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Argument recap: Court considers role of (possibly) new evidence in federal habeas proceedings

On Tuesday, the Court heard argument in Cullen v. Pinholster (No. 09-1088).  The wide-ranging argument demonstrated the complexities and confusions that can arise when the Court reviews a state prisoner’s federal habeas petition under the Antiterrorism and Effective Death Penalty Act (AEDPA).  The Court grappled with two intertwining questions presented: first, a procedural question regarding the proper role for evidence first presented in federal court; and second, a substantive question regarding the standard for ineffective assistance of counsel in presenting mitigating evidence at the sentencing phase of a death penalty case.

Representing California warden Vincent Cullen, Supervising Deputy Attorney General James W. Bilderback II argued that the Ninth Circuit erred in granting habeas relief because the California Supreme Court decision denying Pinholster post-conviction relief was not an unreasonable application of clearly established federal law.

Justice Sotomayor began the questioning by probing an issue that would occupy the Court throughout the argument: the extent to which Mr. Pinholster’s federal habeas petition relied on a new “factual basis.”  Justices Sotomayor and Kagan pushed Mr. Bilderback to provide a “full catalogue” of facts in the federal court record that differ from those in the state court record. In particular, two categories of facts were at issue, regarding:  (1) trial counsel’s minimal preparation for the sentencing phase of trial; and (2) the mitigating evidence that trial counsel failed to discover and present at trial.  The Court pressed both advocates to explain whether the trial lawyer’s billing sheet showing he had only worked 6.5 hours on the mitigation case, and the medical diagnosis that he had failed to introduce, were presented in the state post-conviction proceedings. 

Justice Kagan later characterized the issue before the Court as a “level of generality” problem: is the proper scope of a “claim” simply ineffective assistance of counsel at the penalty phase? Or ineffective assistance by failure to present evidence of brain damage? Or is the scope even narrower:   ineffective assistance for failure to present evidence of brain damage of a particular kind, such as frontal lobe damage?  Determining what the level of generality should be then affects what a habeas petitioner must have presented or alleged in state court to avoid the bar under 28 U.S.C. § 2254(e) on presenting a new “factual basis” unless he diligently attempted to present it to the state court.  In other words, when Pinholster introduced new expert opinions diagnosing him with organic brain damage, did this evidence constitute a new factual basis for his ineffective assistance of counsel claim? Or was it instead just new evidence supporting the same factual basis that he had presented to the state court?

The argument then turned to AEDPA’s standard of review under 28 U.S.C. § 2254(d)(1).   Mr. Bilderback argued that under § 2254(d)(1), federal courts must evaluate whether the state court’s decision was contrary to or involved an unreasonable application of federal law from the perspective of the state court – that is, only in light of that evidence that was available to the state court when it made its decision.  Justice Sotomayor pointed to the difference in the text of § 2254(d)(1) and § 2254(d)(2): the latter explicitly limits federal courts’ review of state courts’ factual determinations to the evidence before the state court, while the former has no such limitation.  Mr. Bilderbeck replied that § 2254(d)(1) should nonetheless be similarly limited because the language in § 2254(d)(2) was targeted at pre-AEDPA federal court practices, both provisions are phrased in the past tense, and because the overarching purpose of AEDPA was to increase deference to state courts.

The Justices then turned to the role played by § 2254(e)(2), which outlines the scenarios in which evidentiary hearings are available to habeas petitioners who did not develop the basis for their claims in state court.  Justice Sotomayor asked Bilderback why it wasn’t “logical to start with (e)(2) . . . why are we excluding those facts from the decisionmakers’ consideration?”  She expressed skepticism at his response – that AEDPA’s various provisions provided for a “methodical, calculated, and logical” progression of steps in the federal courts’ review, with an evidentiary hearing under (e)(2) coming last. 

Responding to a question from the Chief Justice, Mr. Bilderback then told the Court that  § 2254(d)  did not apply because “the introduction of organic brain damage evidence fundamentally changes the nature of this claim,” such that it is “not the same claim that was presented to the State court.” Several Justices – especially Justice Kennedy – appeared taken aback at this apparently new tack from the state, but no time remained to probe the issue further.

Representing respondent Scott Pinholster, Federal Public Defender Sean K. Kennedy argued that, even if it were viewed only in light of the evidence available to it at the time, the California state court’s decision was still unreasonable.  When Justice Scalia disputed this contention, pointing out that the Ninth Circuit’s decision was based on the additional facts introduced in federal court and that Pinholster has “to live with the decision they wrote,”  Mr. Kennedy emphasized that the Ninth Circuit in fact found alternative grounds for granting relief – first, that the state court’s decision was objectively unreasonable in light of the evidence before it at the time, and second that the state court’s decision was unreasonable in light of the new evidence.  Justice Scalia located this passage in the lower court’s opinion, leading to laughter in the courtroom after Justice Breyer commented – and Kennedy eagerly agreed – that if Mr. Kennedy’s characterization of the lower court opinion were correct, then “this case presents no question . . . you win.”  

However, the Chief Justice Roberts immediately questioned whether the state court’s decision was in fact objectively unreasonably, thereby turning the argument to the second question presented regarding the substantive ineffective assistance of counsel claim.  Both the Chief Justice and Justice Alito suggested that Pinholster’s trial counsel may have made strategic decisions about the best mitigation case he could present, and thus the California court’s decision was not objectively unreasonable to find his performance constitutionally adequate.  Mr. Kennedy responded that there was no strategic justification for a failure to investigate and present Mr. Pinholster’s severe brain damage and mental illness.

Justice Kennedy quickly pressed Mr. Kennedy on whether a federal court may grant habeas relief “rel[ying] on different evidence . . . that was not in the State hearing.” The Justices spent several minutes attempting to sort out the status of evidence (in particular, regarding the billing sheet which established that Pinholster’s trial counsel had only spent 6.5 hours preparing mitigation evidence) at the state court proceeding that rejected Mr. Pinholster’s claim of ineffective assistance of counsel. During his rebuttal, Mr. Bilderback was largely preoccupied with answering questions on this issue as well and whether, because the billing records had formed part of the state court record via the clerk’s transcript, this evidence was not newly presented in the federal district court.

The argument concluded with Justice Breyer’s attempt to summarize Mr. Bilderback’s position: to rule in his favor, the Court would have to find that the state court decision was not unreasonable (and therefore reject the Ninth Circuit’s alternative holding), and that either (e)(2) did not permit an evidentiary hearing or that the new evidence fundamentally transforms the claim and state procedure allows the habeas petitioner to present that new claim in state court.  And with that, the case was submitted.  Clarity on the relationship between § 2254(d)(1) and § 2254(e)(2) will have to wait until the Court issues its opinion.

Recommended Citation: Matthew Seligman, Argument recap: Court considers role of (possibly) new evidence in federal habeas proceedings, SCOTUSblog (Nov. 12, 2010, 12:26 PM),