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High Court Asked to Look at Question of Deference

(CN) - The Supreme Court has been asked to decide how much deference federal appeals courts must give decisions by state courts that have rejected a convict's deficiency claims.

Oscar Thomas was arrested on Dec. 28, 2006 and charged with the murder of his ex-wife, who was found unconscious on the bedroom floor of her home a day earlier and died hours later.

Thomas was convicted of murdering his ex-wife by strangulation, court documents state, largely based on the testimony of the state's expert witness who said she was sure the death was caused by "intentional strangulation," despite no external bruising on the woman's neck, the opinion continues.

But Thomas has argued ever since that his counsel was ineffective and failed to bring in an opposing forensic expert on the cause of death.

The state circuit court denied Thomas's petition for relief, finding no prejudice or deficient performance on the attorney's part, the petition states.

A state appeals court also denied relief, but only on the grounds that Thomas was not prejudiced by his counsel's conduct, without addressing deficiency.

But the Seventh Circuit felt otherwise, concluding that "Given the weakness of the state's case, especially as it relates to Thomas's intent, had counsel reached out to a forensic pathologist, or another expert similar to the habeas expert, and the expert testified, there is a reasonable probability the outcome of the trial would have turned out differently."

The three-judge panel went on to explain that it believed deference was not due the state courts' decisions, because the state appeals opinion "did not address the performance analysis and applied the wrong standard to the prejudice analysis."

The panel felt the state appeals court made its decision based on whether calling an expert witness would have led to different result, when what it really should have sought to determine whether Thomas had shown a "reasonable probability" that the result would have differed but for "counsel's unprofessional errors."

Thus, the "last reasoned opinion from the state courts" did not properly analyze the petition and is owed no deference, the panel said.

But this question has already created a division of opinion among the circuit courts, and the Seventh Circuit's decision in this case only "deepened" according to a petition for Writ of Certiorari filed by the state of Wisconsin.

They bolstered their contention by pointing to the Seventh Circuit's denial of a request to rehear the issue en banc. In doing so, U.S. Circuit Judge Frank Easterbrook explained the case "belongs on the Supreme Court's plate," the petition states.

According to the state, the Seventh Circuit had no right to grant relief in contradiction of two state court opinions.

"This case is yet another instance of the federal courts refusing to honor Congress's mandate in the Antiterrorism and Effective Death Penalty Act that a claim that has been 'adjudicated on the merits in State court' be afforded significant deference in federal habeas proceedings," Wisconsin states in its petition, which lists Assistant Attorney General Jeffrey Kassel as lead counsel.

The state contends "if two state courts uphold a criminal conviction for two different reasons, without questioning each other's reasoning, federal courts must defer to both rulings."

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