The realities of habeas corpus

This habeas corpus decision reminds us that it's quite hard to get a new criminal trial on the basis that your attorney did a bad job, resulting in your conviction.

The case is Waiters v. Lee, a summary order issued on November 9. Waiters was convicted of murder in the second degree, or intentional murder. He claims that his trial lawyer failed him in not asking the judge to allow the jury to enter a manslaughter verdict. Not requesting that jury charge, Waiters says, constituted ineffective assistance of counsel. He says the jury could have convicted him on the lesser charge and found he acted recklessly because he was intoxicated at the time of the homicide.

This argument could work. But it doesn't work because of the way habeas corpus law works in the federal system. First, to win an ineffective assistance argument, you have to prove that "every fairminded jurist would agree that every reasonable lawyer would have made a different decision." I know of no more deferential standard of review than that one. Also, under the 1996 federal habeas law, you have to show that the constitutional violation contradicted clearly-established Supreme Court authority. That's also tough to prove, since the Court has not addressed every conceivable criminal issue. You need a slam-dunk case to win a habeas case.

There are no Supreme Court cases that hold that a criminal attorney must request a manslaughter charge in a case like this. Moreover, lower courts find that it is a matter of attorney strategy to request such a charge; strategy decisions like this are within the lawyer's discretion, and they can "go for broke" in deciding on what charges to request at trial. That's what Waiter's lawyer did at trial, and he specifically told the jury that the issue was not whether Waiters was reckless. Strategy decisions like this are almost unreviewable in a habeas corpus proceeding.