Ybarra v. Filson, 869 F.3d 1016 (9th Cir. 2017)

This Ninth Circuit death penalty case is an endless procedural essay on intelligence disability and a review of habeas corpus decisions of state and federal courts. The crime is vicious and brutal deserving execution but the defendant has repeatedly filed claims in various courts challenging the state supreme court and the federal district court. This case is an appeal of the district court to the Ninth Circuit repeatedly remanding and partially confirming. Nowhere near terminating, the case justifies non reviewing.

Immigration in the 9th Circuit.

Although we have discontinued immigration cases of the 9th Circuit because of volume, a review will confirm the usual bias of the liberal court.   A few samples will illustrate this statement.

In Kerry v. Din, 135 S.Ct. 2128 (2015) Justice Scalia discusses Constitutional law and the case of an Afghan woman citizen living in the United States seeking a passport for her husband, a former Taliban active. According to her, she is entitled to live with him as husband and wife.  A woman seeking entry for her husband? Why doesn’t he apply? The dissent in Kerry is legal mush about the goodness of marriage and family, allegedly protected by due process and foreign law. The 9th Circuit had agreed with that “reasoning” but the Supreme Court reversed. What foreign law is the dissenting Supreme Court judge citing?

Reyes Mata v. Lynch,135 S.Ct. 2150 (2015). Immigration law is statutorily bound and complicated but federal courts can review BIA decisions “regardless of their reasoning.” That rule is not a 9th Circuit decision but cited by it in Dai v. Sessions, 884 F.3d 858  (9th Cir. 2018). The immigration  judge must treat the applicant for admission as “credible in the absence of explicit adverse credibility finding.”

The dissent in Reyes Mata cites the demeanor and conduct of the applicant far differently. The majority decision ignores the trial record, other witnesses, the evidence and the personal opinion of the credibility of all witnesses. The author of the majority opinion was probably not written by a trial judge.

Calderon-Rodriguez  v. Sessions 878 F.3d 1179 (9th Cir.2018). In this case the immigration judge failed to ensure the Dept. of Home Security provided the court with relevant materials regarding respondent’s competency. A Brady rule in an immigration court.

Solorio-Ruiz v. Sessions, 881 F.3d 733 (9th Cir.2018). Carjacking is not a crime of violence under the federal statute as is a section under the California Penal Code.

Song v. Sessions, 882 F.3d (9th Cir. 2018). A refugee in California had disagreed with the Chinese government over their building of business premises that interfered with his property in China. Nothing more than a civil dispute and not  evidence for persecution in support of a petition for asylum. Somehow this protected political view satisfied asylum in the U.S.

U.S. v Rodriguez 880 F.3d 1511 (9th Cir. 2018). Defendant was  convicted by a jury of transporting an illegal alien for financial gain. On his appeal he objected to a jury instruction mistaking the definition of  the words “reckless disregard.” The 9th Circuit panel spent several pages defining those two words a jury would, of course, certainly understand. No doubt jurors argued about this issue  in their deliberations although the trial record does not reflect their disagreement .

Jennings v. Rodriguez, 138 S.Ct. 820 (2018). According to the canon of “constitutional avoidance” it was misapplied by the 9th Circuit because its construction inferring detention limitation in immigration statutes was not plausible. The 9th Circuit had ordered bonds for detainees in immigration without any statutory or Constitutional evidence.

Poyson v. Ryan, 879 F.3d 875 (9th Cir. 2018)

The Ninth Circuit, having concluded the year 2017 with its usual record of reversals in the Supreme Court, opened the new year with an incomprehensible decision in Poyson v. Ryan, 2018 WL 395 713 (9th Cir. ). In a case of brutal, vicious, and heinous murder, an Arizona state court jury in 2012 voted a guilty verdict and death penalty of defendant Poyson. The defendant appealed to the Arizona Supreme Court whose judges affirmed the conviction and sentence.

After the state supreme court denied a rehearing, the defendant filed a federal habeas petition in district court.  The court denied the petition, and Poyson appealed to the Ninth Circuit.  In 2013 the panel wrote an opinion, reheard it, and five years later wrote an amended opinion in a 2-1 decision. Obviously the  state sought certiorari.

The defendant suffered a difficult childhood and an equally difficult adult life with drugs and general disorder ending with murder of his girlfriend in abusive and disgusting conduct. Poyson had no defense at trial and offered only evidence of psychiatric disagreement. At the sentencing phase he submitted evidence unrelated to the act of crime.

On his appeal from the district court to the Ninth Circuit  the defendant contended his counsel was incompetent but the court panel denied that allegation. In addition, counsel for Poyson had submitted mitigating evidence of youthful turbulence, the absence of mental ability, and the influence of drugs. Although rejected by the jury, Arizona law requires the trial court to review mitigating evidence after trial and sentence, and the statute empowers the judiciary to change the verdict to life without parole.

Several years ago the U.S. Supreme Court wrote that a trial court reviewing the verdict and sentence must consider all mitigating  evidence whether it relates to commission of the crime or not. Eddings v. Oklahoma, 455 U.S 104 (1982). Labelled “causal nexus” several Arizona courts had not adopted this rule and its absence caused reversals. In Poyson the Ninth Circuit, unable to find any other reason to reverse the district court decision, held the Arizona Supreme Court used the causal nexus rule on the original appeal from state court and reversed the sentence. Reheard by the Ninth Circuit panel in its subsequently amended decision, decided the  Arizona Supreme Court did discuss the mitigating evidence but had held it had no mitigating value.

The U.S. Supreme Court has repeatedly rejected federal habeas corpus decisions, unlike direct appeal, to “correct legal error” of state court decisions. Payson is a perfect illustration of this.  Seeking legal error futilely the panel finally finds an allegedly deceptive application of causal nexus.

A vicious murder, with no defense of innocence or reduced crime of manslaughter; no ineffective counsel; no erroneous jury instructions or jury misconduct; no voir dire errors; no prosecution misconduct; weak mitigating evidence (according to the state court); nothing for the usual Ninth Circuit reversals. A murder committed in 1996; trial in 2012; an appellate decision decided in 2013 and amended again in2018.

File certiorari .
















McNight v. Petersen, 137 S.Ct. 2241 (2017)

The district court in McNight had issued qualified immunity to the officers in an excessive force case and was reversed by the Ninth Circuit.The Supreme Court granted a petition for certiorari, vacated the decision of the Ninth Circuit, and remanded for “further consideration in light of White v. Pauly, 137 S.Ct. 548 (2017).”  In White, the case recommended, the Justices criticized other excessive force reversals by appellate courts on grounds of high generalization of qualified immunity.

In McNight the Ninth Circuit has not issued an opinion on the remand since the Supreme Court decided the case in June, 2017.

Browning v. Baker, 875 F.3d 444 (2017 (9th Cir.)

In 1996 Congress enacted the AntiTerror and Effective Death Penalty Act (AEDPA) to reduce the impact of a U.S. Supreme Court decision adding federal habeas corpus in the U.S. Constitution to jurisdiction in state courts. Federal courts began to review state court criminal cases in habeas corpus petitions to reverse judgments already decided. The imposition exceeded its expectation as federal courts rendered decisions far exceeding legislative intentions.

In time, the language of the Act came very close to almost ending federal habeas review of state courts. Federal appellate courts, particularly the Ninth Circuit, evaded the statutory language and was repeatedly reversed by the U.S. Supreme Court. In the words of a Supreme Court Justice, AEDPA was intended “only to guard against extreme malfunction in the state justice system not a substitute for ordinary error correction through appeal.”

This test rarely fits the decisions of the Ninth Circuit as demonstrated in a November 2017 case of Browning v. Baker. No case illustrates better a complete disregard of AEDPA and its purpose as expressed in the dissent. The 2/1 majority opinion in Browning is just that in the words of the Justice: correction through appeal. The majority repeats the entire state court trial record of a robbery admittedly involving conflicting testimony. The jury, who sat through the trial and evaluated testimony and its credibility, unanimously voted for “guilty.” The majority of judges in the Ninth Circuit saw no witness, and the trial judge made no legal mistakes-including affirmation of the jury verdict. But the majority in the Ninth Circuit didn’t like some of the witnesses and re tried the case. Certiorari  is assured.






Godoy v. Spearman 861 F.3d 956 (9th Circuit 2017)

Another murder case resolved by the Ninth Circuit whose judges regularly reverse murder cases and death penalties although the jury in Godoy v. Spearman voted only second degree murder. The California Court of Appeal had affirmed the conviction, the California Supreme Court denied review, and the district court denied a habeas corpus petition filed by the defendant. The Ninth Circuit heard the appeal from the district court  and in a split vote reheard the case again on federal habeas corpus and reversed.

The Ninth Circuit author of the Godoy decision wrote that the case was originally governed by AEDPA, but the California Court of Appeal refused to apply U.S. Supreme Court precedent.  For that reason the court said,  we can  use the correct standard of de novo instead. This judicial invention, unsupported by precedent, allowed the Ninth Circuit to repeat its earlier discussion of AEDPA for some irrelevant reason and rewrote the decision in the “correct” version.

In the course of that alternative legal version of the law, the majority court panel repeatedly criticized the California Court of Appeal for all its errors, reverses a state supreme court case and a federal district court for the unknown future of a second trial.  Or, if witnesses cannot be found, records lost, investigating officers retired, the defendant convicted of murder goes free.

The essence of this case is nothing more than a statement by a juror to the trial judge  that she had heard another juror converse on the phone  with a “judge friend” during the trial.  No evidence was presented on the subjects discussed, but according to the Ninth Circuit the trial judge should have held a hearing. If the juror was unaware of the topics discussed what would the hearing have proved? The issues in the case are not so much what response the state court trial judge should have made or done, but the repeated criticism of the California Court of Appeal.  Secondly, the Ninth Circuit rejection of AEDPA.  Their decision also reversed the district court judge who affirmed the state court decision.

Godoy v. Spearman is another example of two court systems for the same case. A waste of time and money, endless appeals, and a refusal of Congress to eliminate federal habeas corpus. Whenever the state  court concludes their case is ended, the only post trial issue is state habeas corpus-and possibly the U.S. Supreme Court. Who have said almost the same thing.



U.S. v. Sanchez-Gomez, 859 F.3d 649 (9th Cir. 2017)

In a split 9th Circuit court vote the majority Constitutionalizes a courtroom practice defined as “shackling” prisoners, and destined to affect all state and federal trial courts. The dissent is a written masterpiece rejecting the majority court decision of four men convicted several years ago. The court is ruling on: the absence of a “Case or Controversy” mandated by the Constitution; violation without precedent of the Fifth Amendment Clause; a series of adjectives describing the impaired dignity of everyone shackled; ignoring a presumption of innocence until a verdict;  the work of justice applies to everyone until convicted. In addition to a justifying a jurisdictional right to begin with an a case already concluded, the court invents mandamus as an alternative to appeal.

But these procedural controversies are not the heart of the case.  The majority outlines a legal history beginning with the common law and thendisagreement between the other Circuits. The issue: can ederal Marshals shackle all prisoners in non jury appearances before a judge or magistrate judge? For a variety of reasons, including inability to forecast violence by the prisoner, the configurement or location of the court, the lack of adequate staff to restrain escape or injury, and other factors. The court majority ignores all criticism of shackling and defines prisoners in criminal court as  presumed innocent men until found guilty, entitled to dignity in a courtroom, and judicial decorum. The dissent characterizes this language as ivory tower rationale.

Federal court Marshalls in non jury trials attempt to shackle every defendant but do lack staff in some cases. No federal statute exists to enforce shackling of all defendants in criminal trials, and inventing the procedural Constitutional decisions are absurd. Time for certiorari if the California Attorney General knows anything about Constitutional law.


Petrocelli v. Baker, 862 F.3d 809 (9th Cir. 2017)

Another death penalty case reversed by the same judge who reverses other capital cases (including this one earlier ), never upholding the verdict regardless of the vicious and brutal murder the jury voted correctly. In this case, scouring the record of a defendant who filed three state habeas corpus cases rejected by state courts; a previous federal habeas corpus case reversed by the 9th Circuit; the instant case reversed by the 9th Circuit.

To begin, the judge assures us this case was not under AEDPA jurisdiction-the defendant constantly in court for this case starting in1996. The record reflects that the prosecutor asked a psychiatrist Dr. Gerow to interview the defendant and  determine his legal competency. After his examination the doctor concluded the defendant incurably violent, and testifies to his opinion at trial.  According to the 9th Circuit panel, a Supreme Court case rejects this process without a Miranda admonition and used as an admission of responsibility by the defendant.

At the trial the doctor testified he did not use the Miranda admonition and asked no incriminating statements from the defendant. The doctor only examined for legal competency and his testimony included nothing about an admission of complicity in the crime. Despite that, the panel concluded his testimony inadmissible.

Two defense doctors submitted their report on the same issue of competency, but without testimony, and concluded curability33 was a possibility.  Now the panel concludes no testimony and only a written report by defense doctors  overcomes the live testimony of a colleague. Apparently the court panel has never tried a case when the direct testimony of  a witness (a doctor who is not a detective) lacks the veracity over two written reports.  But the panel needs an excuse.

The panel criticizes the state court judge who had affirmed the conviction and lists his errors. For example, they commented on Doctor Gerow who did not interview the defendant on April 20, but on April 21. Devastating. The balance of the “list” of errors is equally trivial.

. Apparently the panel, who were not at the trial, decided the case for the jury. In fact, the panel offered their own opinion of the doctor whose testimony they had reviewed in an earlier case. Evidence by a witness who the panel had not seen as jurors did, was not  admitted at trial because the doctor had not Mirandized the defendant prior to a legal competency test.

One of the worst cases I have ever read.  Now the prosecution must  call all the witnesses again to hear evidence only on the death penalty. And people criticize California courts for tardy disposition of cases. The year 1996 and this case is still in federal courts on a simple ten day trial obviously warranting the death penalty.

The second judge on the court panel wrote an  equally absurd concurrence. the third judge signed nothing.


County of Los Angeles, CA v. Mendez,

Another U.S. Supreme Court reversal of the Ninth Circuit by the Justices who specifically identify the mistake of that Circuit in understanding the Fourth Amendment.

The Ninth Circuit had invented the “provocation rule” in criminal cases holding officers liable for conduct in violation of the Fourth Amendment prohibition of unreasonable searches and searches.  In most cases the prohibition suppresses any evidence seized in violation. Federal law has a civil component in Section 42.1983 allowing civil suit for Fourth Amendment violation although the Section does not foreclose admission of evidence. The remedy  is damages.

Officers searching for a parolee entered a makeshift shack without announcing their  identity and lacking a search warrant. The inhabitant, reaching for his BB gun to kill rats caused the officers to fire and injure the man (Davis). Davis sued under 1983 alleging  unlawful entry; absence of search warrant; excessive force. The Ninth Circuit found the excessive force a “seizure” unlawful and the wrongful entry presence of a weapon provoked the officers and the absence of a search warrant resulted in an unlawful search.

The Supreme Court reviewed the role of excessive force as a “seizure” should be a separate claim and an item separate from the other two claims and under Ninth Circuit rules used the two other claims to rule.  The Supreme Court rejects that rule that focuses on the officers subjective intent in lieu of an “unreasonable” seizure.

This analysis is difficult to follow but the case reviews the analysis the Ninth Circuit  should use.




Hall v. Haws, 861 F.3d 977 (9th Circuit 2017)

Not a death penalty case, just life imprisonment without parole for first degree murder. The California Court of Appeals upheld the conviction and sentence; the California Supreme Court denied review; state courts denied habeas corpus.  Now to the federal courts who issued and reviewed endless rulings on habeas corpus and a jury instruction until the district court granted the petition on procedural grounds.  The State of California appealed to the Ninth Circuit, and two of the three judge panel affirmed. The dissent skillfully corrected the error.

The only substantive issue in the case was a jury instruction. If the jury found evidence of property belonging to the victim in the defendant’s clothing at the time of his arrest they  could infer that fact was evidence of his responsibility for the crime.  The prosecution introduced  other evidence in addition to discovery of the victim’s ring  and guilt was well established.

After the panel discourse on habeas corpus the usual liberal panelists granted the petition because the jury instruction  was not just a state statutory error but a violation of due process, a constitutional error! Of course no precedent cited for that invention of the law. The majority conjured up error of the trial court, including a few comments on the California courts who had affirmed the conviction. According to the majority, all the State courts analysis of the jury instruction were unreasonable.

The case consists of an endless discussion of habeas corpus procedure loading up the federal court and then drafting a 2-1 decision. The California State Attorney General should seek certiorari in the Supreme Court. Another reversal will add to the Ninth Circuit record. Two courts, state and federal, review the same case of the trial and reading appeals.  After untold hours of federal time wasted, and all state courts affirm the conviction, and a federal court disagrees. When will Congress remove habeas corpus jurisdiction in federal courts?



Nasby v. McDaniel, 853 F.3d 1049 (9th Cir. 2017)

Were it not for the U.S. Supreme Court prior reversal of the U.S. Ninth Circuit Court of Appeals in this case, and reversals of an untold number of other cases, the Nasby case might make sense. Nasby was convicted of murder in 1999 and is still in court filing papers. The result of the decision in this case will require more filings.

Convicted in a Nevada trial court, Nasby’s direct appeal in the Nevada Supreme Court was denied. Several habeas corpus petitions of gibberish filed in state courts were also denied. Nasby filed federal court habeas, all from the state courts decisions, and the district court judge read all their summaries of the evidence. Petition denied. Nasby appealed to the Ninth Circuit.

The Ninth Circuit held that the district court judge should have read the trial record himself instead of the state court judges summaries. As a general rule, this decision is correct. But so many state courts wrote the same objections the sum total probably  matched those in the instant case. Then, unless a petition filed by either party in the Supreme Court is granted and reversed, the panel will remand the case to the district court judge with instructions.

All this for a 1999 conviction. This case illustrates the absence of any need for two jurisdictions to hear a case. The trial judge, direct appeal in state supreme court,  and repeated rulings denying the petition in state court yet the law allows a federal court to review a state court decision. In reality, the federal court reviewing a state court decision on federal habeas corpus undertakes a thorough retrial masked in alleging wrong motions, jury instructions, or some personal objection finding ineffective assistance of counsel. What is the possibility of another trial in a few years?

Curiel v. Miller, 830 F.3d 864 (9th Cir. 2016)

Ten years ago a jury convicted Curiel of murder and sentenced him to life imprisonment. All state court hearings affirmed the conviction as did the three judge 9th Circuit panel.  Reheard, the panel reversed on grounds the California court rules misapplied tolling.  One judge, Stephen Reinhardt concurred in a lecture informing  California courts how to operate.  Reinhardt should know, after all, he and the 9th Circuit have been reversed by the Supreme Court more than any other court in the country .

He does make one good point.  The California Supreme Court should amend its habeas rule in capital cases and impose a specific time for filing habeas corpus instead of the  current rule holding the petition should be filed in a “reasonable time.”

Add this case to another 9th Circuit reversal of a murder conviction (after only ten years).

Crittenden v. Chappell, 804 F.3d 998 (9th Cir. 2015)

A 1989 conviction reversed in a 2-1 majority by a 9th Circuit panel in 2015 that will certainly be reversed on rehearing; if not, the AG will petition the Supreme Court if she has time from her child truancy work.

This case is not only one of the worst decisions of academic hair splitting and denial of Supreme Court precedent, but also a manifest injustice to the relatives and friends of two murdered people and citizens of California.   The decision had nothing to do with guilt or innocence and was reversed on a collateral matter on voir dire, questionable and wrongly  decided.

The defendant was convicted of two brutal and vicious murders and a kidnapping by a unanimous jury who voted the death penalty. The California Supreme Court affirmed the conviction, but the defendant petitioned the district court. The judge denied the petition at an evidentiary hearing because the prosecutor’s excusal of a black juror did not have a “significant” effect on the trial , in part, by race. On appeal of the petition to the 9th Circuit on habeas corpus, the petitioner did not contend his innocence but alleged the prosecutor had improperly excused a black juror who had stated she did not support the death penalty.

The 9th Circuit majority held the district court should have determined whether the prosecutor challenged the potential juror for racial reasons in “substantial” part. (try distinguishing significant from substantial).  Crittenden- v. Ayers, 624 F.3d 958 (9th Cir. 2010).

On remand, without any evidentiary hearing, the district court changed its opinion and found the prosecution challenge “substantially” played a part in racial exclusion.  The AG appealed.

The author of the 9th Circuit opinion concluded the peremptory challenge violated the Batson v. Kentucky rule, i.e.,the Supreme Court opinion which forbids prosecutors from excusing a potential juror on racial grounds, a doctrine  based on the Equal Protection Clause-which says nothing about peremptory challenges and the rule causes endless time in jury selection -. The majority author in Crittenden writes from the same record reviewed by the California Supreme Court and the district court judge who originally wrote the first decision.

According to the majority panel, just because a juror will not vote for the death penalty does not trump the racial issue.  The author of the decision knows nothing about voir dire.  Body language, voice tone, demeanor, background, education and other intangible factors in a courtroom are far different than reading a cold record.  The Supreme Court has concurred with that difference more than once.

The Supreme Court has written harsh opinions about the 9th Circuit. Habeas corpus is not an appeal; the federal rule of habeas corpus in state cases requires a finding the state courts are inextricably out of sync.  Neither of these warnings see reference to that rule in this case.

The worst part is the result: Reversed and remanded to the district court, and ultimately to the state court to re try the defendant for a 1989 case. What are the chances of finding all the witnesses, the exhibits, and other evidence? In effect, this decision releases a murderer from conviction and penalty after all this time-on a collateral penalty indifferent to the evidence at the trial.

The author of this opinion has never affirmed a death penalty case.  He and his colleagues have overruled almost every  death penalty case law for the last decade on various reasons and usually reversed by the Supreme Court.  This case will reach that result if not reheard.


Smith v. Lopez, 135 S.Ct.1) Reversed by Supreme Court & Remanded

This case was originally written by the Supreme Court in October, 2014 (Smith v. Lopez, 135 S.Ct.1 (2014), reversing the 9th Circuit panel decision in Lopez v. Smith, 731 F.3d 859 (9th Cir. 2014), and discussed extensively in Recent Cases in the 9th Circuit Watch blog.

On August 21, 2015, in a one paragraph order, the 9th Circuit panel wrote that the Supreme Court had reversed Lopez in an October 2014 per curiam decision. The 9th Circuit panel took almost one year to publish its reversed decision. One year to read a Supreme Court per curiam decision? And in that decision, the justices not only reversed on legal grounds but specifically named the 9th Circuit as violative of Supreme Court decisions.

In addition, this 9th Circuit order written today that ” the judgment of the district court granting Smith’s petition for a writ of habeas corpus is REVERSED, and the matter is REMANDED…[to the district court] (caps in original).”  Nothing said about the 9th Circuit panel not only reversed but severely reprimanded by the Supreme Court.

This case is discussed more thoroughly in the blog on Commentary.


McCormack v. Herzog, 788 F.3d 1017 (9th Cir. 2015)

The 9th Circuit allegedly selects its panels randomly, but challenges by critics to its methodology have gone unanswered;  McCormack v. Herzog was written by a judge whose decision could have been predicted the moment he got the assignment.  His decisions on civil rights, prisoner rights and defendant’s rights are routinely foregone conclusions.  An abortion case, like this one, was already decided regardless of the issue.  Of course he is not the only judge with a one track mind, but on abortion-unquestionable.

For some reason the plaintiff, who self induced an abortion, filed her complaint against  the prosecuting attorney rather than the state of Idaho. Very unusual.

Idaho had previously lost an earlier abortion case with the same plaintiff, and the prospect of the 9th Circuit panel changing its mind in this case a foregone conclusion; McCormack v. Heidman, 694 F.3d 1004 (2012).  That case was also written by the same predictable judge as well as the instant case of McCormack v. Herzog.

There is little point in summarizing the facts.  The case rests on a judicial interpretation of Idaho state law restricting abortion under certain statutory conditions, and the 9th Circuit panel adopted the usual “unreasonable burden on women” routine to vitiate the statute. The 9th Circuit had also previously found an Arizona statute imposing limitations on abortion unenforceable on the same grounds.  Strangely, another predictable judge wrote that opinion; Isaacson v. Horne, 716 F.3d 1213 (9th Cir).

The 9th Circuit will prevent enforcement of any abortion statute written by a state legislature.  Federal court review of legislation written by sovereign states is common-and wrong. Roe v. Wade, one of the worst decisions ever written, barren of precedent, inventing a 14th Amendment issue, usurping the right of every state in the country to enact its own laws.

42 U.S.C. 1983, the statute invoked in this case, is increasingly the formula used to allege violation of civil rights. The statute enables the 9th Circuit and other federal courts to rule on state cases alleging violations of the Fourth and Fifth Amendment; Due Process; Equal Protection; Eighth Amendment; & First Amendment.  Given the unlimited judicial interpretation of Constitutional law, particularly in the 9th Circuit, the boundless variety of decisions in these cases emerged.  The “liberty” interest of the 14th Amendment invented by the Supreme Court is intangible, subjective and abstract. and The decision on abortion should be determined by voters in a democracy instead of three tenured federal judges imposing personal policy decisions. As in this case.

City & County of San Francisco, 135 S.Ct. 1765 (2015) Reversing 9th Circuit

The Supreme Court reverses the 9th Circuit again.  In addition, the justices criticize (and indirectly reverse) three other 9th Circuit previous decisions.

The director of a group home occupied by residents suffering from mental illness summoned officers to assist  him in moving resident Sheehan to another facility due to her threats. Upon arrival of police, the director opened the door to her room and the officers entered.  Sheehan demanded the officers get out, brandished a knife, threatened to kill them, and closed the door. The officers, concerned that others may be in the room, or Sheehan would hurt herself, or try to flee on the fire escape, decided to enter the room again. Uncertain of their options, the officers pushed open the door and Sheehan repeated her conduct, threatened them wielding a knife, and started toward one of the officers who pepper sprayed her in defense.

The spray proved ineffective and Sheehan approached the officer with knife in hand.  The officer fired two shot at her, but Sheehan did not fall.  The officer fired again.  At that point, other officers arrived and resolved the situation. Sheehan survived.

Sheehan sued the City & County and the officers under American Disabilities Act, 42 U.S. 12101 and under 42 U.S.C. 1983, the former on grounds the officers violated the accommodation of disabilities described by the Act and the latter statute under the Constitutional guise of the Fourth Amendment. The district court dismissed the case; the 9th Circuit reversed.

The City and the officers both asserted qualified immunity, and the 9th Circuit reversed by invoking non compliance with the Fourth Amendment. Here is the language of the Supreme Court in reversing:

“To begin, nothing in our cases suggests the constitutional rule applied by the Ninth Circuit. The Ninth Circuit focused on Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), but Graham holds only that the “ ‘objective reasonableness’ ” test applies to excessive-force claims under the Fourth Amendment. See id., at 388, 109 S.Ct. 1865. That is far too general a proposition to control this case. We have repeatedly told courts—and the Ninth Circuit in particular—not to define clearly established law at a high level of generality.” al–Kidd, supra, at ––––, 131 S.Ct., at 2084 (citation omitted); cf. Lopez v. Smith, 574 U.S. ––––, ––––, 135 S.Ct. 1, 3–4, 190 L.Ed.2d 1 (2014) (per curiam ). Qualified immunity is no immunity at all if “clearly established” law can simply be defined as the right to be free from unreasonable searches and seizures.
Even a cursory glance at the facts of Graham confirms just how different that case is from this one. That case did not involve a dangerous, obviously unstable person making threats, much less was there a weapon involved. There is a world of difference between needlessly withholding sugar from an innocent person who is suffering from an insulin reaction, see Graham, supra, at 388–389, 109 S.Ct. 1865, and responding to the perilous situation Reynolds and Holder confronted. Graham is a nonstarter.
Moving beyond Graham, the Ninth Circuit also turned to two of its own cases. But even if ‘a controlling circuit precedent could constitute clearly established federal law in these circumstances,’ Carroll v. Carman, 574 U.S. ––––, ––––, 135 S.Ct. 348, 350, 190 L.Ed.2d 311 (2014) (per curiam ), it does not do so here.”
The Supreme Court continued by listing cases the 9th Circuit  had decided in its opinion reversing the district court and criticized them all as inapplicable.
Because of jurisdictional questions the Supreme Court did not address the officer’s liability under the ADA.  But the remand and Supreme Court opinion clearly address the error of the 9th Circuit in denying quaififed immunity to the officers regardless of statutory language.  The 9th Circuit, as the Supreme Court notes, has repeatedly been advised on application of Fourth Amendment jurisprudence and the difference in analysis under qualified immunity.
That any court would disallow immunity to the officers when threatened by an unstable mental patient armed with a weapon is incredulous.  The Supreme Court thought so too.

9th Cir. Recent Cases in Supreme Court 2014-2015 Term

At  the end of the year 2014 we begin reviewing all 9th Circuit cases reversed by the Supreme Court during the 2015 calendar year. The end of the calendar year does not coincide with the Supreme Court term which began in October, 2014 and concludes in July, 2015. In January, 2015 the current term will continue. So, we include all the cases in 2014-2015 in the current term.

All the cases decided during the year from January 1, 2014  to January 1, 2015 cited here are in the Blog for further discussion.


Habeas Corpus: The Supreme Court gave the 9th Circuit another harsh lesson on habeas corpus in a 6th Circuit case.  (This Circuit is trying to match the 9th Circuit reversal record); Woods v. Donald, 2015 WL 1400852.  See the Blog for discussion.

Habeas Corpus: A week before the current term of the Supreme Court had even begun, the Justices reversed the 9th Circuit; Scialabba v. de De Osorio, 134 S.Ct. 2191 (2014). When the current term opened on October 6, 2014 the Court again reversed the 9th Circuit in a unanimous per curiam opinion. Lopez v. Smith, 135 S.Ct. 1 (2014).The overwhelming evidence in Lopez v. Smith cast no doubt he had killed his wife in their house. Police found Smith’s DNA evidence: on the body of the dead victim; on the lethal weapon; on jewelry removed from the house where the murder occurred concealed in the trunk of his car. A criminal evidence expert testified the ransacked house was a staged robbery. The jury rendered a guilty verdict of murder.

At the conclusion of the prosecution case, the prosecutor had obtained a trial court approved jury instruction defining the crime of aiding and abetting in addition to first degree murder instructions already submitted. Defense counsel objected, arguing he had no notice of the change in prosecution theory. All California appellate courts have rejected this argument, as did the trial court and Court of Appeal in this case, on grounds anyone who aids and abets is as guilty as the principle. The 9th Circuit panel on habeas review disagreed and overruled the California courts.

In Lopez v. Smith, and the cases cited above, the 9th Circuit has repeatedly evaded the restrictions imposed on federal habeas corpus jurisdiction mandated by the AntiTerrorism and Effective Death Penalty Act (AEDPA; 28 U.S.C. 2254). Federal law allows habeas relief only “if the state court decision was contrary to, or involved, an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. 2254 (d) (1). Parker v. Mathews, 132 S.Ct. 2148 (2012)..

AEDPA also requires federal courts “deference” to state appellate courts in habeas proceedings. The 9th Circuit panel in Lopez cited only their own precedents, and overruled the conviction on grounds the state appellate court opinion “unreasonable.” The Supreme Court reversed, concluding the 9th Circuit had “time and again” misinterpreted the facts and Supreme Court law under AEDPA and ignored deference to state courts.

               Lopez v. Smith is a heavily cited per curiam opinion without footnotes, but the dissenting opinion in Deck v. Jenkins lists an embarrassing number of Supreme Court cases reversing the 9th Circuit for failing to comply with AEDPA. In one Supreme Court case a Justice singled out the 9th Circuit for repeated violations of AEDPA committed by panels’ misapplication of habeas corpus precedent. In addition, the 9th Circuit has ignored or evaded almost every state court death penalty case for the last decade on habeas corpus grounds despite California Supreme Court affirmation on the merits and the penalty.


Immigration: De Osorio v Mayorkas, 134 S.Ct. 2191 (2014).  The district court had originally upheld a BIA decision interpreting an immigration statute and was affirmed on appeal by the 9th Circuit panel.  Rehearing was granted en banc and reversed; 695 F.3d 1003  (9th Cir.) by the usual judges.  Cert. to the Supreme Court and the en banc decision reversed. In a tiny one sentence order the 9th Circuit on remand affirmed the district court.

Immigration: Aragon-Salazar v. Holder, 769 F3d 699 (9th Cir. 2014. Petitioner appealed the BIA decision not to allow him to file cancellation of removal because he lied subsequent to his application and ineligible under the relevant statute. The 2-1 majority held the statute ambiguous as to when it was timely. The dissent skewers this reasoning.(Oct. 29, 2014).

Immigration: Kerry v. Din, 718 F.3d 856 (9th Cir 2014). Petitioner was denied a visa based on security concerns.  The 2-1 majority decided the court had judicial review of this administrative decision issued by the Secretary of State.  Here is the dissent: “The majority opinion acknowledges the doctrine of consular [State Dept.] nonreviewability and the “highly constrained” nature of our judicial review of the denial of a visa, see Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th Cir.2008), but in practice it fails to accept that doctrine and act within that constraint. Instead, assuming that judicial review must be more robust, it imposes upon the Government an obligation to provide information about a visa denial that, by statute, the government is specifically not required to provide when it denies a visa based on concerns for national security or terrorism. I respectfully dissent.”

Petition for cert granted: 135 S.Ct. 44




Castellanos v. Small, 766 F.3d 1137 (C.A.9 2014)

Castellanos is a case of overwhelming guilt, and the jury convicted him of second degree murder.  No jury would have found him “not guilty.” The facts are simple. In the presence of witnesses, the defendant (a gang member who had just been released from jail) shot a young boy in the head because he would not join a gang.  The trial was straightforward and nothing suggests the jury believed the defense of an “accidental shooting.” The trial record supports the sufficiency of evidence. Of course defense counsel filed a Batson motion on grounds the prosecutor excused an Hispanic juror – yet he had accepted 8 Hispanic jurors. The trial judge denied the motion.

On appeal in state court, Castellanos asserted no significant evidential or instructional error but argued his Batson motion; Peo. v. Castellanos, 2007 WL 2660214 (Non.Pub.). The California Court of Appeal disposed of the motion in a few paragraphs citing a California Supreme Court case deferring to the experience of trial judges and their familiarity with voir dire.  The California Supreme Court denied review.

On federal habeas in district court the judge denied the petition, and Castellanos appealed. The 9th Circuit panel, none of whom had trial experience, reviewed the same record as the state court trial judge, the California Court of Appeal, the California Supreme Court (denied review) and the district court judge.  The panel spent endless pages reviewing the cold voir dire record and concluded the prosecutor had excused a potential Hispanic juror on racial grounds despite his explanation of the reasons for the challenge to the judge who supervised the trial.

That a federal court would grant habeas corpus on collateral review without any deference to the state court, as required by the Supreme Court, and reverse the judgment on Batson grounds is inconceivable and a manifest injustice. This decision parallels Rice v. Collins, another 9th Circuit Batson reversal by the Supreme Court who correctly said: “The 9th Circuit simply substituted its judgment.”

The 9th Circuit is so fixated on race that it impairs their judgment. (Not only in criminal cases but immigration as well.) Castellanos was tried in 2005, nine years ago.  What are the chances of retrial by the prosecution after this length of time?  Ordering reversal of a murder case because one juror was allegedly wrongfully excused, despite the trial court, state court Justices on the Court of Appeal, and Supreme Court to the contrary, is irresponsible. The Supreme Court insists federal appellate judges respect and defer to state court judgments on habeas corpus.

Rehearing or cert.?  If cert., the Supreme Court should reverse the 9th Circuit panel decision as an “abuse of appellate discretion,” a term used by the Justices in a 9th Circuit decision reversed during the last term. And this habeas corpus petition -a collateral review entitled to double deference – overruling facts found by the trial judge and normally accepted on appeal, invites Congressional review to tighten AEDPA or eliminate federal review of state court decisions.

Note: The 9th Circuit panel used the so called “comparative analysis” system of matching questions and answers of jurors.  Worthless. Nothing in the “comparative analysis” includes the voice, demeanor, conduct, or body language of a juror.  Every  trial lawyer knows that. The 9th Circuit panel doesn’t.


Ortiz v. Yates, 704 F.3d 1026 (9th Cir.2013) reversing District Court

One of the most difficult criminal cases for the prosecution to try are those involving domestic violence. Prosecutors often discover that after the passage of time between infliction of injury and trial the witness decides not to prosecute.  Advising the witness to the consequence of dismissing the case, i.e., further violent conduct or retaliation, is not always successful. The indecision to testify occurs even at trial.  Whether the witness will testify and, if so, to what extent is always an issue. Ortiz v. Yates is an example.  And another state court case reversed on habeas corpus.

Couple this indecision of a witness with an appellate judge who has never tried a criminal case, and the outcome is disastrous. In Ortiz, the witness appeared at the police station, bruised and wounded, to report her husband caused the injuries, and she demanded a restraining order. Her statement was recorded on notes by a police officer but prior to trial the witness refused to talk to a DA investigator. She submitted an inconsistent declaration of the evidence, and her testimony at trial was equivocal. On her cross examination the court refused to allow evidence of an alleged pre trial threat by the prosecutor that she would confront perjury if she was untruthful.   

Obviously the jury understood she was a reluctant and recalcitrant witness, but the photos taken by police confirming her injuries, and the interviewing officer’s notes were more than sufficient to convince the jury she had been assaulted.  The prosecutor also introduced evidence of the defendant’s prior conviction-for the same offense.  The jury found the defendant-who did not testify-guilty. 

This trial occurred 13 years ago; the California Court of Appealed affirmed the convicton; the U.S. district judge denied the petition for habeas corpus.  The 9th Circuit 2-1 panel discarded the Antiterrorism and Effective Death Penalty Act (AEDPA) with the usual excuse that the trial court refusal to admit testimony about an alleged prosecution threat violated the Sixth Amendment right of confrontation and cross examination of witnesses..This “constitutional error” was an unreasonable application of Supreme Court precedent under AEDPA.

The inability of an appellate judge to understand domestic violence trials is patent.  The jury could tell the witness was ambivalent, inconsistent, and indecisive .  No one needs a law degree to understand the chemistry of domestic violence trials.  But the majority panel discovered  the Sixth Amendment right to confrontation to ramp up the ability to find constitutional error.  Obviously 13 years later this case will never be retried.

This case is, at best, a statutory error.  Arguably the witness might have answered that the prosecutor threatened her, and the trial judge should have permitted the testimony. The prosecutor had rebutted this accusation in a pre trial declaration. Other than disallowing this single question the court allowed full cross examination of the witness. But to raise Sixth Amendment error that failure to allow a single question, even if relevant, could cause a court to issue a writ of habeas corpus on collateral hearing despite the rulings of the California  Court  of Appeal and the district  court judge is ludicrous.  The dissent thought so too. 

Is it time to amend AEDPA?