When the Constitution was written, the authors from the thirteen states would never have approved federal court review of their own state court decisions. Only after a century of constitutional enactment did the U.S. Supreme Court discover habeas corpus enabling federal review of state criminal cases. The 9th Circuit continues to rule repeatedly on state court cases ignoring or mis applying  Supreme Court decisions (for a list of decisions reversing the 9th Circuit, see Deck v. Jenkins,.   Hardy is no exception.

Hardy v. Chappell, a conviction affirmed by the California Supreme Court, state habeas courts and the federal district court judge was reversed by a  2-1 panel in another unbelievable and erroneous decision.  The panel cited three of their own cases reversed by the Supreme Court.

The decision in Hardy was nothing more then an AEDPA case, but the author (who probably wrote the opinion) is a judge who has never tried a criminal case, never affirmed a death penalty case, ignores Supreme Court opinion and repeatedly overrules the state supreme courts. The decision engages in an academic linguistic and incomprehensible opinion ruminating on what jurors “could have done”, or “might have done.” The 9th Circuit judge (senior) completely misunderstands jurors who watch witnesses and evaluate them.  Ninth Circuit Circuit judges read a cold transcript with no understanding of witness demeanor and attitude.

In order to avoid AEDPA ;the majority  come up with a few thoughts without any basis.  This case, as noted by the minority judge, is another 9th Circuit game playing, and the U.S. Supreme Court should strip that court from hearing habeas corpus of state court cases.  Thanks to the majority holding in Hardy, the prosecution is unlikely to ever to re try this case.

According to the 9th Circuit, the court uses a random selection of three judge panels. Strangely enough, two of the same judges are selected on death penalty cases, inclulding this one, and neither has ever upheld a death penalty: Marsha Berzon and Stephen Reinhardt.  The Bemore case is another example of their opinions oblivious to Supreme Court decisions.  In Woods v. Donald, 135 S.Ct. 1372 (2015) the Supreme Court held federal court review on habeas corpus state cases is not direct appeal.  The habeas corpus court  must  find “extreme disfunction of the state criminal justice system.”  The Bemore v. Chappel case completely ignores this command.

The California Supreme Court had upheld  the robbery murder conviction, and not only must the federal court apply the above rule in cases of alleged ineffective assistance of counsel, a habeas decision is entitled to “double deference.”  First, under AEDPA the court must defer to the state court and then defer secondarily to the Strickland case.  Neither requirement was met.

Further, the decision reflects misunderstanding defense counsel and juries.  Counsel attempted to establish an alibi so novel  that no one would believe it (including counsel). Bemore testified he had an alibi: he was not the robber, and killer, of the store clerk.  He was robbing a different location at the time of the robbery charged against him. The prosecution evidence was strong enough to implicate him, and the jury found him guilty and imposed the death penalty.

Obviously, defense counsel would not allow that kind of strategy to work but the defendant undoubtedly demanded it. At the penalty phase, counsel attempted to establish Bemore was a “good guy” and should not suffer the death penalty.  Forty witnesses testified in his defense.  But, said the panel, character evidence is not the  same as mental evidence, and counsel made no preparation for this mitigating evidence.  In a word, the expert witnesses’ testimony was weak, but not according to the panel.  Failure to prepare for mental illness at the penalty phase was ineffective assistance of counsel.

The jury had heard the guilt phase and found Bemore guilty despite his ridiculous alibi.  And now they were supposed to like him who was committing a different robbery?
Reading a cold record on appeal is not reality.

Reversed on the penalty phase.  Rehearing necessary.  The court opinion is as absurd as the alibi.

Another case written by a 9th Circuit panel reversing jury imposition of the death  penalty phase of a state court trial. Unsurprisingly, the judge who wrote the 39 page opinion – including footnotes – has never affirmed a capital case and was allegedly “randomly” selected..  The judge, “randomly” selected in a disproportionate number of cases on death penalties, has been reversed by the Supreme Court more than any judge in the country. Nor has the second judge on the panel ever affirmed a death penalty case. If the case is not reheard en banc, the Supreme Court will hear it.  And reverse.

The court starts with the observation that the procedural history of the case began in 2005, ten years ago, with the Supreme Court in reversing the 9th Circuit and ordering remand.  Without exploring the habeas corpus arguments, apparently Doe still has another pending case in addition to the current case.

In a curious and probably unlawful act, the panel deleted captions naming the district court judge and the defendant -petitioner- himself.  This hypocrisy will also be challenged. There is no authority for this, or at least the court cites none.

The facts of the brutal murder are horrific, and the judge writes that all murders are in that category. But, he writes, in capital cases the crime must be “egregious.” to warrant the death penalty.  There is no citation for this disgusting and insensitive characterization of raping and murdering a handcuffed woman in this case.

The merits of this case and the penalty were confirmed  by the California Supreme Court and the federal court district judge, but the petitioner filed his petition before Congressional enactment of AEDPA enabling the 9th Circuit panel to evade the rules of current jurisprudence-in which the court has repeatedly been reversed by the Supreme Court .  As noted in the next post, the 9th Circuit is finished with granting habeas corpus in state cases filed after 1996-the year Congress enacted AEDPA.

The court panel concludes that the attorney who tried this case did so “ineffectively” but insufficiently to warrant reversal on the merits.  On the penalty phase the court writes endlessly on the lack of experience and the mistakes of appointed counsel.  Curiously, in a subsequent hearing this lawyer agreed he made mistakes.  Why did the trial court, monitoring the case, not sense these mistakes and inquire of counsel of the course he was taking?  In any event, this disclosure by the attorney almost suggests he made these mistakes on purpose to preserve an appeal of a guilty client.

Without reviewing the horrible, but not “egregious,” facts, any jury would have imposed. the death penalty regardless of any mistakes by counsel.  The evidence of guilt is overwhelming and the mitigating evidence is the usual defenses.

Note: To read a more sensible and less theoretical death penalty case, see Elmore v. Sinclair, 2015 WL 1447149.

Another death penalty case reversed by a 9th Circuit panel in a 2-1 majority. This case qualifies as one of the worst decisions ever rendered  by a 9th Circuit panel and warrants an en banc hearing.  If denied, when the case on certiorari goes to the Supreme Court, their reversal language will exceed any other in their constant chastisement of the 9th Circuit.  This case does not even come close to the repeated explanation of federal habeas corpus authority issued by the Supreme Court.

This case is a 1989 execution planned by Mann, and he executed it by killing two men inside a house. Mann and another person scrupulously cleaned and renovated the house where the execution occurred, both destroyed their weapons and buried the dead bodies in a remote location.  The former girlfriend of Mann was present during the crime .Later, she reported the crime to police and testified at the trial.  The jury convicted Mann, who did not testify, and the judge imposed the death sentence.

Even the majority opinion demonstrates excellent representation by defense counsel.  At the sentencing hearing, counsel had introduced more than enough mitigation testimony at the trial, including a psychologist who testified Mann’s  head injury suffered as an adolescent did not affect his judgment.  Evidence that Mann thoroughly cleaned the house of any incriminating evidence, destroyed the weapons, and dumped the bodies in a remote area hardly suggests any cognitive impairment.

The Arizona Supreme Court affirmed the merits and sentence. The federal district court affirmed.  On appeal to the 9th Circuit, Mann alleged the usual “ineffective assistance of counsel” argument -so commonly used in the 9th Circuit the judges refer to it by its acronym; IAOC).  At an evidentiary hearing held after trial, the defense lawyer testified he considered recusing himself because the defendant wanted to lie at the trial, and counsel would not engage in perjury.  Further, Mann  had previous convictions which would make impeachment of his testimony even worse.  There is not a shred of mitigating testimony that would have changed the judge’s sentence.

Not according to the 9th Circuit panel, citing Strickland v. Washington, 466 U.S. 668 (1984) and ignoring all the Supreme Court habeas corpus jurisprudence demanding the 9th Circuit to respect AEDPA and not to rule on collateral review as you would on direct review. The test: to reverse on  habeas corpus: the federal court must find the state decision had been the result of an incompetent state judicial system.  The rest of the Mann opinion cites alleged failures of counsel to get medical records, interview witnesses, and other defense tools.

According to the panel, the sentencing judge mistakenly applied the Strickland standard as “clearly established federal law.”  The author of the Mann opinion should have read all the Supreme Court cases on the double deference accorded to state court decisions required to violate Strickland.

No lawyer in the 9th Circuit can escape the obvious fact that the death penalty will never be invoked no matter what it takes – including misinterpretation of the law as evidenced by the judicial manipulation in Schad v. Ryan.

For confirmation of this observation, read the dissent.

Some day, the Supreme Court will forbid federal habeas corpus in the 9th Circuit just as the Justices did in state search and seizure and parole cases. Ninth Circuit  panels have issued a  constant stream of opinions based on ineffective assistance of counsel when the court cannot find legal error.

Here is what the Supreme Court told the 6th Circuit about habeas corpus in Burt v.Titlow, 134 S.Ct. 10 (2013)   “AEDPA instructs that, when a federal habeas petitioner challenges the factual basis for a prior state-court decision rejecting a claim, the federal court may overturn the state court’s decision only if it was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding;” 28 U.S.C. § 2254(d)(2). The prisoner bears the burden of rebutting the state court’s factual findings “by clear and convincing evidence.” § 2254(e)(1). We have not defined the precise relationship between § 2254(d)(2) and § 2254(e)(1), and we need not do so here. See Wood v. Allen, 558 U.S. 290, 293, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010). For present purposes, it is enough to reiterate “that a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Id., at 301, 130 S.Ct. 841. AEDPA likewise imposes a highly deferential standard for reviewing claims of legal error by the state courts: A writ of habeas corpus may issue only if the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by” this Court. § 2254(d)(1).

[3] [4] AEDPA recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights. “[T]he States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause. Under this system of dual sovereignty, we have consistently held that state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States.” Tafflin v. Levitt, 493 U.S. 455, 458, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990). This principle applies to claimed violations of constitutional, as well as statutory, rights. See Trainor v. Hernandez, 431 U.S. 434, 443, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977). Indeed, “state courts have the solemn responsibility equally with the federal courts to safeguard constitutional rights,” and this Court has refused to sanction any decision that would “reflec[t] negatively upon [a] state court’s ability to do so.” Ibid. (internal quotation marks omitted). Especially where a case involves such a common claim as ineffective assistance of counsel under Strickland—a claim state courts have now adjudicated in countless criminal cases for nearly 30 years—“there is no intrinsic reason why the fact that a man is a federal judge should make him more competent, or conscientious, or learned … than his neighbor in the state courthouse.” Stone v. Powell, 428 U.S. 465, 494, n. 35, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (internal quotation marks omitted). [Recognizing the duty and ability of our state-court colleagues to adjudicate *16 claims of constitutional wrong, AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court. AEDPA requires “a state prisoner [to] show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error … beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. ––––, ––––, 131 S.Ct. 770, 786–787, 178 L.Ed.2d 624 (2011). “If this standard is difficult to meet”—and it is—“that is because it was meant to be.” Id., at ––––, 131 S.Ct., at 786. We will not lightly conclude that a State’s criminal justice system has experienced the “extreme malfunctio[n]” for which federal habeas relief is the remedy. Id., at ––––, 131 S.Ct., at 786 (internal quotation marks omitted).

III

After having been reversed  by the Supreme Court (Ryan v. James, 133 S.Ct. 579 (2013), the 9th Circuit panel on remand rewrote its decision that will be reversed again when the State of Arizona files cert.

In a sadistic, vicious and brutal murder the defendant James kidnapped the victim, crushed his head with a rock, and threw him down an abandoned mine shaft to his death. James was convicted and sentenced to death in 1981 by an Arizona state court jury. After all appeals in state court were denied, James filed 3 post conviction habeas corpus petitions. All petitions alleged ineffective counsel (among other claims) and were denied by state court judges.  In the last (3d) petition the state court judge wrote: “. . .[as] to the entire petition . . . there are no genuine or material issues of fact or law that are in dispute that would entitle [James] to an evidentiary hearing.  No colorable claims have been made.” With that unambiguous statement, all the allegations of ineffective counsel were denied on substantive grounds. The U.S. district court agreed and denied James’ federal habeas corpus petition.

The 9th Circuit holds the state court language is a procedural ruling, the petition is not decided on the merits, and therefore AEDPA is inapplicable. Having reversed all Arizona courts and the U.S. district court judge, the panel reversed the state court penalty phase and remanded for a hearing on mitigation evidence and the ineffective counsel allegation. A 1981 case reversed once by the Supreme Court and destined for another one (unless the 9th Circuit votes to hear it en banc).

The Supreme Court has verbally lashed the 9th Circuit repeatedly for evading AEDPA, and this case is a dramatic example of judicial misapplication of the record. Harrington v. Richter, 562 U.S._ (2011).  All the habeas corpus claims in Arizona state court assert ineffective counsel.   The state court judge in the last petition wrote a 38 page opinion clearly denying the validity of all the ineffective counsel claims.  There is no procedural interpretation and the case has been decided on the merits. Another example of 9th Circuit defiance of AEDPA and the Supreme Court.

Ignoring AEDPA again and writing a decision as though on direct appeal of a state court decision – a practice repeatedly condemned by the Supreme Court – a 9th Circuit panel reversed another case on collateral review.  Not only did the panel overrule the Arizona Court of Appeal and the Arizona Supreme Court, but reversed the U.S.District Court as well. All courts had denied the petition for habeas corpus.

The district court held an evidentiary hearing on the usual “ineffective assistance of counsel” argument alleging trial counsel had failed to read the records before trial. The  magistrate judge recommended dismissal of the petition for habeas corpus.  The district court judge agreed, but there is nothing in the record to show that counsel had failed to read the file when preparing for trial. The  9th Circuit panel cites no evidence in the evidentiary hearing to support that assertion.

Vega was convicted of sexual misconduct with his stepdaughter whose mother testified at trial her daughter had recanted her allegations. Despite cross examination of the victim on this issue, the jury convicted the defendant.  Several weeks after the trial, counsel learned the victim had previously recanted in talking with a Catholic priest.  No one, including Vega,  had told counsel about this evidence, and the Arizona Court of Appeal and the Arizona Supreme Court held this evidence not “newly discovered.”  The trial was the third trial against the defendant, and based on the two prior trials Vega and his prior trial lawyers were all aware of this recantation. Yet nothing in the record establishes the other lawyers or Vega  told counsel at the third trial. When counsel did learn of the second recantation he immediately filed a motion to vacate the verdict.  The trial court, in addition to the Arizona Court of Appeals, the Arizona Supreme Court and the  district court judge all denied the appeal and post verdict proceedings.

How can a lawyer be “ineffective” if the defendant knows about important information and fails to tell counsel about it? The panel says the additional recantation would possibly have tilted the balance in defendant’s favor.  If the jury hears the mother of the victim tesity her daughter recanted her testimony and the jurors nevertheless convicted the defendant, where does this judicial conclusion emerge?

Congress must address eliminating federal court habeas corpus review of state courts. The record demonstrates a constant misconstruction of which this case is another example.

Note: The 9th Circuit panel withdrew the original opinion and rewrote it resulting in the same judgment.

Those who opposed the death penalty at the November election argued the budget deficit justified ending capital punishment because of the excessive cost of capital cases.  That cost is attributable to one source never discussed: the Ninth Circuit.  To illustrate:  (Paraphrasing the Ninth Circuit panel). In March,1980, Lambright and Smith (another defendant) were traveling across the country with Lambright’s girlfriend. Smith complained to Lambright about the absence of  a traveling companion. In response, Lambright said they would find him a girl. Lambright also said that “he would like to kill somebody just to see if he could do it.”  The trio encountered a hitchhiker, Sandra Owen, and offered her a ride. Owen accepted and got in the car. Smith raped Owen in the back seat of the car on the way to a mountain site where they exited the vehicle. Smith then raped Owen a second time and thereafter began choking her. Lambright then stabbed Owen numerous times while Smith restrained her. Finally, Lambright struck Owen in the head with a rock. Owen died as a result of  her injuries.

Lambright, convicted of murder and kidnapping, was sentenced to death.The  media never report the facts in capital cases, but this crime is only one example of a savage and brutal killing of an innocent woman that warrants the death penalty. On direct appeal the Arizona Supreme Court affirmed the conviction. Lambright filed his federal petition in 1987 unencumbered by AEDPA.  The district court denied his petition.  On appeal the 9th Circuit reversed and remanded for an evidentiary hearing on Lambright’s claim alleging ineffective assistance of counsel; 191 F.3d. 1181(1999); Another  hearing in the district court, reversed and remanded on appeal ; 220 F.3d 1022 (2000); Another hearing in the district court, reversed and remanded on appeal; 241 F.3d 1201 (2001). Another  hearing in the district court reversed and remanded on appeal; 490 F.3d 1103 (2007); Another hearing in district court reversed and remanded on appeal; 698 F.3d 808 (2012).

And this record, deplorable as it is, compares with numerous other 9th  Circuit reversals after state supreme courts have confirmed the conviction and denied post judgment relief.  In the latest case at 698 F.3d 808 the argument is a “discovery issue”  at an evidentiary  hearing on alleged ineffective assistance of counsel.  The 2-1 majority writes endlessly on trivia that should have been decided long ago.  Lambright has never alleged “factual innocence” on the merits.  What jury would not vote the death penalty regardless of what counsel did?   According to the majority opinion, counsel failed to submit a psychiatric report at trial as mitigating evidence.

Convicted in 1987.  In court in 2012.

Reversing another death penalty case (2-1), the 9th Circuit panel majority reviews an “ineffective counsel” claim in a case the prosecution will never be able to retry.  The witnesses all were homeless wanderers, unreliable and inconsistent in their testimony. Nonetheless, the jury found the defendant guilty.

On direct appeal from the conviction the California Supreme Court ordered a hearing on the “ineffective counsel” claim, and was critical but did not reverse the verdict.  On habeas corpus in the 9th Circuit the panel first reminded readers the petition had been filed before the effective date of AEDPA.  This case was tried in 1985.

The ragtag witnesses, never identified the defendant as the killer, just testified to various facts linking him to the crime. The defense consisted of attempting to establish a third person committed the crime, also through  various witnesses.  One of the witnesses testified to facts implicating a third person (whose identity was never established) but who subsequently recanted all her testimony.  According to the majority, they didn’t need to consider this fact.

This is another typical 9th Circuit case criticizing counsel.  It is part of a pattern established a decade ago and continues even today.  The majority opinion does nothing more that argue about the relevance of three witnesses, none of whom had important information on direct or rebuttal.  The jury listened to this grabbag of witnesses, saw the evidence and not only found the defendant guilty but imposed the death penalty.

As the dissent points out, the California Supreme Court ordered an evidentiary hearing.  The referee heard the evidence and found the facts did not warrnt reversing the conviction.The California Supreme Court agreed.  But two federal judges disagreed in a case tried in 1985.

The judges on the 9th Circuit have repeatedly overruled the California Supreme Court on “ineffective counsel” claims.  These  judges have no understanding of criminal law trial practice and basically second guess the defense. In this case they chastise counsel for not locating a witness who no one knew existed.  Counsel had the same problem with incoherent witnesses as did the prosecution.  

In an opinion decided by judges Berzon and Fletcher, the “usual suspects” in criminal cases, the 9th Circuit panel set aside a death penalty case on the usual grounds of “ineffective counsel.”  The defendant was convicted in 1981 based on overwhelming evidence of a gruesome and vicious murder.  In 2012, twenty-three years later, and despite the repeated demands by the Supreme Court to conform to the Congressional act of AEDPA, this panel found ineffective counsel.
Apparently this defense did not occur to anyone else until this petition for habeas corpus was filed almost a quarter century after the trial.  James filed repeated duplicate petitions in Arizona state court and in federal court arguing innumerable grounds-all denied. Until the case arrived in the 9th Circuit.
Unless the State of Arizona seeks review in the Supreme Court, the ability to present evidence necessary to sentence James is almost impossible.  In the first place, one of the witnesses who testified against James was a juvenile, and sentenced to imprisonment until he turned eighteen.  The prospect of finding him, assuming  Arizona is able to subpoena him, and convincing him to testify, is slim.
The facts of this case warrant the death penalty regardless of James’ childhood, his drug use and the usual psychiatric testimony. James was not under the influence of any drug at the time of the murder; denied any opportunity to relent from his decision to murder the victim, and showed no evidence of remorse.

The 9th Circuit record of death penalty cases reversed on collateral review continues.  With one exception (a case recently decided after the Supreme Court had thoroughly lashed the 9th Circuit for applying the wrong law for the last decde), the 9th Circuit has not affirmed a single death sentence in a decade.