Thereupon noting that “[a]s far back as Marbury v. Madison, 5 U.S. (1 Cranch) 133, 177 (1803) (Marshall, C.J.), the Court has held that the ‘very essence’ of Article III judicial power is to interpret federal law under the Constitution in light of precedent[,] [and that] [t]he Court has throughout its history, in many contexts, invalidated congressional enactments that have interfered with the core functions of judicial decision-making[,]“19 Judge Garaufis re-emphasized that he was not the first judge to call attention to this problem:

Although the Court has not squarely decided this issue, some circuit judges in dissent have concluded that Section 2254(d)(1) unconstitutionally trenches upon the Article III judicial power. See, e.g., Crater v. Galaza, 508 F.3d 1261 (9th Cir. 2007) (Reinhardt, J., dissenting from the denial of rehearing en banc and joined by Pregerson, Gould, Paez, and Berzon, JJ.); Davis v. Straub, 445 F.3d 908 (6th Cir. 2006) (Martin, J., dissenting, and joined by Daughtrey, Moore, Cole, and Clay, JJ.); Irons v. Carey, 505 F.3d 846, 854 (9th Cir. 2007) (Noonan, J., concurring); Lindh v. Murphy, 96 F.3d 856, 885 (7th Cir.1996) (Ripple, J., dissenting, and joined by Rovner, J.) As Judge Lipez of the First Circuit recently wrote in an eloquent dissent from a denial of rehearing en banc in a case squarely addressing this issue:

‘If Congress intrudes unduly upon the process of judicial reasoning, or if it restricts the ability of the federal courts to declare the law of the Constitution and maintain its supremacy, it offends the separation of powers principles at the core of our constitutional system . . . . By limiting the sources of law a federal court may rely upon in granting habeas relief to “clearly established Federal law, as determined by the Supreme Court,” §2254(d)(1) impinges upon a federal court’s “judicial power” by “strik[ing] at the center of the judge’s process of reasoning.” It forces federal courts to essentially ignore the binding precedents of their own circuit, and persuasive decisions of other circuits, in determining if a habeas petitioner is being held in violation of the Constitution . . . . The statutory limitation applies regardless of how long and firmly the circuit precedent has been established. As a consequence, §2254(d)(1) prevents courts from applying the ordinary tool of stare decisis to reach an independent judgment on the constitutional issues.’

Evans v. Thompson, 524 F.3d 1, 2008 WL 1735297 at *2-3 (1st Cir. 2008) (Lipez, J., dissenting) [cert denied, 129 S.Ct. 255 (2008)] (citations omitted). 20

Conclusion

The rule reaffirmed in Carey v. Musladin, which precludes a habeas court from applying otherwise binding precedents in its Circuit, let alone its own assessment of what is constitutionally appropriate, clearly impinges on the independence of Article III courts. For, although a constitutional ruling in a state court may be at odds with controlling circuit law or the habeas court’s own view, a petitioner cannot prevail if the Supreme Court has yet to rule.

The requirement for an “unreasonable” application of Supreme Court law by the challenged state court decision is equally intrusive on the independence of the federal judiciary by constraining it to ignore what might nevertheless be regarded as a constitutional infringement. Hopefully, habeas petitioners will continue pressing challenges to 18 U.S.C. §2254(d) so that these concerns might finally be resolved.

Mark M. Baker, of counsel at Brafman and Associates, concentrates in motion and appellate litigation in the state and federal courts, as well as federal habeas corpus litigation.

Endnotes:

1. Pub. L. No. 104-132, 110 Stat. 1214.

2. Brown v. Artuz, 283 F.3d 492, 497 (2d Cir. 2002).

3. 28 U.S.C. §2254(d)(1); emphasis added.

4. Carey v. Musladin, 549 U.S. 70 (2006); Rodriguez v. Miller, 537 F.3d 102 (2d Cir. 2008).

5. Carey v. Musladin, 549 U.S. at 74, citing Williams v. Taylor, 529 U.S. 362, 412 (2000).

6. 549 U.S. 70 (2006).

7. 529 U.S. 362, 412 (2000).

8. 549 U.S. at 74; emphasis added.

9. 425 U.S. 501, 503-506 (1976).

10. 475 U.S. 560, 568 (1986).

11. 549 U.S. at 74.

12. 549 U.S. at 76.

13. 549 U.S. at 77; emphasis added. See also Wright v. Van Patten, U.S. 128 S. Ct. 743 (2008), where the Court reversed a grant of habeas relief by the Seventh Circuit which had concluded that an attorney’s participation in plea discussions by conference call required a per se vacatur under United States v. Cronic, 466 U.S. 648 (1984), rather than a consideration of prejudice under Strickland v. Washington, 466 U.S. 668 (1984), since “[n]o decision of this Court . . . squarely addresses the issue in this case . . . [citation omitted], or clearly establishes that Cronic should replace Strickland in this novel factual context.” 128 S. Ct. 746.

14. 537 F.3d 102 (2d Cir. 2008).

15. 537 F.3d at 109.

16. 2008 WL 1945350 (E.D.N.Y. 2008).

17. Id., at *6 [footnoted omitted].

18. Id.

19. 2008 WL 1945350, at *7.

20. Id. Likewise, Judge Lipez would void the “unreasonableness” requirement of 28 U.S.C. §2254(d) since it “direct[s] federal courts to deny relief in the face of a constitutional violation . . . , [and] requires the ‘involuntary participation of the federal judiciary’ in the continuing breach of a habeas petitioner’s right not to be unlawfully detained [internal quotes omitted].” Evans v. Thompson, 524 F.3d 1, 2008 WL 1735297 at *5 (Lipez, J., dissenting).