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The 2nd U.S. Circuit Court of Appeals has removed the specter that state court judges’ decisions could be subjected to rigorous de novo review if they failed to cite legal support in denying federal claims in criminal cases. In January, a different panel of the court had sent shockwaves through the state’s appellate courts when it ruled that state judges had to set forth the legal basis for the resolution of federal claims to qualify for the highly deferential standard of review contained in the Antiterrorism and Effective Death Penalty Act of 1996. Though the earlier panel withdrew its January opinion amid widespread anxiety among the state’s judges, its revised opinion, issued in July, still left open the question of the appropriate standard, and did little to allay the state judges’ fears. Tuesday’s opinion in Sellan v. Kuhlman, 99-2632, laid the issue to rest by asserting in no uncertain terms that the broadly deferential standard contained in the 1996 act applies. Chief Judge John M. Walker Jr., the author of the latest ruling, also took the unusual step of criticizing a judge on the earlier panel who had supported the stricter de novo standard. Walker’s opinion made plain that the difference between the two standards was far from academic. The prisoner in the latest case had presented “a forceful claim” that the court might “well be inclined to grant” under the de novo standard, he wrote. However, applying the more lenient standard of the 1996 law — that is, whether the state court “unreasonably” applied clearly established federal law — Chief Judge Walker rejected the prisoner’s claim. Judges Wilfred Feinberg and Jose A. Cabranes joined the opinion. The two 2nd Circuit panels were struggling with the question of whether a state court opinion that decided federal claims summarily, without citation or any written explanation, constituted “an adjudication on the merits.” The 1996 law set “adjudication on the merits” as the threshold that a state court ruling must clear in order to qualify for the more deferential “unreasonable application” standard. The original panel — composed of Judges Richard J. Cardamone, Guido Calabresi and Robert A. Katzman — concluded that a summary ruling with no stated reason would not constitute an adjudication on the merits. In June, the panel withdrew that conclusion, finding that the prisoner in the case before it was not entitled to relief on either standard. However, Chief Judge Walker found that the “plain meaning” of the 1996 law requires only a final adjudication with no requirement that the state court explain its “reasoning process.” Walker expressly attacked Calabresi’s concurring opinion to the revised July ruling, where he urged the tougher standard. SHARP DISAGREEMENT Calabresi’s view “does not purport to rest on any textual basis” and “could lead to deleterious substantive consequences,” Walker wrote. One consequence, he wrote, is that state’s prisoners could cursorily deal in their briefs with many federal points in the hopes that a state court would not address them, and thus open the door to a full-fledged federal review. In making that point, Walker alluded to an issue that was at the focal point of many state court judges’ concerns: Almost all criminal appeals involve numerous federal issues, many of them quite weak, courthouse sources said. As a consequence, they asserted, the earlier federal ruling would have imposed a significant burden on the state judiciary to address each issue individually. Walker particularly took issue with Calabresi’s assertion that by not specifically addressing a federal issue, a state court judge could be confident that the question would get a comprehensive review by a federal judge. “The notion that state courts may absolve themselves of their duty to decide federal questions has no basis in the law,” the chief judge wrote. Applying the more lenient standard of the 1996 law, the panel upheld the conviction of Angel Sellan, who was sentenced to 25-years-to-life for the 1985 slaying of a man in Queens. Sellan had argued that he was entitled to a new trial because his appellate counsel had not raised an issue that had significant support under a New York Court of Appeals ruling issued the year before he was tried. At issue was whether Sellan was entitled to a jury instruction that differentiated between an intentional killing and a reckless killing. There was significant support for the conclusion that under New York law, Sellan could have been convicted on only one of the two theories, Walker noted. Nonetheless, the state law was not so clear on the point as to conclude he had not had competent representation, the panel ruled. Sellan was represented by Polly N. Passonneau. Queens Assistant District Attorneys Donna Aldea and John M. Castellano opposed the habeas petition.

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