Tenth Applies De Novo Review--Not AEDPA Standard--and Remands Two Capital Habeas Cases

Wilson v. Workman, 2009 WL 2623336 (8/27/09) (en banc) - An important and good en banc decision in the habeas world, although perhaps a trivial decision in your world. By a 7-5 vote [McConnell writing for the majority, Tacha, Briscoe, O'Brien, Tymkovich and Gorsuch dissenting], the 10th holds that de novo review, not the stringent AEDPA standard, applies to state court decisions that do not consider evidence the federal courts consider in light of the correct constitutional standard.

In these 2 death penalty cases, the Oklahoma appellate court refused to send an ineffective assistance ("IA") of counsel claim down to the trial court. Depending on how one interprets the state court decisions, the court either denied the IA claim without considering new IA evidence the petitioner presented [e.g. evidence trial counsel should have presented] or applied the state law that no evidentiary hearing need be held unless there is clear and convincing evidence of IA. If the appellate court did not consider the new evidence, then it had not "adjudicated" the claim the petitioner presented in federal court, which claim included the new evidence, and so the state court decision was not entitled to deference. If the appellate court applied the clear-and-convincing standard then it did not apply clearly established S. Ct. law that the defendant need only prove IA by a preponderance.

The dissents read AEDPA's "adjudication" of a claim language more broadly to include rejection of claims without considering all the evidence and questioned the majority's interpretation of Oklahoma's clear-and-convincing standard, suggesting it really was no different, or was more favorable to the petitioner, than the constitutional preponderance standard. The dissenters suggested certifying that state law question to the Oklahoma Supreme Court.

The majority remanded one case to the d. ct. for a federal evidentiary hearing, where the panel had previously decided, as reported here, that the petitioner had alleged enough, if proven true, to establish an IA claim The majority sent the other case back to the panel which had not addressed the merits yet.