Dual constitutional standards under 1996 habeas revisions

If you're convicted of a crime in state court, you can challenge the constitutionality of your conviction in federal court through a habeas corpus petition. They call habeas actions "The Great Writ," but Congress made habeas petitions harder to win in 1996. Under the revision, even if a federal judge thinks the state court conviction was unconstitutional, the defendant can still lose if the state appeals courts did not unreasonably apply settled constitutional standards.

The case is Dunlap v. Burge, decided on September 28. I recall that when Congress revised the habeas law in 1996, a few Senators said that they did not like federal courts second-guessing state-court constitutional judgments. The revisions prevent federal courts from granting habeas petitions unless the state appellate courts reached a decision that "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." Even if the state court's constitutional analysis is incorrect, the federal court cannot second-guess that analysis unless the state court's application of Supreme Court precedent is "unreasonable."

Dunlap was convicted of robbing a taxi driver after the driver and another passenger identified Dunlap in a photo identification procedure. We call this a photo array. Both witnesses were shown two sets of photos. Each set included Dunlap's picture. While other evidence also pointed to Dunlap's guilt, including the otherwise unexplainable presence of Dunlap's apartment key in the cab, Dunlap had a good habeas argument: the photo arrays violated Simmons v. United States, 390 U.S. 377 (1968), where the Supreme Court said that impermissibly suggestive photo arrays are unconstitutional. In Simmons, the defendant and a decoy were both featured in separate photo arrays. This increases the likelihood that the defendant will be singled out as the perpetrator.

The federal court in White Plains said that Dunlap's photo array violated the principle outlined in Simmons. The Second Circuit says the federal judge overlooked his obligation to consider whether the state appellate court had unreasonably applied Simmons in upholding the conviction. As the Second Circuit notes, "It is not sufficient for a habeas petitioner to convince the district court that the state court applied a federal legal standard incorrectly; instead the petitioner must demonstrate that the legal standard was applied in a way that was objectively unreasonable." The federal court's failure to apply this standard means the state court's judgment is upheld, particularly since the Court of Appeals finds that the state court's ruling was not objectively unreasonable, no matter how an experienced federal judge interprets the constitution in the same case. (The state appellate court was sold on the argument that the dual photos of Dunlap featured him in different poses, which decreased the likelihood of suggestive identification).

What an ironic legal standard set up by Congress in changing the habeas rules. I get the sense from reading these opinions that the Court of Appeals is aware of the irony: that there are two legitimate interpretations of the same Constitution, the federal standard and the state standard. An inmate stays in jail even if a federal court thinks his conviction was unconstitutional so long as the state interpretation of the constitutional standard is not so far off base as to be unreasonable. Dual constitutional standards, deferring to state court interpretations of the same document. Or, in certain circumstances, two U.S. Constitutions, one for federal court and one for state court.