Lopez v. Thurmer’s Empirical Analysis

Citation profile

2 federal appellate ·

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 5 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “Lopez’s first argument — that the state appellate court’s application of Strickland to the facts of his case was unreasonable — cannot overcome a number of hurdles. According to Lopez, the state appellate court applied the wrong standard under Wisconsin law to determine whether he was entitled to a felony-murder instruction: instead of inquiring whether the jury could have found him guilty of first-degree intentional murder, he argues, the state appellate court should have inquired whether the jury could have acquitted him of first-degree intentional murder. But, as Lopez concedes, we may not grant habeas relief under 28 U.S.C. § 2254 merely because a state court has misinterpreted or misapplied state law. And we will not fault counsel as ineffective for failing to advance a position under state law that the state appellate court said was meritless. Because we leave undisturbed the state appellate court’s holding that Lopez was not entitled to a felony-murder instruction, its additional ruling that counsel’s performance was constitutionally adequate under Strickland was reasonable. It is not well outside the boundaries of permissible differences of opinion, to conclude that counsel’s performance is constitutionally adequate when he fails to request an instruction that, as a matter of state law, the defendant is not entitled to in the first place.”

   1 later decision quote this exact passage · from the majority
   e.g. Hall v. Superintendent

2. “perhaps looking back it would have been wiser for counsel to press for a conviction on a compromise verdict ... [because] we will not pick apart counsel's strategic choice with the benefit of hindsight.”

   1 later decision quote this exact passage · from the majority
   e.g. Mejia v. Davis