Month: November 2017

On October 30, 2017, the Supreme Court heard argument in Wilson v. Sellers, a case regarding the standard of review federal courts should apply to a final state court denial of habeas relief.
In 1996, Marion Wilson, Jr. was sentenced to death after being found guilty of a series of violent crimes culminating in the murder of Donovan Parks. At sentencing Wilson’s counsel argued that Wilson was not the triggerman and offered evidence of his troubled childhood; in response the state prosecutor highlighted Wilson’s criminal history and gang activity. Wilson’s conviction and sentence were affirmed on direct appeal. Wilson sought habeas relief in state superior court, claiming that his trial counsel offered ineffective assistance in his investigation of mitigation evidence during the trial phase of the murder trial. He offered lay testimony about his childhood and expert testimony regarding his judgment skills. The superior court denied habeas relief, concluding that the lay testimony was cumulative of other evidence offered at trial as well as inadmissible, and that the expert testimony would not have changed the outcome of the trial. In a one-sentence order, the Georgia Supreme Court summarily denied Wilson’s subsequent application for a certificate of probable cause to appeal.
Wilson then sought habeas relief in federal district court. The district court denied relief, but granted a certificate of appealability on the issue of the effectiveness of Wilson’s trial counsel at sentencing. A panel of the U.S. Court of Appeals for the Eleventh Circuit affirmed the denial of habeas relief. Treating the Georgia Supreme Court’s summary refusal to grant a certificate of probable cause to appeal as the final state court decision on the merits, the Eleventh Circuit applied the test outlined by the U.S. Supreme Court in the 2011 case Harrington v. Richter, asking whether there was any reasonable basis for the Georgia Supreme Court to deny relief. The panel answered that question in the affirmative. Wilson obtained rehearing en banc before the full Eleventh Circuit, however, arguing that under the 1991 decision of the U.S. Supreme Court in Ylst v. Nunnemaker, the panel should instead have looked “through” the Georgia Supreme Court’s ruling back to “the last reasoned decision” by the state courts. By a vote of 6-5 the Eleventh Circuit disagreed, holding that federal courts need not “look through” a summary decision on the merits to review the reasoning of the lower state court.
The Supreme Court subsequently granted certiorari to address whether its decision in Harrington v. Richter abrogates the presumption set forth in Ylst v. Nunnemaker that a federal court sitting in habeas proceedings should “look through” a summary state court ruling to review the last reasoned decision.
To discuss the case, we have Lee Rudofsky, Solicitor General of Arkansas.

In this fun, pre-Thanksgiving episode, we delve into a number of interesting topics.  We begin with the popular (if much maligned by Thomas) card game "Cards Against Humanity" and their pitch to "save America."  Are you surprised that it turns into a deep dive about eminent domain?  (You shouldn't be.) After that, Andrew answers a listener question about whether, in fact, there are "magic words" in the law.  How does this relate to the infamous lawyer dog?  Listen and find out! Next, the guys discuss Trump's secret war on the judiciary, beginning with a judge less qualified than Thomas and most OA listeners.  It's depressing!  It's true!  It's... depressing. The episode closes with the answer to Thomas Takes the Bar Exam Question #50 involving hot rods, cruisin', and assault with a deadly car hood.  Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was a return guest on Episode 7 of the How-To Heretic Podcast; give it a listen! Show Notes & Links

1. Check out Cards Against Humanity Saves America!  Oh, and afterwards, give Episode 52 of Comedy Shoeshine a listen and hear how Thomas really feels about adult Apples-to-Apples!
2. You can read this Washington Post story about the infamous "lawyer dog" by clicking here.
3. And, of course, you can always read Kelo v. City of New London, 545 U.S. 469 (2005).

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