English v. Berghuis --- Here, English was convicted in Michigan of third-degree criminal sexual conduct, based on alleged sexual conduct with a sleeping acquaintance. During voir dire, a member of the venire who was ultimately chosen as a juror in the trial failed to disclose that she had previously been the victim of sexual assault. After a winding procedural history, the Sixth Circuit faced the threshold question of the standard of review. It determined that if the state appellate court had addressed this claim at all, it had done so using the wrong standard or a less protective state standard. Accordingly, the "strong presumption" that the claim was "adjudicated on the merits" did not apply here. With a less deferential standard of review, the panel determined that the juror appeared to have deliberately concealed a material fact, and that the juror's disclosure would have provided a valid basis of a for-cause challenge. It reversed and remanded to the district court.
Lobbins v. United States --- In this § 2255 case, the defense attorney failed to object to a jury instruction for federal witness-tampering that lowered the standard of proof by allowing conviction if there was a "mere possibility" that the defendant's actions prevented the victim from communicating with law enforcement, rather than a "reasonable likelihood." The court was unpersuaded by the government's arguments that this mistake was harmless error, and it fell back on the general presumption that counsel is deficient when he or she fails to object to an instruction that materially lowers the burden of proof.
Habeas skeptics would note that neither petitioner had to overcome so-called "AEDPA deference," which likely accounts for the results. But those practitioners who have toiled away in the habeas salt mines are happy for whatever victories they can get.
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