Federal Habeas Corpus After Cullen v. Pinholster

Posted in Uncategorized on March 1st, 2014 by rlangone

By Richard M. Langone, Esq.

Every attorney representing state prisoners seeking federal habeas corpus relief should read, three times – carefully! – Habeas after Pinholster by Professor Samuel R. Wiseman. The article examines the significance of the Supreme Court’s recent holding in Cullen v. Pinholster and offers possible exceptions to the limitations Pinholster now places on the ability of federal courts to consider any evidence not presented to the state court in deciding the merits of federal constitutional claims.

Before summarizing a few of the possible emerging exceptions to Pinholster identified by Prof. Wiseman, and their applicability under New York State law, remember the historical importance of habeas corpus, affectionately referred to as the “last of hope of scoundrels and the innocent.”

Habeas Corpus Over the Years

At common law, the “Great Writ” of habeas corpus was considered so important a safeguard against lawless governmental action that Thomas Jefferson once told James Madison, while contemplating the Constitution, that “[The] bill of rights [should provide] clearly & without aid of sophisms for . . . the eternal and unremitting force of the habeas corpus laws.” Reflecting this sentiment, Article 1, Section 9 of the Constitution provides that “the privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the Public Safety may require it.”

The Constitutional provision was codified in 1789; however, its application to state prisoners remained unclear until, in 1867, Congress specifically authorized its availability.

In 1996, however, Congress enacted the Antiterrorism and Effective Death Penalty Act (“AEDPA”). The AEDPA’s purpose was (and is) to limit federal habeas corpus review relief (typically ordering a new trial) to “extreme malfunctions in the State criminal justice system.”

28 U.S.C. 2254(d) implements the legislative purpose by providing that “an application for a writ of habeas corpus of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim” either:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established [Supreme Court precedent]; 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.

In Pinholster, the Supreme Court held that, in deciding federal constitutional claims, federal courts are bound by the record developed in State court. The issue in Pinholster was whether the phrase in section (d)(2), namely, “in light of the evidence presented in the State court proceeding,” also applied to section (d)(1). The Court held that it did because, according to the majority, per Justice Thomas, “[i]t would be strange to ask federal courts to analyze whether a state court adjudication unreasonably applied federal law to facts not presented to the State court.”
The practical effect of Pinholster was to make it almost impossible to obtain an evidentiary hearing in federal court to develop new facts in support of a constitutional claim, even if the petitioner lacked the resources necessary to uncover new evidence or alleged that state authorities impeded his efforts to uncover the supposed relevant information.

But all is not lost after Pinholster.

An “Unreasonable Determination of the Facts”

Pinholster has no application to a section (d)(2) claim that the state court’s determination of the facts was “objectively unreasonable.” For example, in Lopez v. Miller, Judge Garaufis of the Eastern District held that a federal district court could grant an evidentiary hearing where the state court failed to accord adequate weight to an affidavit that went far toward establishing a colorable claim of actual innocence. In that case, Judge Garaufis held an evidentiary hearing to test the bona fides of the affiant and later relied on the testimony adduced at the federal evidentiary hearing in deciding the merits of the constitutional claims.

But do not confuse “an unreasonable determination of the facts” in light of the state court record under section (d)(2) with a state court’s “findings of facts” under CPLR section 2254(e). Only the latter is entitled to a presumption of correctness that requires clear and convincing evidence to rebut, as findings of fact made after an evidentiary hearing require credibility determinations. An unreasonable determination of the facts in light of the state court record, on the other hand, involves an assessment of the evidence already in the record and does not involve “eye-balling” the affiant as part of the fact-finding function.

Ineffective Assistance of Counsel

In Martinez v. Ryan, the Supreme Court held that “a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance of counsel at trial if, in the [state’s] initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.”

Later that same year, in Trevino v. Thaler, the Supreme Court held that ineffective counsel at an initial-review collateral proceeding can constitute “cause” and “prejudice” excusing a petitioner from having adequately developed the state court record if the inadequacy was due to ineffective counsel at the mandatory initial-review proceeding. This decision appears to accord with the venerated holding in Townsend v. Sain, a pre-AEDPA decision that was incorporated into subsection (d)(2), and that permits federal courts to hold an evidentiary hearing if the state court, due to no fault of the defendant, failed to develop an adequate record for federal habeas corpus review.

New York requires claims of ineffectiveness of trial counsel that de hor the record to first be presented to the nisi prius by way of Article 440 of the Criminal Procedure Law. For example, in People v. Edmundson, the Appellate Division, Second Department held that, “[s]ince the defendant’s claim of ineffective assistance cannot be resolved without reference to matters outside the record, a C.P.L. 440.10 proceeding is the appropriate forum for reviewing the claim in its entirety.”

Thus, it appears there now exists a constitutional right to effective assistance of counsel at an initial C.P.L. 440.10 proceeding, at least to the extent that the State seeks to limit the scope of federal habeas corpus review of constitutional claims based solely on the State court record.

Compatibility of New York’s Standard with Strickland v. Washington

In Sears v. Upton, the Supreme Court held that federal district courts should not accord state court decisions deference in deciding ineffective assistance of counsel claims where the state court failed to correctly employ the “prejudice” prong of Strickland v. Washington. Strickland’s two-part test requires the petitioner to show that her counsel (1) lacked a “reasonable degree of competency;” and (2) counsel’s errors, individually and/or in accumulation, “sufficiently undermine[s] confidence in the proceeding.”

In Rosario v. Ercole, the Second Circuit found that the New York standard for finding ineffective assistance of counsel differs from the Strickland standard, but held the difference was not constitutionally significant because New York purportedly affords greater protection than does Strickland. Under the New York State Constitution, counsel must provide “meaningful representation.” However, a criminal defendant is entitled to a fair trial, not a perfect one. Thus, any error by counsel must be judged based on whether it deprived the defendant of a “fair trial.”

Time will tell whether the Second Circuit will revisit this issue in light of Sears. It seems that an argument can be made that there may be instances where an error that “undermines confidence in the proceeding” may not be sufficiently egregious to qualify as a denial of a “fair [albeit not perfect] trial.” If so, then “double deference” would no longer be accorded to the “reasonableness” of New York State court decisions denying federal ineffective counsel claims.

A Colorable Claim of Actual Innocence

It is an open question whether evidence establishing a colorable claim of actual innocence under House v. Bell can be used to decide the merits of the constitutional claim.

However, in Rivas v. Fischer, Chief Judge Gary Sharpe refused to consider evidence developed at a federal evidentiary hearing from which the Second Circuit had held that the petitioner had established a colorable claim of actual innocence, thereby enabling the petitioner to have his constitutional claims heard in federal court despite having filed his federal habeas corpus petition beyond AEDPA’s one year statute of limitations period.

A strange irony thus exists: the Second Circuit in Rivas v. Fischer, held that had Rivas’ jury known of the undisclosed information, they more likely than not would have acquitted Rivas of second degree murder; yet Judge Sharpe refused to consider that evidence based on Pinholster and held that based on the evidence in the original state court record, Rivas had failed to demonstrate that he was prejudiced by any alleged errors committed trial counsel.

This matter is once again on appeal to the Second Circuit. Don’t bet the case will be decided on Judeo-Christian ethic that “it is far worse to convict an innocent man than to let a guilty man go free,” given the current Supreme Court’s overarching concern with comity and federalism.


There are other interesting (and unresolved) issues involving the Supremacy Clause and the prohibition against the suspension of the writ of habeas corpus addressed by Prof. Wiseman. My recommendation is to read Habeas after Pinholster!

1. 53 B.C. L. Rev. 953 (2012).
2. 563 U.S. __, 131 S. Ct. 1388 (2011).
3. 5 The Works of Thomas Jefferson in Twelve Volumes, 368, 371 (Paul L. Ford, ed. G.P. Putnam’s Sons, Fed. Ex. 1904).
4. Pub. L. No. 104-132, 110 Stat. 1214 (1996)
5. Harrington v. Richter, 562 U.S. __, 131 S. Ct. 770, 778 (2011).
6. Shriro v . Landrigan,550 U.S. 463, 474 (2007).
7. 906 F. Supp. 2d 42 (E.D.N.Y. 2012), granting writ, 915 F. Supp. 2d 373 (2013).
8. See also, Jones v. Walker, 540 F.3d 1277, 1288, fn. 5 (11th Cir. 2008) (holding that where state court unreasonably determines the facts relevant to petitioner’s claim, federal court “does not owe the state court’s findings deference under AEDPA”); Detrich v. Ryan, 677 F.3d 958, 982 (9th Cir. 2012) (same).
9. 566 U.S. 1, 132 S. Ct. 1309 (2013).
10. 131 S. Ct. 1911 (2013).
11. 372 U.S. 293 (1963).
12. 109 A.D.3d 621, 623 (2d Dept. 2013).
13. See Townsend, 373 U.S. at 313 (requiring federal courts to grant evidentiary hearing when, inter alia, “the fact-finding procedure employed by the State court was not adequate to afford a full and fair hearing”).
14. 561 U.S. __, 130 S. Ct. 3259 (2010).
15. See Toliver v. Pollard, 688 F.3d 853, 861 (7th Cir. 2012).
16. Pinholster, 131 S. Ct. at 1403; accord, Wilson v. Mazzuca, 570 F.3d 490, 507 (2d Cir. 2009).
17. 601 F.3d 118 (2d Cir. 2010).
18. People v. Baldi, 54 N.Y.2d 237, 147 (1981).
19. People v. Caban, 5 N.Y.3d 143, 155-56 (2005).
20. Harrington, 131 S. Ct. at 786-87. Double deference” refers to requirement that the federal district court find both that counsel rendered ineffective assistance, and that the State court’s finding to the contrary was itself objectively unreasonable; i.e., no reasonable jurists would disagree that counsel rendered ineffective assistance. However, the degree of State court incorrectness does not have to rise to the level of judicial incompetence. Henry v. Poole, 409 F.3d 48, 68 (2d Cir. 2005) (“Some increment of incorrectness beyond error” is required; but the “increment need not be great”).
21. 547 U.S. 518 (2006).
22. See In re Davis, 557 U.S. 952 (2009) (Stevens, Ginsburg and Breyer, J. dissenting) (opining that extrinsic evidence may be considered in deciding merits of constitutional claim of actual innocence).
23. No. 01-cv-1891(GLS), 2013 WL 4026844 (N.D.N.Y. Aug. 6, 2013).
24. 687 F.3d 514 (2d Cir. 2012).
25. In re Winship, 397 U.S. 358, 372 (Harlan, J., concurring).
26. See, e.g., United States v. Triestman, 124 F.3d 361, 377-80 (2d Cir. 1997) (mentioning the “serious” constitutional concerns that would arise if AEDPA were interpreted to bar judicial review of actual innocence claims).

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