Counterfactual contradictions: Interpretive error in the analysis of AEDPA

Stanford Law Review

Volumn 65, Issue 1, 2013, Pages 203-240

  Burns, Amy Knight ^a  

^a US District Court for the Northern District of California ^*  (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84873045605     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (138)

1. Cherry v. Crispin, 190 N.E.2d 93, 95 (Mass. 1963) (affirming order rescinding a house sale contract due to the seller's fraudulent representation regarding lack of termite damage).
2. S. Ct. 1388 (2011).
3. Greene v. Fisher, 132 S. Ct. 38, 44 (2011).
4. Id. at 43-44 (citing Gray v. Maryland, 523 U.S. 185, 192-97 (1998); Teague v. Lane, 489 U.S. 288, 304-05 (1989)).
5. Jeremy Waldron, Superseding Historic Injustice, 103 ETHICS 4, 7-14 (1992).
6. John Leubsdorf, Remedies for Uncertainty, 61 B.U. L. REV. 132 (1981).
7. Joel Feinberg, Wrongful Life and the Counterfactual Element in Harming, 4 SOC. PHIL. & POL'Y 145 (1986)
8. Leubsdorf, supra note 8
9. Stephen Perry, Harm, History, and Counterfactuals, 40 SAN DIEGO L. REV. 1283 (2003)
10. Waldron, supra note 7.
11. Paul M. Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 HARV. L. REV. 441 (1963) (discussing the role of adequate state process in federal habeas review, pre-AEDPA)
12. John H. Blume, AEDPA: The "Hype" and the "Bite," 91 CORNELL L. REV. 259 (2006) (evaluating AEDPA)
13. Daniel J. Meltzer, Habeas Corpus Jurisdiction: The Limits of Models, 66 S. CAL. L. REV. 2507 (1993) (discussing justifications for relitigation of federal claims in state criminal proceedings, pre-AEDPA)
14. Mark Tushnet & Larry Yackle, Symbolic Statutes and Real Laws: The Pathologies of the Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act, 47 DUKE L.J. 1 (1997) (considering the interplay between judge-made law and subsequently enacted statutes)
15. Evan Caminker, Allocating the Judicial Power in a "Unified Judiciary," 78 TEX. L. REV. 1513 (2000) (considering the constitutional place of statutes like AEDPA that purport to limit the judicial power).
16. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections of the U.S. Code).
17. Larry W. Yackle, FEDERAL COURTS: HABEAS CORPUS 57 (2003) ("AEDPA is notorious for its poor drafting. The Act is replete with vague and ambiguous language, apparent inconsistency, and plain bad grammar.")
18. Lee Kovarsky, AEDPA's Wrecks: Comity, Finality, and Federalism, 82 TUL. L. REV. 443, 492 (2007) ("[W]hen confronted with [28 U.S.C. § 2254(d)]'s ambiguous language, intermediate federal appellate courts will often stake out positions based on varied readings of congressional intent.").
19. James S. Liebman, An "Effective Death Penalty"? AEDPA and Error Detection in Capital Cases, 67 BROOK. L. REV. 411, 426 (2001)
20. AEDPA complicates review, first, because of its poor drafting. AEDPA's opaque language has proliferated conflicting interpretations, requiring the Supreme Court to grant certiorari to resolve a conflict in interpretation at least fourteen times since AEDPA's adoption in 1996, nine of them in capital cases.
21. Leon Green, The Causal Relation Issue in Negligence Law, 60 MICH. L. REV. 543, 556-560 (1962)
22. Leubsdorf, supra note 8
23. Richard W. Wright, Causation in Tort Law, 73 CALIF. L. REV. 1735, 1803-1807 (1985).
24. There is no bright line between likely and unlikely; how any given possibility gets classified will depend on the standards for likelihood being applied. These standards are something akin to a standard of proof. Thus, a counterfactual might be considered likely only if it meets the "beyond a reasonable doubt" test, or the "more likely than not" test. It doesn't particularly matter what the standard is for the sake of an abstract discussion of classification, but in future discussions where counterfactuals are classified as likely or unlikely, bear in mind that making this determination depends on the application of a standard.
25. Robert N. Strassfeld, If...: Counterfactuals in the Law, 60 GEO. WASH. L. REV. 339, 345-348 (1992).
26. Rinaldo v. McGovern, 587 N.E.2d 264, 266 (N.Y. 1991) (finding that a golfer's failure to shout "fore" after a mishit shot was not a cause of plaintiff's injuries because even if the golfer had shouted, plaintiff would not have heard or had time to react); see also Wright, supra note 14, at 1804 ("[A]s legal and nonlegal philosophers have noted, the necessary-condition criterion and its implicit counterfactual assertions are part of the very meaning of causation.").
27. Milliken v. Bradley, 418 U.S. 717, 746 (1974) ("But the remedy is necessarily designed, as all remedies are, to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.").
28. In re Estate of Elkins, 32 A.3d 768, 778 (Pa. Super. Ct. 2011) ("The key is approximating the express direction of the testator as nearly as possible by transferring the funds to an institution that the decedent would have wished to receive the funds had the decedent been aware of the situation that occurred following his demise.").
29. INS v. Chadha, 462 U.S. 919, 934 (1983) ("This legislative history is not sufficient to rebut the presumption of severability raised by § 406 because there is insufficient evidence that Congress would have continued to subject itself to the onerous burdens of private bills had it known that § 244(c)(2) would be held unconstitutional.").
30. Pernell v. Southall Realty, 416 U.S. 363, 373-74 (1974) ("Had Southall Realty leased a home in London in 1791 instead of one in the District of Columbia in 1971, it no doubt would have used ejectment to seek to remove its allegedly defaulting tenant. And, as all parties here concede, questions of fact arising in an ejectment action were resolved by a jury.").
31. Boumediene v. Bush, 553 U.S. 723, 746-47 (2008) ("In none of the cases cited do we find that a common-law court would or would not have granted, or refused to hear for lack of jurisdiction, a petition for a writ of habeas corpus brought by a prisoner deemed an enemy combatant, under a standard like the one the Department of Defense has used in these cases...." (emphasis added)).
32. Robert Bork, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW 161-187 (1990) (defending originalist analysis requiring consideration of what the Founders would have believed regarding situations they could not have considered).
33. Mathews v. De Castro, 429 U.S. 181, 188 (1976) ("Congress could have rationally assumed that divorced husbands and wives depend less on each other for financial and other support than do couples who stay married."); Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995) ("The first step in determining whether legislation survives rationalbasis scrutiny is identifying a legitimate government purpose-a goal-which the enacting government body could have been pursuing. The actual motivations of the enacting governmental body are entirely irrelevant.").
34. Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 32-33 (1981) ("While hearsay evidence was no doubt admitted, and while Ms. Lassiter no doubt left incomplete her defense that the Department had not adequately assisted her in rekindling her interest in her son, the weight of the evidence that she had few sparks of such an interest was sufficiently great that the presence of counsel for Ms. Lassiter could not have made a determinative difference.").
35. One commentator has termed this practice "counterfactual dread" and discusses a range of ways in which courts recast their standards to make them sound less counterfactual. See Strassfeld, supra note 16, at 348. The methods include using substantial-factor instead of but-for causation, and phrasing questions in terms of an objective reasonable person instead of the actual person in question, both of which, Strassfeld points out, obscure but do not eliminate the counterfactual nature of the inquiry. Id. at 353-61.
36. Leubsdorf, supra note 8, at 132 (criticizing counterfactual-based remedies doctrine as "oversimplified").
37. McInturff v. Chi. Title & Trust Co., 243 N.E.2d 657, 661 (Ill. App. Ct. 1968) ("[D]amages cannot be assessed upon mere surmise and conjecture as to what possibly happened to cause an injury....").
38. James A. Henderson, Jr., A Defense of the Use of the Hypothetical Case to Resolve the Causation Issue-The Need for an Expanded, Rather than a Contracted, Analysis, 47 TEX. L. REV. 183, 197 (1969) (discussing the relative difficulties courts face in using counterfactual analysis in duty analysis and causation analysis in tort law).
39. Wex S. Malone, Ruminations on Cause-in-Fact, 9 STAN. L. REV. 60, 67 (1956)
40. But at other times the same [but-for] test demands the impossible. It challenges the imagination of the trier to probe into a purely fanciful and unknowable state of affairs. He is invited to make an estimate concerning facts that concededly never existed.
41. Leubsdorf, supra note 8, at 133.
42. See, e.g., id. ("I will also question the traditional assumption that the function of a remedy is to put the plaintiff in a position he would have occupied had there been no violation.... There are alternative ways to conceive of remedies that could enable us to relieve plaintiffs without succumbing to fantasy....").
43. Chapman v. California, 386 U.S. 18, 22 (1967) ("All 50 States have harmlesserror statutes or rules, and the United States long ago through its Congress established for its courts the rule that judgments shall not be reversed for 'errors or defects which do not affect the substantial rights of the parties.'" (quoting 28 U.S.C. § 2111)).
44. Tom Stacy & Kim Dayton, Rethinking Harmless Constitutional Error, 88 COLUM. L. REV. 79, 82-84 (1988) (collecting historical sources).
45. United States v. Lane, 474 U.S. 438, 449 (1986) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)) (performing harmless error review where there was a violation of Rule 8(b) of the Federal Rules of Criminal Procedure, concerning joinder).
46. United States v. Thompson, 287 F.3d 1244, 1253 (10th Cir. 2002) ("The defendants do not allege that an indictment improperly sealed under Rule 6(e)(4) violates a constitutional right. This court thus applies the standard for nonconstitutional errors, which are harmless unless the error had a substantial influence on the outcome of the proceeding or leaves one in grave doubt as to whether it had such effect.").
47. Lane, 474 U.S. at 450 ("In the face of overwhelming evidence of guilt shown here, we are satisfied that the claimed error was harmless."); see also Glasser v. United States, 315 U.S. 60, 67 (1942) ("In all cases the constitutional safeguards are to be jealously preserved for the benefit of the accused, but especially is this true where the scales of justice may be delicately poised between guilt and innocence. Then error, which under some circumstances would not be ground for reversal, cannot be brushed aside as immaterial, since there is a real chance that it might have provided the slight impetus which swung the scales toward guilt.").
48. See Kotteakos, 328 U.S. at 761 ("That faculty cannot ever be wholly imprisoned in words, much less upon such a criterion as what are only technical, what substantial rights; and what really affects the latter hurtfully. Judgment, the play of impression and conviction along with intelligence, varies with judges and also with circumstance. What may be technical for one is substantial for another; what minor and unimportant in one setting crucial in another.").
49. Chapman, 386 U.S. at 24. Prior to Chapman, it was thought that constitutional error was never susceptible to harmless error review. See Stacy & Dayton, supra note 31, at 82-83 & n.16.
50. Chapman, 386 U.S. at 19, 24.
51. Stacy & Dayton, supra note 31, at 80-82.
52. See, e.g., United States v. Wilson, 605 F.3d 985, 1025 (D.C. Cir. 2010) (considering the impact of a statement "in the context of the whole trial," and concluding its admission was harmless); United States v. Thompson, 287 F.3d 1244, 1255-56 (10th Cir. 2002) (reviewing the evidence in the record and concluding that an error was not harmless).
53. See, e.g., Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) ("The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never in fact rendered-no matter how inescapable the findings to support that verdict might be-would violate the jury-trial guarantee.").
54. See, e.g., Neder v. United States, 527 U.S. 1, 19-20 (1999) ("A reviewing court making this harmless-error inquiry does not, as Justice Traynor put it, 'become in effect a second jury to determine whether the defendant is guilty.' Rather a court, in typical appellate court fashion, asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element.... We thus hold that the District Court's failure to submit the element of materiality to the jury with respect to the tax charges was harmless error." (citation omitted)).
55. See, e.g., Rose v. Clark, 478 U.S. 570, 579 (1986) ("Accordingly, if the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other errors that may have occurred are subject to harmless-error analysis."); 3B CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE § 855 (3d ed. 2004) ("Until 1967 it had been supposed that errors of constitutional dimension could never be regarded as harmless error. The decision that year in Chapman v. California made it clear that this is not the case." (footnote omitted)).
56. 507 U.S. 619 (1993).
57. Id. at 637-638 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
58. The analysis also applies in federal habeas review of federal court convictions under 28 U.S.C. § 2255. Brecht itself, however, involved a state court conviction, reviewed under § 2254, and as this Note is primarily concerned with § 2254, I will not consider the separate issue of review of federal convictions.
59. Brecht, 507 U.S. at 638-39.
60. Teague v. Lane, 489 U.S. 288, 305-10 (1989).
61. Stone v. Powell, 428 U.S. 465, 481-82 (1976).
62. Brecht, 507 U.S. at 635 (listing three reasons for distinguishing collateral review from direct review-(1) states' interest in finality, (2) federalism, and (3) commitment to trial as the primary venue-while rejecting petitioner's argument based on practical consequences).
63. Currently, § 2254 authorizes relief in these situations only where the state court's adjudication was "contrary to, or involved an unreasonable application of, clearly established Federal law." 28 U.S.C. § 2254(d) (2011). Thus, if the state court applied the wrong standard- for instance, too strict a harmless error test for a constitutional error-the "contrary to" prong might be satisfied. Claims not adjudicated on the merits in the state courts can now only be reached on federal habeas if they satisfy the "cause" and "prejudice" test of Wainwright v. Sykes, 433 U.S. 72, 87 (1977)-meaning that the court cannot even hear the claim without finding (1) that there was a good reason for failing to raise the claim and (2) "prejudice," a term that has remained annoyingly open-ended. See 2 RANDY HERTZ & JAMES S. LIEBMAN, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE § 26.3[b]-[c] (6th ed. 2011) (citing a variety of open-ended formulations). Still, there seems to be at least some agreement that the Kotteakos standard is the right one to use for prejudice. See id. Theoretically, if the Sykes test was satisfied, the reviewing federal court would then determine whether there was in fact an error, and would then apply the Kotteakos "substantial and injurious effect" test, but the relevance of this second analysis is surely sharply decreased if the court must already have found prejudice to hear the claim at all.
64. Fry v. Pliler, 551 U.S. 112, 119-22 (2007).
65. Arizona v. Fulminante, 499 U.S. 279, 310 (1991).
66. The classic case involving the presence of a biased judge is Tumey v. Ohio, 273 U.S. 510, 523 (1927) ("[I]t certainly violates the Fourteenth Amendment, and deprives a defendant in a criminal case of due process of law, to subject his liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case.").
67. Fulminante, 499 U.S. at 309-10.
68. United States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006).
69. Fulminante, 499 U.S. at 309.
70. This may be for any number of reasons, including the secrecy of jury deliberations or the pervasive nature of an error, which makes it impossible to know where to even begin imagining the counterfactual.
71. Amy Knight Burns, Note, Insurmountable Obstacles: Structural Errors, Procedural Default, and Ineffective Assistance, 64 STAN. L. REV. 727, 734-737 (2012).
72. Batson v. Kentucky, 476 U.S. 79, 83, 100 (1986).
73. Faretta v. California, 422 U.S. 806, 807-08 (1975).
74. Fulminante, 499 U.S. at 306-12 (deriving the structural error rule from the Court's precedent, without reference to any statutory authority).
75. Lawrence v. Chater, 516 U.S. 163, 166-67 (1996) (per curiam).
76. See infra Part II.B.1.
77. 529 U.S. 362 (2000).
78. See Strickland v. Washington, 466 U.S. 668, 687 (1984) (defining the standard for ineffective assistance of counsel).
79. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam).
80. See supra Part I.A. Think of the sneezing umpire.
81. 131 S. Ct. 770 (2011).
82. Justice Kagan was recused, and Justice Ginsburg wrote an opinion concurring in the judgment. See id. at 770.
83. Id. at 784 ("Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief.").
84. Matthew Seligman, Note, Harrington's Wake: Unanswered Questions on AEDPA's Application to Summary Dispositions, 64 STAN. L. REV. 469, 505-506 (2012) (examining California summary denials).
85. Richter, 131 S. Ct. at 785.
86. See id. at 787 ("Section 2254(d) is part of the basic structure of federal habeas jurisdiction, designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions.").
87. 131 S. Ct. 1388 (2011).
88. Under AEDPA, a federal habeas court may only hold a hearing and take new evidence under very narrowly specified circumstances, requiring either a change in the applicable constitutional law or a factual predicate that the petitioner could not have discovered through reasonable diligence. See 28 U.S.C. § 2254(e)(2) (2011).
89. See Pinholster v. Ayers, 590 F.3d 651, 666 (9th Cir. 2009) (en banc), rev'd sub nom. Cullen v. Pinholster, 131 S. Ct. 1388.
90. See infra Part II.C.
91. See 28 U.S.C. § 2254(b)(1)(A) (2011).
92. Pinholster, 131 S. Ct. at 1411 (Alito, J., concurring in part and concurring in the judgment).
93. Cf., e.g., Holland v. Florida, 130 S. Ct. 2549, 2561-62 (2010) (holding that AEDPA's limitations provision did not abolish the equitable tolling that had been available before because "prior law" allowed such tolling and the amendments were "silent as to equitable tolling").
94. Pinholster, 131 S. Ct. at 1399.
95. Id. (citing Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)).
96. Id. (citing Terry Williams v. Taylor, 529 U.S. 362, 405-06 (2000)).
97. Id. (alterations in original) (parallel citations omitted).
98. 550 U.S. 465 (2007).
99. 529 U.S. 420 (2000).
100. Schriro, 550 U.S. at 474.
101. See Pinholster, 131 S. Ct. at 1400.
102. Michael Williams, 529 U.S. at 444.
103. Michael Williams v. Taylor, 189 F.3d 421, 428-29 (4th Cir. 1999) (referencing claim under Brady v. Maryland, 373 U.S. 83 (1963)), rev'd in part, 529 U.S. 420.
104. Michael Williams, 189 F.3d at 428.
105. See id. at 429.
106. See Cullen v. Pinholster, 131 S. Ct. 1388, 1400 (2011) (citing Holland v. Jackson, 542 U.S. 649 (2004) (per curiam)).
107. Holland, 542 U.S. at 653 ("Where new evidence is admitted, some Courts of Appeals have conducted de novo review on the theory that there is no relevant state-court determination to which one could defer. Assuming, arguendo, that this analysis is correct and that it applies where, as here, the evidence does not support a new claim but merely buttresses a previously rejected one, it cannot support the Sixth Circuit's action." (citation omitted)).
108. Pinholster, 131 S. Ct. at 1398-99.
109. 132 S. Ct. 38, 42-43 (2011).
110. 391 U.S. 123 (1968).
111. 489 U.S. 288 (1989). Teague holds that habeas petitioners are entitled to the benefit of all decisions that come down before their petitions for certiorari on direct review are denied or the time to file such petitions has expired. Id. at 304-05. Finality thus refers to the denial of a petition for certiorari on direct review, or the expiration of the time to file such a petition.
112. See 523 U.S. 185, 195 (1998) (holding that the introduction of a nontestifying codefendant's statements implicating the defendant would violate the Confrontation Clause even when the prosecution replaces the defendant's name with blank spaces, the word "delete," a symbol, or other similarly obvious alteration).
113. Greene, 132 S. Ct. at 44.
114. Id. (alteration in original) (quoting Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011)).
115. Pinholster, 131 S. Ct. at 1404 n.10 ("Though we do not decide where to draw the line between new claims and claims adjudicated on the merits, Justice Sotomayor's hypothetical involving new evidence of withheld exculpatory witness statements may well present a new claim." (capitalization altered) (citations omitted)).
116. Transcript of Oral Argument at 17-24, Pinholster, 131 S. Ct. 1388 (No. 09-1088).
117. Pinholster, 131 S. Ct. at 1402 (majority opinion) ("Section 2254(d) applies to Pinholster's claim because that claim was adjudicated on the merits in state-court proceedings."). 123. Transcript of Oral Argument at 19, Pinholster, 131 S. Ct. 1388 (No. 09-1088) ("Chief Justice Roberts: I suppose-I suppose the Federal court can send it back to the State court for exhaustion. Mr. Bilderback: If-if that's-if that's an appropriate remedy." (capitalization altered)).
118. Greene, 132 S. Ct. at 45.
119. See Brief for Petitioners at 6, Greene, 132 S. Ct. 38 (No. 10-637), 2011 WL 2470854 ("Following the Pennsylvania Supreme Court's dismissal, petitioner's appointed attorney mailed him a letter advising him that his representation was at an end.").
120. Pinholster, 131 S. Ct. at 1398.
121. Harrington v. Richter, 131 S. Ct. 770, 785 (2011).
122. See Wiggins v. Smith, 539 U.S. 510, 534 (2003) ("In this case, our review is not circumscribed by a state court conclusion with respect to prejudice, as neither of the state courts below reached this prong of the Strickland analysis.").
123. In Brady v. Maryland, 373 U.S. 83 (1963), the Court held that the prosecution has a duty to turn over all exculpatory evidence to the defense; a defendant can secure reversal on a showing of two things: first, that exculpatory evidence was withheld, and second, that that evidence was material. Id. at 87.
124. Richter, 131 S. Ct. at 786.
125. Seligman, supra note 80.
126. Frederick Pollock, THE LAW OF TORTS 455 (11th ed. 1920).
127. Seligman, supra note 80, at 499-500.
128. 507 U.S. 619, 637-38 (1993).
129. Fry v. Pliler, 551 U.S. 112, 121-22 (2007).
130. Arizona v. Fulminante, 499 U.S. 279, 296 (1991) ("[T]he risk that the confession is unreliable, coupled with the profound impact that the confession has upon the jury, requires a reviewing court to exercise extreme caution before determining that the admission of the confession at trial was harmless.").
131. United States v. Poole, 640 F.3d 114, 119-20 (4th Cir.) (performing harmless error review in an appeal from conviction after a federal bench trial), cert. denied, 132 S. Ct. 255 (2011).
132. Penry v. Johnson, 532 U.S. 782, 795 (2001) ("Even if our precedent were to establish squarely that the prosecution's use of the Peebles report violated Penry's Fifth Amendment privilege against self-incrimination, that error would justify overturning Penry's sentence only if Penry could establish that the error had substantial and injurious effect or influence in determining the jury's verdict." (internal quotation marks omitted)).
133. See supra Part II.A.
134. See supra Part II.
135. Seligman, supra note 80, at 502 & n.155.
136. Greene v. Palakovich, 606 F.3d 85, 97 (3d Cir. 2010), aff'd sub nom. Greene v. Fisher, 132 S. Ct. 38 (2011).
137. Cullen v. Pinholster, 131 S. Ct. 1388, 1413 (2011) (Sotomayor, J., dissenting)
138. Nancy J. King et al., FINAL TECHNICAL REPORT: HABEAS LITIGATION IN U.S. DISTRICT COURTS 35-36 (2007)).