Sixth Circuit smackdown watch: Woods v. Etherton

|The Volokh Conspiracy |

Even with only eight justices, the Supreme Court continues its somewhat regular practice of reversing pro-criminal-defendant habeas opinions of the U.S. Court of Appeals for the Sixth Circuit. Today, the court issued a per curiam opinion summarily reversing the Sixth Circuit's grant of a habeas petition in Woods v. Etherton.

In the opinion below (Etherton v. Rivard), a divided panel of the Sixth Circuit concluded that Etherton had been denied the effective assistance of counsel because his appellate counsel had failed to raise a Sixth Amendment Confrontation Clause challenge to the trial court's admission of an anonymous tip that allegedly led the police to identify his vehicle, in which a substantial amount of cocaine was discovered, and that this failure was prejudicial.

The Supreme Court was not so impressed with this conclusion:

In reaching these conclusions, the Sixth Circuit did not apply the appropriate standard of review under AEDPA. A "fairminded jurist" could conclude that repetition of the tip did not establish that the uncontested facts it conveyed were submitted for their truth. Such a jurist might reach that conclusion by placing weight on the fact that the truth of the facts was not disputed. No precedent of this Court clearly forecloses that view. It is also not beyond the realm of possibility that a fairminded jurist could conclude that Etherton was not prejudiced when the tip and Pollie's testimony corresponded on uncontested facts. [Pollie was the passenger in Etherton's vehicle.] After all, Pollie himself was privy to all the information contained in the tip. A reasonable judge might accordingly regard the fact that the tip and Pollie's testimony corresponded to be unremarkable and not pertinent to Pollie's credibility. (In fact, the only point of Pollie's testimony actually reflected in the tip was that he and Etherton weretraveling between Detroit and Grand Rapids.)

Etherton's underlying complaint is that his appellate lawyer's ineffectiveness meant he had "no prior opportunity to cross-examine the anonymous tipster." . . .But it would not be objectively unreasonable for a fairminded judge to conclude-especially in light of the deference afforded trial counsel under Strickland- that the failure to raise such a claim was not due to incompetence but because the facts in the tip were uncontested and in any event consistent with Etherton's defense. . . . A fairminded jurist could similarly conclude, again deferring under Strickland, that appellate counsel was not incompetent in drawing the same conclusion. And to reach the final point at issue before the Sixth Circuit, a fairminded jurist- applying the deference due the state court under AEDPA- could certainly conclude that the court was not objectively unreasonable in deciding that appellate counsel was not incompetent under Strickland, when she determined that trial counsel was not incompetent under Strickland.

Given AEDPA, both Etherton's appellate counsel and the state habeas court were to be afforded the benefit of the doubt. . . . Because the Sixth Circuit failed on both counts, we grant the petition for certiorari and reverse the judgment of the Court of Appeals.

The Sixth Circuit has often granted habeas petitions on similar grounds and has often been reversed for doing so. What's perhaps different here is that the case did not involve a capital conviction. What's similar is that, once again, the Supreme Court has chided the Sixth Circuit for failing to apply applicable precedent under AEDPA.