Two ADEPA prerequisites are virtually impossible to scale for most criminal convicts

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair


A state prisoner trying to secure Federal habeas corpus relief faces a difficult nut to crack. Imagine trying to climb Mt. McKinley in Michael’s Air Jordan’s and Kobie’s gym shorts, in January no less. And a February 20, 2013 unanimous U.S. Supreme Court decision (Johnson v. Williams) just took away the Air Jordan’s. Decisions from the Court this term underscores one fundamental point: the so-called liberal and conservative wings of the court find constitutional differences in social and political issues but they seem to share the same mindset in criminal law issues. In fact, the day before handing down the Williams decision, a unanimous court decided Florida v. Harris which held, in effect, that a drug detection dog’s field performances are not relevant to the hound’s reliability. Not a great session for those interested in civil liberties and true criminal justice.

The Federal habeas corpus statute, 28 U.S.C. § 2254(d), restricts a federal court’s review of state prisoner’s constitutional claims pursuant to the Antiterrorism and Effective Death Penalty Act (“ADEPA”). Essentially, if a state prisoner’s claim has been “adjudicated on the merits” by a state court, he cannot secure Federal habeas relief unless the decision by the state court “(1) 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 

These two ADEPA prerequisites are virtually impossible to scale for most criminal convicts. The first major requirement involves exactly what constitutes “adjudicated on the merits.” The Supreme Court in January 2011 (Harrington v. Richter) held that when a state court denies a Federal constitutional claim without discussion, a Federal habeas court must “presume”—a presumption subject to rebuttal, however—that the claim was “adjudicated on the merits.” Put simply, a denial without explanation is now a sufficient showing for an adjudication on the merits.

Williams presented a related but slightly different nuance of the term “adjudicated on the merits. In Williams, the defendant raised claims on appeal that the trial court violated California law and the 6th Amendment when it dismissed a juror during deliberations.  The appellate court, while holding that the juror had been properly dismissed, did not expressly acknowledge the federal claim.  This posed an interesting dilemma for Federal habeas courts when faced with cases where the state court explained their denial of some claims but not others. Should the Federal habeas court then “presume” the unexplained denials were “adjudicated on the merits” or perhaps were they inadvertently “overlooked” necessitating the need for the Federal court to “adjudicate the claim[s] de novo.”

The Ninth Circuit Court of Appeals in Williams elected to follow the latter course of action, a de novo review of the unexplained denials.

In October 1993 Tara Williams was the getaway driver in the robbery of a liquor store in Long Beach, California in which the store’s owner was killed. While Williams admitted she was the driver of the vehicle, she said she thought her companions were going to case the liquor store when they got out of the vehicle—not rob it. She managed to elude the police for five years before being captured and charged with first degree murder. At her trial, prosecutors argued that the “when or where” the robbery would take place was not the issue. The only issue necessary to satisfy California’s felony-murder statute was the intent to help commit a robbery. One juror would not accept this prosecutorial theory. After a concerted but unsuccessful effort by the judge to eliminate the impasse between this juror and the other 11 jurors, the judge dismissed the holdout juror and replaced him an alternate juror after which Williams was convicted of first degree murder.

On appeal to the California Court of Appeal, Williams argued that the discharge of the holdout juror violated both state law and her Sixth Amendment right to an impartial jury. A problem was created by the fact that her brief on appeal did not distinguish “between these two lines of authority.” This problem perhaps influenced the California Court of Appeal to find that the holdout juror had been dismissed for bias. While the state appeals court cited a 1936 U.S. Supreme Court decision which defined a “biased juror,” the appeals court did not expressly address Williams’ alleged Sixth Amendment violation.

Williams then petitioned to the California Supreme Court for a review of the court of appeals’ decision, and while her petition was pending the state’s high court handed down a decision that found a trial court had abused its discretion for dismissing a juror who failed to deliberate with other jurors. The California Supreme Court, thus, granted Williams’ petition and remanded her case for “further consideration in light of this intervening authority.”

On remand, the court of appeals stuck by its earlier decision, saying the holdout juror in Williams’ case was dismissed because “he was uncooperative with other jurors …” and because he had “shown himself to be biased.” The court of appeals once again cited the 1936 Supreme Court decision defining “juror bias” but, again, “did not expressly acknowledge that Williams invoked a federal basis for her argument.” Williams neglected to seek a rehearing for a clarification on her Sixth Amendment claim. Instead she sought, and was denied, a petition for review by the California Supreme Court which, also, did not address her Sixth Amendment claim.

After having properly exhausted all state court remedies available to her, Williams sought Federal habeas relief under 28 U.S.C. § 2254. The Federal court applied ADEPA’s “deferential standard” requiring dismissal of a state prisoner’s claims previously “adjudicated on the merits” and denied Williams’ § 2254 petition. She thereafter sought, and secured, a reversal from decision from the Ninth Circuit Court of Appeals. The Federal appeals court remanded Williams’ case because the court believed it was “obvious” that the state court of appeals had “overlooked or disregarded” her Sixth Amendment claim. The Federal appeals court turned to its own precedent to find that the questioning and dismissal of the holdout juror in Williams’ case violated the Sixth Amendment.

The State of California sought, and secured, certiorari review before the U.S. Supreme Court based on Richter. In reversing the Ninth Circuit, the high court concluded: “Our reasoning in Richter points clearly to the answer to the question presented in this case at hand. Although Richter itself concerned a state-court order that did not address any of the defendant’s claims, we see no reason why the Richter presumption should not also apply when a state-court opinion addresses some but not all of a defendant’s claims. There would be a reason for drawing a distinction between these two situations if opinions issued by state appellate courts always separately addressed every single claim that is mentioned in a defendant’s papers. If there was such a uniform practice, then federal habeas courts could assume that any unaddressed federal claim was simply overlooked … No such assumption is warranted, however, because it is not the uniform practice of busy state courts to discuss separately to which a defendant makes even in passing reference.”

Okay. Let us get this straight for the record. Routinely state courts are too “busy” to discuss separately each Federal constitutional violation presented by a state prisoner in the written decision-making process, either on appeal or in post-conviction proceedings, but they have time to adjudicate these claims “on the merits” in their heads while driving to Starbucks after a workout at the court’s gym with their dozen or so law clerks. Gracious heavens, what a hardship to be so busy that a little “real judging” creates such exhaustion on the treadmill.

And the Supreme Court justices were sympathetic to these hardships faced by their state counterparts. “When a state court rejects a federal claim without expressly rejecting that claim,” the high court said, “a federal habeas court must presume that the federal claim was adjudicated on the merits—but that presumption in some limited circumstances can be rebutted.”

This, we believe, is Wal-Mart justice—quantity over quality. Just deny, no explanation. Such a “presumption of correctness” applies in no other work place, except perhaps in other government agencies. It is incomprehensible to us how any issue can be adjudicated “on the merits” without an explanation for reaching a sound conclusion. …At least with a “scent hound” you have its excellent scent receptors to rely on.

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization