W.D. Tex. Notes Split Re AEDPA Provision

Per Jasper v. Thaler, Slip Copy, 2011 WL 186976 (W.D. Tex. Jan. 19, 2011):

The AEDPA also significantly restricts the scope of federal habeas review of state court fact findings. Section 2254(d)(2) of Title 28, United States Code provides federal habeas relief may not be granted on any claim that was adjudicated on the merits in the state courts unless the state court's adjudication of the claim resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Wood v. Allen, --- U.S. ----, 130 S.Ct. 841, 849, ---L.Ed.2d ---- (2010) (“[A] state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.”); Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. at 1522 (“[A]n unreasonable application of federal law is different from an incorrect application of federal law.”). Even if reasonable minds reviewing the record might disagree about the factual finding in question (or the implicit credibility determination underlying the factual finding), on habeas review, this does not suffice to supersede the trial court's factual determination. Wood v. Allen, --- U.S. at ----, 130 S.Ct. at 849; Rice v. Collins, 546 U.S. 333, 341-42, 126 S.Ct. 969, 976, 163 L.Ed.2d 824 (2006).

In addition, Section 2254(e)(1) provides a petitioner challenging state court factual findings must establish by clear and convincing evidence the state court's findings were erroneous. Schriro v. Landrigan, 550 U.S. at 473-74, 127 S.Ct. at 1939-40 (“AEDPA also requires federal habeas courts to presume the correctness of state courts' factual findings unless applicants rebut this presumption with ‘clear and convincing evidence.’ ”); Rice v. Collins, 546 U.S. 333, 338-39, 126 S.Ct. 969, 974, 163 L.Ed.2d 824 (2006) ( “State-court factual findings, moreover, are presumed correct; the petitioner has the burden of rebutting the presumption by ‘clear and convincing evidence.’ ”); Miller-El v. Dretke, 545 U.S. 231, 240, 125 S.Ct. 2317, 2325, 162 L.Ed.2d 196 (2005) (“[W]e presume the Texas court's factual findings to be sound unless Miller-El rebuts the ‘presumption of correctness by clear and convincing evidence.’ ”); 28 U.S.C. § 2254(e)(1). It remains unclear at this time whether Section 2254(e)(1) applies in every case presenting a challenge to a state court's factual findings under Section 2254(d) (2). See Wood v. Allen, --- U.S. at ----, 130 S.Ct. at 849 (choosing not to resolve the issue of Section 2254(e)(1)'s possible application to all challenges to a state court's factual findings); Rice v. Collins, 546 U.S. at 339, 126 S.Ct. at 974 (likewise refusing to resolve the Circuit split regarding the application of Section 2254(e)(1)).

Split Re Attorney's Fees in Civil Rights Cases Noted in Ninth Circuit Case

Per Harris v. Maricopa County Superior Court, --- F.3d ----, 2011 WL 167040 (9th Cir. Jan. 20, 2011):

The majority joins the short side of an existing circuit split that is currently before the Supreme Court. The First, Fifth, Seventh, and Eleventh Circuits have held that defendants in civil rights cases may recover attorney's fees even when the plaintiff's frivolous claims are intertwined with nonfrivolous claims. See Ward v. Hickey, 996 F.2d 448 (1st Cir.1993); Fox v. Vice, 594 F.3d 423 (5th Cir.2010), cert. granted, 131 S.Ct. 505 (Nov. 1, 2010) (No. 10-114); Curry v. A.H. Robins Co., 775 F.2d 212 (7th Cir.1985); Quintana v. Jenne, 414 F.3d 1306 (11th Cir.2005); Head v. Medford, 62 F.3d 351 (11th Cir.1995). The one clear outlier is the Sixth Circuit, which has adopted a rule that a prevailing defendant may not recover attorney's fees if the plaintiff has raised even one nonfrivolous claim. See Balmer v. HCA, Inc., 423 F.3d 606, 616-l7 (6th Cir.2005). The majority does not agree outright with any of these circuits-thus enabling the split-but its position is closest to the Sixth Circuit's plainly unreasonable rule. We can anticipate further guidance from the Court when it decides Fox, a case in which it recently granted a writ of certiorari.

Ninth Circuit Notes Split Re Whether A Courtroom Appearance Raises A Public Employee's Testimony To A Public Concern

Per Clairmont v. Sound Mental Health, --- F.3d ----, 2011 WL 149371 (9th Cir. Jan. 19, 2011):

Clairmont argues that, regardless of the subject matter, truthful testimony given pursuant to a subpoena should be considered per se a matter of public concern. As we detailed in Alpha Energy Savers, our sister circuits are split on “whether the context of a courtroom appearance raises a public employee witness's testimony to the level of public concern, regardless of its content.” 381 F.3d at 926 n. 6. There, we declined to decide whether a public employee's testimony was inherently a matter of public concern. Id.

So too here, we need not decide whether truthful testimony given pursuant to a subpoena is per se a matter of public concern because in this case, the content, form, and context of Clairmont's testimony establish that his speech related to a matter of public concern.

Eighth Circuit Notes Split Re Whether Lanham Act Requires Willful Infringement

Per Masters v. UHS of Delaware, Inc., --- F.3d ----, 2011 WL 31524 (8th Cir. Jan. 6, 2011):

A circuit split exists concerning whether a Lanham Act plaintiff must prove willful infringement, rather than mere infringement, to be eligible for monetary damages under 15 U.S.C. § 1125(a). The question turns on the effect of amendments to the Lanham Act Congress made in 1999. Compare Synergistic Int'l., LLC v. Korman, 470 F.3d 162, 175 n. 13 (4th Cir.2006) (concluding that amendments removed willfulness as a prerequisite for awarding profits under § 1125(a)); Banjo Buddies, Inc. v. Renosky, 399 F.3d 168, 174-75 (3d Cir.2005) (same) with W. Diversified Servs., Inc. v. Hyundai Motor Am., Inc., 427 F.3d 1269, 1272-73 (10th Cir.2005) (adhering to pre-amendment precedent regarding § 1125(a) and requiring proof of willfulness to sustain the cause of action); Contessa Foods Prods. Inc. v. Lockpur Fish Processing Co., 123 F. Appx. 747, 751 (9th Cir.2005) (same). See also 5 J. McCarthy, McCarthy on Trademarks and Unfair Competition § 30:62 (4th ed.2010) (criticizing circuit courts that have removed the willfulness requirement from § 1125(a) on the basis of the 1999 amendments and arguing that such circuits “have leveraged this statutory change beyond its intended scope”). For purposes of adjudicating this appeal, we assume, without deciding, that willful infringement is a prerequisite of monetary relief.