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Legal Commentary: The Volokh Conspiracy
Is the Sixth Circuit the New Ninth (At Least in Habeas Cases)?
By Jonathan H. Adler
With today?s decision in Berghuis v. Thompkins the Supreme Court has once again reversed the U.S. Court of Appeals for the Sixth Circuit in a habeas case. Indeed, this is the fifthsuch reversal this year. In each case, a panel of the Sixth Circuit granted a prisoner?s habeas corpus petition. In each case, the Supreme Court reversed. Three of these decisions were unanimous (Berghuis v. Smith, Smith v. Spisak and Bobby v. Van Hook), one was 6?3 (Renico v. Lett). Today?s decision was 5?4. Overall, this means the Circuit could only muster 7 of 45 available votes in support of its decisions.
It?s hardly unheard of for a single circuit to be reversed five or more times in a single term. The number of cases up for review in any given year is a sufficiently small and unrepresentative sample to preclude drawing any sweeping conclusions. Still, it is unusual to see a circuit fare so poorly in a single area of the law in a single term, and in such a uniform direction.
The spate of reversals is also notable because the Sixth Circuit has been so divided in habeas cases of late. As I?ve chronicled over the past several years (see, e.g., here, here and here), the judges on the Sixth Circuit are deeply split over the proper standard of review in habeas cases, particularly when the death penalty is involved. Indeed, the Circuit released yet another divided panel decisionin a habeas case this morning. The uniformity of the reversals suggest that one side in the Sixth Circuit?s habeas disputes has the better of the argument, at least under existing law. If current law is too restrictive on this score ? and it may well be ? then it is up to the Court or Congress to make things right, not a handful of judges on a single Circuit. With these five decisions, the Supreme Court seems to be sending a message. Time will tell whether the judges on the Sixth Circuit heed it.
UPDATE: It?s been suggested to me that it?s unfair to blame the Sixth Circuit for today?s reversal. In Berghuis v. Thompkins the Sixth Circuit was not only reversed for failing to apply the proper standard to review of a habeas petition denial. On the petitioner?s Miranda claim, the five-justice majority revised the standard for what constitutes a waiver of one?s Miranda rights. Thus, the Court did not hold that the Sixth Circuit failed to apply pre-existing precedent, and there is a reasonable argument that the Sixth Circuit?s decision on this question was on solid ground at the time of the decision. This was not the only basis upon which the Sixth Circuit afforded Thompkins with habeas relief, however. The panel below also found that Thompkins had received inadequate assistance of counsel, and here the Court majority found the Sixth Circuit had not applied the proper standard under AEDPA. (The dissent did not address this issue, as the dissenting justices would have granted relief on the Miranda claim.) Interestingly enough, because today?s decision was 5?4, if one ignores Berghuis v. Thompkins, the Sixth Circuit appears to be more of an outlier, as the combined vote to overturn is habeas decisions would be 33?3.
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