October 4, 2010

Will the U.S. Supreme Court add to the California Supreme Court’s workload?

In honor of the first Monday in October, a discussion about a U.S. Supreme Court case – on review from the Ninth Circuit – that could affect the California Supreme Court’s workload. According to an amici curiae brief filed by the California Attorneys for Criminal Justice and the California Academy of Appellate Lawyers, the amount of time the CSC spends on habeas corpus petitions could substantially increase depending on how the SCOTUS decides the case.

In Harrington v. Richter, which will be argued on October 12, the Court will analyze an en banc Ninth Circuit opinion that granted habeas corpus relief based on ineffective assistance of counsel. (Richter v. Hickman (9th Cir. 2009) 578 F.3d 944.) When the SCOTUS granted certiorari, it raised on its own the question, “Does AEDPA deference apply to a state court’s summary disposition of a claim . . . ?“

Under the AEDPA (Antiterrorism and Effective Death Penalty Act of 1996), a federal court in a habeas proceeding cannot overturn a state court decision of a claim on the merits “unless the adjudication of the claim . . . 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. . . . ” The CSC denied Richter’s habeas petition in one sentence without stating any reasons.

According to the amici brief, “Over the last four decades, through an extended dialogue with the federal courts, the California Supreme Court has developed certain summary order practices. When a majority of the state high court is able to agree on a basis for denying a petition, it says so. The Court expressly denies some habeas petitions on procedural grounds, some ‘on the merits’ and some for both reasons. But when a majority does not agree on a basis for decision, the court simply denies the petition without any citation or explanation at all. The court entered this sort of ‘silent denial’ in Richter’s case.”

When there is not a lower state court decision on the merits of a claim, federal deference to the CSC’s “silent denial” of the claim could change the way the CSC deals with habeas petitions. The amici brief argues: “If [the SCOTUS] rejects the settled meaning of a silent denial, a conscientious state high court will be forced to devote substantial additional resources to its habeas docket. To avoid having the federal courts erroneously treat a silent denial as a merits adjudication, a majority of the justices of the California Supreme Court will have to agree on a basis for decision in each case or specifically explain that a majority could not reach agreement on any single issue . . . . To facilitate this discussion and voting, the court’s criminal central staff will need to recommend a disposition on each separate claim, and the justices will have to vote issue-by-issue.”

The most recent Court Statistics Report states that the CSC ruled on over 3,200 habeas corpus petitions in fiscal year 2008-2009. Any increase in the amount of time the court spends on its habeas workload, on top of its already heavy death penalty docket, would likely come at the expense of its ability to grant discretionary review, and discretionary review has already shrunk to a record low level.

Disclosure: Although no Horvitz & Levy attorneys participated in drafting the amici curiae brief (the brief was authored by Boalt law professors Charles Weisselberg and Nina Rivkind), a number of them are members of the California Academy of Appellate Lawyers and David Ettinger is chair of the Academy’s amicus curiae committee.

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