Split Noted: Is Cumulative Error Doctrine Clearly Established For AEDPA? Plus AEDPA Commentary

Per Lott v. Trammell (10th Cir. Jan. 24)

I will not claim to have read all of this 100+ page effort.  Given the length and the subject--AEDPA--I assume without basis that it capital case.

Ah, AEDPA.  The other 1996 statute that certain liberal jurists love to hate.  Nowadays, to grant habeas relief to a state prisoner, a federal court must find that the state court's decision was either (1) contrary to, or (2) an unreasonable application of, (3) clearly established Federal law.

The split noted here concerns the third element; whether the cumulative error doctrine is clearly established.  Clearly established Federal law is limited to the holdings of SCOTUS.   In finding cumulative error analysis clearly established, the CA9 cites three different SCOTUS cases.  On the opposite side of the split is, bizarrely, the CA6.  I say bizarrely because the CA6 has actually been spanked more times on AEDPA recently than the CA9.

 Even more bizarrely, at least for me, I believe the CA9 is right.  The holding of  Chambers v. Mississippi, 410 U.S. 284 (1973), is on point.  Chambers's "claim, the substance of which we accept in this opinion, rests on the cumulative effect of those rulings in frustrating his efforts to develop an exculpatory defense."  Id. at 290 n.3.

But I actually want to discuss AEDPA's second element in light of some recent civil tort work I've been doing.  For a state court opinion to be "an unreasonable application of" Supreme Court law, it must be such that no reasonble jurist could possibly agree.  This standard is functionally the same as the "no reasonable litigant" standard established for objective baselessness by PRE, 506 U.S. 49, 55-61 (1993).

But there is one difficulty.  Any number of cases could be cited for the proposition that, if you get one judge (even in dissent) to agree with your position, that position cannot be objectively baseless as a matter of law.  Thus, for purposes of Noerr immunity, courts are willing to assume that all jurists act reasonably.

In contrast, any number of cases could be cited where habeas was granted based on a state appellate court's unreasonable application of Supreme Court law.  No longer is one lone voice enough to demonstrate reason.  Now federal courts are willing to overrule even a majority of their state brethren.

Obviously, this disparity can be explained by having a thumb on the scale of constitutional rights.  The any judge standard of PRE's progeny protects the First Amendment right to petition, while lack of any similar standard protects convicts right to due process.

But I think the more likely explanation is outcome-oriented jurisprudence.  In a private dispute, there generally are not any larger principles or constitutional visions at stake.  Whereas in habeas, the entire focus is on the larger principles of criminal justice.  Thus, even though the standards call for the same amout of deference, certain jurists are simply less willing to defer in the latter situation than the former.