Circuit Splits

Circuits Split Over Standard of Review Involving the Denial of an Advice-of-Counsel Jury Instruction

Today's post looks at the latest opinion in a series of recent opinions that discuss splits in authority over appropriate standards of review (see here and here). Last Friday in United States v. Powers, the First Circuit addressed an intercircuit conflict involving the appropriate standard for reviewing a district court's refusal to give an "advice-of-counsel" jury instruction in a criminal case. 

When a defendant's argument at trial boils down to, "My attorney advised me that it was okay to proceed, so I did.", a defendant may ask the court to give the jury such an instruction. When the court's response is "No.", should an appellate court review the lower court's determination de novo or apply an abuse-of-discretion standard? As the following paragraph from Powers demonstrates, it depends: 

These same rules are used for the defense of good faith reliance on the advice of counsel. See United States v. Christopher, 142 F.3d 46, 55 (1st Cir. 1998). We review these determinations de novo. See United States v. Howard, 687 F.3d 13, 18 (1st Cir. 2012); United States v. Sánchez-Bérrios, 424 F.3d 65, 76 (1st Cir. 2005); Rodriguez, 858 F.2d at 812. This is different from the abuse of discretion standard in some other circuits. See, e.g., United States v. Bush, 626 F.3d 527, 538-39 (9th Cir. 2010). There is no claim the good-faith instruction was flawed.

You can read the full opinion here: United States v. Powers, Nos. 11-2295 & 11-2359 (1st Cir. Dec. 14, 2012).

Federal Circuit Declines Chance to Eliminate Split Involving Standard of Review, Prompting Blistering Dissent

Last month I wrote about an intercircuit conflict over the appropriate standard of review for reviewing hearsay rulings (here). A similar circuit split exists over the appropriate standard of review for reviewing a district court’s decision to award enhanced damages and attorneys’ fees.

Unlike its sister circuits, the Federal Circuit reviews such decisions de novo. See Bard Peripheral Vascular, Inc. v. W.L. Gore & Assocs., Inc., 682 F.3d 1003, 1005 (Fed. Cir. 2012). Last week the Federal Circuit denied rehearing en banc in Highmark, Inc. v. Allcare Health Management System, reaffirming its position in the circuit split. No. 2011-1219 (Fed. Cir. Dec. 6, 2012).

Judge Kimberly Ann Moore—with whom Chief Judge O’Malley and Judges Rader, Reyna, and Wallach joined—dissented to the circuit’s refusal to reconsider the issue en banc. The dissent’s opening paragraph packs quite a punch: 

Contrary to our precedent, the divided Highmark panel decided that a district court's exceptional case finding—based on its determination that the infringement claims asserted at trial were objectively baseless—is entitled to no deference and should be reviewed de novo. Highmark, Inc. v. Allcare Health Mgmt. Sys., Inc., 687 F.3d 1300, 1309-10 (Fed. Cir. 2012). Because Highmark deviates from precedent, invades the province of the fact finder, and establishes a review standard for exceptional case findings in patent cases that is squarely at odds with the highly deferential review adopted by every regional circuit and the Supreme Court in other areas of law, I dissent from the denial of rehearing en banc.

“Not surprisingly,” Judge Moore explained, “given the clear direction from the Supreme Court, the regional circuits are unanimous that the issue of objective reasonableness under Rule 11 is to be reviewed deferentially by the appellate courts.⁴” 

⁴ See, e.g., Whitehead v. Food Max of Miss., Inc., 332 F.3d 796, 802-03 (5th Cir. 2003) (determining compliance with Rule 11 is "an objective, not subjective, standard of reasonableness under the circumstances" and concluding that the "district court is better situated than the court of appeals to marshal the pertinent facts and apply the fact-dependent legal standard mandated by Rule 11" (citation omitted)); see also CQ Int'l Co., Inc. v. Rochem Int'l, Inc., USA, 659 F.3d 53, 62-63 (1st Cir. 2011); Star Mark Mgmt., Inc. v. Koon Chun Hing Kee Soy & Sauce Factory, LTD., 682 F.3d 170, 177-78 (2d Cir. 2012); In re Taylor, 655 F.3d 274, 282-83 (3d Cir. 2011); Merritt v. Int'l Ass'n of Machinists & Aerospace Workers, 613 F.3d 609, 626-27 (6th Cir. 2010); Ross v. City of Waukegan, 5 F.3d 1084, 1088-89 (7th Cir. 1993); Clark v. United Parcel Serv., 460 F.3d 1004, 1010-11 (8th Cir. 2006); G.C. & K.B. Invs., Inc. v. Wilson, 326 F.3d 1096, 1109 (9th Cir. 2003); Dodd Ins. Servs., Inc. v. Royal Ins. Co. of Am., 935 F.2d 1152, 1155 (10th Cir. 1991); Kaplan v. DaimlerChrysler, A.G., 331 F.3d 1251, 1255 (11th Cir. 2003).

Judge Timothy Dyk, with whom Judge Pauline Newman joined, responded to the criticisms expressed by their dissenting colleagues in a concurring opinion:

Judge Moore, Judge Reyna, and Judge Mayer in his panel dissent, urge that both this decision and Bard are inconsistent with our prior authority. This is incorrect. More fundamentally, they assert that the de novo standard is inconsistent with the Supreme Court's decisions in Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990), and Pierce v. Underwood, 487 U.S. 552, 108 S. Ct. 2541, 101 L. Ed. 2d 490 (1988), which dealt with the standard of review for awards of attorneys' fees under Rule 11 and the Equal Access to Justice Act ("EAJA"). But those cases arose in quite different contexts, and are no basis for reading sections 284 and 285 as requiring deference to district courts on the objective reasonableness issue.

The Supreme Court has a history of reversing Federal Circuit decisions, so keep this one on your radar.

Courts Divided Over Standard of Review for Hearsay Rulings

Last Friday the Ninth Circuit issued the latest in a long line of opinions calling attention to a circuit split over the appropriate standard of review for hearsay rulings. See Wagner v. Cnty. of Maricopa, No. 10-15501 (9th Cir. Nov. 16, 2012). Several appellate panels have considered whether a statement was hearsay de novo, while panels within other circuits have reviewed such decisions for an abuse of discretion. It is also worth noting that both the Sixth Circuit and the Ninth Circuit have issued conflicting decisions on the question.

A.    De Novo Review

• United States. v. Ferguson, 653 F.3d 61, 86 (2d Cir. 2011);

• Biegas v. Quickway Carriers, Inc., 573 F.3d 365, 378-381 (6th Cir. 2009); but see Trepel v. Roadway Exp., Inc., 194 F.3d 708, 716-17 (6th Cir. 1999) ("Therefore, in disregard of our heretofore well-settled precedent that hearsay evidentiary rulings are reviewed de novo, we shall review the district court's ruling for an abuse of discretion." (citation omitted)).

B.    Review for Abuse of Discretion

• Wagner v. Cnty. of Maricopa, No. 10-15501 (9th Cir. Nov. 16, 2012); but see Mahone v. Lehman, 347 F.3d 1170, 1173-74 (9th Cir. 2003) ("We review the district court's construction of the hearsay rule de novo . . . ." (quoting Orr v. Bank of Am., NT & SA, 285 F.3d 764, 778 (9th Cir. 2002)));

• United States v. Brown, 669 F.3d 10, 22 (1st Cir. 2012);

• United States v. Lopez-Garcia, No. 98-2252 (10th Cir. Aug. 18, 1999).

According to the Sixth Circuit, the Supreme Court has already settled the matter “in categorical terms: ‘[A]buse of discretion is the proper standard of review of a district court’s evidentiary rulings.’” United States v. Clay, 667 F.3d 689, 703 (6th Cir. 2012) (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997)).

Federal Circuit Notes Split Over Standard of Review

Last Friday the Federal Circuit identified a circuit split over the appropriate “standard to be applied when reviewing a trial court's denial of a motion to intervene as of right.” Although the court “f[ound] it unnecessary to reach this question,” it nevertheless provided an overview of the positions taken by its sister circuits:

Both sides cite authority from the regional circuits, which are split on the question, though slightly more courts favor de novo review. Compare, e.g., United States v. Aerojet Gen. Corp., 606 F.3d 1142, 1148 (9th Cir. 2010) (applying de novo review), United States v. Albert Inv. Co., 585 F.3d 1386, 1390 (10th Cir. 2009) (same), S. Dakota v. Ubbelohde, 330 F.3d 1014, 1024 (8th Cir. 2003) (same), Grutter v. Bollinger, 188 F.3d 394, 398 (6th Cir. 1999) (same), Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994) (same), and Nissei Sangyo Am., Ltd. v. United States, 31 F.3d 435, 438 (7th Cir. 1994) (same), with Geiger v. Foley Hoag LLP Ret. Plan, 521 F.3d 60, 64 (1st Cir. 2008) (applying abuse of discretion review), Person v. N.Y. State Bd. of Elections, 467 F.3d 141, 144 (2d Cir. 2006) (same), Brody v. Spang, 957 F.2d 1108, 1115 (3d Cir. 1992) (same), and In re Sierra Club, 945 F.2d 776, 779 (4th Cir. 1991) (same).

Wolfsen Land & Cattle Co. v. Pac. Coast Fedn. of Fishermen's Ass'ns, No. 2011-5113, 2012 U.S. App. LEXIS 19930, at *5–6 (Fed. Cir. Sept. 21, 2012).

5th Circuit Joins Split Over Plain-Error Review Ahead of High Court Ruling

Where the law on an issue is unsettled at trial, but later clarified in the defendant's favor while his appeal is pending, should the appellate court review the lower court's decision for plain error using the law as it existed at the time of trial or time of appeal?

At the moment, the answer depends on what part of the country you're in. As Terry Baynes of Thomson Reuters reported yesterday, earlier this week in United States v. Escalante-Reyes, the Fifth Circuit sitting en banc joined five other circuits in ruling that claims of plain error are reviewed using the law at the time of appeal. No. 11-40632 (5th Cir. July 25, 2012) (en banc). Other circuits, however, disagree, producing the following split in authority:

A.    Claims of Plain Error are Reviewed Using the Law at the Time of Appeal

• United States v. Farrell, No. 10-1140 (1st Cir. Feb. 17, 2012).

• United States v. Garcia, 587 F.3d 509 (2d Cir. 2009).

• United States v. Escalante-Reyes, No. 11-40632 (5th Cir. July 25, 2012) (en banc).

• United States v. Brown, No. 97-1618 (6th Cir. June 20, 2000) (unpublished).

• United States v. Cordery, 656 F.3d 1103 (10th Cir. 2011). 

• United States v. Smith, 402 F.3d 1303 (11th Cir. 2005), vacated on other grounds, 545 U.S. 1125.

B.    Claims of Plain Error are Reviewed Using the Law at the Time of Trial

• United States v. Turman, 122 F.3d 1167 (9th Cir. 1997).

• United States v. Mouling, 557 F.3d 658 (D.C. Cir. 2009).

Last month the Supreme Court agreed to resolve the circuit split during its next term, granting certiorari in United States v. Henderson, 646 F.3d 223 (5th Cir. 2011), cert. granted, No. 11-9307 (U.S. June 25, 2012). For more, check out my post from last December discussing the circuit split announced in Henderson here.

[*Hat tip to Howard Bashman over at How Appealing.]

Supreme Court Resolves Circuit Split Over Outside Pharma Sales

On Monday (June 18), the Supreme Court issued its decision in Christopher v. SmithKline Beecham Corp., holding 5-4 that pharmaceutical company "detailers" are "outside salesmen" for purposes of the FLSA (29 U.S.C. §213(a)(1), 29 CFR §541.500, and related sections of the federal statutes and Department of Labor regulations). The Court affirmed the Ninth Circuit, whose decision in turn had been in conflict with the Second Circuit (see In re Novartis Wage and Hour Litigation, 611 F. 3d 141, 153155 (2010) (holding that the DOL’s interpretation is entitled to controlling deference).  The Court's decision is important not only for the pharmaceutical salesforce around the country (numbering about 90,000), but for Employment Law and Administrative Law generally.

Quick overview: Since the 1940's, the government and the pharmaceutical companies have considered their outside salesforce or "detailers" to be "exempt" employees, that is, not entitled to overtime pay if they worked more than 40 hours in a week (regular employees under the statute would be entitled to overtime pay).  Recently, some of these workers began to claim that they were not really salespeople, and therefore should indeed get overtime pay for the 10-15 hours per week that they typically spent on work-related tasks beyond their 40-hour workweek.  Their rationale was that they did not really close any sales; instead, they pitched the products to individual physicians, in hopes that the doctors would prescribe their meds to patients, who would then purchase them at a local pharmacy.  The companies (and the government, until recently) always argued that the special regulations controlling pharmaceutical sales - designed to prevent kickback arrangements with doctors, who might be tempted to prescribe unnecessary medicines - eliminated a "close the sale" component from the detailer's promotional efforts, but that it was the primary means of generating sales nonetheless.  

Compounding this semantic dispute (about whether we can call someone a "salesman" if he never closes any sales) was overt ambiguity in both the relevant statute and the relevant regulations by which the Dept of Labor implemented the statute.  Even so, for decades there was a consensus that detailers were, in fact, outside salesmen and therefore "exempt" employees for FLSA purposes.  So far, however, this dispute is really a fairly common issue in Employment Law - whether certain semi-professional salaried employees should get overtime pay when they work more than 40 hours in a week.

The Obama Administration, however, abruptly adopted a new position via the DOL, and argued in amicus briefs in these cases that the salespeople were not outside salesmen and were not exempt.  This introduced a thorny Administrative Law question - the level of deference courts should give to an agency's interpretation of its own regulations (called Auer deference, after Auer v. Robbins, 519 U. S. 452 (1997) - as well as the ancillary question of whether Auer deference applies when the agency is not a party to the case. The DOL did not promulgate a new rule through notice-and-comment rulemaking, nor did it adopt a policy position in one of its own cases - instead, it adopted a position (breaking with 70 years of its own policy) in amicus briefs filed in cases between private litigants.  

Auer deference is analogous to Chevron deference, but with important differences - Chevron doctrine involves the problem of interpretation when one entity (an agency) must interpret and implement a legal mandate ("declaratives" in linguistic jargon) from another entity (Congress); courts defer to the agency's interpretation when the statute is ambiguous and proposed interpretation seems reasonable, because the statute itself is communication directed at the agency.  Auer deference involves a a single entity as communicator and interpreter - the agency promulgates vague regulations and then decides later what they mean.  While it makes intuitive sense to trust the author about the true meaning of a written text, there is a danger than agencies will abuse this system, bypassing the APA's notice-and-comment rules by promulgating "mushy" regulations and then winging it, adopting whatever interpretation seems expedient in a given case.  Auer deference is a newer idea, and less commonly occurring, than Chevron deference, and courts use a host of standards or factors to decide whether the agency shoudl win.  The factors are very similar to the pre-Chevron factors in Skidmore - how long or carefully the agency studied its new interpretation, why the agency is breaking from precedent, what stakes are involved, and so forth.  

Both the majority and the dissenting opinions in the case seemed to think Auer deference was unwarranted here - the DOL adopted this new stance out of the blue, and only in amicus briefs, without much of a record of decision or policy rationale. The DOL had also changed its position about how to define "sales" between the first appeal and its oral arguments at the Supreme Court, which was offputting. This seems like a good move from the Court - we needed a decision declining Auer deference to clarify its outer boundaries and to reassure us that agencies still had some judicial checks on their power and caprice.  

Alito's majority opinion also found the plaintiffs hard to pity - like most detailers, they both make over $70,000/year and were hired for their sales experience.  These are not minimum-wage oppressed laborers working long hours in a sweatshop - the after-hours work the detailers complained of included mostly "attending events," which probably involved food and fun.  The dissenters focused on the language of the statutes and regs involved, which they feel is clearly in the workers' favor (but which the DOL interpreted otherwise consistently for several decades).

The split along party lines in this case is a little mystifying - neither opinion mentions any overarching policy issues that would fit into a conservative or progressive worldview.  In a case splitting on the standard party lines, I would have expected at least one of the sides to discuss public policy - how the decision will affect the price of prescription medicines, for example, or how it incentivizes the companies regarding more public advertising/information about their products (rather than targeting the doctors and leaving the consumers in the dark) - or even how it might apply to analogous employees in other fields. The detailers are highly compensated, successful sellers who act as the rainmakers of the big pharma firms - so there is no David-vs-Goliath story here to explain the liberals on the Court huddling in dissent, nor a save-the-businessman story to explaint he conservatives voting in a block.

- Dru Stevenson

New Article on Appellate Review of Immigration Decisions

My colleague Scott Rempell has a new article posted on SSRN: Judging the Judges: Appellate Review of Immigration Decisions. While not focused on a clear split between circuits, it does focus on the diversity of federal appellate court decisions regarding the standard of review (and degree of deference) for immigration decisions.  Here is the abstract:    

Immigration can be a divisive issue and the federal appellate courts must decide thousands of immigration cases every year. The outcomes of these decisions have large ramifications for the immigrants facing deportation and the executive agencies tasked with enforcing immigration law. The appellate judges adjudicating these cases hold a wide array of beliefs about the efficacy of the current immigration system. While the scope of appellate courts’ review of immigration decisions appears rigidly circumscribed by statute, the true breadth of appellate court review is much more porous. Thus, the governing framework provides judges with a fair amount of latitude when deciding how they are going to assess an immigration case. This article examines how judges’ immigration predispositions can factor into their decision-making processes. The goal of this article is not to fault judges for expressly or implicitly bringing to bare their perceptions on immigration matters. Indeed, even the sincerest effort to remain neutral cannot erase the individual beliefs and experiences that necessarily couch a judge’s decision-making lens. Rather, this article seeks to identify instances, on both sides of the spectrum, where appellate judges’ viewpoints may lead to outcomes that do not comport with the legal framework of their oversight prerogative. A measured degree of divergence among judicial approaches to immigration cases can be beneficial. However, decisions that stray too far from the established framework negatively impact immigration law and the adjudication process in a number of significant ways. 

 

This is a great contribution to the literature.  Immigration policy, and deportation in particular, are contentious issues today in the United States, with strong arguments in each side of the issue; moreover, the stakes are high enough in individual cases to evoke passionate responses toward potential outcomes.  Partly in response to this potential for strong reactions, our legal system has a number of procedural safeguards surrounding immigration removals, the most objective of which is federal appellate review of the decisions, after intermediate review by the BIA.  Yet even this seemingly far-removed, purely legal review has a number of features that distinguish it from other types of appellate decisionmaking.  The sheer number of appeals, the framework for the scope of review and the degree of deference, and the manner in which appellate courts frame the questions in individual cases, all set these cases apart from normal circuit court review.  Combined with the structural feature of direct review to the circuit courts from the agency tribunal, without an intermediate trial, the task of the appellate courts in these cases becomes particularly important and unique, and invites more searching inquiry into how such decisions proceed.  

Rempell's article pursues this inquiry, analyzing the unique structural and procedural components of this type of review, and several decision mechanisms or rhetorical techniques that introduce discretion, and thus potential bias, into this appellate review.   In the end, appellate review of immigration removal decisions includes enough of these discretionary decisional mechanisms to permit appellate judges to follow their personal predispositions or policy agendas regarding immigration as a general matter when deciding any given case, cloaking the tribunal’s bias in these external aspects of the immigration review process.

For those interested in appellate review or in immigration law, I highly recommend downloading and reading Rempell's article.  Very helpful and worthwhile.

 

-Dru Stevenson

USDA Crackdown on Food-Stamp Trafficking Leads to Three-Way Circuit Split

I recently came across an article detailing an obscure, three-way circuit split over the standard of review that applies in cases involving the Secretary of Agriculture’s choice of penalties for food-stamp trafficking. The article, which was written by Cristopher D. Jones of Georgetown Law, is dated "February 26, 2009," but it was posted to SSRN just yesterday. Here is the author's abstract:

The Food Stamp Act allows retail stores and food wholesalers authorized by the Secretary of Agriculture to participate in the Food Stamp Program and accept food stamps as payment instead of cash for qualifying food products. If the Secretary finds that a food stamp merchant — or their employee — has trafficked in food stamps, the Secretary may permanently disqualify the merchant from accepting food stamps. But the Secretary also has “discretion” to impose a civil monetary penalty (CMP) of up to $54,000 in lieu of permanent disqualification if the Secretary finds “significant evidence” that the merchant had effective policies in place to prevent food stamp violations. The Act establishes a statutory right to judicial review of the Secretary’s decision to impose disqualification or a civil penalty, and according to the Act, that review is by “trial de novo . . . in which the court . . . determine[s] the validity of the questioned administrative action in issue . . . .” 

In Affum v. United States, a food stamp merchant whose sole part-time employee exchanged food stamps for $30 cash was found by the Secretary to have trafficked in food stamps. Affum challenged the Secretary’s decision to permanently disqualify her rather than impose a fine, but the district court denied her request for injunctive relief and did not reach the merits of her claim after it held, in part, that she did not have standing to challenge the Secretary’s decision. Appealing that decision, Affum did not dispute whether her employee engaged in food stamp trafficking. Rather, she asserted, inter alia, that not only was the Secretary’s decision of whether to punish a merchant reviewable de novo, but the Secretary’s choice of punishments is also reviewable de novo. 

The D.C. Circuit reversed the district court’s finding that Affum did not have standing and remanded the case for de novo review of the administrative proceeding. To guide the district court on which was the proper standard of review to apply, the circuit court found that “nothing in the Act suggest[s] that trials de novo relating to ‘administrative action[s] in issue’ are limited solely to review of determinations that a trafficking action occurred.” Nevertheless, it held that because Congress amended the Act in 1988 to give the Secretary “discretion” in choosing the appropriate penalty for trafficking, it “meant to impose different standards of review for a judicial action challenging the agency’s finding of a violation as opposed to a judicial action challenging the Secretary’s choice of penalty.” Thus, the D.C. Circuit held that though plaintiffs are entitled to de novo review of whether a violation occurred, the Secretary’s choice of penalties under 7 U.S.C. § 2021(b)(3)(B) is reviewable under an arbitrary and capricious standard. 

In reaching this conclusion, the D.C. Circuit joined in the current three-way circuit split over which standard of judicial review should apply to the Secretary of Agriculture’s choice of penalties for food stamp merchants. The D.C. Circuit’s position — that the penalty is reviewable under an arbitrary and capricious standard — is consistent with that held by the Fourth and Ninth Circuits. The Eighth Circuit, however, holds that the Secretary’s choice of penalties is reviewable de novo, and the Sixth Circuit holds that the Secretary’s choice is not reviewable. 

This comment examines the three-way circuit split, argues that the arbitrary and capricious standard is correct, and recommends that either the Supreme Court should adopt the majority rule or Congress should amend § 2023(a) to expressly provide that the Secretary’s choice of penalty is reviewable under the Administrative Procedure Act’s arbitrary and capricious standard of review. Section I reviews the Food Stamp Act and why Congress amended it to grant the Secretary discretion to impose a civil monetary penalty in lieu of permanent disqualification for trafficking offenses. Section II briefly reviews standards of review of administrative agency actions. Section III analyzes the circuit split at issue by examining cases from the Fourth, Sixth, Eighth, Ninth, and D.C. Circuits. Finally, Section IV suggests how the Supreme Court or Congress could mend the three-way circuit split over judicial review of the Secretary’s choice of penalties under § 2021.

You can download the full article here: Jones, Cristopher D., Affum v. United States: Expanding the Three-Way Circuit Split on Judicial Review of USDA’S Choice of Penalties for Food Stamp Trafficking (February 26, 2009). Available at SSRN: http://ssrn.com/abstract=2047781.

Circuits Split Over the "Great Writ"

Sometimes referred to as the “Great Writ,” a “writ of habeas corpus” is a procedural mechanism through which a prisoner may demand that their "jailer" appear before a federal judge and “show cause” for their incarceration. (As a side note, since habeas applications are filed against the custodian who actually supervises the inmate's detention rather than the state itself, the resulting case names typically consist of the names of two individuals rather than one individual versus one state (e.g., “Paul Prisoner v. Ringo Warden” rather than “Paul Prisoner v. State of New York”).)

As the Fifth Circuit recently explained on December 27, 2011 in Hines v. Thaler,

Under [28 U.S.C.]§ 2254(d)(2), a federal district court may grant habeas relief “only if the state court's adjudication of his claim on the merits . . . ‘resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’” Rabe, 649 F.3d at 308 (quoting 28 U.S.C. § 2254(d)).

No. 11-70010 (5th Cir. Dec. 27, 2011) (unpublished) (ellipsis in original; emphasis added).  So, if a prisoner files a writ of habeas corpus under 28 U.S.C. § 2254(d)(2) challenging the correctness of a state court’s factual determination, should federal courts apply the more rigorous “clear and convincing” standard of review found in § 2254(e)(1), or the more lenient “unreasonable determination” standard provided by § 2254(d)(2)?  In a footnote to the block-quoted text above, the Fifth Circuit identified the following circuit conflict over this question:

We also note that under AEDPA “a determination of a factual issue made by a State court shall be presumed to be correct,” such that “[t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). The relationship between this provision and § 2254(d)(2) is ambiguous. As this court has previously explained, “[w]e do not make any pronouncements as to whether the more deferential standard prescribed in § 2254(e)(1) applies in every case presenting a challenge under § 2254(d)(2),” a question that the Supreme Court has left open. See Turner v. Epps, 412 F. App’x 696, 700 n.2 (5th Cir. 2011) (citing Wood v. Allen, 130 S. Ct. 841, 848–49, 175 L. Ed. 2d 738 (2010) (observing, but not resolving, the circuit split among courts regarding the relationship between § 2254(d)(2) and § 2254(e)(1))). Below, we hold that reasonable jurists could not debate the correctness of the district court's determination that the state court's adjudication was not based on an unreasonable determination of the facts. Therefore, we see no need to resolve which standard—the more rigorous “clear and convincing” or the more lenient “unreasonable determination”—should govern this case and do not consider this issue further.

Id. (emphasis added).

(Image courtesy of Paul D. Halliday's "Habeas Corpus: From England to Empire," which can be found on Amazon.com here.)