Serrano v. Fischer, Docket No. 03-2670 (2d Cir. June 20, 2005) (Winter, Sotomayor, and B.D. Parker) (Op. by Sotomayor): In this dismissal of a habeas petition, the Circuit narrowly held that, under the particular facts of the case, the state court decisions rejecting the petitioner’s deprivation-of-counsel claim were not contrary to or an unreasonable application of the governing Supreme Court precedent. Despite its narrowness, the opinion discusses an issue with broad implications for habeas petitions under the AEDPA deferential standard. The Court explained that where the governing Supreme Court precedent provides no bright-line rule but instead only a “roughly defined” one requiring a context-specific inquiry, it is less likely that the state court’s applications of that precedent will be considered unreasonable, and thus less likely that the writ will be granted under §2254(d)(1).
The essential facts are as follows. Serrano was tried and convicted in state court of second degree murder. During a trial marked by “many heated exchanges” between the court and defense counsel, the court twice barred defense counsel from conferring with Serrano during recesses in his testimony. The first bar occurred towards the end of a five-minute recess during Serrano’s direct testimony. Defense counsel protested and was fined for contempt. The second occurred during a ninety-minute lunch recess in the midst of Serrano’s cross-examination. Before issuing this bar, the judge considered allowing counsel to confer with Serrano, but not as to any matter related to his testimony. However, counsel refused to assure the court that he would not discuss the ongoing testimony, and the judge ordered counsel to be taken into custody for the rest of the lunch break.
Serrano exhausted his deprivation-of-counsel claim based on these two incidents in state court, and then filed a habeas petition. The district court denied the petition, and the Circuit affirmed. In doing so, the Court noted that the governing Supreme Court precedent for Sixth Amendment claims based on deprivations of counsel during recesses is found in two cases: Geders v. United States, 425 U.S. 80 (1976) and Perry v. Leeke, 488 U.S. 272 (1989).
In Geders, the Supreme Court ruled that the trial court’s order barring the defendant from consulting with his counsel about anything during a seventeen-hour overnight recess between his direct and cross-examination violated his Sixth Amendment right to counsel. Perry, on the other hand, ruled that a court’s barring of attorney-client communications during a fifteen-minute recess that interrupted the defendant’s testimony did not violate the Sixth Amendment. Acknowledging that the line between Perry and Geders was thin, the Court nonetheless explained that it was one of a “constitutional dimension” whose distinction lay in the fact that the defendant has no constitutional right to confer with counsel about his testimony while that testimony is in progress. The bar in Geders was improper because the normal consultation between attorney and client that occurs during an overnight recess would encompass matters going beyond the defendant’s testimony, while the bar in Perry was proper because it is appropriate to assume that during a short recess nothing but the testimony would be discussed. Unfortunately, even though the Court claimed to draw a “line of constitutional dimension,” Perry failed to provide lower courts “faced with a continuum of recess possibilities” with sufficient guidance to clearly discern when bars on attorney-client communications constitute Sixth Amendment violations.
Accordingly, as noted in the Circuit’s opinion, applications of the Geders and Perry precedent have yielded divergent results in the lower courts. The Circuit declared that its own interpretation in Morgan v. Bennett, 204 F.3d 360 (2d Cir. 2000) – that courts should not restrict the defendant’s ability to consult with his attorney absent an important need to protect a countervailing interest – while not binding for habeas review, may provide guidance as to what constitutes a reasonable application of Geders and Perry. It quickly quashed this ray of hope, however, by concluding that since “the governing rule remains so roughly defined, [it was] less likely to conclude that a given interpretation or application [by a state court] is ‘contrary to’ or an objectively ‘unreasonable application of’ Supreme Court precedent.”
The Circuit thus unsurprisingly concluded that the state courts’ application of Geders and Perry did not result in a decision that was “contrary to” or an “unreasonable application of” those cases and denied the writ. Since the first bar was only momentary, it was appropriate for the trial court to assume that nothing but Serrano’s testimony would be discussed. Regarding the ninety-minute bar, the court noted that the ban was only issued after counsel specifically refused to assure the court that he would not discuss Serrano’s ongoing testimony during the recess. Placing the blame squarely on counsel, the Circuit stated that defense counsel’s refusal entitled the judge to assume that Serrano’s testimony would be discussed during the recess, and thus that the bar on communication was proper.
[By Sylvia Heredia, 2-L at Harvard Law School]