Good afternoon everyone,
With this email, I am inaugurating a new series of email updates on the Supreme Court. When the Court issues an order or opinion, I will send an email summarizing the highlights of the action. I will try to send them out the day of the action, but in any event will get them out by the next day. These updates will allow me to keep up to date on the Court, and, hopefully, will provide others with a way to follow the Court’s actions with minimal investment of time.
That being said, the Court issued three per curiam decisions today (all summarily reversing the 9th Circuit), and granted certiorari in five cases.
I’ll begin with the decisions. In INS v. Ventura (02-29), the Supreme Court held that the 9th Circuit erred by failing to remand a case to the Board of Immigration Appeals (BIA) for further factfinding. Ventura, an illegal immigrant from Guatemala, applied for asylum claiming that if he returned to Guatemala he would be subject to persecution based on his political opinions. An Immigration Judge denied his application, holding that (1) Ventura failed to qualify for asylum because any persecution he faced was not on account of his political opinions, and (2) even if he might have faced persecution for his opinions in the past, changed conditions in the country suggested that he would not face such persecution in the future. The BIA affirmed, finding that he did not face persecution on account of his political opinions, and declining to address the Immigration Judge’s alternative holding. On review of the BIA’s decision, the 9th Circuit reversed, holding that Ventura faced persecution in Guatemala on account of his political opinions and that it did not have to remand for further proceedings on the alternative holding because it was “clear” that that the agency could not resolve the issue (i.e., changed conditions) against Ventura. The Supreme Court reversed, holding that the 9th Circuit should have remanded the case to BIA for further proceedings on the alternative holding. The Court based its decision on basic principles of administrative law. Specifically, because the law entrusts the BIA with making asylum decisions, a court cannot substitute its judgment for the agency’s: “Generally speaking, a court of appeals should remand a case to an agency for decision of a matter that statutes place places primarily in agency hands.” The lower court’s failure to remand was “clear error” because it “seriously disregarded the agency’s legally mandated role,” created legal precedent on conditions in Guatemala, and failed to give the BIA the opportunity to address the issue in the first instance in light of its own expertise. The Court concluded by considering the record evidence relied upon by the 9th Circuit (a State Department report) and explaining why that evidence was insufficient to support its holding.
The Supreme Court also reversed the 9th Circuit in two habeas decisions. In Woodford v. Visciotti (02-137), the Court found that the 9th Circuit failed to give proper deference to a state court’s decision when it granted habeas relief under 28 U.S.C. 2254. Visciotti was sentenced to death for murder and related crimes, and after exhausting state remedies, he filed a habeas petition alleging ineffective assistance of counsel. The federal district court held that he had been denied effective assistance of counsel during the penalty phase of his trial, and therefore granted the habeas petition as to his sentence; the 9th Circuit affirmed. The Supreme Court reversed the 9th Circuit, finding that habeas relief was improper under federal law (28 U.S.C. 2254(d)) which only allows habeas relief if a state court’s decision on the issue is “contrary to” or “an unreasonable application of” clearly established federal law. In this case, the Court held, the state court’s decision was neither: it properly stated and applied the correct legal standards governing ineffective assistance claims. The 9th Circuit’s decision to the contrary reflected a “readiness to attribute error [to the state court that] is inconsistent with the presumption that state courts know and follow the law,” and incompatible with the deferential review given to state court decisions.
In Early v. Packer (02-1765), the Court similarly found that the 9th Circuit erred in granting habeas relief under 28 U.S.C. 2254(d). During the prolonged jury deliberations in Packer’s murder trial, the trial judge gave an “Allen charge,” recommending to the jury (and to one juror in private conversations) that they keep deliberating and attempt to reach a verdict. After the verdict, Packer appealed, and California courts upheld his conviction finding that the judge’s instructions were not coercive under state law. Packer petitioned for habeas, but the district court denied his petition. On appeal, the 9th Circuit reversed. California petitioned for review, and the Supreme Court reversed, finding that the 9th Circuit’s application of section 2254(d) (allowing habeas only if state court’s decision is “contrary to” federal law) flawed in several respects. First, contrary to the 9th Circuit’s holding, section 2254 does not require a state court to cite federal law, or even know about that law. It only requires the court to issue a decision that is not contrary to federal law. Second, and again contrary to the 9th Circuit’s holding, the state court had properly applied the correct “totality of the circumstances test” for evaluating a judge’s jury instructions. Third, the 9th Circuit erred by finding that the state court decision was contrary to Jenkins v. US, 380 U.S. 445 (1965) and United States v. United States Gypsum Co., 438 U.S. 422 (1978). Those decisions were based on federal law, but were not constitutional decisions, and thus had no applicability to state court proceedings. Finally, the Court held that the state court’s decision was not “unreasonable”: “Even if we agreed . . . that there was jury coercion here, it is at least reasonable to conclude that there was not, which means that the state court’s determination to that effect must stand.”
In addition to these decisions, the Court granted certiorari in 5 cases. In two cases (consolidated by the Court), Nguyen v. United States (01-10873) and Phan v. United States (02-5034), I have been unable to quickly locate the questions presented; I will send them out when I find them. The other granted cases are listed below:
Ryan v. Telemarketing Assoc., 01-1806: Does the First Amendment categorically prohibit a state from pursuing a fraud action against professional fundraiser who represents that donations will be used for charitable purposes but in fact keeps the vast majority (85 ) of all funds donated?
Roell v. Withrow, 02-69: When district court, upon plaintiff’s written consent, refers case to magistrate judge for trial under 28 U.S.C. 636(c), and all parties, magistrate judge, and jury proceed in manner consistent with that referral, must court of appeals sua sponte vacate judgment for lack of jurisdiction because defendants did not expressly consent, or can defendants cure that alleged defect by confirming, in post-judgment filing with district court, their consent to trial before magistrate judge?
Dow Chemical Co. v. Stephenson, 02-271: (1) Are absent class members precluded from relitigating issue of adequacy of representation through collateral attack on class settlement, after class members had full opportunity to opt out, object, and appeal, and after both trial court and court of appeals, in course of approving settlement, expressly determined that class representatives adequately represented entire class? (2) If collateral attack is permissible, is “adequacy of representation” issue properly determined as of time of original litigation or in light of events and changes in law occurring years after settlement has become final and all of settlement proceeds have been disbursed?
Those are the highlights for today. I welcome any feedback or comments on the summaries.
Sandy
From the Appellate Practice Group at Wiggin & Dana.

For more information, contact Jeff Babbin or Sandy Glover
at 203-498-4400, or visit our website at www.wiggin.com.