|Lafler v. Cooper and AEDPA|
|Nancy J. King, Tuesday, 19 June 2012 [View as PDF]|
**This Essay is part of a Yale Law Journal Online series called "Summary Judgment," featuring short commentaries on recent Supreme Court cases.**
The Supreme Court in Missouri v. Frye1 and Lafler v. Cooper2 broke new ground by holding for the first time that a defendant’s right to the effective assistance of counsel under the Sixth Amendment can be violated by the loss of a favorable plea deal. Less noted, but also worthy of attention, are Lafler’s implications for federal habeas law. Four Justices protested that the Lafler decision violated the federal habeas statute. At the least, the decision expanded habeas review in unexpected ways.Lafler presented the Supreme Court with an unusual opportunity to declare new doctrine on habeas review. First, the State had conceded that the performance of respondent Anthony Cooper’s lawyer was deficient under the first prong of Strickland v. Washington3—a point not easily demonstrated in most habeas cases because of the deference afforded strategic decisions.4 Second, the Court managed to avoid what would have been a difficult hurdle for the petitioner to clear in seeking relief under § 2254(d)(1), the provision of the habeas statute that conditions relief upon a showing that the state decision was either “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.”5 The state court’s vague wording allowed the Court to characterize the state decision as “contrary to” Strickland and to bypass the issue of whether it was an “unreasonable application” of Strickland.
The Court’s opinion in Lafler turned on the following two paragraphs of the state court decision:
The five Justices in the Lafler majority concluded that this decision was “contrary to” Strickland, because in their view it failed entirely to apply the case: “Rather than applying Strickland, the state court simply found that respondent’s rejection of the plea was knowing and voluntary. An inquiry into whether the rejection of a plea is knowing and voluntary, however, is not the correct means by which to address a claim of ineffective assistance of counsel.”7 The state court, in the majority’s view, “applie[d] a rule that contradicts the governing law set forth in [Supreme Court] cases.”8
By contrast, the four dissenting Justices read the second paragraph of the state court’s analysis as that court’s application of the Strickland standard. The state court’s statement that “defendant knowingly and intelligently rejected two plea offers and chose to go to trial,” the dissenters explained, “can be regarded as a denial that there was anything ‘fundamentally unfair’ about Cooper’s conviction and sentence, so that no Strickland prejudice had been shown.”9 Because it referenced and applied the correct test, they reasoned, the decision was not contrary to established federal law. Furthermore, this opinion was not an “unreasonable application of clearly established law,” the dissenters argued, “since this Court has never held that a defendant in Cooper’s position can establish Strickland prejudice.”10
Had the state court used language more easily read as rejecting Cooper’s claim under Strickland’s prejudice standard, the majority would not have had the option of characterizing the state decision as “contrary to” Strickland.11 Instead, the Court would have had to explain why the state decision was an unreasonable application of Strickland. And under that standard, Cooper would have lost. It would have been reasonable, before Lafler, for a state court to decide that it was not “prejudice” under Strickland to end up with a fair trial and legal sentence after missing out on a more favorable plea deal because of counsel’s incompetence. No decision of the Supreme Court had held that the Sixth Amendment protected defendants from losing plea deals, as opposed to fair trials, sentencing proceedings, or appeals,12 and several of the Court’s decisions had pointed in the other direction.13
Consider, by contrast, what would have happened had the Court decided to review a federal habeas challenge to a state decision in which the state court rejected a claim like Cooper’s, but had more clearly relied on Strickland in its reasoning and interpreted Strickland as did the Lafler dissenters. In order to grant habeas relief in such a case, the Court first would have had to conclude that the position held by four Justices (assuming Chief Justice Roberts and Justices Alito, Scalia, and Thomas would have taken the same position on the merits of the Sixth Amendment question), a unanimous Utah Supreme Court,14 and at least four court of appeals judges,15 was “unreasonable” under § 2254(d)—that is, “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”16 Not likely.
Indeed, a petitioner who had challenged a state court decision that said virtually nothing except “denied,” after a bare citation of the correct Supreme Court precedent, would have had a much more difficult time than Cooper did convincing a federal court that the decision was “contrary to” established federal law, and would instead have had to meet Richter’s exacting “unreasonable application” standard. As the Court explained in Richter, “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.”17 In short, but for the unusual combination of ambiguous reasoning by the state court and admitted incompetence in Lafler, the Supreme Court probably would have had to save its development of the constitutional regulation of representation during the plea process for a different case—an appeal of either a state postconviction decision (like Frye and Padilla v. Kentucky18) or a decision under § 2255,19 where the “unreasonable application” standard of § 2254(d) would not apply.
On its face, Lafler’s “contrary to” analysis leaves the daunting “unreasonable application” standard of Richter in place—both decisions were authored by Justice Kennedy, and the Court carefully avoided discussion of the “unreasonable application” standard. But the decision in Lafler appears to have loosened the “contrary to” standard a notch for future cases, encouraging petitioners to argue that the state court never applied the correct federal precedent (even when that precedent is cited or described), instead of arguing than that the court’s application of federal law was unreasonable. The combination of Lafler and Richter also suggests that when reviewing state court criminal opinions, “less is more”—a summary state denial will not be disturbed unless all possible (hypothetical) applications would have been unreasonable, while a merits decision accompanied by an ambiguously phrased rationale that could be construed as failing to apply the correct rule is vulnerable to attack.20
The best news for prisoners bringing Frye and Lafler claims from now on, however, is that by announcing its interpretation of Strickland in a federal habeas case, the Court in Lafler necessarily applied that rule retroactively. Generally the habeas remedy is limited to violations of federal law that were clearly established at the time the state court denied relief to the petitioner; retroactive enforcement of new rules announced only later is prohibited.21 This means that any controversial decision for defendants announced by the Supreme Court on appeal is inevitably followed by a battle over whether that decision was clearly established by earlier Supreme Court precedent and thus is available as a basis for relief for any habeas petitioner whose state court decision postdated that earlier Supreme Court precedent. For example, when the Court in Padilla announced the qualified Sixth Amendment right to competent pre-plea advice concerning deportation, it did so in an appeal from a state postconviction decision, not in a federal habeas case.22 Lower courts soon divided over whether or not that rule was clearly established by either Strickland or Hill before the Padilla decision23 and the Court has now agreed to resolve the issue in its upcoming term.24 The same sort of litigation followed the Court’s decisions in Crawford v. Washington25 and Ring v. Arizona.26
By affirming the grant of habeas relief for Cooper under § 2254(d), the Court appears to have assumed that its foregone-plea doctrine was “clearly established” at least as far back as 2005, when the Michigan Court of Appeals rejected Cooper’s claim of ineffective assistance. That is undoubtedly surprising news to the divided judges of the Tenth Circuit, to the justices of the Utah Supreme Court, and to those who believed that under § 2254(d), habeas corpus would “guard against extreme malfunctions in the state criminal justice systems,” not “substitute for ordinary error correction through appeal.”27 But it is welcome news for any petitioner whose foregone-plea claim was rejected by a state court in the past seven years.
Nancy J. King is the Lee S. and Charles A. Speir Professor of Law at Vanderbilt University Law School.
Preferred citation: Nancy J. King, Lafler v. Cooper and AEDPA, 122 Yale L.J. Online 29 (2012), http://yalelawjournal.org/2012/06/19/king.html.
No. 10-444 (U.S. Mar. 21, 2012), http://www.supremecourt.gov/opinions/11pdf/10-444.pdf (to be reported at 132 S. Ct. 1399).
No. 10-209 (U.S. Mar. 21, 2012), http://www.supremecourt.gov/opinions/11pdf/10-209.pdf (to be reported at 132 S. Ct. 1376).
466 U.S. 668 (1984).
See id. at 689-91.
28 U.S.C. § 2254(d)(1) (2006).
People v. Cooper, No. 250583, 2005 WL 599740, at *1 (Mich. Ct. App. Mar. 15, 2005) (footnote omitted) (citations omitted).
Lafler, slip op. at 14-15 (majority opinion) (citations omitted).
Id. at 14 (quoting Williams v. Taylor, 529 U.S. 362, 405 (2000) (opinion of O’Connor, J.)) (internal quotation marks omitted).
Id. at 9 (Scalia, J., dissenting).
Id. at 10.
See Williams, 529 U.S. at 406 (opinion of O’Connor, J.) (“Assume, for example, that a state-court decision on a prisoner’s ineffective-assistance claim correctly identifies Strickland as the controlling legal authority and, applying that framework, rejects the prisoner’s claim. Quite clearly, the state-court decision would be in accord with our decision in Strickland as to the legal prerequisites for establishing an ineffective-assistance claim [and thus would not be “contrary to” Strickland] even assuming the federal court considering the prisoner’s habeas application might reach a different result applying the Strickland framework itself.”).
It takes a holding by the Supreme Court to clearly establish federal law under § 2254(d). See 28 U.S.C. § 2254(d)(1) (2006) (requiring the “clearly established federal law” be “determined by the Supreme Court of the United States”); see also Thaler v. Haynes, 130 S. Ct. 1171, 1175 (2010) (“[N]o decision of this Court clearly establishes the categorical rule on which the Court of Appeals appears to have relied.”); Knowles v. Mirzayance, 556 U.S. 111, 122 (2009) (“With no Supreme Court precedent establishing a ‘nothing to lose’ standard for ineffective-assistance-of-counsel claims, habeas relief cannot be granted pursuant to § 2254(d)(1) based on such a standard.”); Wright v. Van Patten, 552 U.S. 120, 125 (2008) (“No decision of this Court, however, squarely addresses the issue in this case or clearly establishes [a new standard] in this novel factual context.” (citation omitted)).
See Williams, 529 U.S. at 391-93; Lockhart v. Fretwell, 506 U.S. 364, 369-372 (1993); Nix v. Whiteside, 475 U.S. 157, 186-87 (1986); Weatherford v. Bursey, 429 U.S. 545, 561 (1977).
State v. Greuber, 165 P.3d 1185, 1189 (Utah 2007) (concluding that “a fair trial for the defendant generally negates the possibility of prejudice” under Strickland).
See Williams v. Jones, 583 F.3d 1254 (10th Cir. 2009) (Gorsuch, J., dissenting from denial of rehearing en banc) (“[N]o decision from the United States Supreme Court has ever held (or even hinted) that a lawyer’s bad advice to reject a plea offer gives rise to a violation of the Sixth Amendment, or any other provision of federal law. Neither does a conventional Strickland analysis compel such a novel result.”). The Seventh Circuit also appeared to anticipate that the question was a close one. See Kerr v. Thurmer, 639 F.3d 315 (7th Cir. 2011) (“We think it best to move forward now, recognizing that if the Court rules that the later trial erases any possible claim relating to potential plea bargains, then it is likely that Kerr’s case will have to be dismissed at that time.”), vacated, 132 S. Ct. 1791 (remanding the case for further consideration in light of Lafler).
Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).
Id. at 777 (emphasis added).
130 S. Ct. 1473 (2010).
28 U.S.C. § 2255 (2006) (governing collateral review of convictions of federal prisoners).
I do not mean to suggest here that Lafler will actually prompt more state courts to “withhold explanations for their decisions.” Richter, 131 S. Ct. at 784. I agree with the Richter Court that “[o]pinion-writing practices in state courts are influenced by considerations other than avoiding scrutiny by collateral attack in federal court.” Id.
See 28 U.S.C. § 2254(d)(1) (prohibiting relief from a state decision that rejected the merits of a federal claim unless the decision was contrary to or an unreasonable application of clearly established Supreme Court precedent); Teague v. Lane, 489 U.S. 288 (1989) (permitting no retroactive application of “new rules” of constitutional criminal procedure, with two narrow exceptions). See generally Wayne R. LaFave, Jerold H. Israel, Nancy J. King & Orin S. Kerr, Criminal Procedure § 28.6 (3d ed. 2007 & Supp. 2011).
See Padilla, 130 S. Ct. at 1478.
See, e.g., Danielle M. Lang, Note, Padilla v. Kentucky: The Effect of Plea Colloquy Warnings on Defendants’ Ability To Bring Successful Padilla Claims, 121 Yale L.J. 944, 965-75 (2012).
See Chaidez v. United States, 655 F.3d 684 (7th Cir. 2011), cert. granted, 2012 WL 1468539 (U.S. Apr. 30, 2012) (No. 11-820).
See Whorton v. Bockting, 549 U.S. 406 (2007) (holding Crawford, 541 U.S. 36 (2004), to not be retroactive).
See Schriro v. Summerlin, 542 U.S. 348 (2004) (refusing to find that the rule of Ring, 536 U.S. 584 (2002), entitling a defendant to a jury determination of facts that state law requires must be found before a death sentence may be imposed, would fit within an exception to Teague). The Court has yet to address whether the rule in Blakely v. Washington, 542 U.S. 296 (2004), applies retroactively. See Burton v. Stewart, 549 U.S. 147 (2007) (declining to reach the question).
Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring)).