Since the Founding, the constitutional privilege of habeas corpus has been a “vital instrument for the protection of individual liberty.”1 For prisoners found guilty by state courts, federal habeas review is often the last hope to reverse an unjust conviction.2 Under 28 U.S.C. § 2254(d),3 habeas relief is permitted to state defendants when a state court has made an “unreasonable application of[] clearly established Federal law,”4 a standard that the Supreme Court has interpreted narrowly.5 Thus, federal courts must sometimes respect state court decisions that may violate a defendant’s constitutional rights but are nonetheless “reasonable” under the Supreme Court’s interpretation of the term.6 Recently, in Sims v. Hyatte,7 the Seventh Circuit granted habeas relief to an Indiana prisoner, holding that the state court’s decision — which found evidence of a key witness’s hypnosis to be immaterial — was an “unreasonable application” of federal law.8 Sims was wrongly decided by a majority that did not adequately justify its grant of habeas relief. And far from being an outlier, Sims fits into a larger pattern of federal habeas jurisprudence wherein some federal judges are reluctant to obey the Supreme Court’s strict interpretation of § 2254(d).
In November 1993, security guard Shane Carey was sitting in his car around 7:00 p.m. when a man approached him, pulled out a gun, and shot him in the face through the driver-side window.9 The injured Carey made his way to a telephone, contacted the police, and provided a description of his assailant once they arrived.10 Carey was shown at least six photographs in the hospital that evening, including one photograph of Mack Sims,11 whom the police had arrested based on Carey’s description.12 Carey identified Sims as his assailant, and did so again in similar photographic lineups both two days and two weeks later.13 No witness other than Carey could provide a description of the shooter, nor was any firearm or physical evidence ever recovered, but Sims was charged with attempted murder.14 At trial, the prosecution leaned heavily on Carey’s identification of Sims.15 In response, the defense impeached Carey for several inconsistencies in his testimony16 and demonstrated that Carey’s identifications were not always accurate or “unequivocal.”17 Furthermore, Carey testified at trial that he may have been shown a single picture of Sims before any identification lineups occurred.18 Despite these issues, Sims was found guilty of attempted murder and sentenced to thirty-five years in prison.19
Over seventeen years later, in February 2012, a deputy prosecuting attorney revealed at a postconviction hearing that the prosecution had arranged and paid for Carey to undergo a pretrial session of hypnosis to “sharpen his recollection concerning the shooting.”20 The postconviction court immediately held a hearing in which the prosecution testified that the hypnosis had merely “made [Carey] more certain about his previous identifications of Sims.”21 The court denied Sims relief, holding that there was no reasonable probability that disclosure would have changed the result of the trial (the “materiality” standard required under Brady v. Maryland22) and that Carey’s testimony was admissible as a matter of Indiana law.23 The Court of Appeals of Indiana affirmed, finding that the record supported the lower court’s decision and stating that appellate courts could not “reweigh evidence.”24 The court acknowledged that under Indiana law, “[e]vidence derived from a hypnotically entranced witness is inherently unreliable . . . and is therefore inadmissible”25 unless the witness’s in-court identification had a “sufficient independent factual basis.”26 But it concluded that “Carey’s numerous pre-hypnotic descriptions and identifications of Sims [were] sufficient to establish an independent basis for his post-hypnotic in-court identification”27 such that there was no reasonable probability that the outcome of the trial would have been different had the hypnosis been disclosed.28 The Indiana Supreme Court declined relief on appeal.29
Having exhausted state remedies, Sims filed a federal petition for writ of habeas corpus, which the District Court for the Northern District of Indiana denied.30 The district court explained that under 28 U.S.C. § 2254(d), federal courts cannot grant such petitions unless the state court proceedings “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”31 or “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”32 The Supreme Court has interpreted this statute to mean that a state court decision “must be objectively unreasonable, not merely wrong; even clear error will not suffice.”33 The district court then held that under this high standard, habeas relief was not warranted in Sims’s case.34 While “[r]easonable jurists might disagree” with the state court’s application of the Brady rule, the court reasoned that “fairminded disagreement is not a basis for habeas corpus relief. Indeed, fairminded disagreement precludes habeas corpus relief.”35 Nevertheless, acknowledging the “troubling” facts and “difficult” implications posed by the case, the court issued a certificate of appealability.36
The Seventh Circuit reversed. Writing for the panel, Judge Bauer37 held that the state court’s decision was both contrary to and an unreasonable application of federal law when it mistakenly confused the question of Brady materiality with the separate standard of evidence admissibility.38 Judge Bauer began by defining the “clearly established” federal law regarding Brady disclosures, explaining that “suppression of strong and non-cumulative evidence related to the credibility of an important witness is material under Brady” when that witness’s testimony is “critical” to the prosecution, as Carey’s was.39 The majority held that the hypnosis evidence was material because had it not been withheld from the defense, Carey’s cross-examination would have changed dramatically.40 Such evidence would have “subjected [Carey’s testimony] to withering cross-examination” and ultimately “severely undermined” Carey’s credibility, which was crucial to the prosecution’s case.41 Because “the suppression of the evidence was clearly a violation under Brady,” Judge Bauer concluded, reversal was required.42
Judge Barrett dissented. Though she agreed that the undisclosed evidence of Carey’s hypnosis constituted a Brady violation,43 Judge Barrett argued that the majority had “fail[ed] to give the Indiana Court of Appeals the deference required by 28 U.S.C. § 2254(d).”44 Instead, the majority had simply, and wrongly, “ask[ed] whether the suppressed evidence of hypnosis create[d] a reasonable probability of a different result”;45 it had approached the case de novo in defiance of § 2254(d).46 To justify this decision, the majority opinion had mischaracterized the Supreme Court’s Brady jurisprudence47 and the reasoning of the Indiana courts (which had not conflated the Brady materiality standard with that for evidence admissibility).48 But in Judge Barrett’s view, the majority’s approach was still not enough to overcome the requirements of § 2254(d). Because the Indiana Court of Appeals had not erred “beyond any possibility for fairminded disagreement,” federal courts were not authorized to grant Sims’s habeas petition, even if they believed — as the Seventh Circuit did — that a Brady violation had occurred.49
Sims illustrates the ongoing tension between the Supreme Court’s interpretation of § 2254(d) and the federal courts that apply it. Section 2254(d) restricts the availability of habeas relief, and the Court’s subsequent jurisprudence has since imposed even tighter limits. In Sims, the majority did not apply the proper standard of review, which requires that no fairminded jurist disagree that habeas relief is warranted. Instead, the Seventh Circuit resisted the Supreme Court’s habeas requirements, just as some other circuits have recently done. This pattern of resistance oversteps the role of federal inferior courts, which should faithfully apply habeas law even when it precludes relief in hard cases.
Federal courts have limited power to grant habeas relief. While their ability to review state convictions grew throughout the twentieth century,50 so too did questions and concerns about judicial economy51 and federalism.52 By the mid-1990s, federal habeas review of state convictions had been labeled “the most controversial and friction-producing issue in the relation between the federal courts and the states.”53 To relieve this tension, Congress passed the Antiterrorism and Effective Death Penalty Act54 (AEDPA) in 1996, which established the current scope of habeas relief in what later became § 2254(d).55 The Supreme Court has defined the § 2254(d) standard to be exceptionally strict. In Williams v. Taylor,56 the Court held that an unreasonable application of federal law is more than simply an incorrect application.57 And in Harrington v. Richter,58 the Court limited the standard further by requiring that relief be granted only where no “fairminded” jurist could have agreed with the state court’s application of the law.59 Subsequent decisions have reaffirmed that the hurdle imposed by § 2254(d) is “extremely difficult for petitioners to overcome.”60
The Indiana court’s decision did not meet the required “fairminded jurist” standard articulated in Harrington; consequently, the Seventh Circuit should not have granted relief in Sims. A federal court may disregard a state ruling and grant a habeas petition only when the state ruling is “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”61 The majority opinion faulted the state court for failing to weigh the evidence according to the proper standard for Brady materiality; rather than considering the possible impeachment effects of the withheld evidence on the strength of the prosecution’s case, it reasoned, the state court relied too heavily on the evidence admissibility standard in its assessment.62 But this critique of the state court’s reasoning misses the point. Rather than asking if the state court ruled correctly, the Seventh Circuit should have asked “if fairminded jurists could disagree” about its ruling.63 The decisions of the courts below, together with the dissent, answer in the affirmative.
The majority’s failure to apply the proper standard in Sims embodies a wider trend of friction between the Supreme Court’s interpretation of § 2254(d) and the lower courts that must follow it. The Supreme Court has firmly and consistently overturned lower courts that, in its view, improperly grant habeas relief without satisfying § 2254(d).64 Originally, Williams was viewed by some courts of appeals as leaving an “interpretive gap” as to what constituted an “unreasonable application” of federal law; the Ninth Circuit, for instance, chose to apply a clear error standard.65 But in Harrington, the Court closed any possible gaps with the “no reasonable jurist” test that now binds lower courts.66 Federal judges — particularly those on the Sixth and Ninth Circuits — have chafed against this standard67 and continue to challenge the Supreme Court’s interpretation of § 2254(d).68 In Sims, the Seventh Circuit has joined these judges in resisting the Court’s standard when a state court’s judgment is clearly erroneous, but not objectively unreasonable.
But while federal judges may disagree with current habeas law, they are still required to follow it. The trend of circuit courts attempting to soften the Harrington standard merely proves the truism that “hard cases make bad law”;69 a factually difficult case like Sims should not become an opportunity for a federal court to “substitute[] its own judgment for that of [a] state court” without authorization.70 It is no secret that the Supreme Court’s habeas jurisprudence has many critics. Some argue that the Court’s rigid interpretation of the § 2254(d) standard is not required by the text of the statute, while others suggest that the Court’s reliance on the underlying principles of AEDPA — such as the “further[ance of] the principles of comity, finality, and federalism”71 — does not justify its rulings.72 Still others take issue with the “no fairminded jurist” test, noting that any habeas relief at the appellate level will often create disagreement among presumably fairminded federal jurists.73 But while such debate can help guide congressional lawmaking and Supreme Court jurisprudence, it has no place in determining the judgments of inferior federal courts. Even if circuit judges feel “compelled to place their stamp of approval on constitutional error” under the current standard,74 it is not their place to defy it.
In The Federalist No. 80, Alexander Hamilton noted that Congress would have “ample authority to make . . . exceptions” when federal jurisdiction was inadequate.75 With § 2254(d), Congress has done just that by allowing federal courts to grant relief to state defendants when federal law is unreasonably applied — but only then. The Supreme Court’s narrow interpretation of the statute can require federal courts to make a sobering choice: uphold the law, or correct an erroneous, but reasonable, state decision. Sims was wrongly decided because the Seventh Circuit chose the latter. While the proper scope of federal habeas review is a matter of ongoing debate,76 the role of federal judges in that debate is not. Many judges believe that “[f]ederal habeas corpus review of state criminal convictions is a mess.”77 But if these judges choose to challenge the Supreme Court’s clear standards rather than apply them, it will only get messier.