A Fourth Circuit panel today ordered habeas relief to overturn a South Carolina capital conviction. The 2-1 decision was issued 14 months after argument. The underlying crime took place almost 30 years ago (in January 1982).
Judge King wrote the opinion for the panel in Elmore v. Ozmint, which was joined in by Judge Gregory. Judge Wilkinson wrote a dissenting opinion.
The combined opinions take up 194 pages (163 for the majority, 31 for the dissent).
Here are the first two paragraphs of Judge Wilkinson’s dissent:
It would be amusing, if it were not so very serious, to imagine for a moment the majority’s visit to a haberdashery. The visit would be a fun one, because my friends in the majority would try on every hat in the shop, except, of course, the one that might conceivably fit. Here, the majority dons the headwear of the jury, the state trial court, the state appellate court, the state post-conviction relief (PCR) court, and the federal district court, but then inexplicably leaves the premises without a passing glance at the cap befitting federal appellate judges reviewing under AEDPA the considered judgment of a state court that a defendant’s counsel was not ineffective and that there was no prejudice arising from that counsel’s allegedly deficient performance.
The majority spends a considerable amount of time defending its conclusion that Edward Lee Elmore is entitled to habeas relief on his ineffective assistance of counsel claim. But as Mark Twain is reputed to have said, “The more you explain it, the more I don’t understand it.” SEC v. Chenery Corp., 332 U.S. 194, 214 (1947) (Jackson, J., dissenting). Simply put, the majority’s rejection of the South Carolina PCR court’s determination that defense counsel’s alleged deficiencies did not result in prejudice cannot be squared with the deferential standards required under AEDPA, the facts of this case, or Supreme Court precedent. And in the course of its decision, the majority unjustly impugns the criminal justice system of South Carolina, slanders a deceased man who simply had the misfortune of discovering his neighbor’s mutilated body, and grants habeas relief to a prisoner whom overwhelming evidence suggests brutally raped and murdered an elderly woman in her home. For these reasons, I respectfully dissent.
This question isn’t really directed at you personally — it’s directed at anyone connected to the federal judiciary:
Do you believe federal appellate court judges and state appellate court judges do equally good jobs at adjudicating federal constitutional claims?
I don’t.
Frankly, I don’t believe there’s a lawyer worth talking to that does. At least, not one working in a state court. I work in a state with one of the largest appellate court systems in the country, and the idea that a federal court should defer in any way to one of these courts’ decisions is farcical. To me, the AEDPA is unconscionable.
The question about comparative performance in assessing the adjudication of federal constitutional claims is difficult to evaluate in the abstract. Scholars have struggled to assess this question of parity, with inconclusive results. Certainly the perception that you report is evidence against parity with respect to the adjudication of certain federal constitutional claims.
As to AEDPA’s unconscionability, what is the better alternative to deferential review? De novo review has problems of its own, as does no collateral review. For a thoughtful and empirically informed assessment of how federal habeas corpus review can be reformed, see Joseph L. Hoffman and Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L. Rev. 791 (2009), available here.