The case is Hawthorne v. Schneiderman, decided on August 20. Hawthorne was convicted in state court for criminal possession of a weapon and assault. After the crime was committed, Hawthorne was questioned by the police without his Miranda rights. At the suppression hearing, his lawyer did not cross examine the relevant law enforcement officers about the confession, though he did so at trial. The state appellate court did not address this issue other than to throw in the usual language to the effect that "the defendant's remaining contentions are without merit." The Second Circuit (Cabranes, Lohier and Calabresi) says that that state court's decision does not represent an unreasonable application of clearly established federal law because a conceivable argument could have been that "the evidence elicited by the defendant at trial would likewise have been elicited by competent counsel at the [suppression] hearing, and that that evidence did not merit suppression of the evidence."
Did you see where I said this was a "conceivable argument"? That's because the Appellate Division did not actually adopt that reason. The Second Circuit uses this hypothetical argument for purposes of determining whether the cursory treatment given the issue at the state appellate court satisfied federal habeas standards. The Second Circuit says it is constrained to reach this result based on precedent.
Judge Calabresi will have none of this. He suggests "this is one of the rare cases in which a habeas petitioner may well be innocent" because Hawthorne was convicted solely on the basis of a confession that he says was coerced. What bothers Calabresi is that habeas law has reached the point where we worry about technical errors that cast doubt on the fairness of the criminal conviction without worrying about guilt or innocence. In addition, Calabresi argues, federal courts have to think of a conceivable reason why the conviction might have passed constitutional muster in the state appellate courts, as in this case. He explains,
This is not comity. If anything, it is insulting to New York. We impute a view to its courts that they have never in fact espoused. We then deride that view as wrong, even clearly wrong under federal appellate court precedents, just not unreasonably wrong under prior Supreme Court holdings. But why should one assume that New York courts, if they actually considered the federal question involved, would decide it differently from the bulk of federal appellate courts?The better approach, Judge Calabresi suggests, is for state courts to have the option of dispensing with the constitutional arguments and to allow the federal courts to deal with them on a habeas petition. "This would advance AEDPA’s purpose of ensuring meaningful habeas review while preventing the statute from imposing—contrary to its purposes—an unmanageable burden on state courts to police federal law. State courts would be free to decide issues of federal law if they wished, and when they did, federal courts would be required to defer to them. But state courts would not be forced to take on that task if they preferred not to." However, the Second Circuit has rejected this approach. This forces Judge Calabresi to concur in the judgment.