Pinholster and Habeas Evidentiary Hearings

There remains a bit of confusion over whether district courts have the authority to conduct evidentiary hearings in Section 2254 habeas corpus cases in which the state courts have previously adjudicated a petitioner's claim "on the merits."  While not settling the matter for good, two important Sixth Circuit decisions this week have provided a bit of clarity.

Historically, habeas corpus has allowed federal courts to conduct de novo review of federal constitutional claims arising out of state court convictions. This included wide latitude to conduct evidentiary hearings. Much of this changed with the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA). 

The confusion arises out of the interplay between two AEDPA provisions in particular. The first, Section 2254(d), provides (crudely speaking) that only "unreasonable" state court merits decisions are reviewable in habeas corpus proceedings. The second, Section 2254(e), allows federal evidentiary hearings so long as the petitioner was diligent in attempting to develop his facts while litigating his claim in the state courts.  Williams v. Taylor, 529 U.S. 420, 432 (2000). The issue arises when a federal court is tasked with assessing the "reasonableness" of a state court decisions based on a factual record that the state court itself never considered.
For years, many courts reconciled these provisions by concluding that Section 2254(d)'s deferential standard simply does not apply where the federal court is assessing a more complete factual record. See, e.g., Winston v. Kelly, 592 F.3d 535, 555-556 (4th Cir. 2010) ("judgment on a materially incomplete record is not an adjudication on the merits"). Other courts, such as the Sixth Circuit, held that some form of "modified AEDPA deference" applies. Hawkins v. Coyle, 547 F.3d 540, 547 (6th Cir. 2008).

The Supreme Court rejected both approaches in Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011), holding that "review under § 2254(d)(1) is limited to the record that was before the state court that adjudicated the claim on the merits." The Court explained,

Section 2254(d)(1) refers, in the past tense, to a state-court adjudication that "resulted in" a decision that was contrary to, or "involved" an unreasonable application of, established law. This backward-looking language requires an examination of the state-court decision at the time it was made. It follows that the record under review is limited to the record in existence at that same time -- i.e., the record before the state court.

Because the Court in Pinholster declined to overrule Williams, evidentiary hearings remain appropriate in habeas corpus proceedings so long as the petitioner tried to develop his evidence in state court. But because Section 2254(d) precludes consideration of newly-developed evidence, it is not obvious what purpose those hearings could actually serve.

There are actually several purposes, as Justice Breyer’s concurring opinion in Pinholster explains. These include the following:
§ 2254(d)(1) does not leave AEDPA's hearing section, § 2254(e), without work to do. An offender . . . must first present a claim (including his evidence) to the state courts. If the state courts reject the claim, then a federal habeas court may review that rejection on the basis of the materials considered by the state court. If the federal habeas court finds that the state-court decision fails (d)'s test . . . , then an (e) hearing may be needed.

For example, if the state-court rejection assumed the habeas petitioner’s facts (deciding that, even if those facts were true, federal law was not violated), then (after finding the state court wrong on a (d) ground) an (e) hearing might be needed to determine whether the facts alleged were indeed true.

Under Justice Breyer's reasoning, Pinholster created a two-step review process for any case in which the state court denied a prisoner the opportunity to prove the facts supporting his claim, and instead ruled solely on the basis of his factual allegations. First, a petitioner must show that the state court decision was unreasonable under Section 2254(d) on the basis of the evidence (or allegations) before the state court. Second, if the petitioner can satisfy Section 2254(d), he must prove as a factual matter -- and under a de novo standard of review -- that he is entitled to habeas corpus relief under Section 2254(a), i.e., that he "is in custody in violation of the Constitution or laws or treaties of the United States."

Several courts have adopted this interpretation. The Seventh Circuit, for example, has found that "[a]lthough a state court decision that stems from an unreasonable application of federal law will usually meet § 2254(a)’s requirement . . . [the federal] court will engage in de novo review after a finding of unreasonableness to answer the 2554(a) question as if the state court never reached the merits." Quintana v. Chandler, 723 F.3d 849, 852 (7th Cir. 2013). See also Newman v. Harrington, 726 F.3d 921, 932 (7th Cir. 2013) (because "the state court’s decision denying post-conviction relief violated § 2254(d)[]," it was appropriate to consider de novo "the evidence presented at the federal evidentiary hearing"); Stitts v. Wilson, 713 F.3d 887, 895-86 (7th Cir. 2013) ("[t]his procedure is not inconsistent with . . . Pinholster . . . . We do not remand for an evidentiary hearing to determine whether the state court unreasonably applied Strickland pursuant to § 2254(d)(1); we have already found that it did, without going outside the state court record. Instead, we remand to reach an issue that the state court never addressed . . . .").

The Fifth Circuit adopted a similar approach in Smith v. Cain, 708 F.3d 628, 631 (5th Cir. 2013), explaining that "Pinholster's restriction does not bar the federal evidentiary hearing conducted in this case because the district court first concluded, solely on the basis of the state court record, that the state courts committed legal error, as required under 28 U.S.C. § 2254(d)(1) . . . ." See also Morris v. Thaler, 425 Fed. Appx. 415 (5th Cir. 2011) ("a hearing is necessary not to evaluate the state court's decision, but to determine whether Morris's allegations are true. This is the precise scenario contemplated by Justice Breyer . . . .").

But not the Sixth Circuit. In fact, in Ballinger v. Prelesnik, 709 F.3d 558, 561 (6th Cir. 2013) (discussed previously on this blog), the court seemed to say the opposite -- that under Pinholster, "district courts are precluded from conducting evidentiary hearings to supplement existing state court records when a state court has issued a decision on the merits with respect to the claim at issue." Not only was this language dicta (the petitioner did not satisfy Section 2254(d) based on the state court record alone, so there was no need to consider whether he otherwise would have been entitled to an evidentiary hearing), but it was also wrong, for the reasons explained by Justice Breyer in Pinholster.

Two decisions this week appear to represent an appropriate retreat from Ballinger's misguided discussion of Pinholster. First, in Parks v. Klee, No. 11-2531, a per curium unpublished decision by Judges Moore, Gibbons, and Sutton, the panel remanded the case for resolution of a Batson/Strickland claim in spite of a prior state court merits adjudication. Parks involved a claim that trial counsel was ineffective for failing to raise a Batson challenge to the Kent County Prosecutor's improper dismissal of all four African-American jurors. The petitioner supported this claim with affidavits and detailed factual allegations, and asked repeatedly for an evidentiary hearing. The state courts rejected this claim on the merits, and on the basis of these allegations alone. In federal court, the petitioner maintained that the state court decision was unreasonable, but conceded that the existing record did not entitle him to relief. Instead, he argued, a de novo federal evidentiary hearing was necessary in order to prove the truth of his allegations -- i.e., to prove that a Batson challenge would have been successful.  The Michigan Attorney General argued that a remand would be pointless because the "plain language of Pinholster and Ballinger preclude an evidentiary in the district court." The court apparently disagreed. While its four-paragraph opinion does not discuss these issues, it necessarily rests on the conclusion that a hearing would be appropriate if the state court decision was unreasonable and essential facutal questions remain unresolved.

Second, in King v. Berghuis, No. 12-1486, Judge Keith issued a dissenting opinion which (unlike the majority) reached the issue of whether an evidentiary hearing was appropriate to resolve the petitioner's claim. Judge Keith strongly endorsed the view espoused by Justice Breyer, finding that a federal evidentiary hearing was both appropriate and necessary in order to resolve "[l]egitimate issues" of fact. He explained, "While I am satisfied that the record is sufficient to make an assessment as to whether the state court judge unreasonably applied [federal law], I am not satisfied that it is sufficient to reach a conclusion with respect to the merits of King's due process claim."

While no Sixth Circuit case has yet said definitively whether Ballinger's dicta is the law in this Circuit, there appears to be a growing recognition that federal evidentiary hearings will remain an important component of the adjudication of habeas corpus cases -- particularly those in which the state courts have reached the merits of a claim without allowing for necessary factual development.

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