An AEDPA Sum Rev on Circuit Precedent and “Clearly Established” Law

Already, “clearly established” law is a clearly established theme of this term’s summary reversals. I’ve been posting on recent qualified immunity cases, including the summary reversal in Carroll v. Carman. Yesterday’s summary reversal, Glebe v. Frost, is an AEDPA case that touches on similar issues–with the significant difference that AEDPA expressly focuses on clearly established Supreme Court precedent. (Many thanks to Ronald Mann for pointing out this aspect of Glebe.)

Here’s the most relevant passage from Glebe, which I’ve broken up into two paragraphs:

Attempting to bridge the gap between Herring [a Supreme Court precedent] and this case, the Ninth Circuit cited two Circuit precedents—United States v. Miguel, 338 F.3d 995 (C.A.9 2003), and Conde v. Henry, 198 F.3d 734 (C.A.9 2000)—for the proposition that “preventing a defendant from arguing a legitimate defense theory constitutes structural error.” 757 F.3d, at 916. As we have repeatedly emphasized, however, circuit precedent does not constitute “clearly established Federal law, as determined by the Supreme Court.” §2254(d)(1); see, e.g., Lopez v. Smith, 574 U.S. ––––, –––– (2014) (per curiam ) (slip op., at 6).

The Ninth Circuit acknowledged this rule, but tried to get past it by claiming that circuit precedent could “ ‘help … determine what law is “clearly established.” ’ ” 757 F.3d, at 916, n. 1. But neither Miguel nor Conde arose under AEDPA, so neither purports to reflect the law clearly established by this Court’s holdings. The Ninth Circuit thus had no justification for relying on those decisions. See Parker v. Matthews, 567 U.S. ––––, –––– (2012) (per curiam ) (slip op., at 13).

The Ninth Circuit’s idea here was that circuit precedent might clarify just what is and isn’t “clearly established law.” In making this point, the Ninth Circuit had relied on Duhaime v. Ducharme, one of its own decisions from 2000. Here is the key language from Duhaime:

[T]he writ will issue only when the state court decision is “contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d). This does not mean that Ninth Circuit caselaw is never relevant to a habeas case after AEDPA. Our cases may be persuasive authority for purposes of determining whether a particular state court decision is an “unreasonable application” of Supreme Court law, and also may help us determine what law is “clearly established.”

It is remarkable that, in the Ninth Circuit, this statement has apparently been citable law on AEDPA since 2000–at least until yesterday’s summary reversal in Glebe.

Duhaime calls to mind Michael Dorf’s recent suggestion on qualified immunity:

I can see a legitimate argument for saying that there might be cases where Supreme Court precedent falls just short of clearly establishing that what the particular officer did violated rights, but that a federal appeals court case is enough to push the case over the edge. The idea (which I’m only advancing very tentatively) is that the federal appeals court plays a special role in this sort of case: It makes it harder for the officer to say “it never occurred to me that the Supreme Court case applied to facts like these.”

Though only “very tentatively” suggested, this line of thinking could provide some basis for Duhaime‘s conclusion–or something like it–and might be useful in other areas where clearly established circuit precedent is at issue.

In the Glebe passage quoted earlier, the Supreme Court responded to the Ninth Circuit by noting that the relevant circuit cases didn’t deal with AEDPA and so didn’t “purport[] to reflect” clearly established Supreme Court precedent. Instead, the circuit precedents were just circuit precedents, which is what AEDPA says doesn’t qualify.

The cite at the end of Glebe is to this passage from Parker v. Matthews, a unanimous summary reversal from 2012:

[C]ircuit precedent does not constitute“clearly established Federal law, as determined by the Supreme Court,” 28 U. S. C. §2254(d)(1). It therefore cannot form the basis for habeas relief under AEDPA. Nor can the Sixth Circuit’s reliance on its own precedents be defended in this case on the ground that they merely reflect what has been “clearly established” by our cases. … To make matters worse, the Sixth Circuit decided Gall II under pre-AEDPA law[,] so that case did not even purport to reflect clearly established law as set out in this Court’s holdings.

In both Glebe and Parker, the Court came close to disqualifying all non-AEDPA circuit precedent from consideration under AEDPA’s §2254(d)(1). That rule would have a certain appeal for the Justices, since it would make it easier for them to police the circuits: if the Court keeps a close watch on AEDPA cases, then it can rest assured that it’s exhaustively monitoring all precedent capable of triggering a habeas release order under §2254(d)(1). And, to the extent that the Court disqualifies circuit precedent, policing the circuits would also get much easier in each case. The Court would be able to focus exclusively on lower-court citations to the US Reports. Circuit-court discussions of circuit case law would be discouraged, and in any event could just be ignored.

But what if a non-AEDPA circuit decision does expressly “purport” to say what is and isn’t clearly established Supreme Court precedent? Could that kind of statement be viewed as circuit authority on what qualifies as clearly established Supreme Court precedent? Perhaps we’ll see that permutation arise in the years ahead.



Filed under Habeas, Immunity, Supreme Court

3 responses to “An AEDPA Sum Rev on Circuit Precedent and “Clearly Established” Law

  1. Dan Schweitzer


    I think the Supreme Court answered your question in Marshall v. Rodgers (2013) (per curiam), in which it summarily reversed the Ninth Circuit and wrote:

    The Court of Appeals’ contrary conclusion rested in part on the mistaken belief that circuit precedent may be used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that this Court has not announced. Parker v. Matthews, 567 U. S. ___, ___ (2012) (per curiam) (slip op., at 12–13). . . . The error in this approach is subtle, yet substantial. Although an appellate panel may, in accordance with its usual law-of-the-circuit procedures, look to circuit precedent to ascertain whether it has already held that the particular point in issue is clearly established by Supreme Court precedent, see, e.g., Tolliver v. Sheets, 594 F. 3d 900, 916, n. 6 (CA6 2010) (“We are bound by prior Sixth Circuit determinations that a rule has been clearly established”); Chambers v. McDaniel, 549 F. 3d 1191, 1199 (CA9 2008), it may not canvass circuit decisions to determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to this Court, be accepted as correct. See Parker, supra, at ___ (slip op., at 12–13); Renico v. Lett, 559 U. S. 766–779 (2010). The Court of Appeals failed to abide by that limitation here. Its resulting holding was erroneous and must be reversed.

    So if I understand your question correct, the answer is yes: a circuit court can rely on its own authority for what constitutes law that has been clearly established by the U.S. Supreme Court.


  2. Dan,

    Many thanks as ever for your habeas expertise! I hadn’t been aware of that passage from Marshall v. Rodgers, so thank you very much.

    I do wonder, though, whether that language would necessarily control in the scenario I envisioned–that is, a circuit-level habeas decision relying on non-AEDPA circuit precedent. In saying that a circuit may follow “its usual law-of-the-circuit procedures” to identify “clearly established by Supreme Court precedent,” Rodgers cites circuit cases applying 2254(d)(1). And those cases in turn cited other circuit decisions applying 2254(d)(1). So Rodgers seems to have been contemplating circuit precedent on AEDPA. That is the kind of thing that Parker and Glebe think is OK as well.

    But does that language from Rodgers go further and guarantee that a *non-AEDPA* circuit case can identify clearly established Supreme Court precedent? Imagine that a circuit started relying on direct-appeal or qualified-immunity cases saying that certain Supreme Court precedents “clearly” establish this or that proposition. Perhaps the broad Rodgers language would prevail there, but it also seems possible that the Court would identify that half sentence from Rodgers as dicta, or read it narrowly in light of its context to apply only to AEDPA cases. — Unless, of course, you have another cite for that specific scenario as well!

    By the way, this discussion has made me focus on how odd it is that the Supreme Court goes out of its way in these summary reversals to criticize circuits for misunderstanding their own circuit precedent. I suppose this could be happening either to underscore the erroneousness of the circuit decisions or perhaps to impose a particular vision of how “usual law-of-the-circuit procedures” should operate.

    Again, many thanks for sharing that very relevant authority!

  3. Pingback: “Clearly Established” Circuit Law in Good-Faith Suppression Cases | Re’s Judicata

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