Danta Davis v. Dennis Straub, Warden
445 F.3d 908
6th Cir.
2006
Check Treatment
Docket

*1 HOOD, Circuit Judges; Chief District ritt in his panel decision, dissent from the Judge.* Straub, (6th Davis v. * Hood, Joseph The Honorable Kentucky, sitting by designation. M. Chief United Judge States District for the Eastern District

909 Smith, banc); Cir.2005) (Merritt, J., Wiggins 539 dissenting), re- see also v. U.S. 510, 520, 2527, from the decision 123 S.Ct. 156 L.Ed.2d 471 spectfully dissent deny rehearing en banc. court (holding to “a federal a grant when court has misap relief state I. plied legal to a set governing principle a of AEDPA, grant- to from we are limited facts different those of the case in Under (inter court petitioner’s principle a state announced” ing relief where which the was to, omitted)). ... “adjudication contrary ... or quotation nal marks Conse of, clearly es- application an unreasonable clearly have found quently, courts law.” [Supreme Court] tablished Federal Supreme law established even where 2254(d). § that to This means 28 U.S.C. precedent factually Court does not rest “clearly estab- constitutes determine what Johnson, “on all fours.” Lewis v. 359 F.3d law, to the law established lished” we look (3d 646, Cir.2004); 655 Hart v. Attorney not its by holdings, Court Supreme Florida, 884, F.3d Gen. the State 323 (6th Stine, 431 F.3d 959 dicta. Lakin v. (11th Cir.2003); 893 n. 16 Burdine v. Cir.2005) Birkett, 404 (citing Ruimveld v. (5th Johnson, 336, Cir.2001); 262 F.3d 354 (6th Cir.2005)); 1006, also 1010 see F.3d (9th 1103, Prunty, v. 1110 Torres 223 F.3d Alvarado, 652, 124 541 Yarborough v. U.S. .2000). Cir (2004); 2140, 158 L.Ed.2d 938 S.Ct. Reading application” the “unreasonable 529 120 Taylor, Williams v. 2254(d)(1) to require clause of Section An S.Ct. all facts between cases to be on fours explicit Supreme from Court statement would conflate clause with the “con- rather, necessary; legal princi- “the Williams, 529 trary to” clause. See flowing [Supreme ples and standards (stating 120 1495 two “clearly qualify also as precedent” Court] given mean- “independent clauses must be Ruimveld, F.3d at law.” 404 established application prong The unreasonable ing”). Withrow, Taylor 1010 (quoting more than requires a nuanced Cir.2002)). (6th Thus, “clearly 852 it and panel gives only bright- law includes not established” give process, the Court has failed rules, legal “the governing line but also “independent meaning.” Id. clauses As by the principle principles set forth remarked, majori- Judge Merritt to a Supreme designed apply Court” first at ty’s “approach apparently looks range Lockyer contexts. v. An- of factual extracts narrowest facts drade, 1166, 155 123 S.Ct. situation, legal rule to fit that possible Williams, (2003); 529 144 see L.Ed.2d then, no predictably finding upon (observing 1495 U.S. at fours, un- precedent resting on all clearly application es- unreasonable clearly law.” no established covers a law occurs when state tablished federal (Merritt, J., dissenting). F.3d at “unreasonably refuses to ex- court decision wrong. inquiry limited Because context legal] principle tend to a new [a always will differ some the facts of cases legal princi- “A apply”). where it should manner, “unreasonably a where state court definition, applies to diverse factual ple, legal] principle [a extend refuses to can scenarios. And those factual scenarios apply,” context where it should new they ways, long as differ innumerable so Williams, 529 U.S. at point which the analogous on necessarily will not “strike Polk, that error legal principle applies.” Robinson v. five-week-old, (4th Cir.2006) wrong the force of with (King, F.3d 225 & dead Parts Elec. unrefrigerated denial fish.” senting from the Elec., Inc., Motors, Sterling example, Inc. For as Judge Merritt dis- (7th Cir.1988). Instead, cussed, ineffective assistance clearly the extent to which es- determine counsel standard is a broad rule whose principles, such legal tablished as the two application to new factual situations still ease, in this govern constitutes established law. Con- *3 scenarios, diverse factual we must deter- sequently, I think we can all that general mine how the are and the jurispru- Court’s they applicable whether to new factual dence, attorney sleeping through trial Clearly situations. established law does provide would ineffective assistance of in the Supreme not mean “a case counsel. A attorney case where the lis- facts, directly point just exactly on the on tened to music headphones played on Davis, you you.” like the case have before games during video trial would likewise at 297 constitute ineffective assistance. We Kennedy proper Justice characterized the would not review the case and deter- inquiry, adopted by been the mine, believe the majority’s West, Court, Wright 277, v. 505 U.S. dictate, approach would that the Su- 308-09, 112 S.Ct. 120 L.Ed.2d 225 preme yet Court has not that found lis- (1992) J., (Kennedy, concurring): tening to music or playing games video If in question the rule is one which of during trial constitutes ineffective assis- necessity requires case-by-case a exami- tance of counsel and therefore find no evidence, nation of the then we can to- clearly point. established federal law on a specific lerate number of applications hypothetical illustrates the absurdi- saying without applications those ty of the narrow and the con- themselves create a new ... rule Where imposes straints on federal courts’ beginning point the is a rule of this ability remedy constitutional viola- general application, a designed rule tions. specific purpose the of evaluating myr- a The result is that this Court’s narrow contexts, iad of factual it will be the reading of the application unreasonable infrequent yields case that a result so prong judicial offends the power under rule, it forges novel that a new one not Article III. approach, Under this narrow by precedent. dictated “case-by-case” view is turned Davis, (Merritt, See also 430 F.3d at 292 now, on its it is not infrequent “the head— J., dissenting) (acknowledging that the Su yields case that a result so novel that it preme adopted Court has “spectrum rule, forges a new by one not dictated Lane, Teague abstraction of 489 U.S. precedent,” Wright, 505 U.S. at J., (Kennedy, S.Ct. 2482 concurring), but (1989), to determine whether particular a infrequent rather case is the one legal principle established at any where this Court precedent finds on time”). the relevant “Applying general point. an approach yields Such the au- specific standard to a case can demand a thority interpret federal law to the state substantial element of judgment. As a 2254(d)(1) courts and uses Section as a result, evaluating applica whether a rule Davis, (Merritt, “crutch.” 430 F.3d at 298 tion was requires unreasonable considering J., Williams, dissenting); see specificity. rule’s general The more 378-79, (Stevens, J., at rule, 120 S.Ct. 1495 the more leeway courts have (“At reaching senting part) by judi- outcomes in the core of [the case case deter minations.” Yarborough, power cial] is the federal indepen- courts’ 124 S.Ct. 2140. dent responsibility independent from its — in the Govern- L.Ed. 834 (Rutledge, branches Federal coequal ment, separate J., independent dissenting); at 297 (Merritt, (“Such inter- authority the several States —to dissenting) A construction of AED- 2254(d)(1) federal law. pret §of renders it unconstitutional require that would the federal courts PA by our Court from preventing giving our authority to this the courts to cede legal independent judgment on the effect prac- would inconsistent with States of the evidence before us and leaving judges traditionally tice adjudicatory perform.’”). ‘no function in discharging their duties under followed hardly judicial This is power author Constitution.”); Cooper III Article ized under the Constitution where “[i]t Aaron, 1, 18, 78 duty emphatically province *4 (1958) (describing 5 “the basic L.Ed.2d judicial department say what the law judiciary is su- principle Madison, Marbury is.” 1 Cranch 5 in of law of exposition the the the preme 137, 177,2 L.Ed. 60 and permanent as “a indis- Constitution” only Not this does Court’s of sys- our feature of constitutional pensable 2254(d)(1) III, Article Section offend but it Robinson, tem”); see also 225 suspends writ corpus also the of habeas in J., dissenting from the denial of (King, I, violation of Article 9 of Section banc) (“While entirely rehearing en interpretation This Constitution. Court’s that our under AEDPA must review 2254(d)(1) broadly of Section “so circum- deferential, read and AEDPA’s be of corpus scribes the writ habeas that we narrowly essentially is provisions so ab- full cannot reach the merits of the consti- our to use the Great responsibility dicate tutional issue[s] before us.” 430 court unreasonably when a state Writ at 299 “The law applied clearly established federal Constitution, Suspension of Clause Court.”). by the Supreme determined carefully which circumscribes the condi- judges may umpires call- Federal tions can be with- the writ puts but Article III us ing balls and strikes held, a sham if it could be evaded would be game plate. in the and behind home by congressional of prescription require- relegates AEDPA reading of require- ments other than common-law adjudicatory “no function spectators with prosecu- ment committal criminal Klein, perform.” States v. 13 United of writ, available, though tion that render 128, 146-47, 20 L.Ed. Wall. 80 U.S. Rumsfeld, Hamdi v. 542 U.S. unavailing.” (1871); United States v. Sioux Nation 2633, 2672, 159 L.Ed.2d 578 Indians, S.Ct. 448 U.S. of (2004) (Scalia, (emphasis in (1980); dissenting) see Ya- States, narrow original).1 Under this Court’s kus United Blackstone, judicious Paper of the In Federalist No. Alexander servations Hamilton, latter, worthy well he wrote that: to the reference person, by ... "confinement of the recital: Independent those which re- [answers] secretly hurrying jail, where his suf- him to government, we late the structure forgotten, ferings are unknown or is a less following: 9 [Article find ----Section I] and, striking, public, therefore a more a less privilege writ of clause of the ha- 2—"The dangerous engine arbitrary government.” corpus suspended, not be beas shall unless remedy he And as a for this fatal evil when in of rebellion or invasion the cases everywhere peculiarly emp- is may require [Blackstone] public safety [T]he arbitrary imprisonments, hatical in his encomiums on habeas- practice been, act, corpus place he ages, which in calls "the and most one all favorite tyranny. The ob- Bulwark of the British Constitution.” formidable instrument of theory stand, the writ is available but Davis called to the standard When Jourdan illusory in fact. prosecutor brought to the court’s at- tention Jourdan’s Fifth Amendment privi-

II. lege against self-incrimination. Jourdan case, proper In this and constitutional privilege by refusing exercised that to tes- 2254(d)(1) interpretation of Section would tify. Jourdan was never threatened with writ to issue. Two such require the prosecution. if Even he were threatened principles apply here: clearly established with prosecution, prior his statements (1) Amendment, a Under the Sixth state already against would be admissible him— arbitrarily deny may not a defendant the thus, presence his crime scene testimony right to call witness whose established, already overwhelmingly and defense, and material to the relevant testimony his could do no further harm. Texas, Washington v. 388 U.S. Nevertheless, in- Jourdan was allowed to (1967), 1920, 18 L.Ed.2d 1019 privilege. voke the not permit- Davis was a witness not invoke the self-in eyewitness testimony ted to introduce privilege danger crimination unless the probably would have him exonerated probable,” “imaginary “real and murders, in violation of his Sixth Amend- Walker, unsubstantial,” Brown v. *5 so, right ment to do and he was then 40 L.Ed. 819 (1896), convicted and multiple can fur sentenced to con- and “where there be no incrimination, ther there is no basis for current life sentences. privilege,” the assertion of the Mitchell v. majority’s The narrow construction of States, United prevents AEDPA granting this court from L.Ed.2d 424 The the writ corpus, despite of habeas concluded that these “clearly aforementioned prin- established”

were not established because the ciples that should applied require to Supreme in applied Court has not them a new trial at which indistinguishable case with Davis would be allowed facts. This contrary Supreme is Court put exculpatory Jourdan’s testimony be- precedent applying general principles to jury. fore the new factual situations and I would hold As Supreme Court in foresaw Walk- Michigan of Appeals’ Court deci Mitchell, er and there a point reaches unreasonably applied clearly sion estab where a piece of evidence—in this case lished federal law under the Fifth and presence Jourdan’s at the scene of the Sixth Amendments. parties crime—which all only issue, A witness to the murders at Jour- incriminating in the most minimal and dan, pre-trial made a series of statements way, remote overwhelmingly is so indisputably place Jourdan at the definitively established that it cannot be scene of the crime and strongly tend to constitutionally used to stonewall intro- Davis, petitioner exonerate who has consis- duction of other evidence that is highly tently maintained his innocence. Jour- exculpatory of a criminal defendant. pre-trial place dan’s statements full blame The Fifth Amendment not be so person on a named Bell who has confessed prompted and used as a shield for Davis, to -the murders. See 430 F.3d at flaw the state’s used such (“It [or] (Merritt, J., dissenting) was clear way a mechanistic it subsumes a nothing his statements that he had criminal do with the murder and defendant’s Sixth Amendment neither did Davis observed.”). whose right present behavior Jourdan a defense.

Davis, at 294 principles dis-

senting). governing The Supreme case with align this

cussed above and it was unreasonable precedent,

Court Appeals to de- Michigan

for the here.

cline

III. majori-

Judge said it best. “The Merritt tri-

ty’s achieves unfortunate decision misapplying

fecta of U.S.C.

jurisprudence 2254(d)(1), judi- Article III

§ gutting power ‘suspending’

cial while writ stranding probably

habeas corpus, for life.” prison

innocent inmate (Merritt,

430 F.3d at 291 Writ, Blackstone called

The Great what Constitution,” the British

“the Bulwark of named in the United States writ

Constitution, deserving of such

undistinguished death. dissent from denying

Court’s decision these errors.

banc correct *6 HARRELL,

Rodney Plaintiff-

Appellant, SERVICE,

UNITED STATES POSTAL

Defendant-Appellee. 03-4204.

No. Appeals,

United States Court Circuit.

Seventh 24, 2004. Sept.

Argued 19, 2005. July

Decided Dec. 2005.

Reargued 4, May

Decided