 Now cases on federalism and federal jurisdiction. Justice Ginsburg told this year's Second Circuit Judicial Conference that federalism this term was the dog that did not bark. At the least it was a dog on a shorter leash than in previous terms. Susanna Sherry is here to discuss decisions involving state immunity from lawsuits, the Commerce Clause, and preemption. And Susanna clearly the most interesting case here involved the Family and Medical Leave Act, which tells most public and private employers to give their employees up to 12 weeks of unpaid leave to take care of sick family members. William Hebs sued his employer the Nevada Department of Human Resources over his FNLA Leave Account. And Nevada said Congress has not abrogated our sovereign immunity under this statute. And Eight Courts of Appeals agreed. The Ninth Circuit took a different view. Were you surprised at what the Supreme Court did here? I was. This in fact may have been the most surprising case of the term, both for its result and for the very broad opinion that Chief Justice Rehnquist wrote for the Court. The opinion was somewhat ambiguous though on why it was Congress had the power to abrogate sovereign immunity under Section 5 of the 14th Amendment. That is what kind of discrimination was Congress either preventing or remedying. It might have been discrimination against men because men didn't get leaves. Or it might have been anyone of several types of discrimination against women. Gender stereotypes. Or the fact that employers might be less willing to hire women because they believe that they would have to give them leaves. Or the fact that if an employer adopted a policy of having no leaves at all, that would have a disparate impact on women. The Court mentioned all of these and it's not clear which one or all of them justified Congress's power. I think it's also somewhat difficult to distinguish this case from the Garrett case in which the abrogation under the ADA was struck down and the Kimmel case which struck down the abrogation under the Age Discrimination and Employment Act. As the dissent points out the evidence of discrimination in this case was very close to the evidence of discrimination in the Americans with Disabilities Act case. A lot of the discrimination was private. There was no real pattern of state discrimination and some of the discrimination was a disparate impact rather than intentional. And finally although the Court didn't mention these cases, it's somewhat inconsistent with some old cases regarding discrimination against pregnant women. Is there any lesson here for the Court's Section 5, Section 5 of the 14th Amendment jurisprudence in general in a broader sense? Well I think what this tells us is that the Court is going to be more willing to give Congress leeway more authority to combat race discrimination and presum- gender discrimination and presumably race discrimination. Possibly because those kinds of discrimination are subject to heightened scrutiny which the Court mentioned or possibly just because the Court feels that those kinds of discrimination are more invidious. Let's turn now to three other cases involving sovereign immunity. These were all unanimous and in each case the Court refused to extend the immunity of the jurisdiction in question. I think the most interesting one for federal judges is Jinx versus Richland County. This involved the towing provision of the supplemental jurisdiction statute which tolls the statute of limitations on state claims in federal Court because of the federal Court dismisses jurisdiction. They have to be able to go back and reassert the interest in state Court. The Court said last year in the Régor case that suits against states did not implicate this towing provision. But here we have Susan Jinx suing not the state of South Carolina but a subdivision, 1983 action in a wrongful death action into South Carolina law. Justice Scalia wrote the decision for unanimous Court. What do you say? Well the Court did not extend the Régor protections to subdivisions like counties. They said that 1367D's towing provision does apply to suits brought against counties and other subdivisions and doesn't violate the 11th Amendment. They also upheld 1367D against a challenge that it was beyond Congress's powers. The Court said that Congress had the power under Article 3 in establishing lower federal courts to make this towing provision even though it changed the statute of limitations in state cases. What's important is that in the past few years the Court has been expanding 11th Amendment protections and making new law and in this case they did not do so. In the sense of political subdivisions, there's another case involving subdivisions I'll mention real quickly. Janet Chandler brought a key TAM action under the false claims act against Cook County. The Court said several years ago that the false claims act does not define states as persons but indeed municipalities are persons and so her suit could proceed. There's another interesting case that this involves the Franchise Tax Board of California. It's the California State Tax Agency which sought from a fellow named Gilbert Hyatt a back taxes. He had been a California resident and moved to Nevada. Hyatt in turn sued in Nevada courts the State Tax Agency and the Franchise Tax Board of California looked to the full faith and credit clause and said to the Nevada courts you give full faith and credit to a California statute that immunizes us from these suits. Now a lot of states wanted the Court to side with California here. It didn't. What did it say? Well it said two things. First, it refused to overrule a previous holding that states are not immune from suits in the courts of sister states. But it also did reaffirm a previous holding that said that Nevada did not have to apply California statutory sovereign immunity doctrines. It could apply its own sovereign immunity doctrines which meant that California was not immune in the Nevada courts. Again the reason this is important is because the court did not expand the protections given to states. Let's turn to the commerce clause then we have a percurium the court uses percurium many times to tell a lower court you just got this wrong. And here the what they got wrong was USV Lopez the 1995 decision that said that commerce the commerce authority does not allow Congress to prohibit guns around schools. This case involved a bank the citizen's bank and some loan agreements that had with an Alabama construction company. The loan agreements included a arbitration agreement to be enforceable under the Federal Arbitration Act which reaches contracts and interstate commerce. The Alabama Supreme Court said these loan restructuring agreements between the bank and Al Fabco didn't reach interstate commerce and thus the FAA did not apply. The court didn't even wait for oral argument to reverse. What did it say? Well it said that you don't have to determine whether the individual contract actually affects commerce under the Federal Arbitration Act. You can aggregate what's important here is that both the Alabama Supreme Court and the United States Supreme Court agreed that the interpretation of affecting commerce under the Federal Arbitration Act is the same as the interpretation under the Commerce Clause. And so that basically the bottom line here is that if Congress is regulating commerce this was a commercial transaction a commercial loan. If Congress is regulating some commercial activity you can aggregate and Congress has the authority under the Commerce Clause. So this case really wasn't very surprising it was predictable from the start. Let's go to a less predictable case. Our last one here Pharmaceutical Research and Manufacturing versus WALT. This is about the main Medicaid statute and the requirement that drug manufacturers give rebates to main Medicaid patients. If they didn't a physician before she prescribed a drug of one of these companies would have to call the state to get approval to use it. The drug companies objected on several grounds. One was the Dormant Commerce Clause claimed that this was all taking place outside of Maine's boundaries. Unanimously the court said there's no Dormant Commerce Clause violation here. Touch on that for a moment. Well it was unanimous and a majority just applied normal Dormant Commerce Clause precedent to find that there was no violation. But two justices Justice Scalia and Thomas would go even further and they would just throw out the whole Dormant Commerce Clause doctrine. More important thing here was the injunction the district court issued in joining enforcement of the of the main statute because the district court said the federal Medicaid statute preempts it. Now all the states were looking for guidance from the court but they really didn't get it. They didn't get much. There were six justices who agreed to reject the preemption argument but they issued four separate opinions and those opinions disagree on more I think than they agree on. There's really very little guidance also because what the only thing the court did was to say that the district court abused its discretion in issuing this injunction this preliminary injunction. So it's going back down anyway. What we do know is that five justices agree that requiring prior approval for the drug prescriptions is not per se preempted by the Medicaid Act. Five justices also agree that it is acceptable for states to impose some burden on Medicaid recipients as long as the state is furthering some purposes of the Medicaid statute. The problem of course is that the justices did not agree on what the purposes of the Medicaid statute are and therefore they're going to defer to the secretary of health and human services and along those lines Justice Breyer made a very interesting suggestion. He said that when a court is trying to interpret the Medicaid statute what they might do is essentially refer it to the secretary which is not so surprising coming from an administrative law scholar. Thanks Susanna. One last Commerce Clause case before we turn to some jurisdiction decisions. Pierce County v. Guillen involves states applications for federal grants to eliminate road hazards. To encourage diligence and candor as states gather information for grant applications Congress barred such information from discovery or as evidence in lawsuits over accidents on the unimproved roads. The court decided unanimously that Congress could reasonably believe that such a bar would promote safety and interstate commerce and was thus authorized by the Commerce Clause. Next four federal jurisdiction cases starting at page 20 in your outline. Three decisions involve section 1441 the removal provision. First, Syngenta v. Henson asked whether the All Ritz Act authorizes removal. No said the court unanimously. Removal under 1441A requires the federal court to have original jurisdiction over the action and the All Ritz Act alone or in combination with the federal court's ancillary jurisdiction does not confer that original jurisdiction. Brewers v. Jim's Concrete involved 1441A's language that permits removal except as otherwise expressly provided by act of Congress. Does the Fair Labor Standards Act expressly create an exception when it provides that a suit under the act may be maintained in any federal or state court? No said the court again unanimously. Although some might stretch the word maintained to suggest the action must stay in the state court in which it was filed. That word hardly qualifies as the kind of express provision that section 1441A demands and the Congress is provided elsewhere. Third, a small category of cases may be removed to federal court, even though the complaint states no federal claim because a federal statute completely preempts the state cause of action. Beneficial National Bank, the Anderson added to that small category, usury claims against federally insured banks. National Bank Act provides the exclusive cause of action for such claims said the court, seven to two. Therefore, Justice Stevens wrote, there is no such thing as a state law claim of usury against a national bank. Such a cause of action only arises under federal law and thus a claim asserting it can be removed under 1441B even though the plaintiff's complaint cites state law only. Finally, a five to four court held that parties consent to trial before a magistrate judge can be inferred from their behavior. Some of the parties in Relby Winthrow had consented in writing. Two others voluntarily participated in the trial and did not object when the magistrate judge stated several times that she believed they had consented. The court said that the goals of the Magistrate Act were best served by permitting courts to infer consent from party behavior. Also, insisting on written consent after a trial that proceeded based on implied consent could occasion gamesmanship by losing parties. We'll take a short break and then tune to our last three segments. Criminal law and procedure, sentencing and habeas corpus. Now let's turn to criminal law and procedure, sentencing the rights of prisoners and habeas corpus. Denise Neary will cover the criminal law and procedure cases. Joining us again to help explore these decisions are Laurie Levinson and Erwin Chemerinsky. Laurie, let's look first at Chavez. That was a decision without a majority. What principles emerge from that case that lower courts should keep in mind? It's a very important decision, even though it was a divided opinion. In this case, you had Martinez, who was a farm worker. On his way home, he went past the shack and there he met up with some police officers who were doing a drug investigation. There was an altercation. The gun was drawn from the officer and it was Martinez who ended up getting shot. He was shot very severely and he had severe injuries, but the police officer, Sergeant Chavez, wanted to examine him and question him about how did this occur and did he have any drugs. Martinez didn't want to be questioned. In fact, he kept saying, I'm dying. I'm dying. And the officer said, well, if you're dying, tell us what happened. Ultimately, in the hospital, Martinez did say that he had drugs and that he had pulled the gun. It turned out that he was never charged with any crime. So those statements weren't used against him and there never been any Miranda rights given for those statements. But he turned around and sued the police officer for a Fifth Amendment violation. And the issue before the Supreme Court is, did he have that cause of action under Section 1983 for a violation of his Fifth Amendment rights? The court, if you add up the vote, says the following. First of all, you cannot bring a cause of action under 1983 for the Fifth Amendment brand of violation. It may be able to use it as a shield, but not as a sword. You also have a plurality, seeming to suggest that the Fifth Amendment is just a testimonial right. And then you couldn't use it as well. But you did have enough votes here to send it back for Martinez so he could make a due process claim. The impact of this case on Miranda. The court here does not change any of the substantive requirements of Miranda, nor does the court change that if statements are obtained without proper Miranda winnings, they can't be introduced against the criminal defendant. However, as Laurie points out, this case says there's no civil cause of action for money damages against an officer for failing to properly administer Miranda winnings. What this means is if police want to violate Miranda, knowing they couldn't use the state and its evidence against the defendant, then they don't have to worry about civil liability. It might encourage more Miranda violations by the police in the future. And I'm not so sure this ability to go back on a due process claim is going to be give much to people like Martinez because it is a very high standard. Erwin, we'll turn now to the Sadazon case. There the court considered what constitutes double jeopardy. What happened in that case and what are the implications of the case for the federal courts? An individual is convicted of a capital crime. The jury, however, could not agree as to the punishment. They voted nine to three in favor of life imprisonment. There wasn't the unanimity required under Pennsylvania law. So the individual was sentenced to life in prison. However, the criminal defendant decided to appeal and won in the Pennsylvania Pellet Courts. The case was then sent down for a new trial. The individual was convicted again and sentenced to death on retrial. He then argued, and this was the issue before the Supreme Court is to whether or not the death sentence on the retrial violated double jeopardy. The Supreme Court ruled five to four that it did not violate double jeopardy. Justice Scalia wrote the opinion for the court. Justice Scalia said the jury in the first trial hung on the issue of punishment. There was not a verdict. And Justice Scalia, writing for the court, said a hung jury is not the same as a verdict with regard to the issue of punishment. So there's no violation of double jeopardy. The court also rejected the argument that this violated due process. The court said if there's no double jeopardy violation here, there's no due process violation either. There's one other implication might be quite important for the federal courts. Seven of the nine justices, all but just so Connor and Kennedy emphasized that the principles of Prendi versus New Jersey do apply in a capital sentencing hearing. There are many ways in which the federal death penalty does not follow a Prendi principles for the capital sentencing hearing. And I think federal district courts are likely to see challenges to the federal death penalty based on a Prendi. In fact, one federal district court in fellow versus United States has already declared the federal death penalty unconstitutional on procedural grounds based on this. In that case, as we speak now, is pending before the Second Circuit. And you guess there'll be more similar cases throughout the country. Thanks. Lori, let's turn then to the cell case. They're the court clarified the application of the standard for giving psychotic defendants anti psychotic drugs. Tell us about that case. Well, the issue in this case is whether the government can forcibly medicate a defendant to make him or her competent to stand trial, particularly in a case where the defendant is charged with not a violent offense. In this case, it was medicaid fraud. And what the Supreme Court said is that they would stick with the Reagan standard as a three part standard to make that decision. But they gave some guidance as to how the standard should be applied. First, they want to make sure that there is an important government interest. And here the court had something very interesting to say. It said, well, if this is somebody that a defendant who's going to be civilly committed anyways, maybe you don't have to medicate them to have them stand trial. Second of all, they want to make sure that the medication was necessary and effective. And finally, they were concerned about the side effects of the medication and how it might affect the defendant during trial. Another issue in this case. Thank you. Erwin, what are the implications of cell for death penalty cases? We don't know. The court does not discuss the death penalty context. It doesn't consider, for example, whether the rules might be different if the issue were, could you medicate a defendant to stand trial in a capital case? And it's interesting that they stayed away from that issue. Interesting and something to keep your eye on. Okay. Erwin, let's talk then about the Stodner case. There the court found that California had violated the Constitution's ex post facto clause by extending the statute of limitation on certain certain offenses. What are the implications of that case? What's important that this law that was adopted in 1993, it said that if an adult reports of sex crime that occurred when he or she was a child, they'd be one year after the report for prosecutors to bring charges. This case involves an individual Stodner who was prosecuted for sex crimes that allegedly committed 25 and 43 years earlier. Obviously the statute of limitations had run. But the new California law meant that the prosecution could go forward within the year after the report. The Supreme Court in a five court decision declared the California statute unconstitutional. Justice Breyer wrote the opinion for the court. Justice Breyer said this is an impermissible ex post facto law. He said the ex post facto clause means that the government cannot punish conduct that was lawful when it was done or increase the punishment for crime after it was committed. Justice Breyer said this law makes something criminal that wouldn't have otherwise been criminal and it violates the ex post facto clause. I think in essence what Justice Breyer is saying is it violates the whole concept of a statute of limitation that the state can extend it even after it's expired. But it's important to keep in mind isn't it Irwin that this is a ruling that only applies to criminal cases in civil cases where there are retroactive such laws regarding the statute of limitations there only needs to be a rational basis test. Thanks Laurie. Thanks Irwin. Finally I want to briefly mention two other decisions. In Shidler v. Now the court decided eight to one that violating the Hobbes Act is it is now written requires extortion of something tangible like property not rights. Respondents in this case the national organization for women and two healthcare centers that perform abortions argued that the right to control the use of an asset is property and that the anti-abortion group plan had obtained that property when it interfered with the clinic's functioning. The court rejected that interpretation saying that what plan did could more accurately be described as coercion a crime omitted from the Hobbes Act. In U.S. v. Racio the court reversed a lower court decision that a conspiracy ends automatically when the object of a conspiracy becomes impossible to achieve. Here the police intervened in a drug deal using some of its participants to leave them to the final buyers but in reality making the drug deal itself impossible. The court noted that even when a conspiracy specific objective is thwarted special conspiracy related dangers remain. In a moment John Cook will go over cases involving sentencing and the rights of offenders. We go back to John Cook for decisions on sentencing and offender rights. California's three strikes law mandates a sentence of life in prison without eligibility for parole for at least 25 years for a felony offender with at least two serious or violent felony convictions. In two closely watched cases this term one on direct and one on habeas review the court examined the law and upheld lengthy sentences for relatively minor nonviolent deaths. Laurie and Evan joined me to discuss these and three other cases. Laurie please tell us about the first of these cases Ewing v. California. Well Gary Ewing was charged with stealing three golf clubs that he put in his pants and walked out of the store with and instead of getting charged with a misdemeanor he ended up with a felony that landed him a life sentence under California's three strikes. He made an eighth amendment cruel and unusual punishment challenge saying it was a disproportional sentence. The court took a look at it and said it's going to apply the old solemn versus helm Harmelin standard the three-part standard but in implying it they said look when you take a look at the gravity of the offense you're not just looking at his last offense you're looking at his course of conduct and here he had some priors for grand theft burglary drug offenses and because of that the court said that lengthy of a sentence life in prison was okay. Evan we're going to look at the other three strikes case Lockyer v. Andrade in a few minutes in the habeas section but does it add anything more to the eighth amendment analysis that we have here? Well I think the important thing to get out of it is that there is a gross disproportionality standard in eighth amendment jurisprudence that it does apply to terms of years. Seven justices signed on to that only Scalia and Thomas were absent from that agreement. Thank you. And now we're going to turn to laws imposing special registration requirements on sex offenders. In Connecticut Department of Public Safety v. Doe Doe challenged the state requirement that persons convicted of sex offenses register with the state and that a state agency posts their names addresses photos and other information on the internet. Doe argued the law violates due process because it affords him no hearing on whether he is currently dangerous before the information about him is posted. All nine justices agreed that the Connecticut law does not violate due process although Justice Stevens concurred only in the judgment. The court also said the state's rationale for the public registry was not current dangerousness but simply the fact of prior conviction. Due process said the court does not require the opportunity to prove a fact that is not material to the state's statutory scheme. In the second case another anonymous offender challenged Alaska's sex offender registration law on ex post facto grounds. He was convicted before the law went into effect and argued that applying it to him is retroactive punishment. Evan what did the court say here? All the court said that it wasn't as it didn't violate the ex post facto clause. First of all the court said because the Alaska legislature intended this law to be civil that the court would in fact denominate it as civil unless the challenger could come forward and prove that there were you know overwhelming that the overwhelming effect of it was criminal and the challenger was unable to do that in this particular case. There's a couple of other points that I think are notable. One is that the court specifically rejected the analogy to shaming punishments of the colonial period. That was heavily argued in this case and the court didn't buy that one. The other point that I think is notable here is the standard of review that the court employed it was a pretty relaxed form of scrutiny and what I mean by that is the court acknowledged that the statute here was not narrowly drawn to serve civil purposes but that that wasn't dispositive in any event. Only Justice Ginsburg would have found that dispositive. Many states have these registration laws. Do these cases pretty much resolve all the questions? I think this probably pretty much exhausts the litigation. There's only one situation I can think of which is what happens if somebody's released a sex offender is released from prison and then the state passes one of these sex offender registration laws and the person never actually learns of the requirement and then is convicted for the failure to register under it. I think in that situation perhaps that person would have a Lambert versus California type of due process lack of notice defense. Thank you. Laurie, these cases deal with people who are already out of prison but the court decided one case having to do with the rights of people who are still in prison over to the divisetta. Would you tell us about that? Yeah, in that case there was a challenge to the Michigan's new regulations on prisoners' visitation rights. They had been having problems as they have overcrowding in the prison system and what they said was that prisoners who had been involved in drugs may have no visitation privileges for two years and other prisoners may not be able to see as many family members as they'd want to see and there was a challenge to that. The Supreme Court said they're going to rely on the old Turner versus Safley Standler and say first of all is there a rational good paenological reason for these restrictions? Safety, security are good reasons. The second is are there alternative ways that the inmates can exercise their rights? Well the court thought being able to write a letter to your family would be enough. And finally the court considered what the impact on the prisons would be if they did not defer to the prison officials. We know that today many states are operating under severe budget constraints. To what extent can a state claim scarce resources in justifying its prison rules or conditions? Well I don't think that I'll give them a green light to do whatever they want in prison but I do hear the Supreme Court saying that budget concerns are legitimate concerns and that the court should be deferring to the prison officials. Thank you Laurie and thank you Evan. In a moment habeas and 2255 petitions. Habeas and 2255 cases this term dealt with initiating the proceedings the standards to apply to state petitions strickeland standards and procedures and certificates of appealability. Let's look at a video we prepared on the cases and then get some comments. First as to initiating proceedings two cases drew bright lines one for the government one for the petitioner. Lynn v. Murphy in 1997 said that Edpa doesn't apply to habeas petitions pending in federal court on April 24th 1996. Edpa's effective date. But when is a habeas capital case pending? In 1995 Robert Garceau moved for habeas council and applied for a stay of execution. But he didn't file the habeas petition itself until July 1996 after Edpa's effective date. Six to three the Supreme Court said Edpa applied to Garceau's petition. Lynn said Justice Thomas only exempt state prisoners who on Edpa's effective date had before a federal court an application for habeas relief seeking an adjudication on the merits. Why? Because Edpa focuses on the merits of habeas applications. Garceau's applications for council on a stay of execution didn't present the merits of his habeas claim. Nor did a local rule require document that simply alerted the court to issues he might raise. Clay v. US. Section 2255 says federal prisoners must seek review within one year from when the judgment of conviction becomes final. Does the judgment become final when the court of appeals issues its mandate affirming the conviction or at the deadline for filing for certiorari? The mandate affirming Eric Clay's conviction issued on November 23rd, 1998. His deadline to seek certiorari was February 22nd, 1999. He didn't seek certiorari, but he did file a 2255 motion on February 22nd, 2000, one year after the deadline for seeking cert, but more than a year after the mandate issued. A unanimous court said the petition was not time-barred. True said Justice Ginsburg, the analogous provision for state prisoners starts the clock when the judgment becomes final by the conclusion of direct review or the expiration of the time for seeking review. But the omission of the or the expiration phrase in 2255 doesn't start the clock for federal prisoners on the day the mandate issues. The court declined to read 2255 to subject federal petitioners to a tighter deadline than state prisoners. Next, the standard of review for state prisoner petitions. In all four decisions, three of them unanimous, the court reversed the court of appeals for not giving appropriate deference to the state court's decisions. Section 2254D1 tells district judges not to grant state prisoners habeas petitions unless the state court decision was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States. Three years ago in Williams v. Taylor, the court said a state court decision is contrary to established federal law if the state court applies a rule that contradicts the governing law set forth in our cases or confronts a set of facts that are materially indistinguishable from a decision of this court and nevertheless arrives at a result different from our precedent. A state court decision is an unreasonable application of clearly established federal law if its application was objectively unreasonable. Unreasonable, said Williams, is difficult to define, but the most important point is that an unreasonable application of federal law is different from an incorrect application. During Duyan Vincent's trial, the judge outside the jury's presence responded ambiguously to a defense motion for a directed verdict of acquittal for first degree murder. Before the jury returned, the prosecutor raised the first degree murder charge again, but Vincent's lawyer said the judge had directed acquittal on that charge. Further prosecution of it would constitute double jeopardy. The judge let the trial proceed on first degree murder. The jury convicted and the state Supreme Court affirmed rejecting Vincent's double jeopardy argument. But a district court granted Vincent's habeas petition. The court of appeals affirmed concluding that the judge erred. The Supreme Court said unanimously that the court of appeals job wasn't to determine if the state court committed error, but to apply 2254D. The court said that the state Supreme Court nowhere applied a legal standard contrary to those set forth in our cases on trial judge comments terminating jeopardy, or set forth a set of facts materially indistinguishable from those presented in any of this courts clearly established precedence. Furthermore, the state court wasn't objectively unreasonable in its application of the precedence. Said Chief Justice Rehnquist, even if we agreed with the court of appeals that the double jeopardy clause should be read to prevent continued prosecution, it was at least reasonable for the state court to conclude otherwise. Lockhear v. Andrade involved a claim of a grossly disproportionate sentence. Leandro Andrade twice stole videotapes worth about $150. California law let prosecutors charge both thefts as felonies. Upon conviction given Andrade's previous felonies, the judge used California's three strikes law to impose two consecutive sentences of 25 years to life for the two videotape thefts, affirmed on appeal. The district court denied habeas, but the court of appeals reversed. Andrade told the Supreme Court that the sentence was contrary to or involved an unreasonable application of clearly established federal law. The court said five to four that it wasn't. Justice O'Connor said that the court's precedents have not been a model of clarity, but that one governing principle emerges as clearly established under 2254D. A gross disproportionality principle only applies in exceedingly rare and extreme cases. Was the California decision an unreasonable application of the court's precedents? No, when the court of appeals equated an unreasonable decision with an erroneous one, it itself committed error. The gloss of clear error, said Justice O'Connor, fails to give proper deference to state courts by conflating error, even clear error, with unreasonableness. It was not objectively unreasonable for the California appellate court to conclude that established Supreme Court law permitted Andrade's sentence. Two procurium decisions also involved 2254D. William Packer's habeas petition claimed that the judge violated his right to affair an impartial jury. The court of appeals directed the district court to grant the writ, in part because the California appellate court decision was contrary to established federal law. Why? For one thing, the state court failed to cite any federal law, much less the controlling precedents. Responded the Supreme Court, avoiding trouble under 2254D does not require citation of our cases. Indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state court decision contradicts them. The district court granted John Vashati's habeas petition, the court of appeals affirmed, saying that the state Supreme Court decision was contrary to Strickland v. Washington because Strickland requires defendants to establish a reasonable probability that the results would be different but for the lawyer's conduct. But the state court several times used probable without the modifier reasonably. The Precurium, noting the state court opinion's correct usage elsewhere and its painstaking description of the Strickland standard, said the court of appeals readiness to a tribute error is inconsistent with the presumption that state courts know and follow the law and incompatible with 2254D's highly deferential standard for evaluating state court rulings. It continued, the federal habeas scheme leaves primary responsibility with the state courts for judgments about ineffective assistance. Whether or not we would reach the same conclusion as the state Supreme Court, we think at the very least that the state court's assessment was not unreasonable. Two other decisions concerned ineffective assistance claims, one more substantive, the other more procedural. Kevin Wiggins' habeas petition said his trial lawyers provided ineffective assistance of counsel when they failed to investigate and present its sentencing mitigating evidence of his desperately abusive childhood. The Supreme Court agreed seven to two. Reiterating its Strickland standard that a petitioner must prove counsel's performance was deficient and that the deficiency prejudiced the defense, the court found that failure to investigate Wiggins' background fell short of the professional standards then prevailing in Maryland and that there was a reasonable probability that a jury presented with such mitigating evidence would have returned a different sentence. The state appellate court's finding that the investigation was adequate was an unreasonable application of the Strickland standard, wrote Justice O'Connor and its conclusion that the available social services information sufficiently detailed Wiggins' abusive childhood was an unreasonable determination of the facts in light of evidence presented in the state court proceeding. Joseph Masarow's counsel on direct appeal of his federal conviction didn't claim an effective assistance of trial counsel. When Masarow claimed it in his 2255 motion, the district appellate court said the claim was procedurally defaulted because he hadn't raised it on appeal. The Supreme Court unanimously held that an ineffective assistance claim may be brought in a collateral proceeding under 2255, whether or not the petitioner could have raised the claim on direct appeal. Barring habeas review of claims not raised on direct appeal is a judgment rule to conserve judicial resources and promote finality of judgments. But said Justice Kennedy, applying the requirement to ineffective assistance claims does neither. Direct appeals work from the trial record, which is unlikely to disclose facts necessary for a Strickland analysis. Moreover, 2255 claims will ordinarily be litigated in the trial court, the forum best suited to developing those facts. Finally, certificates of appealability. EDPUP prohibits prisoners from appealing habeas or 2255 denials unless an appellate judge issues the certificate of appealability, or COA. Section 2253 C2 says that the judge may issue a COA only if the applicant has made a substantial showing of the denial of a constitutional right. Two years ago, Slack v. McDaniel said that prisoners didn't have to show the appeal would succeed, but did have to demonstrate that reasonable jurists would find the district court's assessment of the constitutional claim debatable or wrong. Miller L. V. Cockrell involved a rejected COA from a district court's denial of a habeas petition alleging jury selection in violation of Batson v. Kentucky. The court of appeals rejected Miller L's COA application, citing Slack v. McDaniel, but also holding that the state court decision was not contrary to or an unreasonable application of clearly established federal law under 28 USC 2254D. But, said an eight to one Supreme Court, the court of appeals had not issued the COA, so it had no jurisdiction to apply 2254D to the state court decision. A court of appeals, Justice Kennedy wrote, should not decline the application for a COA, merely because it believes the applicant will not demonstrate an entitlement to relief. A claim can be debatable, even though every jurist of reason might agree after the COA had been granted, and the case had received full consideration, that the prisoner will not prevail. Based on a threshold examination of Miller L's claims, such as a pattern of differential questions to white and black panel members, Justice Kennedy said the district court decision was debatable, and the COA should have issued. A prisoner must prove something more than good faith, or the absence of frivolity, and state court decisions are presumed correct, absent clear and convincing evidence to the contrary. But, even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. Joining me again are Lori Levinson and Evan Lee. And let me ask you both, we've seen this description of these nine cases, but what's the broader significance do you think of these cases this term? Well, I think you can sum it up this way. The court giveth and takeeth away. In the area of timing and challenges based upon ineffective assistance of counsel, particularly in capital cases, the court has made it somewhat easier to get a petition granted. However, on the standard of contrary to or an unreasonable application of established federal law, the court's making it tougher to get those petitions granted. I would agree with that, but I also think that the story about what unreasonable application really means is still being written. I mean, it's true that in Williams versus Taylor, Justice O'Connor defines unreasonable application as meaning objectively unreasonable, and she says it's different from just being wrong. But I think once you actually sit down and try and apply that, you ask, well, what does that mean? And I think that's gonna have to be flushed out more and I think what Wiggins does is to signal very clearly that the court and Justice O'Connor in particular think that this has to be worked out, that unreasonable application has to be given meaning either on an area by area basis or even on a case by case basis. They clearly think it's impossible to do anything other than that. What would you say are the specific points getting down to the specifics that federal judges should take from these cases? Well, there are some specific points. Let's start with the Eighth Amendment area of cruel and unusual. You have the Andrade case, which had a companion case regarding a challenge to the Three Strikes Law in California. Now, in that case was a very sympathetic case for the defendant. He stole some children's video and he ended up getting life in prison and yet he could not get habeas relief. So I think there's a message there from the court. The other message to federal judges is that in looking at state opinions, they don't have to be a model of clarity and nonetheless, they deserve deference by the federal court. Well, you know, I wonder whether the opinion in Lockyer versus Andrade doesn't sort of indirectly flag a problem that the Supreme Court may be having to deal with down the line. And what I mean is unreasonable application. Does that mean unreasonableness of the result or unreasonableness of the state court's analysis? And there's actually a conflict in the circuits on this and it makes a huge difference in the cases where the two diverge, where you have an unreasonable analysis but a not unreasonable result and also in the many cases where the state court gives no opinion at all of these summary affirmances, summary denials of relief. Now, if you look at Williams versus Taylor and you read that opinion carefully, you're left with a definite impression that the court thinks what's relevant is the reasonableness of the analysis. But if you read Lockyer versus Andrade, you're left with just the opposite impression that it looks like it's the reasonableness of the result that really matters. Now, I wouldn't suggest the court was consciously making a choice between those two things in writing either of these opinions, but I do think that the court is going to have to advert to that consciously, not too far in the future, and resolve that conflict. Especially, as you say, given a lot of unpublished opinions. What about guidance, Laurie, and other substantive areas from these cases? What's stretching? Well, under the Miller-L decision, we have some guidance regarding challenges to jury selection and equal protection challenges. And the message there, I think, from the court is that Batson didn't overrule Swain to the extent that you can use evidence from outside the particular case to claim that there was discriminatory use of peremptory challenges. Additionally, I think, in the ineffective assistance of counsel area, we have some lessons as well. Which are? Well, in that area from the Wiggins decision, which was a capital case, we have the court saying that there really has to be close scrutiny. And if they're looking for standards for lawyers to apply, the ABA standards are a good place to look. Sort of suggesting that, in fact, if lawyers meet the ABA standards, it'll be very difficult to get a habeas petition granted. If not, the court is going to be open to ineffective assistance of counsel challenges. But the meet the standards is almost a per se presumption? Almost, but the court doesn't say that. I understand that. Evan, let me ask you one last question. We saw about the Massaro case where the court said 2255 petitioners can raise an ineffective assistance claim on 2255 petition, even if they didn't raise it on direct appeal. Now, is that going to carry over to state habeas petitions? I think that's not clear. One is that federalism complicates the matter. Another thing is that different states might treat ineffective assistance differently for purposes of procedural default. And then also, ineffective assistance might be a cause that excuses a procedural default even under federal habeas law. So it's complicated. Let's see what happens. Thanks very much, Evan. And thank you very much, Lori. That concludes our review of the 2002 term. Thanks very much to our faculty for commenting on the cases and for helping us structure the program. Thanks to our Judicial Education Advisory Committees for helping selecting the cases. Please take the time to complete and submit an evaluation form. Your comments are a big help as we structure these programs year after year and we appreciate them. Finally, there was a retirement this summer from a Washington judicial institution. Not a surprise, but noteworthy all the same. Judge Fern Smith stepped down after four years as director of the Federal Judicial Center. During those years, she did much to shape center programs, including this one. The center staff joins me in thanking her for all she did to make this a better and more effective place, to wish her well as she returns to the Northern District of California and as she assumes the chair of the Judicial Conference International Judicial Relations Committee. Staff joins me also in welcoming Judge Barbara Rothstein of the Western District of Washington as the center's ninth director. Thank you for joining us today.