Justice Thomas Says "Sixth Circuit Must Do Better" in AEDPA Cases

The Supreme Court often reverses the U.S. Court of Appeals in habeas cases, but not this time.

The U.S. Court of Appeals for the Sixth Circuit has compiled an unenviable record of reversals in habeas cases under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), including a fair number of summary reversals (as I have noted many times on this blog). In a recent dissent from denial of an en banc petition in Cassaon v. Shoop, Judge Griffin of the Sixth Circuit noted twenty-two habeas reversals in the past twenty years. But is the Supreme Court losing its appetite for reversing the Sixth Circuit?

Back in June, the Supreme Court denied certiorari in the case that  prompted Judge Griffin's comments. Justice Thomas dissented (joined by Justice Alito), noting he would have summarily reverse the Sixth Circuit.

Today the Court denied another petition for certiorari seeking review of a Sixth Circuit habeas petition grant in Shoop v. Cunningham. Again, Justice Thomas dissented (joined by Justices Alito and Gorsuch). An again Justice Thomas argued the case warranted summary reversal.

Justice Thomas' opinion expresses frustration with his colleagues' alleged unwillingness to correct the Sixth Circuit, as well as the lower court's unwillingness to take such cases en banc. His opinion concludes:

By denying certiorari, the Court once again permits the nullification of its jurisprudence. Just a few months ago, I dissented from the Court's refusal to correct a flagrant misapplication of AEDPA by the Sixth Circuit. See Shoop v. Cassano, 596 U. S. ___ (2022) (opinion dissenting from denial of certiorari). Today, the Court denies  review of a case just as flagrant, if not more so. We should not shirk our responsibility to correct classic AEDPA abuses, especially when a lower court brazenly commits errors for which we have repeatedly reversed it. See Cassano v. Shoop, 10 F. 4th 695, 696–697 (CA6 2021) (Griffin, J., dissenting from denial of rehearing en banc) (collecting 22 cases in which this Court reversed the Sixth Circuit "for not applying the deference to state-court decisions mandated by AEDPA," including 12 summary reversals).

That said, while I disagree with the Court's newfound tolerance for recidivism, primary responsibility for the Sixth Circuit's errors rests with the Sixth Circuit. That court's record of "plain and repetitive" AEDPA error, Parker, 567 U. S., at 49, is an insult to Congress and a disservice to the people of Michigan, Ohio, Kentucky, and Tennessee. Federal habeas review imposes "profound societal costs," "frustrat[ing] both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights." Calderon v. Thompson, 523 U. S. 538, 554, 555–556 (1998) (internal quotation marks omitted). It also "disturbs the State's significant interest in repose for concluded litigation, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority." Richter, 562 U. S., at 103 (internal quotation marks omitted). These problems are serious enough even when courts carefully observe the limits that Congress and this Court have laid down. When a lower court wields its habeas jurisdiction in overt defiance of those limits, the affront to federalism and the rule of law becomes intolerable.

The Sixth Circuit must do better, with or without this Court's help. Unfortunately, the Sixth Circuit's habeas jurisprudence suggests that certain circuit judges' "taste for disregarding AEDPA," Rapelje v. Blackston, 577 U. S. 1019, 1021 (2015) (Scalia, J., dissenting from denial of certiorari), has found its natural complement in other judges' distaste for correcting errors en banc, no matter how blatant, repetitive, or corrosive of circuit law. See, e.g., Issa v. Bradshaw, 910 F. 3d 872 (CA6 2018) (denying rehearing en banc); Mitts v. Bagley, 626 F. 3d 366 (CA6 2010) (same). Of course, reluctance in deploying en banc review is understandable. But only to a point. The Sixth Circuit's habeas problems are well past that point—as evidenced by the depressing regularity with which petitions like this one reach us.

The Court should have delivered that message by summarily reversing the judgment below. Accordingly, I respectfully dissent from denial of certiorari.

 

Comments

[rloquitur]

CT is awesome. He calls out these evil judges putting this poor family through the wringer. These judges are a disgrace to the profession, and the Supreme Court, for tolerating it, deserves harsh harsh criticism.

[Rev. Arthur L. Kirkland]

"Awesome" is one way to describe a judge who declines recusal in a case that might implicate his wife in un-American misconduct.

(He has recused in cases involving a son more than once; he must not care about the son so much.)

[rloquitur]

Blah blah blah blah.

[Noscitur a sociis]

Which case is that?

[Rev. Arthur L. Kirkland]

Most recently, the case involving the Arizona election official (Ward?) who tried (unsuccessfully) to persuade the Supreme Court to prevent investigators from obtaining subpoenaed evidence of insurrection or other un-American conduct.

Justices Alito and Thomas sided with the insurrectionists and "stolen election" advocates.

[SRG]

Thomas can fuck himself (again). As usual when he's basically wrong on the law, he spends much of his whining dissent describing the seriousness of the crime in order to justify his argument - "see how bad this guy is? He doesn't deserve rights".

[rloquitur]

How is he wrong on the law? Please explain---using a non-Constitutional decision of SCOTUS to rip open criminal judgment on federal habeas has been a no-no since Early v. Packer (2002).

[SRG]

Contrast Remmer: “We do not know from this record, nor does the petitioner know, what actually transpired, or whether the incidents that may have occurred were harmful or harmless” hence requiring a hearing” with Thomas, “Here, by contrast, Cunningham merely alleged that outside contact had occurred, based on a speculative reading of an ambiguous postverdict. And Remmer quite obviously did not clearly establish the Sixth Circuit’s rule that any “colorable claim of extraneous influence” mandates “a Remmer hearing.””

It is obvious, and that the allegation came from the defendant based on information that any reasonable justice would consider worth investigating seems to have escaped Thomas altogether. And it seems he is quite willing to set aside any deference to the 6th Circuit’s fact-finding, but that’s another issue.

TBH the moment I read Thomas’s going into details of the murder, I guessed his dissent would be a whine.

Here's some irrelevant whining:
" It shows profound disrespect, not merely to the State, but to citizens who perform the difficult duty of serving on capital juries, to the surviving victims of Cunningham’s atrocious crimes, to the memories of the two young girls whose lives he snuffed out, and to their families who still, two decades later, have no assurance that justice will ever be done. "

[rloquitur]

Remmer is not a constitutional decision, and therefore does not satisfy the standard for reliance. You don't address that point, and that law (i.e., that reliance on non-constitutional decisions by SCOTUS in habeas cases), by the way, is 20 years old.

It's absolutely not irrelevant whining--it's showing the real-world consequences to real people that blowing off AEDPA inflicts.

Your comment about "worth investigating"---sez who? Juries aren't allowed to impeach their own verdict. Also, your complaints about Sixth Circuit factfinding are just silly. There are restrictions on federal habeas relief, and deference to an appellate court's [sic] "factfinding" is just not the law.

This isn't an innocence case, and the Sixth Circuit has acted lawlessly.

[SRG]

As a side point, AEDPA is a horrible law and if it were not for the gutlessness of SCOTUS and Congress would have been eliminated years ago. The bizarre idea that because a law provides process, following the law automatically and fapp irrebuttably satisfies due process is the kind of thing no decent jurist should accept nor lawyer tolerate, from which it follows that all jurists who do accept it are not decent.

The major entirely expected consequence of AEDPA is to eliminate many constitutional protections leading to process games and the likely execution of innocents - a matter which never vexed Rehnquist or Scalia. If the consequence of adopting an honest constitutional rejection of AEDPA is that occasionally the guilty get a second shot, well, we know the old saw about better to free ten guilty men than convict one innocent one - an idea which has been rejected wholesale by large swathes of government and which it seems clear you don't accept either.

And now the relevant bit. If you're going to make process more important than guilt or innocence, then you'd better be fucking honest and principled enough about it not to suddenly revert to considerations of guilt and ignore process - and having a possibly unfair jury is assuredly a process issue -and that lies above Rimmer and is embedded in modern constitutional jurisprudence.

Unless you're guilty, or Thomas thinks you're guilty, when then according to him, you're shit out of luck.

[rloquitur]

Ah–so you don’t like AEDPA (shock) . . . . but that does not mean that courts should ignore it.

In this case we have, as you point out, the possibility that a juror had bias. Ok, fine. You may think that 20 years later, and untethered to any colorable claim of innocence, the federal courts, after state court review (direct and post-conviction) get to come in and order a Remmer hearing (which will involve the victims’ family members)–to what end? Does anyone think that there is going to be any definitive understanding of what was said or not said all those years ago? You may think that the uncertainty creates the need for a new trial, but that’s decidedly not the law. And when you have appellate judges not following the law, there’s a problem, and Thomas is absolutely correct to call it out and to call out the horrible consequences to innocent victims of a shockingly brutal murder.

This guy should have gotten the big jab years ago.

As for innocence--yes, I think innocence has to be looked at. But let's be honest, the vast majority of innocence claims are utter BS.

[David Nieporent]

I would have more respect for Thomas's position here if his enthusiasm for error correction by the Supreme Court weren't always and only directed one way.

[rloquitur]

There are clear federalism concerns with AEDPA, so it's fair that this is a focus.