The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
This morning the Supreme Court denied certiorari in Rapelje v. Blackston, a habeas case from the U.S. Court of Appeals for the 6th Circuit arising under the Antiterrorism & Effective Death Penalty Act (AEDPA). There's usually nothing notable about a denial of certiorari, as cert is denied in the vast majority of cases. The court's refusal to hear Rapelje, however, prompted a dissent from thee justices.
[UPDATE: Here's some additional background. Junior Blackston was convicted of murder and sentenced to life in prison. He filed a habeas petition challenging his conviction, arguing that the trial court's refusal to admit evidence impeaching witness statements read at trial violated his clearly established rights under the Confrontation Clause of the Sixth Amendment. The district court granted the habeas petition, and a divided panel on the Sixth Circuit affirmed. Michigan filed a petition for certiorari arguing that the Sixth Circuit's decision was wrongly decided under AEDPA because the right to admit the evidence in question was not "clearly established" under federal law and applicable Supreme Court precedent.]
As the dissent from denial of certiorari by Justice Scalia (joined by Justices Thomas and Alito) notes, the lower court decision was quite clearly wrong under existing precedent and it's the sort of case that the Supreme Court has often taken in the past.
A criminal defendant "shall enjoy the right . . . to be confronted with the witnesses against him." U. S. Const., Amdt. 6. We have held that this right entitles the accused to cross-examine witnesses who testify at trial, and to exclude certain out-of-court statements that the defendant did not have a prior opportunity to cross-examine. Crawford v. Washington, 541 U. S. 36, 50-51 (2004); Davis v. Alaska, 415 U. S. 308, 315-317 (1974). We have never held-nor would the verb "to confront" support the holding-that confrontation includes the right to admit out-of court statements into evidence. Nevertheless, the Sixth Circuit held not only that the Confrontation Clause guarantees the right to admit such evidence but that our cases have "clearly established" as muuch. We should grant certiorari and summarily reverse. . . .
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) prohibits federal courts from granting habeas relief unless the state court's decision "involved an unreasonable application of . . . clearly established Federal law, as determined by the Supreme Court of the United States." 28 U. S. C. § 2254(d)(1) (emphasis added). As the dissenting judge below pointed out, no case of ours establishes, clearly or otherwise, that the Confrontation Clause bestows a right to admit this kind of evidence. 780 F. 3d, at 363-364 (opinion of Kethledge, J.). In fact we long ago suggested just the opposite. Mattox v. United States, 156 U. S. 237, 245-250 (1895). . . .
There may well be a plausible argument why the recantations ought to have been admitted under state law. . . . But nothing in our precedents clearly establishes their admissibility as a matter of federal constitutional law. AEDPA "provides a remedy for instances in which a state court unreasonably applies this Court's precedent; it does not require state courts to extend that precedent or license federal courts to treat the failure to do so as error." White v. Woodall, 572 U. S. ___, ___ (2014) (slip op., at 11). By framing the confrontation right at a high level of generality (making it the right "to impeach the credibility of an adverse witness"), the Sixth Circuit in effect "transform[ed] . . . [an] imaginative extension of existing case law into 'clearly established'" law. Jackson, supra, at ___ (slip op., at 7). That will not do.
The Sixth Circuit seems to have acquired a taste for disregarding AEDPA. E.g., Woods v. Donald, 575 U. S. ___ (2015) (per curiam); White v. Woodall, supra; Burt v. Titlow, 571 U. S. ___ (2013); Metrish v. Lancaster, 569 U. S. ___ (2013); Howes v. Fields, 565 U. S. ___ (2012). We should grant certiorari to discourage this appetite.
As Scalia's opinion suggests, the 6th Circuit has developed something of a reputation for its, shall we say, creative approach to habeas cases under AEDPA. In recent years the court has developed a habit of finding new ways to claim that "clearly established" law requires the grant of habeas petitions. And in recent years the Supreme Court has granted cert and reversed in a large number of these cases—so much so that the 6th Circuit developed a reputation as "the new 9th." Taken as a whole, this string of cases suggests that some judges on the 6th Circuit are intent upon reaching certain outcomes without regard for precedent.
I should add that the wayward 6th Circuit judges may be correct as a policy matter. It's entirely possible that existing Supreme Court precedent is not sufficiently sympathetic to claims brought by habeas petitioners under AEDPA. It is also possible that the standard imposed by AEDPA is too onerous and makes it too difficult for individuals convicted in state court to raise successful habeas claims. Yet even if this is true, it's not the job of judges—and lower court judges in particular—to substitute their views for those of Congress or the Supreme Court. Whether or not the high court has gotten these cases right, it's become fairly clear that at least some judges on the 6th Circuit are reluctant to comply. But the Supreme Court is not generally in the business of error correction, some of the 6th Circuit's outlier decisions will slip through—and it seems that one did here.