The Circuit Limits AEDPA's Deferential Standard of Review Where New Evidence is Presented in Petitioner's Federal Habeas Claim

Today the Sixth Circuit released its decision in a non-capital habeas case, Brown v. Smith, Case No. 06-2295, granting petitioner's writ. Chief Judge Boggs, joined by Judge Moore, wrote the opinion while Judge Clay filed a separate concurrence also joined by Moore. The petitioner, who was convicted of sexually molesting his teenage daughter, claimed that counsel had been ineffective in failing to investigate and obtain the daughter's counseling records, which contained substantial material for impeachment. The court agreed, finding that because the prosecution's entire case hinged on the daughter's testimony, it was constitutionally deficient for counsel not to seek in camera review of the records. Further, because the records would have provided several points of impeachment of the daughter's testimony, the evidence was not cumulative, and since there was relatively little evidence to support the conviction in the first place, the court found the petitioner was prejudiced by counsel's failure.

Particularly interesting in this case is the treatment by both Boggs and Clay of the standard of review under AEDPA. The court declined to apply the deferential standard of review because the counseling notes were not on the record before the state court, which explicitly stated that its review was limited to mistakes apparent on the record. Boggs analogized petitioner's IAC claim to Brady claims in which the Brady material was discovered only during federal habeas proceedings, and therefore AEDPA deference would not apply to an earlier state court determination regarding different exculpatory material. Presupposing that the threshold standard is met, that 1) petitioner is not at fault for failing to develop the evidence in state court and; 2) if petitioner is at fault, the 2254(e)(2) exceptions apply, the same principles applied to new Brady claims would apply generally to any new claim involving new evidence. Judge Clay's concurrence emphasized that this ruling was an "important and natural progression in the circuit's jurisprudence on this issue," in that this standard of review is no longer limited to Brady claims. In expanding the application of Joseph v. Coyle, 469 F.3d 441 (6th Cir. 1006), Clay explained there can be no adjudication on the merits where the petitioner was unable to put critical evidence before the state court, regardless of whether the court has purported to resolve that particular claim, and the federal court must determine whether that claim was properly addressed.