Few areas of the Supreme Court’s jurisprudence are as dense and complex as the rules governing post-conviction habeas corpus petitions filed by state prisoners in federal court. And the density and complexity of those doctrines were on full display Tuesday morning, as the Justices tried to sort out whether California death row inmate Hector Ayala should receive a new trial for the murders of three men and a host of other serious felonies arising out of a 1985 armed robbery. While Justices Anthony Kennedy and Sonia Sotomayor, in particular, seemed deeply troubled by some of the actions of the state trial judge who presided over Ayala’s prosecution – and some of the arguments offered by California in defending those actions – it was difficult to find in Tuesday’s argument any broad support for a decision affirming the Ninth Circuit’s ruling that had granted Ayala relief. Instead, if Tuesday’s argument made anything clear, it was the need for the Justices to clarify exactly which state court decisions are entitled to deference from federal habeas courts—and for what reasons.

As we explained in our argument preview, the dispute in Ayala arises from a series of trial court rulings that prevented Ayala or his counsel from participating in key stages of the pre-trial proceedings that sought to resolve a claimed Batson violation – where Ayala argued that the prosecution had wrongfully used his peremptory challenges to exclude Latino and black members of the jury venire. By not having the chance to participate in the resolution of his Batson claims, Ayala argued that he was denied his right to the assistance of counsel under both state and federal law. On direct appeal, the California Supreme Court agreed that the trial court violated state law; assumed without deciding that it also violated federal law; and held that any such errors were “harmless.” The district court denied Ayala’s petition for federal habeas relief, concluding that the California Supreme Court’s determination was entitled to deference under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). A divided panel of the Ninth Circuit reversed, holding that (1) the California Supreme Court’s decision was not an “adjudication on the merits” that was entitled to deference under AEDPA; and (2) under de novo review, there was little question that the state trial court’s error was prejudicial, and therefore warranted relief.

Arguing for California, Deputy Attorney General Robin Urbanski jumped right to the heart of the state’s position: Although the California Supreme Court did provide an “adjudication on the merits,” that adjudication was not its conclusion that the trial court violated Batson (and its California state law analogue); rather, it was its determination that any Batson error was “harmless.” Thus, Urbanski stressed, the only question a federal habeas court should ask is whether that determination “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”

As Justices Elena Kagan and Sonia Sotomayor quickly pointed out, though, applying AEDPA to the harmlessness of a state court’s error, as opposed to the error itself, would confer that much more deference upon state courts, because even the most egregious trial-court errors could be sanitized on appeal through harmless error determinations that could only be overturned if the harmlessness of that particular error was itself expressly contraindicated by clearly established Supreme Court precedent. And even when that happened, it would hardly be clear what merits determination a federal habeas court was tasked with reviewing. Although Urbanski found support for this exact conclusion from Justice Antonin Scalia, it seemed to pick up few other votes across the bench. If anything, Justice Kennedy’s first query of the day proved the point, when he encouraged Urbanski to turn to the second question presented (which the Justices had added) on whether, on the merits, the Ninth Circuit’s de novo analysis of the harmlessness of the state trial court’s error had misapplied the Supreme Court’s standard for prejudice under Brecht v. Abrahamson.

Urbanski then launched into an extended colloquy with Justice Sotomayor over how the Brecht standard should have been applied in light of the specific arguments that Ayala’s counsel could have made in the Batson proceedings had he been allowed to participate. By the end of that colloquy – and Urbanski’s argument – it seemed as if the Deputy Attorney General had held her ground, at least on the second question presented.

Arguing on behalf of Ayala, lawyer Anthony J. Dain continued the exchange over whether the trial court’s error actually prejudiced Ayala. Again, the key moment may well have involved Justice Kennedy, who interrupted a long colloquy between Dain, Justice Samuel Alito, and Chief Justice John Roberts to ask whether there’s any evidence in the record that shows that the result would have been different on the exact same record if Ayala had been allowed to participate, through counsel, in all of the Batson proceedings. As he observed, “it does seem to me that this district judge exercised care in listening to the answer. And . . . the Federal courts are required under Brecht to give very substantial deference to that finding.” In other words, although the Ninth Circuit may well have been correct that deference to the California Supreme Court’s decision was not required under AEPDA, it may have erred in not deferring to that court’s assessment of prejudice under Brecht – deference that would not be warranted in cases in which the state court did not fully consider the potential prejudice to the defendant.

Thus, although Urbanski still had four minutes for rebuttal when Dain’s argument concluded, the only real remaining moment of interest came as Dain was about to yield the podium, when Justice Kennedy asked a series of questions about how long and under what circumstances Ayala has been in administrative segregation – a year to the day since the last time Justice Kennedy diverted the focus of a capital argument toward so-called “Lackey” claims. But, like the merits of Ayala’s Batson-related claims, there’s little reason to expect that the opinion the Justices ultimately issue in Ayala’s case will include any discussion of the issue.

Plain English: When a state appellate court identifies a serious constitutional violation in a state criminal defendant’s trial, but concludes that such error did not affect the outcome of the trial, must a federal court defer to that conclusion either because it is an “adjudication on the merits” to which such deference is mandated by a federal statute, or because, even without that federal statute, deference to the state court’s harmlessness determination is warranted by the Supreme Court’s own precedents? Tuesday’s argument suggests that the Justices are likely to answer the first question in the negative, but the second in the affirmative.

Posted in Davis v. Ayala, Merits Cases

Recommended Citation: Steve Vladeck, Argument analysis: AEDPA deference, Brecht deference, and a Lackey tangent in a California capital case, SCOTUSblog (Mar. 3, 2015, 5:15 PM), https://www.scotusblog.com/2015/03/argument-analysis-aedpa-deference-brecht-deference-and-a-lackey-tangent-in-a-california-capital-case/