sitting, most notably the school-racial-integration duo of Parents Involved v. Seattle and Meredith v. Jefferson County. Four Justices have yet to write opinions, including JGR, DHS, SGB, and SAA. My guess is that the Chief is keeping the race cases for himself. The Court seems almost certain to strike down the voluntary integration plans, and this would be the first major opinion by the Chief this Term. After plumbing the depths of railroad liability, prison lawsuits, and solid waste, I think the Chief, famous for his “divvying us up by race” opinion during his first Term, is ready to make some 14th Amendment history. The only question is how far the Court is willing to go in implementing a colorblind vision of the Constitution. Will Grutter turn into a pumpkin long before its SOC-imposed 25-year lifespan expires? Probably not, but at the very least I expect a strong opinion reiterating that strict scrutiny really means strict scrutiny when it comes to race-based government action.

Just 2 opinions left from January—Davenport v. WEA (union fees) and Safeco/Geico (Fair Credit Reporting Act)—with only Scalia and Souter left to write. I’ll bet the Chief assigns AS the choice task of skewering the Washington Supreme Court’s wacky First Amendment ruling in Davenport, while DHS will be consigned to consoling the Geico cavemen, whose thriftiness (and fashion sense) he has always admired.

Until next time, that’s today’s baseball.

Aaron M. Streett is an associate in the Houston office of Baker Botts LLP and a member of the firm’s Appellate and Supreme Court Practice. The statements, opinions, and subtle emotions expressed herein do not necessarily represent those of Baker Botts LLP; to the extent they are correct, insightful, and not offensive, they most definitely represent the views of the author. Do not use if safety seal is broken. If you would like to subscribe to these updates, please send an e-mail to [email protected]

Posted by Administrators on May 18, 2007 at 11:46 AM in Constitutional thoughts | Permalink


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