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.

Hedlund v. Ryan, 854 F.3d 557 (9th Cir. 2017)

Another state court death penalty case reversed by a Ninth Circuit panel accompanied by a strong dissenting opinion. After the jury voted the death penalty the trial judge reviewed the defendant’s record, including mitigating evidence, and confirmed the verdict. On direct appeal the Arizona Supreme Court affirmed the judgment and sentence.. Continue reading

Jones v. Chappell, 806 F.3d 538 (9th Cir. 2015) & Deck v. Jenkins, 814 F.3d 954 (9th. Cir.2016)

A federal  district court judge in Jones decided the California death penalty was unconstitutional on grounds it violated the Eighth Amendment.  The judge ruled, citing no case, after encouraging the petitioner to amend his original petition which had not alleged any Eighth Amendment violation.  On appeal, the 9th Circuit panel cautiously reversed the district court pursuant to a Supreme Court decision disallowing new Constitutional rules by federal appellate courts on collateral  review.  The 9th Circuit has ignored that rule indirectly for over a decade.

The 9th Circuit appellate panel in Jones cited Teague v. Lane, 489 U.S. 288, a case holding that “federal courts may not consider novel constitutional theories on habeas review. That principle serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered.” Sawyer v. Smith, 497 U.S. 227.The 9th Circuit has reversed so many state court cases by citing its own precedents, and ignoring or distinguishing Supreme Court decisions, that its panel decision in Jones was a surprise.  The panel reversed the district court.

But apparently other 9th Circuit panelists did not agree, and in Deck v. Jenkins the 2-1 majority wrote one of the worst opinions ever-and that is saying a lot. In Deck, six judges, responding to denial of an en banc hearing, wrote a scathing dissent contending the majority panel reversal of the state court decision disrespected Supreme Court decisions, particularly Davis v. Ayala, 135 S.Ct. 2187 (2015).  In Davis the Supreme Court specifically lashed the 9th Circuit verbally for ignoring AEDPA. According to the Supreme  Court, federal habeas corpus exists only to review the failure of the state court procedural machinery.  Never mentioned by ;the panel majority in Deck.

The 2-1 majority in Deck contended somehow Brecht v. Abrahamson, 507 U.S. l619 undermined AEDPA.  Aside from the dissenting judges in Deck, how this decision  could possibly occur was repudiated by a footnote in the dissenting opinion.  The late Justice Scalia citied fourteen cases of Supreme Court reversals of the 9th Circuit for failing to apply AEDPA.

This decision in Deck, surely to be granted cert., ought to be the final straw for the Supreme Court in allowing 9th Circuit jurisdiction in habeas cases from state courts.


Rogers v. McDaniel, 793 F.3d 1036 (9th Cir. 2015)

Nothing stops the 9thCircuit from reversing death penalty cases.  The Rogers case is so unjust the Supreme Court should eliminate habeas corpus cases from the 9th Circuit  docket.

On December 3, 1980, Frank and Linda Strode returned from a Thanksgiving trip to their home in an isolated part of Pershing County near Majuba Mountain (Nevada), where they resided with Frank’s parents, Emery and Mary Strode, and Frank’s sister, Meriam Strode Treadwell. When they entered their parents’ trailer, they found the dead bodies of Emery, Mary and Meriam under a blanket in a bedroom. Emery had been shot three times and stabbed twice with a knife which was left in his chest. A pocket watch discovered in Emery’s shirt pocket had been struck by one of the bullets; the hour hand of the watch was stopped at one o’clock. Mary had been stabbed in the back and shot in the chest. Meriam, whose wrists were bound with an electric cord, died from a single gunshot wound in her back. Emery and Meriam kept daily diaries. The last entry in both diaries was recorded on the morning of December 2, 1980.

The jury convicted Rogers and voted the death penalty.  The arrest and trial of Rogers are not in issue, and the Nevada Supreme Court affirmed the verdict on appeal.  The federal district court granted habeas corpus and the prosecution appealed to the 9th Circuit.  Affirmed.

In Nevada death penalty cases the jury is instructed at the guilt phase and separately at the penalty phase. In the trial, the prosecution sought to prove several aggravators that would make Rogers eligible for the death penalty. Ultimately, the jury found two aggravators: “[t]he murders involved torture, depravity of mind,or mutilation of the victim;” that these murders were committed by a person who was previously convicted of a felony involving the use or threat of violence to the person of another.” The jury found no mitigating factors sufficient to outweigh the two aggravators of this crime. The jury imposed the death penalty.

As noted, the trial court instructed the jury that first degree murder requires “depravity of mind and can be found only through evidence of torture, mutilation or other serious and depraved physical abuse beyond the act  of killing itself”. Said the 9th Circuit panel, “Here, in contrast, Rogers inflicted at most five wounds on Emery Strode, during a ‘confrontation,’ and considerably fewer upon Mary Strode and Meriam Treadwell. These acts, though “reprehensible”, were coterminous with ‘the act of killing itself, and a juror likely would have concluded that these acts did not constitute torture or depraved physical abuse.”

Not torture? Not physical abuse? Killing three people, one dead with a knife in her back, the other bound by electrical cords, and one victim shot in the back.  This evidence, coupled with  a prior conviction of a violent felony does not evidence “depravity?” The panel said the absence of depravity might have avoided the death penalty.  “Rogers inflicted only five wounds [on one of the victims] and considerably fewer on [other victims]. ”

What kind of justice is this? Does anyone think Rogers is not subject to execution?  This panel bragged that in a previous 9th Circuit case the victim had been stabbed 45 times and that is not depravity.  According to the panel, the depravity must exist apart from the act of killing itself.  What kind of judges are these?

Of course this is a 1980 case and the prosecution must try to find witnesses in 2015.  And, AEDPA is cited and ignored because in this case the panel said the state court decision is “unreasonable.”

Grant an en banc rehearing.  If denied, take it to the Supreme Court. This decision is incomprehensible, disrespectful, and disgusting.  The panel conceded the crimes were “reprehensible.”  How touching. Or, as the district court held despite granting habeas corpus on other grounds, “remote.”

In a footnote the panel says it will not respond to other alleged court errors in the petition, so Rogers can raise them in remand to the district court. And, of course,  appeal a denial of any issues in this 1980 case.


Davis v. Ayala, 135 S.Ct.3373 (2015) 9th Circuit Reversed)

When the Supreme Court wrote its Batson v. Kentucky decision the justices virtually assured defense counsel they could contend the prosecution exercised peremptory challenges on a racial or ethnic basis in every case involving a black or Hispanic defendant. In Davis v. Ayala the courts have spent years arguing about a prosecutor who requested an in camera hearing in the court to explain his reason for excusing only black and Hispanic jurors.  He had asked the judge to explain prosecution trial strategy and  his request was granted.  Obviously, defense counsel objected. Jury selection lasted three months.

In this death penalty case the jury rendered a verdict of guilty and voted the death penalty.  Appeal is automatic in the California Supreme Court, and the conviction affirmed on grounds the defendant was not prejudiced by the in camera hearing. But the justices disapproved and recommended that trial judges not engage in this practice.  Defendant petitioned for habeas corpus in district court; denied, and the defendant appealed.  The 9th Circuit disagreed and reversed, with seven judges dissenting.  Certiorari was granted,  the Supreme Court  pulled out all the stops and  reversed the 9th Circuit.

First, they informed the 9th Circuit “that their role is not to conduct de novo review of factual findings and substitute the federal court ‘s own opinion of the determination made on the scene by the trial judge. In the Supreme Court the test is whether the error was  ‘harmless.’ “For  reasons of finality, comity and federalism, habeas petitioners are not entitled habeas relief … unless trial error resulted in actual prejudice.  “‘Harmless’ does not mean, as the 9th Circuit thought, that a state court’s harmless determination  has no significance.

“A trial court finding regarding the credibility of an attorney’s explanation, and the grounds for exercising the peremptory challenged, is entitled to great deference. Their judgment calls may involve a comparison of responses that differ in only nuanced respects, as well as a sensitive assessment of jurors’ demeanor. We have previously recognized that peremptory challenges “are often the subjects of instinct,” Miller–El v. Dretke, 545 U.S. 231, 252, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005) (citing Batson, 476 U.S., at 106, 106 S.Ct. 1712 (Marshall, J., concurring)), and that “race-neutral reasons for peremptory challenges often invoke a juror’s demeanor,” Snyder, 552 U.S., at 477, 128 S.Ct. 1203. A trial court is best situated to evaluate both the words and the demeanor of jurors who are peremptorily challenged, as well as the credibility of the prosecutor who exercised those strikes. As we have said, ‘these determinations of credibility and demeanor lie peculiarly within a trial judge’s province, and in the absence of exceptional circumstances, we [will] defer to the trial court. Appellate judges cannot on the basis of a cold record easily second-guess a trial judge’s decision about likely motivation.” Collins, 546 U.S., at 343, 126 S.Ct. 969  The upshot is that even if “[r]easonable minds reviewing the record might disagree about the prosecutor’s credibility, … on habeas review that does not suffice to supersede the trial court’s credibility determination.” Id., at 341–342, 126 S.Ct. 969 (majority opinion).”

Here are some extracts from the Supreme Court opinion: “In ordering federal habeas relief based on their assessment of the responsiveness and completeness of [a juror’s]  answers, the members of the [9th Circuit] panel majority misunderstood the role of a federal court in a habeas case. The role of a federal habeas court is to “ ‘guard against extreme malfunctions in the state criminal justice systems,’ ” Richter, 562 U.S., at 102–103, 131 S.Ct. 770 (quoting Jackson v. Virginia, 443 U.S. 307, 332, n. 5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ,not to apply de novo review of factual findings and to substitute its own opinions for the determination made on the scene by the trial judge.”

“It is understandable for a prosecutor to strike a potential juror who might have difficulty understanding English.The jurors who were ultimately selected heard many days of testimony, and the instructions at both the guilt and the penalty phases included “legal words” and words not common in everyday speech. The prosecution had an obvious reason to worry that service on this jury would have strained [the juror’s]linguistic capability.
“The Ninth Circuit reached a contrary conclusion by distorting the record and the applicable law. The Ninth Circuit first suggested that [the juror’s] English-language deficiencies were limited to reading and writing, 756 F.3d, at 680, but as the portions of the voir dire quoted above make clear, that was not true; the record shows that his ability to understand spoken English was also limited.”
“This is not how habeas review is supposed to work. The record provides no basis for the Ninth Circuit’s flight of fancy. Brecht requires more than speculation about what extrarecord information defense counsel might have mentioned. And speculation of that type is not enough to show that a State Supreme Court’s rejection of the argument regarding [the juror]Gerardo was unreasonable.”
Reversed. There are other Supreme Court words similar in rejection of the 9th Circuit opinion.
But the defendant petitioned again on a claim not resolved in the original 9th Circuit opinion; Ayala v. Wong, 756 F.3d 656 (9th Cir. 2014). Ayala had argued his conviction violated the Vienna Convention.  The state supreme court had denied the allegation and the 9th Circuit did not address it.  Now, on remand from the shambles of its opinion in the Supreme Court, the 9th Circuit affirmed the California Supreme Court and denied the petition; Ayala v. Davis,    

Pensinger v. Chappell (Warden) 787 F.3d 1014 (9th Cir. 2015)

Jurors in state court must now accept jurors only if they are lawyers, judges, justices, academics,  law professors, rhetoricians, or linguistic experts in order to understand jury instructions.

The 9th Circuit has reversed the penalty in this death penalty case (as usual) in one of the most vicious, despicable, detestable cases ever tried in California.  The  defendant was convicted of not only murdering a small child, but also severing her reproductive organs from her body to prevent sexual identification. Although the defendant alleged another person responsible for the crime, the jury found him guilty of murder and kidnapping.

The death is so gruesome that any jury would impose the death penalty, and the jurors  convicted the defendant on the charge of felony murder based on the underlying crime of kidnapping. The 9th Circuit panel did uphold the verdict of guilty, but held California law “special circumstances” instructions on the penalty phase require proof that the kidnapping was committed for an independent felonious purpose ,i.e. not merely “incidental to the murder.” The panel cited the California Supreme Court case in Peo. v. Green, 27 Cal.3d (1980). The defendant in Green planned to throw gasoline on  the victim’s house, igniting a fire, and shoot the victim when he ran to escape the flames.  Instead, the victim was trapped inside the house and burned to death.  The wife was seriously burned but survived to suffer years `of surgery.

The Green court held the prosecution had shown no independent motive of murder by arson other than committing the arson, and the “special circumstances” jury instruction in the penalty phase (invented in the case) should have been given. This is the kind of academic unreality apparently held by one of the newly appointed California Supreme Court justices who has never tried a case in his life .  The jury does not rely exclusively on jury instructions.  They consider  the depravity of the case, the defendant’s testimony-or lack thereof- the nature of the crime and the extent and kind of evidence submitted.  The 9th Circuit panel confirmed the jury  decisions on guilt and that alone should be enough without academic quibbling.

According to the panel, this inexplicable distinction written by the California  Supreme Court occurred in compliance with Supreme Court jurisprudence. In other words, the jury can find the defendant guilty regardless of whether the underlying felony was “incidental” or not.  But to support the death penalty, the crime had to be independent of the murder. Subsequent litigation by the state supreme court has modified that rule but the 9th Circuit prefers the Green rule.

Because the defendant was convicted in1982, AEDPA had not been enacted so the 9th Circuit  could review this case de novo.  You  would think that no matter what the evidentiary standard, the appropriate penalty in this case was death-not a reversal from a lawyerly parsed instruction no juror could understand.  And even if the “correct” jury instruction was not given, the error is so harmless that any juror would ignore the legal lingo or comprehend it. How can the prosecutor retry the penalty after 30 years, the delay attributable to the defendant petitioner on federal habeas corpus and an affirmed decision previously issued by the California Supreme Court?

Another case ready for cert.



Ryan v. Wood, 135 S.Ct., 21 (2014) reversing Wood v. Ryan, 759 F.3d 1076

The 9thCircuit has used every conceivable device to reverse state court death penalty decisions.  When unable to find any legal error on collateral review, the panel invokes “ineffective assistance. of counsel.”  The Supreme Court decision in Martinez v. Ryan permitting ineffective assistance challenges to post conviction counsel offered the 9th Circuit another opportunity for reversal.  But Wood v. Ryan, a 2-1 decision, exceeded all expectations in any death penalty case.

A state of Arizona jury found Wood guilty of first degree murder and sentenced him to death.  After all the customary delay incurred by the 9th Circuit on federal habeas, the panel ran out of excuses. The Arizona judge signed Wood’s death warrant, and the State scheduled an execution date.  Wood filed a petition seeking a stay of execution citing First Amendment grounds.   Yes, free speech, freedom of religion, free press and assembly forbade execution without a hearing.  According to defense counsel, Wood was entitled to know what drugs the state intended to use. The court granted the stay!

The dissenting opinion characterizes this argument as ” novel.” No, it is not novel.   There are far better denigrating words to describe this absurd tactic.  It took the Supreme Court 24 hours to vacate this complete departure from reason.  Worse yet, it adds to the 9th Circuit reversal record now at an all time high.

In succession, another 9th Circuit decision was reversed by the Supreme Court decided even before the new term began in October.   And on the opening day of the new term the Supreme Court reversed the 9th Circuit again in a per curiam opinion criticizing the appellate court for “time and again” refusing to fellow precedent. Then, one week later, the Supreme Court granted two more certs. from the 9th Circuit.

Ryan v. Wood, 133 S.Ct. 21 (2014); reversing 9th Circuit

A 9th Circuit panel, desperate to enjoin a State of Arizona execution of inmate Wood, wrote one of the highest forms of appellate injustice ever written.  The panel could find no judicial error in the trial, and an Arizona court had confirmed the death warrant. A few days before the date of execution, Wood sought a preliminary injunction from the district court.  Through his counsel, Wood contended he was entitled to the name of the drug manufacturer,the name of the drug administered in the execution, and the credentials of the administrators. The state AG provided counsel with some of the requests but not all. Defense counsel filed the petition requesting the injunction. Denied.
On appeal to the 9th Circuit, the panel granted the injunction – on grounds of the First Amendment. Unable to cite a single case as precedent, the panel tried to analyze on related grounds applicable to executions. The panel subsequently issued a stay.
In this 2-1 decision by the majority judge, who regularly reverses death penalty cases, the dissenting judge rebuts this “novel” decision unsupported by legal or historical evidence. It took the Supreme Court 24 hours to unanimously vacate the panel stay and without any supporting justification; The Supreme Court reversal explains everything.

Johnson v. Finn, 665 F.3d 1063 (9th Cir. 2012)

This case was originally decided by the 9th Circuit in September, 2011 and returned to the district court on remand after previously  overruling the California state court case on habreas; Johnson v. Finn, 665 F.3d 1063 (9th Cir. 2011).  In the Finn case, as in all state cases, the 9th Circuit panel scours the record seeking reversal.  They focus on jury selection, ineffective assistance of counsel, jury instructions and particularly on the death penalty phase of capital cases  The 9th Circuit record consists of  a dismal  reversal of every death penalty case in the last decade except 2.  Th 9th Circuit reversal record  the Supreme Court is disgraceful.

The 9th Circuit court specializes in prosecutorial exercise of peremptory challenges of black jurors and almost any evidence will do.  In Finn the federal magistrate judge on habeas corpus concluded the prosecutor had wrongfully excused black jurors and sent her report to the district court judge. He rejected the result. Whereupon the 9th Circuit panel on appeal held the district court judge cannot reject a magistrate’s finding until he holds a hearing.  Why a second hearing?  The judge assigned the [Batson] motion to the magistrate judge and they disagreed on the result.

The 9th Circuit panel spent endless pages confirming the right of the magistrate judge to weigh the credibility of the prosecutor’s testimony at the habeas hearing  and how important this practice is to assess credibility.  This judicial comment is the same court that ignores immigration court issues of credibility routinely.  The 9th Circuit panel also ignores the fact the trial judge in state court, and the Court of Appeal,  rejected the challenged  prosecutorial  decision to exclude jurors.  The Supreme Court has repeatedly held the trial judge is the best person to judge credibility of the prosecuter in explaining his reasons for excusing juors.  Not in the 9th Circuit.

This holding is another verbal tweaking of the evidence and another social justice issue.  The California Court of Appeal rejected the defense argument and that should be the end of it.

It is time to reconsider the role of federal habeas corpus review of state court cases.  The Supreme Court, in reversing the 9th Circuit several years ago, disallowed it to hear search and seizure cases on habeas from state courts.  Recently it told the 9th Circuit to get out of state parole hearings.  It’s time to get the 9th Circuit out of state court judgments entirely.

On remand, the district court ordered release or retrial in accord with the 9th Circuit order. 


Phillips v. Ornoski, 673 F3d 1168 (9th Cir. 2012)

Comparable to many cases deserving of the death penalty, the facts are chilling.  The defendant Phillips explained a financial scheme to two men enabling them to defraud other people of their money.  In order to facilitate the fraud, Phillips secured cash from both men who agreed to the scheme.  At some point, the two men delayed paying money allegedly owed to Phillips but they agreed to meet and talk about it.

Phillips and a female companion drove to a remote location and met the two men who were seated in their car.  After a few words were exchanged among them, Phillips pulled out a handgun and shot both men several times.  He then poured gasoline on them and lit their clothes on fire. One man fled in burning clothes, but Phillips ran him over in his car. Phillips searched both men and took their wallets. Miraculously, one victim lived but the other man died.

Phillips and his companion fled the state, were arrested and charged with murder of one man, attempted murder of the other man, and robbery. In addition to testimony by the victim, the prosecution offered testimony by the female accomplice but without disclosing a promise of leniency to her.  Evidence also was submitted that Phillips had arranged for a “hit man” to kill the witnesses, and had admitted killing one of the victims. Phillips testified to an alibi but admitted he lied. The robbery charge to the jury was required for the special circumstance of felony murder warranting the death penalty.  The jury voted guilty on all counts, confirmed the special circumstance, and approved the death penalty.

On appeal of the conviction to the California Supreme Court Court, Phillips alleged the prosecutor had failed to disclose benefits promised to his female companion in exchange for her testimony.  The state court affirmed. Phillips filed habeas corpus in district court.  Denied.  On appeal, the 9th Circuit reversed on grounds of ineffective counsel and returned the case for an evidentiary hearing; Phillips v. Woodford, 267 F.3d 966 (9th Cir.2001). The Supreme Court reversed the 9th Circuit.  The 9th Circuit decision was so absurd that the reversal was obvious.

Phillips appealed the original district court decision denying his petition of habeas corpus to the 9th Circuit.  The 9th Circuit panel 2-1 majority affirmed on the merits of the counts alleged (compelled to do so by the Supreme Court decision) but reversed the death penalty.  The grounds alleged for reversal of the death penalty were the same as alleged in state court: failure of the prosecutor to disclose benefits to a prosecution witness in exchange for her testimony as an accomplice.

In one of the most inexplicable decisions ever written, the panel affirmed the merits of the case despite prosecution failure to disclose commitments to the witness, but invoked  the same reason for reversing the death penalty.   Here is the exercise in verbal prestidigitation: Under California law, felony murder is proven only if the death of the victim was committed to facilitate the robbery. Ordinary murder, committed by conduct unrelated to theft, does not constitute felony murder; Peo. v. Green, 27  Cal.3d 1 (1980).

The 9th Circuit majority used the Green case to hold that the murder and attempted murder by Phillips was not to facilitate robbery.  Just pure murder.  Therefore, the special circumstance instruction requiring felony murder had not been proven in the absence of evidence that Phillips robbed the two men.  Of course Phillips rummaged through the clothes of his victims and took their wallets.  Apparently that doesn’t count.

The dissenting judge disagreed with the majority of the panel.  Remarkably, no other judge sought rehearing.  This case is another instance of a federal court overruling the California Supreme Court, the jury, and a federal district court judge.  The decision, in a trial of overwhelming evidence, invokes an arcane legal distinction to invalidate a death penalty.  According to the panel, failure to disclose a pre trial commitment to a witness does not affect the merits but it does affect the penalty. As the dissenting judge skillfully writes: “The question the majority addresses seems to be ‘is there any conceivable, speculative possibility we can think of that would make Phillips guilty but without the special circumstance?'” 

This case was tried in 1977.  Affirmed by the California Supreme Court and a U.S. District Court judge;  wrongly reversed initially by the 9th Circuit panel whose decision was reversed by the Supreme Court; and in 2012 the panel unearthed an insignificant  and meaningless legal distinction to vacate the death penalty . Even if correct, and the prosecutor faulted, the overwhelming evidence justified the jury decision.

Payton v. Cullen (Warden), 558 F.3d 690 (9th Cir. 2011)

For those who oppose the death penalty, here are the facts of a 1980 conviction and sentence: “William Charles Payton raped and murdered Pamela Montgomery in the early hours of the morning on May 26, 1980. She had been stabbed twelve times, six of the wounds in a line from Montgomery’s stomach to her groin. After that he repeatedly stabbed Patricia Pensinger with a knife, as well as her ten-year old son Blaine who was trying to help his mother. Pensinger suffered 40 stab wounds to her face, neck, back, and chest; Blaine had 23 stab wounds to his face, neck, and back. They survived. Payton’s wife testified that when he got home at 6:15 AM, his clothes, face, and hands were covered in blood.”
At no time has Payton argued innocence for a crime commited 31 years ago. Here is the record of the 9th Circuit after conviction: “The California Supreme Court affirmed on direct appeal and on habeas review. People v. Payton, 3 Cal.4th 1050, 13 Cal.Rptr.2d 526, 839 P.2d 1035 (Cal.1992). Payton filed a federal habeas petition on May 3, 1996; in two orders, one issued June 1, 1999 and the other December 17, 1999, the district court granted summary judgment for the state on guilt phase claims, and for Payton on a claim of instructional error applying California’s “factor (k).” Cal.Penal Code § 190.3(k). Having granted the writ on this sentencing issue, the court did not address the merits of other penalty phase claims—IV(A)(5), IV(C)(1)-(17), IV(D), and V(A)-(D). The parties cross-appealed.”

The three-judge panel reversed on the factor (k) issue, and affirmed on Payton’s claims that his counsel rendered ineffective assistance in failing to investigate and present evidence about his personal, family, and mental background and to pursue the background of a jailhouse informant during the penalty phase; that prosecutorial misconduct offended due proccess; and that he received inadequate funds to develop defenses and investigate informants. Payton v. Woodford, 258 F.3d 905, 922–25 (9th Cir.2001). The panel also rejected Payton’s arguments that his counsel prejudicially failed to develop and present evidence of Post Traumatic Stress Disorder (PTSD) resulting from service in Vietnam, and that his sentence should be reversed for cumulative error. Id . at 925. The case was reheard en banc. Payton v. Woodford, 273 F.3d 1271 (9th Cir.2001) (granting rehearing en banc and ordering panel opinion not to be cited as precedent). The en banc panel reinstated the district court’s decision on factor (k), Payton v. Woodford, 299 F.3d 815, 822 (9th Cir.2002) (en banc), applying pre-AEDPA standards. The Supreme Court held that AEDPA applied. Woodford v. Payton, 538 U.S. 975, 123 S.Ct. 1785, 155 L.Ed.2d 662 (2003). Applying AEDPA, the en banc panel again affirmed on factor (k), Payton v. Woodford, 346 F.3d 1204, 1206–07 (9th Cir.2003), and the Supreme Court reversed. Brown v. Payton, 544 U.S. 133, 147, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005). On August 15, 2005, the en banc panel remanded to the district court to consider Payton’s “remaining claims not already addressed on the merits.”

 On remand, Payton sought to relitigate several issues that the district court (and the three-judge panel) had previously decided. The district court believed that it could rehear previously adjudicated claims, but saw no convincing reason to do so. It addressed the “remaining claims” that had not been resolved, denying each and thus, denying relief on Payton’s petition. The court granted a certificate of appealability (COA) on Claim IV(C)(15), which challenges the constitutionality of California’s lethal injection protocol.”
In 2011, Payton continues to litigate and even now this 9th Circuit decision specifically allows him to challenge the death penalt, its enforcement left dithering in U.S. District Court (Protocol by Cal. Office of Administraive Law approved July 30, 2010; Cal. Code. Regs.tit. 15 ss3349 et seq. (2010).

Sivak v. Hardison (Warden), 658 F.3d 898 (9th Cir. 2011)

The facts are set forth in detail to accentuate the inconceivable decision of a 9th Circuit opinion.
“According to her husband, Dixie Wilson left her home around 6:20 on the morning of April 6, 1981, to go to her job at the Baird Oil gas station. By 7:00 a.m she had been stabbed and shot repeatedly. Numerous witnesses testified that, when they found her on the gas station floor, she was breathing faintly and appeared to be unconscious, her “face was all bloody,” and blood was coming out of her mouth. One person noted that “her blouse was kind of up above her breasts,” and another said that her shirt was “pulled way up” so that “she was naked from … [the] top of her breast down to her pants line.” There was a pool of blood on the floor around her, and a knife blade was lying on the ground. The gas station’s money drawer was open, and contained only loose change, and no bills. An empty money bag was sitting out on the countertop.

Wilson was unconscious when she arrived at the hospital, and was declared dead less than an hour later. An autopsy revealed that she had been shot at least five times in the head and face, and the coroner recovered seven separate bullet fragments from her skull. She was stabbed approximately twenty times around the head, neck, and shoulder, as well as on her left hand, which a physician described as a defensive wound. An x-ray appeared to show the tip of a pocketknife blade lodged in her skull, and the tip of a knife blade was recovered from her hair.”
A jury found her guilty in 1981, and the trial judge imposed the death penalty.  In 2011 the 9th Circuit panel affirmed her conviction on habeas corpus but reversed the death penalty.  Because this trial and conviction occurred prior to Congressional enactment of AEDPA in 1996, the panel could ignore state court rulings and retry  the case. Although  the evidence was compelling, the prosecution also offered the testimony of two witnesses in custody for other crimes who testified the defendant had confessed to them.
The state court on direct appeal agreed the prosecution had withheld communications between  prosecutors in other jurisdictions indirectly offering these two witnesses consideration in exchange for their testimony.  According to the state court, this evidence had no consequence in affecting the verdict or imposition of the death penalty.The 9th Circuit panel agreed the testimony insufficient to reverse the jury verdict, but did not comment on all the other evidence submitted by the prosecution-including the admission by the defendant that he was present at the time and place of the crime but his friend committed the murder)tried separately and convicted of murder). 
According to the 9th Circuit panel, the trial court might not have imposed the death penalty if it had known the two witnessses were promised leniency in their cases. The court apparently assumes judges are innocent lambs unaware of witness credibility.  One witness testified he was a “chronic liar.”  Judges do not live in sheltered towns unaware that witnesses may have a motive to testify, and defense counsel will emphasize the danger of testimony from a witness who is probably going to be rewarded.
Cross examination of the witnesses by defense counsel, and in his argument to the jury not to rely on the testimony of the two witnesses with criminal backgrounds, was heard by the trial judge who undoubtedly intuited prosecution promises.
What rational person who heard the evidence described above would not have voted the death penalty? This vicious, heinous, inexcusable crime warrants the death penalty.  And the 9th Circuit panel says nothing about “mitigation” evidence offered by the defendant to avoid the death penalty.
This case constitutes a 9th Circuit decade of decisions setting aside the death penalty.  The 9th Circuit has not affirmed a single death penalty case in a decade. 

Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011)

In Brewer v. Landrigan  (See, Blog) the Supreme Court reversed a Ninth Circuit decision staying execution on grounds the FDA had not approved the lethal drug used by the State. In a unanimous per curiam opinion the Supreme Court dismissed this contention in a one page decision not even requring  oral argument. In another decision the Court had approved the death penalty protocol used by Kentucky in Baze v. Rees, 553 U.S. 35 (2008) but Dickens contended the Arizona protocol did not comport with Baze.

In Dickens v. Brewer counsel argued not that the protocol was invalid (indeed he conceded the validity of the protocol) but that nothing guaranteed that Arizona would implement the standards. According to Dickens, past mistakes in executions warrant a prediction of future errors.

The Ninth Circuit panel rejected both arguments.  Dickens presented no evidence that Arizona would use the standards only as a facade.  And every other Circuit Court rejected the complaint that previous errors  in implementing the protocol would not establish  failure or refusal to to comply in future applications of the protocol.

The 9th Circuit did not say so, but to grant a stay on the ground of the possibility of a State’s indifference or failure to apply the protocol would prevent an execution at any time in the future.  The U.S. District Court had granted Arizona summary judgment. Affirmed.

Brewer v. Landrigan, 131 S.Ct. 445 200 (2010)

The most recent Supreme Court repudiation of the Ninth Circuit occurred in Brewer v. Landrigan, 131 S.Ct. 445 (2010). Landrigan was convicted in Oklahoma of second-degree murder in 1982. In 1986, while in custody for that crime, he repeatedly stabbed another inmate and was subsequently convicted of assault and battery with a deadly weapon. Three years later, Landrigan escaped from prison and murdered another man in Arizona. Convicted and sentenced to death in state court and affirmed on appeal, the Ninth Circuit granted his habeas corpus petition and reversed on its customary ground of “ineffective counsel.” The Supreme Court reversed and remanded.
Shortly before the scheduled date of execution, Landrigan filed a 28 U.S.C. 1983 claim in U.S. District Court, contending the drug used in the execution was not approved by the FDA. The district court granted a temporary restraining order and, on appeal by the State of Arizona, a Ninth Circuit panel affirmed. The State sought to vacate the order in the Supreme Court. The Justices reversed the Ninth Circuit in a single paragraph, dismissive of the Ninth Circuit rationale of its decision, and citing the absence of any evidence to impugn the safety in using the drug.

Crittenden v. Ayers, 624 F.3d 943 (9th Cir. 2010)

Lawyers who litigate in civil cases, and prosecutors and defense counsel in criminal cases, know the importance of voir dire of the jury. But all lawyers do not agree on whom to challenge, and their reasons vary infinitely.  They decide not necessarily based upon the answers to their questions but juror demeanor, their voice, the way they answer questions, their body language or just an intuition about the juror that suggest a peremptory challenge.

None of this resonates on the cold appellate record but the Ninth Circuit judges, particularly those who have never tried a case, ignore these factors and search the record in a quest for error-particularly in death penalty cases.

A perfect example is Crittenden v. Ayers.  From an exerpt of the case, here is the exchange between the prosecutor and the prospective juror: “Before voir dire, prospective jurors completed a questionnaire asking them about their background and beliefs, including their feelings about the death penalty. Ms. Casey, the only African-American prospective juror, noted on her questionnaire ‘I don’t like to see anyone put to death.’ During voir dire, Ms. Casey said she was ‘against death-being put to death’ and ‘against killing people.’ She said she thought her feelings concerning the death penalty would not cause her to vote against a first degree murder conviction or special circumstances if proven. She later stated, however, that she did not know whether her feelings about the death penalty might impair her ability to fairly evaluate all of the evidence and make a decision regarding the death penalty.”

“After questioning Ms. Casey, the prosecutor challenged her for cause ‘based upon her answer that she doesn’t believe in the death penalty.’ The trial court immediately denied the challenge without explanation.”
“Several days later the exercise of peremptory challenges began. The prosecutor used his fifteenth peremptory challenge to remove Ms. Casey from the jury. Crittenden’s counsel moved for a mistrial . . . and filed a lengthy motion asserting that striking Ms. Casey was race-based.

Objectively, would any lawyer fault this challenge?  The answers of the juror on the death penalty were so equivocal that the prosecutor challenged her for “cause.”  But according to three judge panel,  the challenge could have been “race based,” and they remanded for an evidential hearing despite the fact the California Supreme Court had already affirmed the conviction.

In addition, the evidence of guilt was overwhelming.  For the last decade in the Ninth Circuit, any death penalty is subject to reversal.  And on this case for the flimsiest of reasons.

Brewer v. Landrigan, 131 S.Ct. 445 (2010)

The Ninth Circuit affirmed a District Court injunction (after the state court refused to do so) mandating Arizona officials to disclose the efficacy of a drug obtained from foreign sources and not specifically approved for use in execution. Arizona appealed to the Supreme Court. Here is the order of the Supreme Court reversing the Ninth Circuit: “There is no evidence in the record to suggest that the drug obtained from a foreign source is unsafe. The district court granted the restraining order because it was left to speculate as to the risk of harm. [Citing the District Court:'[T]he [District] Court is left to speculate. . .whether the non-FDA approved drug will cause pain and suffering.’]. But speculation cannot substitute for evidence that the use of the drug is ‘sure or very likely to cause serious illness and needless suffering;’ Baze v. Rees, 553 U. S. 35, 50 (2008). There was no showing that the drug was unlawfully obtained, nor was there an offer of proof to that effect. The motion to file documents under seal is denied as moot.” To say that the Ninth Circuit decision affirming the District Court injunction against the use of a drug not approved by the FDA is specious would be an understatement. Landrigan was convicted in 1989 and the Ninth Circuit continues to undermine the death penalty with ideology-not law.

In re Gonzales, 623 F.3d 1242 (9th Cir. 2010): Pet. for Cert. Filed

Possibly worrying that the Supreme Court is aware of the usual “ineffective counsel” excuse the Ninth Circuit has used for the last decade in granting habeas corpus in state court cases, a three judge panel has discovered another method of delay for inmates in capital cases. In in re Gonzales, the panel held that the U.S. District Court must hold a hearing to determine whether the petitioner can communicate with counsel. According to the petition submitted by the eleventh attorney to participate in state and federal post trial proceedings, the legally incompetent petitioner cannot effectively communicate with counsel. The District Court had held an earlier hearing and the doctor agreed to the questionable veracity of Gonzales (who had been convicted of murder in 1991). The remedy: Mandamus to the trial court to hold another competency hearing. The Ninth Circuit panel concedes that habeas corpus is based entirely on the record, and an appellate court is bound by the trial court proceedings. What can the inmate possibly communicate? The records are the the only documents available for appeal, as the District Court ruled in denying the petition. Time for rehearing en banc. This is not the first case the Ninth Circuit in which has used this device and it cites as precedent only its own decision on record anywhere; Nash v. Ryan, 581 F.3d 1048, (9th Cir. 2009).