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| Paul Shechtman |
In the late U.S. Circuit Judge Stephen Reinhardt's words, AEDPA "resembles a twisted labyrinth of deliberately crafted legal obstacles that make it difficult for habeas petitioners to succeed in pursuing the writ as it would be for a Supreme Court Justice to strike out Babe Ruth, Joe DiMaggio and Mickey Mantle in succession."[1]
Principal among AEDPA's provisions that make relief so difficult to obtain are those that require federal judges to give extraordinary deference to state court rulings, both on the law and the facts. It is not enough that the state court's constitutional decision was wrong; it must be so wrong that, as the U.S. Supreme Court held in 2011 in Harrington v. Richter, there is "no possibility fair-minded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents."[2]
The U.S. Court of Appeals for the Eleventh Circuit's Dec. 12 decision in Acklin v. Commissioner, Alabama Department of Corrections, provides an object lesson in how AEDPA can prevent meaningful review of a significant legal issue.
In 1996, along with two accomplices, Nicholas Acklin held seven people hostage at gunpoint in a Huntsville, Alabama, apartment, torturing them for two hours, before shooting and killing three of them himself and attempting to kill two others, while an accomplice fatally shot a fourth. The home invasion occurred because Acklin's two accomplices had been arrested a week earlier for stealing a cellphone from the apartment, and they sought revenge against whoever had complained. Acklin and his accomplices grew furious when none of the occupants could answer the question of "who filled out the warrant."
The issue that eventually reached the Eleventh Circuit was whether Acklin's trial counsel had a financial conflict of interest that denied Acklin his Sixth Amendment right to effective assistance of counsel.
The conflict was this: Prior to trial, Acklin's counsel, Behrouz Rahmati, had entered into a retainer agreement with Acklin's mother, Velma, in which she promised to pay a $25,000 retainer fee, due in full before trial, which Rahmati would bill against to pay his $150 hourly rate. Velma also promised to pay more, should Rahmati's hourly fees exceed the retainer.
The problem was that Velma apparently had almost no money and was able to pay only $2,000 in small increments. Acklin's father, Ted, however, agreed to pitch in, paying $2,900, but more than $50,000 was owed when the trial commenced.
Two days before the October 1998 trial began, Velma told Rahmati that Ted had severely abused her and their children. If Ted "was mad at the kids," she disclosed, "he would hold them down, put a gun to them [and] threaten to kill them."
Rahmati then "met with Ted to determine if the allegation was true and, if it was, to ask him to testify about the abuse," telling him it "could help [Acklin's] case as mitigating evidence." When Ted learned of the disclosure, he was visibly angry. He told Rahmati that "you tell [my son] if he wants to go down this road, I'm done with him."
Soon thereafter, Rahmati met privately with Acklin in jail to ask about the allegation. Acklin confirmed the abuse, but said that he did not want it to be used as evidence in his case. Rahmati then had Acklin sign a typewritten document stating that he did not want evidence of the domestic abuse presented in mitigation in a sentencing proceeding if he were found guilty.
The jury found Acklin guilty of the murders. In the sentencing phase, Rahmati called Ted as a witness, who described his son as a "good kid" raised in a "God-fearing home." He called himself an "overly protective" father and denied ever having a serious disciplinary problem with Acklin. Unmoved, the jury recommended a death sentence, 10-2.
Under then-Alabama law, a judicial sentencing proceeding followed. Again, Ted spoke about his relationship with his son, telling the judge he "was raised in a Christian home ... [with] hard work, good values, to love and respect others," but "somehow [Acklin] slipped." In imposing the death penalty, the judge stated that Acklin "was exposed to all of the values that are central to an ordered society; however, he chose to reject them."
After the Alabama courts denied his direct appeals, Acklin, represented by new counsel, filed a state postconviction petition, in which he alleged that trial counsel had a conflict of interest resulting from Ted's threat to stop paying attorney fees if evidence of abuse was presented. At a hearing, the new counsel introduced evidence of Ted's abuse from Velma and Acklin's brothers. He also presented a record of a state investigation of an incident in which Ted admitted to pulling a gun on Acklin and telling him, "I brought you into the world, and I can take you out of it."
The state postconviction court ruled against Acklin, and the Alabama Court of Criminal Appeals affirmed, holding that trial counsel did not have an "actual conflict of interest."[3] After the Alabama Supreme Court denied review, Acklin sought certiorari from the U.S. Supreme Court, with former Solicitor General Donald Verrilli Jr. on the petition.
The petition argued that from the moment of Ted's threat, Acklin's trial counsel labored under an obvious and extreme conflict of interest: "To ensure that he was paid for his work he would have to forego putting on the most compelling mitigation evidence available." Acklin's waiver, the petition asserted, was "the product of the conflict of interest, not the cure." The petition urged the court to grant plenary review or even summary reversal.
Four distinguished professors of legal ethics submitted an amicus brief, arguing that Acklin's trial counsel faced a "severe and undisclosed conflict of interest," and that the Alabama court's decision cried out for review. Legal ethics rules, they emphasized, require an attorney in the position of Acklin's trial counsel to forego receiving money from the third-party payor, to obtain informed consent from his client after disclosing the conflict or to terminate the representation.[4]
Acklin's counsel had taken none of those paths. He had instead ventured forward, calling Ted at the sentencing hearing to give testimony that, as the ethics professors wrote, was "at best misleading, at worst perjurious, and in any event unhelpful."
The posture of the case when Acklin sought certiorari gave him some cause for hope. If the Supreme Court agrees to review a state postconviction decision, the court considers the legal issue anew; it is not required to apply the extraordinary deference that AEDPA mandates for a federal habeas judge. But review at this stage is not easily obtained.
In 2021, Z. Payvand Ahdout, now an associate professor at the University of Virginia School of Law, published an article in the Columbia Law Review titled "Direct Collateral Review."[5] In it, she discussed the Kyles presumption — the Supreme Court's practice of not hearing cases originating on state postconviction review.
As the late Justice John Paul Stevens wrote in 1990 when concurring with the court's denial of petition for certiorari in Kyles v. Whitley,[6] the court "rarely grants review at this stage of the litigation even when the application for state collateral relief is supported by arguably meritorious federal claims. ... Instead the Court usually deems federal habeas proceedings to be the more appropriate avenues for consideration of federal constitutional claims."
Ahdout argued that the Supreme Court's practice was changing — that it was steadily granting certiorari in such cases, indicating "a sub silentio abrogation of the [Kyles] presumption" and providing "a harbinger of the Court's future certiorari practice." Because it is not bound by AEDPA's deference to state court decisions, direct collateral review allows the court, in Ahdout's words, "to ensure continued doctrinal development and to vindicate the ends of individual justice."
Ahdout's prediction, however, has not proven true: From 2019 to present, the court has taken only two cases originating from state postconviction decisions. Acklin's certiorari petition was denied, leaving him to pursue federal habeas relief.
Under AEDPA, a federal court may grant a habeas petition only if the state court decision is "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States."[7] Thus, as the Supreme Court held in Shinn v. Kayer in 2020, it is not enough that the state court decision is "'merely wrong' or 'even clear error'"; the decision "must be so obviously wrong that the error lies 'beyond any possibility for fair-minded disagreement.'"[8]
The measuring stick for assessing a state court's ruling is the holdings, not the dicta, of Supreme Court decisions.[9] And, as the court ruled in Brown v. Davenport in 2022, "holdings that speak only at a high level of generality" cannot supply a ground for relief under AEDPA.[10]
The law states that a federal habeas court may also grant relief if a state court decision is "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."[11] But that pathway is also demanding. As the Supreme Court held in Wood v. Allen in 2010, "a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance."[12]
Applying these exacting standards, the U.S. District Court for the Northern District of Alabama denied Acklin's habeas petition, and the Eleventh Circuit affirmed.[13]
To show that the state court's decision was an unreasonable application of clearly established federal law, Acklin relied on the Supreme Court's 1980 decision in Cuyler v. Sullivan,[14] which holds that if an actual conflict of interest adversely affected counsel's performance, a defendant need not demonstrate prejudice to obtain relief; prejudice is presumed. Sullivan is an exception to the 1984 decision in Strickland v. Washington,[15] which requires a defendant to show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
But the Eleventh Circuit observed that Sullivan involved a conflict caused by multiple representations — one lawyer representing two defendants — and the Supreme Court has not extended it beyond that context. Circuit courts have done so, but their decisions do not count in AEDPA analysis.[16]
The idea that Sullivan is not clearly established law except in multiple-representation cases is strongly supported by the Supreme Court's 2002 decision in Mickens v. Taylor,[17] as the Eleventh Circuit recognized in Acklin. In Mickens, defense counsel had previously represented the victim of the murder with which Mickens was charged. In the Supreme Court, Mickens argued that the trial court's failure to inquire into the potential conflict required automatic reversal of his conviction.
In writing the Mickens decision, the late Justice Antonin Scalia rejected that argument. Importantly for present purposes, he added a cautionary note at the end of his opinion. Mickens, he wrote, had been argued on the assumption that if the trial court's failure to inquire did not mandate automatic reversal, "Sullivan would be applicable requiring a showing of deficient performance, but not requiring in addition (as Strickland does in other ineffectiveness-of-counsel cases) a showing of probable effect upon the outcome of the trial."
That assumption, however, was problematic. To be sure, courts of appeal "had applied Sullivan 'unblinkingly' to all kinds of conflicts," "even when representation of the defendant implicates counsel's ... financial interest," but Sullivan did not "clearly establish, or indeed, even support, such expansive application." Justice Scalia's last sentence was this: "Whether Sullivan should be extended [beyond multiple-representative cases] remains, as far as the jurisprudence of this Court is concerned, an open question."
When the Supreme Court observes that a legal principle is not clearly established in its jurisprudence, a habeas petitioner, like Acklin, has no chance of prevailing.
Even assuming that Sullivan could count as clearly established law on a financial conflict-of-interest claim, Acklin faced a second high hurdle. The state court's factual findings were entitled to deference. The state appellate court found: (1) that there was no actual conflict of interest, and (2) that any conflict did not adversely affect Acklin's trial counsel's performance, the two predicates for the Sullivan presumption.
On the first issue, the state court observed that Ted had not made an explicit threat to stop paying trial counsel if abuse evidence was offered. It interpreted his words as directed at withdrawing emotional support from Acklin, as Ted was visiting his son in jail weekly, and ceasing to help build a mitigation case, as Ted was identifying character witnesses. That may not have been the best reading of Ted's words, but the Eleventh Circuit held that it was not convincingly wrong.
Nor was the state court convincingly wrong in finding that Rahmati did not expect to get paid, so that a threat of nonpayment was meaningless. At the postconviction hearing, Rahmati had given that testimony — the money "wasn't important" — and the Eleventh Circuit concluded that the state court was not clearly wrong in crediting it.
The state court also found that Rahmati did not present evidence of abuse because Acklin had opposed it. In support of that finding, the state court again relied on Rahmati's hearing testimony. Acklin, he testified, had insisted that he didn't "want to ruin [his] parents' lives [by] hav[ing] anything like this come out." For the state court to credit Rahmati's testimony was not unreasonable, and so an AEDPA court had no choice but to accept it.
In short, both on the law and the facts, Acklin's habeas petition was doomed to failure.
Acklin may well have been sentenced to death for his multiple murders even if the abuse evidence was presented in mitigation. But it wasn't presented, and he was left with little to convince the jury, and ultimately the judge, to spare his life. If anything, Ted's false testimony was counterproductive.
Most importantly, Acklin reveals much about the current state of habeas corpus jurisprudence. If the Supreme Court continues to adhere to the Kyles presumption and declines to review cases on direct collateral review, when deference to the state court's decision is not required, and if the lower courts adhere to AEDPA's deference provisions, as they must, few individuals in state custody will succeed in having their convictions overturned in federal court.
The obstacles to reversal are all but insurmountable; the great writ has ceased being great.
Paul Shechtman is a visiting lecturer in law at Yale Law School.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] Reinhardt, The Demise of Habeas, 113 Michigan Law Rev. 1219 (2015).
[2] Harrington v. Richter
, 562 U.S. 86 (2011).[3] Acklin v. Alabama
, 2017 WL 6398544 (Ala. Crim. App.). [4] See ABA Model Rules of Professional Conduct, Rule 1.7.
[5] 121 Col. L. Rev. 159 (2021).
[6] Kyles v. Whitley
, 498 U.S. 431, 432 (1990) (application for stay).[7] 28 U.S.C. §2254(d)(1).
[8] Shinn v. Kayer
, 592 U.S. 111, 118 (2020).[9] White v. Woodall
, 572 U.S. 415, 419-20 (2014). [10] Brown v. Davenport
, 596 U.S. 118, 136 (2022).[11] 28 U.S.C. §2254(d)(2).
[12] Wood v. Allen
, 558 U.S. 290 (2010).[13] Acklin v. Commissioner
, 2024 WL 5087460 (11th Cir. 2024).[14] Cuyler v. Sullivan
, 446 U.S. 335 (1980).[15] Strickland v. Washington
, 466 U.S. 668 (1984).[16] See Marshall v. Rogers
, 569 U.S. 58, 64 (2013)("Circuit precedent may not be used to refine or sharpen a ... principle of Supreme Court jurisprudence into a specific legal rule that [the Supreme Court] has not announced").[17] Mickens v. Taylor
, 535 U.S. 162 (2002).For a reprint of this article, please contact reprints@law360.com.
