Tuesday, February 15, 2011

Where is the AEDPA line? -- Wherever they want it to be

Tibbets v. Bradshaw, a published decision issued today (available here), is perfectly emblematic of the state of habeas death penalty jurisprudence in the Sixth Circuit. There are two sides, they disagree on the outcome, and they do not even seem to be applying the same law.

Tibbets applied for a writ of habeas corpus from Ohio death row arguing that his trial counsel botched the sentencing hearing by failing to put on powerful evidence of Tibbets' miserable, abuse-filled childhood and substance abuse. Judge Moore found this argument compelling and dissented.

The majority focused on the one-two punch of the Strickland and AEDPA standards: "Even if we were to conclude that counsel's performance fell below an objective standard of reasonableness, and that a reasonable probability exists that, but for that failure, the result of the proceeding would have been different, we must still ask whether the state court's conclusion to the contrary was 'objectively unreasonable.'" With that standard as the starting point, Tibbets was fortunate to get seven more pages of attention, even if one of them was devoted to detailing the brutality of his crime.

In sum, the majority cited AEDPA and washed its hands of the case. The dissent effectively sidestepped AEDPA and dirtied its hands with Ohio's mess. AEDPA continues to be a most fungible statute, the application of which is always subordinate to a judge's other inclinations.

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