Cash v. Maxwell ( 2012 )

Cite as: 565 U. S. ____ (2012) 1
SCALIA, J., dissenting
SUPREME COURT OF THE UNITED STATES
BRENDA CASH, ACTING WARDEN v. BOBBY JOE
MAXWELL
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 10–1548. Decided January 9, 2012
JUSTICE SCALIA, with whom JUSTICE ALITO joins, dis-
senting from denial of certiorari.
The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA) put an end to federal-district-court readju-
dication of issues already decided, with full due process
of law, in state criminal cases. It provides that a writ of
habeas corpus challenging a state criminal conviction
shall not be granted with respect to any claim “adjudicated
on the merits in State court proceedings,” unless that state
adjudication
“(1) resulted in a decision that was contrary to, or in-
volved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme
Court of the United States; or
“(2) resulted in a decision that was based on an un-
reasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28
U. S. C. §2254(d).
We have called this a “difficult to meet . . . and highly
deferential standard” which “demands that state-court
decisions be given the benefit of the doubt,” Cullen v.
Pinholster, 563 U. S. ___, ___ (2011) (slip op., at 9) (inter-
nal quotation marks omitted). It forbids federal courts “to
second-guess the reasonable decisions of state courts,”
Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 12).
I believe that in this case the United States Court of
Appeals for the Ninth Circuit unquestionably ignored
2 CASH v. MAXWELL
SCALIA, J., dissenting
these commands—thereby invalidating two 26-year-old
murder convictions which the intervening loss of witnesses
and evidence will likely make it impossible to retry. I dis-
sent from the Court’s decision not to grant certiorari and
summarily reverse the Ninth Circuit’s judgment.
I
In the late 1970’s, 10 homeless men were murdered in
downtown Los Angeles—a series of murders that came to
be known as the “Skid Row Stabber” killings. Respondent
Bobby Joe Maxwell was charged with all 10 murders, and
in 1984 a California jury convicted him of two counts of
first-degree murder and one related count of robbery.
Maxwell was sentenced to life imprisonment without the
possibility of parole, and his convictions were affirmed on
direct appeal.
In 1995, Maxwell filed a habeas corpus petition in the
California Supreme Court, alleging that a prosecution
witness, Sydney Storch, had given false testimony at trial.
Storch, a former cellmate of Maxwell’s, had testified that,
after reading the newspaper account of a palm print’s be-
ing found at the scene of one of the murders, Maxwell
stated he was not prone to that type of mistake because he
“wore gloves with the fingers cut off so as to keep his
hands warm and leave his fingers free.” 3 Record 537.
The California Supreme Court issued an order to show
cause whether Maxwell was entitled to relief based on his
allegation of false testimony, returnable to the Superior
Court. After conducting an evidentiary hearing that
extended over the course of two years and included the
testimony of more than 30 witnesses and the introduction
of over 50 exhibits, the Superior Court issued a 34-page
opinion concluding that Storch had not lied and denying
the habeas petition. App. to Pet. for Cert. 137. In 2001,
Maxwell again filed a habeas petition in the California
Supreme Court, alleging, inter alia, that the State had
Cite as: 565 U. S. ____ (2012) 3
SCALIA, J., dissenting
violated his right to due process by failing to disclose cer-
tain evidence relating to Storch. See Brady v. Maryland,
373 U. S. 83, 87 (1963). The court summarily denied the
petition. App. to Pet. for Cert. 105.
Maxwell then filed a petition for writ of habeas corpus
under §2254 in the United States District Court for the
Central District of California, renewing his claims that his
conviction violated his right to due process because (1) it
was based on the false testimony of Storch; and (2) the
State failed to disclose favorable and material evidence
regarding Storch. The District Court dismissed the peti-
tion, id., at 47, but the Ninth Circuit reversed. Maxwell v.
Roe, 628 F. 3d 486 (2010).
II
A
First, the Ninth Circuit set aside the state habeas
court’s determination that Storch had not fabricated his
testimony. It based that action on nothing more than
circumstantial evidence indicating that Storch was gener-
ally an untruthful person. For example, the court pointed
to various mistruths Storch purportedly told at trial (re-
garding, for example, his criminal history and his motiva-
tion for coming forward). But as the Ninth Circuit itself
recognized, those lies “d[o] not alone establish that Storch
lied about the confession.” Id., at 501. The Ninth Circuit
also concluded that Storch “misrepresented his sophistica-
tion and experience as a jailhouse informant.” Ibid. This
finds no support in the record. App. to Pet. for Cert. 119–
120. Storch’s only testimony as to his informant history
was that he had never before testified for the district
attorney, 3 Record 551; no evidence in the habeas record
contradicts that. The Ninth Circuit went on to conclude
that Storch had a history of falsely implicating individu-
als. But any evidence of this, as the state court noted, was
highly speculative, see, e.g., App. to Pet. for Cert. 136—
4 CASH v. MAXWELL
SCALIA, J., dissenting
and two officers testified at the state evidentiary hearing
that in various cases Storch had provided them with accu-
rate and reliable information. Id., at 125–126. Finally,
the Ninth Circuit accorded significance to trials subse-
quent to Maxwell’s in which Storch allegedly testified
falsely. The state court had concluded that these post-
trial events did not establish the falsity of Storch’s testi-
mony, id., at 136–137, and the Ninth Circuit apparently
agreed, see 628 F. 3d, at 503 (“The evidence of Storch’s
later lies under oath does not establish the nature of his
testimony at Maxwell’s trial”).*
In sum, the evidence relied on by the Ninth Circuit
might permit, but by no means compels, the conclusion
that Storch fabricated Maxwell’s admission. And that
leaves out of account (just as the Ninth Circuit inexplica-
bly did) the other evidence suggesting that Storch was not
lying—including testimony that Maxwell confessed the
crime, indeed confessed the crime much more explicitly,
to two cellmates other than Storch. The statement of
JUSTICE SOTOMAYOR makes its task far too easy by setting
out to show the unreasonableness of the California court’s
statement that there was “no credible or persuasive evi-
dence Sidney Storch lied,” ante, at 1 (internal quotation
marks omitted). It is not the court’s statements that are
at issue here. To establish even a wild exaggeration is not
to establish what §2254(d)(2) requires: that the state
court’s “decision . . . was based on an unreasonable deter-
——————
* The evidence identified by JUSTICE SOTOMAYOR is similarly incon-
clusive, and the state habeas court reasonably discounted it. For in-
stance, the so-called “manual,” ante, at 2, is all but illegible, 2 Record
461; as the state court recognized, the portions that can be read do not
reveal whether Storch was instructing another inmate to “provid[e]
substance or style.” App. to Pet. for Cert. 133. And the opinion of the
prosecutor who declined to use Storch in a trial that postdated Max-
well’s by nearly three years, ante, at 2, was deemed “unconvincing” by
the state court, since it was based on jail records of questionable
accuracy. App. to Pet. for Cert. 134.
Cite as: 565 U. S. ____ (2012) 5
SCALIA, J., dissenting
mination of the facts.” The only factual determination
necessary to support the California court’s decision was
that Maxwell had not established that Storch lied. And it
is of course that point to which the California court di-
rected its attention. (“[Certain evidence] does little to
establish whether [Storch] lied about [Maxwell’s] admis-
sions in 1984.” App. to Pet. for Cert. 136.) What JUSTICE
SOTOMAYOR calls “the overwhelming evidence supporting
the conclusion that Storch falsely testified at Maxwell’s
trial,” ante, at 3, consists of nothing more than evidence
which establishes, at most, that Storch was an habitual
liar. That may well provide reason to suspect that Storch
testified falsely at Maxwell’s trial; or even to think it likely
that Storch testified falsely; but it does not remotely sup-
port the conclusion that it was unreasonable to determine
that Maxwell had not established that Storch testified
falsely. In finding the state court’s determination not
merely wrong but unreasonable, the Ninth Circuit plainly
did what we have said §2254(d) forbids: It “use[d] a set of
debatable inferences to set aside the conclusion reached by
the state court.” Rice v. Collins, 546 U. S. 333, 342 (2006).
To make matters worse, having stretched the facts, the
Ninth Circuit also stretched the Constitution, holding that
the use of Storch’s false testimony violated the Fourteenth
Amendment’s Due Process Clause, whether or not the
prosecution knew of its falsity. See 628 F. 3d, at 506–507.
We have never held that, and are unlikely ever to do so.
All we have held is that “a conviction obtained through use
of false evidence, known to be such by representatives of the
State, must fall under the Fourteenth Amendment.”
Napue v. Illinois, 360 U. S. 264, 269 (1959) (emphasis
added). This extension of due process by the Ninth Circuit
should not be left standing.
B
The Ninth Circuit also concluded that the California
6 CASH v. MAXWELL
SCALIA, J., dissenting
Supreme Court unreasonably applied Brady. In its view,
the prosecution committed a Brady violation by failing to
disclose two pieces of impeachment evidence: (1) the dif-
ference between Storch’s original plea deal and the plea
deal Storch negotiated independently from his public
defender after he offered to testify; and (2) Storch’s coop-
eration with law enforcement officials in the years preced-
ing Maxwell’s trial. The Ninth Circuit said that this
evidence was material to Maxwell’s guilt, (which is what a
violation of Brady requires, see Strickler v. Greene, 527
U. S. 263, 280 (1999)), because “Storch’s testimony was
crucial to the prosecution’s case” and the evidence “could
have been used to undermine” Storch’s credibility. 628
F. 3d, at 512.
Neither of these contentions is remotely true. As for the
“crucial” nature of Storch’s testimony: Storch was just one
of four cellmates who recounted Maxwell’s incriminating
statements, and there was ample other evidence of Max-
well’s guilt, including an eyewitness identification and
evidence of Maxwell’s palm print near one of the murder
scenes. And as for the potential utility of the undisclosed
evidence in refuting Storch’s less-than-crucial testimony:
According to the Ninth Circuit, evidence that Storch origi-
nally had a plea deal of 36 months, which improved to 16
months after he offered to testify, would have “provided
Maxwell with impeaching evidence relevant to Storch’s
motivation for testifying.” Id., at 510. But the jury al-
ready knew that Storch would not have testified without a
deal. Storch said on the stand that he faced the possibility
of six years’ imprisonment on pending charges and re-
ceived a 16-month deal in exchange for his testimony; and
responded in the negative when asked whether he “would
be willing to bring forth this story and tell the D. A. to
forget the kindness that he is showing towards” him.
3 Record 562–563. The additional knowledge that he
secured a deal that improved his sentence from 36 months
Cite as: 565 U. S. ____ (2012) 7
SCALIA, J., dissenting
to 16 months (rather than from six years to 16 months)
would have done nothing to reduce the jurors’ belief in his
testimony.
The Ninth Circuit also erred in concluding that evidence
of Storch’s prior activity as a police informant would have
helped to contradict his testimony that he had never
before testified for the district attorney. See 628 F. 3d,
at 511. The recitation of this non sequitur is its own
refutation.
Finally, the Ninth Circuit’s conclusion that both pieces
of evidence could have been used to establish Storch’s
sophistication as an informant does not hold water. To
begin with, the court erred in its belief that Storch “inde-
pendently negotiated” the new deal, id., at 498. While it
was true enough that Storch “worked a deal . . . without
his public defender,” id., at 510, that does not establish
that he negotiated a deal on his own. As Maxwell ac-
knowledges, Storch “obtained a private lawyer to work
out” the deal. Brief in Opposition 14. Moreover, the jury
was aware of this fact because Storch himself testified to
it. 3 Record 596. And it is incomprehensible how the
substitution of a 16-month-instead-of-36-month deal for a
previous 16-month-instead-of-6-year deal demonstrates
Storch’s sophistication. Of similarly questionable value is
evidence of Storch’s prior activity as a police informant.
Contrary to the Ninth Circuit’s intimations, this would not
have portrayed Storch as a wheeler-dealer who trumped
up stories to receive decreased sentences. Indeed, there
was no evidence that Storch received anything in ex-
change from the police, App. to Pet. for Cert. 125–126, and
as I have described, supra, at 3–4, two officers testified at
the evidentiary hearing that information he provided them
was reliable.
In view of the evidence, it is not possible to say that the
California Supreme Court’s denial of the claim “was so
lacking in justification that there was an error well under-
8 CASH v. MAXWELL
SCALIA, J., dissenting
stood and comprehended in existing law beyond any pos-
sibility for fairminded disagreement.” Harrington v.
Richter, 562 U. S. ___, ___ (2011) (slip op., at 13). In fact,
it seems clear that Maxwell was not entitled to relief.
* * *
It is a regrettable reality that some federal judges like to
second-guess state courts. The only way this Court can
ensure observance of Congress’s abridgement of their
habeas power is to perform the unaccustomed task of
reviewing utterly fact-bound decisions that present no
disputed issues of law. We have often not shrunk from
that task, which we have found particularly needful with
regard to decisions of the Ninth Circuit. See, e.g., Cavazos
v. Smith, 565 U. S. 1 (2011) (per curiam) (reinstating
California conviction for assault on a child resulting in
death); Felkner v. Jackson, 562 U. S. ___ (2011) (per curi-
am) (reinstating California conviction for sexual attack on
a 72-year-old woman); Premo v. Moore, 562 U. S. ___
(2011) (reinstating Oregon conviction for murder of a
kidnaped victim); Knowles v. Mirzayance, 556 U. S. 111(2009) (reinstating California first-degree murder convic-
tion); Rice v. Collins, 546 U. S. 333 (2006) (reinstating
California conviction for cocaine possession); Kane v.
Garcia Espitia, 546 U. S. 9 (2005) (per curiam) (reinstat-
ing California conviction for carjacking and other offens-
es); Yarborough v. Gentry, 540 U. S. 1 (2003) (per curiam)
(reinstating California conviction for assault with a deadly
weapon); Woodford v. Visciotti, 537 U. S. 19 (2002) (per
curiam) (reinstating capital sentence for California pris-
oner convicted of first-degree murder, attempted murder,
and armed robbery). Today we have shrunk, letting stand
a judgment that once again deprives California courts of
that control over the State’s administration of criminal
justice which federal law assures. We should grant the
petition for certiorari and summarily reverse the Ninth
Circuit’s latest unsupportable §2254 judgment.