The U.S. Court of Appeals for the Sixth Circuit has developed a reputation as the “new Ninth.”  Over the past several years, the Sixth Circuit has been reversed in an extraordinary number of cases. At one point, the Sixth Circuit had been reversed in over 20 consecutive cases in which cert had been granted.

A substantial percentage of the Sixth Circuit’s reversals have come in the criminal justice context. Habeas cases, in which criminal defendants seek to challenge state court convictions or sentences in federal court, have been particularly likely to catch the Supreme Court’s attention. The Sixth Circuit — or, more likely, a substantial portion of the circuit’s judges — is out-of-step with the Supreme Court’s current majority.

This morning the trend continued as the Supreme Court released a unanimous per curiam opinion in Woods v. Donald, reversing a Sixth Circuit grant of a habeas petition. At issue here, as in many such cases, was whether the state court conviction was “contrary to, or involved an unreasonable application of, clearly established Federal law,” as determined by the Supreme Court. This is the standard imposed by the Anti-Terrorism and Effective Death Penalty Act (AEDPA).

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Without reaching the merits of the underlying issue — whether a criminal defendant is denied effective assistanceo f counsel because his attorney was “briefly absent” from the courtroom during testimony concerning other defendants — the Court unanimously concluded that because no prior Supreme Court opinion had so held, there was no basis for awarding habeas relief in this case. And so, the Sixth Circuit was reversed yet again.

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