Supreme Court Update: Burt v. Titlow (12-414), Stanton v. Sims (12-1217) and Cline v. Oklahoma Coalition for Reproductive Justice (12-1094)

November 5, 2013 Supreme Court Update

Greetings, Court fans!

Today, the Court handed down Burt v. Titlow (12-414), reinforcing the deferential standard of review applicable in habeas proceedings involving claims of ineffective assistance of counsel by state prisoners, and yesterday the Court issued a short per curiam decision in Stanton v. Sims (12-1217), upbraiding the Ninth Circuit in a qualified immunity case. But this week has been even more notable for what the Court decided not to decide – more on that below.

Burt v. Titlow (12-414) is up first. After Vonlee Nicole Titlow helped her aunt, Billie Rogers, murder Rogers' husband, Titlow's attorney brokered a deal with state prosecutors under which Titlow agreed to testify against Rogers and plead guilty to manslaughter in exchange for a 7- to 15-year sentence. All went as planned under the court-approved agreement until three days before Rogers' trial, when Titlow retained a new attorney, Frederick Toca, who, on his client's behalf, demanded a substantially lower minimum sentence in exchange for Titlow's testimony and guilty plea. When the prosecutor declined, Titlow withdrew her plea and acknowledged that she understood that reinstatement of a first-degree murder charge was a consequence. Without Titlow's testimony, Rogers was acquitted. But Titlow herself wasn't so lucky: she was convicted following a jury trial and sentenced to a 20- to 40-year prison term.

On direct appeal, Titlow alleged that Toca provided ineffective assistance because he advised withdrawal of the guilty plea before he studied the state's evidence and learned the strength of the case against his client. The Michigan Court of Appeals disagreed, holding that it was not objectively unreasonable for Toca to advise his client – who had proclaimed her innocence of any crime yet was days away from self-incriminating at Rogers' trial when she hired Toca – not to plead guilty. Reviewing Titlow's federal habeas petition, the federal district court applied the deferential standard of review mandated by the Anti-Terrorism and Effective Death Penalty Act (AEDPA) and found the Michigan Court of Appeals' ruling "completely reasonable on the law and the facts." But the Sixth Circuit reversed, finding that the state appellate court's decision was based on an unreasonable interpretation of the factual record: while the state court concluded that the plea withdrawal was based on Titlow's claim of innocence, Toca in fact had explained at the withdrawal hearing that the decision was grounded in the fact that the plea-bargained sentence was substantially higher than state guidelines. The Sixth Circuit then concluded that Toca rendered ineffective assistance because the record did not reflect that he fully informed Titlow of the consequences of withdrawing her plea.

The Court reversed, in a decision written by Justice Alito and joined by the Chief and Justices Scalia, Kennedy, Thomas, Breyer, Sotomayor, and Kagan. Under AEDPA, when a federal habeas petitioner challenges the factual basis for a state court decision rejecting a claim, the federal court may only overturn the state court decision if it was "based on an unreasonable determination of the facts in light of the evidence presented" in state court. AEDPA also mandates a deferential standard for reviewing claims of legal error: state court legal determinations will stand unless they were "contrary to, or involved in an unreasonable application of, clearly established Federal law, as established by" the Supreme Court. The Court had no trouble concluding that the record "readily support[ed]" the Michigan Court of Appeals' factual finding that Toca advised withdrawal of the guilty plea as a result of Titlow's claim of innocence. Likewise, and in light of that factual determination as well as a strong presumption under Strickland v. Washington that counsel has rendered adequate assistance, it was reasonable for the state appellate court to determine that Toca provided effective assistance when he advised his client – who was proclaiming her innocence – against self-incriminating at Rogers' trial.

Justice Sotomayor wrote a separate concurrence to underscore that, even when a defendant asserts her innocence, her attorney must make an independent examination of the facts, law, and circumstances in order to advise a client about what plea she should enter in light of the risks of trial. Justice Ginsburg also wrote separately, and concurred only in the judgment. She was "dubious" of the state court's conclusion that Toca acted reasonably when, without sufficient time to assess Titlow's case and without even consulting Titlow's first lawyer, he told his client that he could try the case and win. Despite what may well have been bad advice, however, Justice Ginsburg acknowledged that once Titlow refused to testify against her aunt, the bargain failed and could not be renewed.

In Stanton v. Sims (12-1217), Officer Mike Stanton was responding to a call about an "unknown disturbance" when he observed a man whose behavior appeared suspicious. Stanton ordered the man to stop, but the man disobeyed the order – a misdemeanor under California law – and instead entered the gate of a six-foot tall wooden fence surrounding a private home. Stanton kicked open the gate in pursuit. Unfortunately, the owner of the home, Drendolyn Sims, was standing behind the gate, and sustained injuries on her shoulder and forehead. Sims filed a § 1983 action against Stanton, alleging that he unreasonably searched her home without a warrant.

The District Court granted summary judgment to Stanton, finding that his entry was justified, and that, alternatively, he was entitled to qualified immunity. The Ninth Circuit reversed, finding that the entry was unconstitutional because Sims was entitled to an expectation of privacy in her curtilage, there was no immediate danger, and the suspect had only committed the minor offense of disobeying a police officer. The Ninth Circuit further held that Stanton was not entitled to qualified immunity because the law was clearly established that pursuit upon suspicion of a misdemeanor offense does not justify warrantless entry.

Addressing only the qualified immunity holding, the Court reversed the Ninth Circuit. Since there was no suggestion that Stanton knowingly violated the Constitution, the question was whether, based on existing precedent, he was "plainly incompetent" in kicking down Sims' gate to pursue the misdemeanor suspect. Running through the caselaw, the Court found that the law was not clearly established, given that "[t]wo opinions of this Court were equivocal on the lawfulness of his entry; two opinions of the State Court of Appeal affirmatively authorized that entry; the most relevant opinion of the Ninth Circuit was readily distinguishable; two Federal District Courts in the Ninth Circuit had granted qualified immunity in the wake of that opinion; and the federal and state courts of last resort around the Nation were sharply divided."

The Court declined to express any view on the Ninth Circuit's holding that Sims' entry was unconstitutional, however, meaning that officers in that Circuit will want to think twice before conducting warrantless searches in pursuit of persons suspected only of misdemeanors.

Also yesterday, the Court dismissed as improvidently granted the writ of certiorari in Cline v. Oklahoma Coalition for Reproductive Justice (12-1094), which would have tested the constitutionality of an Oklahoma law requiring that abortion-inducing drugs such as RU-486 be administered according to the protocol described on the drugs' FDA-approved labels. Today, most medical abortions are performed with fewer doctor visits and using a lower dosage than the protocol – approved in 2000 – calls for. The Court previously certified to the Oklahoma Supreme Court a question about the scope of the law. The DIG came after the Oklahoma Supreme Court answered that the law effectively banned all medical abortions, and reiterated the trial court's finding that the law was "so completely at odds with the standard that governs the practice of medicine that it can serve no purpose other than to prevent women from obtaining abortions and to punish and discriminate against those who do."

Finally, the Chief issued a brief statement respecting the denial of cert in Marek v. Lane (13-136), which sought review of a class action settlement involving Facebook's former "Beacon" program, which, for approximately one month in 2007, published users' web activity on their member profiles unless they opted out. The settlement awarded plaintiffs' counsel and named plaintiffs approximately $3 million in fees and costs, but provided no damages for unnamed plaintiffs. Instead, $6.5 million was set aside as a cy pres award, to establish a new charitable foundation to educate the public about online privacy. The settlement encompassed all class claims arising from the Beacon program, including those arising after it was changed to an "opt-in" program, and did not preclude Facebook from reinstituting the same program under a new name in the future. Unnamed class member Megan Marek opposed the settlement, focusing on a number of "disconcerting features" of the new charitable foundation – including that a senior Facebook employee would be one of three members of the board and that the board would have nearly unfettered discretion in choosing grant recipients. The Chief ultimately agreed with the Court's decision to deny cert because Marek's challenge was too focused on the particular features of the specific cy pres settlement in her case. The Chief indicated, however, that given a "suitable case," there was a need for the Court to address certain "fundamental concerns" surrounding the growing use of cy pres remedies in class actions, including "when, if ever, such relief should be considered" and "how to assess its fairness as a general matter."

That's all we have for now, but we're sure to be back soon as the Court cranks into gear.

Kim, Jenny & Julie

From the Appellate and Complex Legal Issues Practice Group at Wiggin and Dana. For more information, contact Kim Rinehart or any other member of the Practice Group at 203-498-4400