At least some judges on the 9th Circuit are applying the Supreme Court mandate to apply deference to state court decisions on federal habeas.  To a 2-1 panel majority the petitioner had argued the prosecutor allegedly implied from her closing statements that the defendant did not take the stand and submitted no rebuttal evidence to the prosecution case. The Supreme Court has disallowed any comment at trial on the failure of a defendant to testify  under the aegis of the Fifth Amendment.  Petitioner argued the prosecutor was employing that rule. The California Court of Appeal denied the appeal in state court. Petitioner sought federal habeas and the court denied the petition.

The majority denied habeas corpus.  Maybe some 9th Circuit judges are getting the question, but some never will, to defer to state court opinions denying appeal or habeas corpus -as they should.

On remand from the Supreme Court decision in McEven v. Thompson, 132 S.Ct. 538 (2011) after a previous reversal (granting certiorari) a 2-1 majority of a 9th Circuit panel affirmed a 1998 state court conviction of Thompson; 705 F.3d 1089 (9th Cir. 2013). The same judge who wrote the original opinion reversed by the Supreme Court wrote the dissent in this case in a conviction 15 years ago.

The dissent is the kind of judicial condict respsonsible for the inability to finalize state court convictions under AEDPA.  The dissent contends the California Attorney General did not argue the relevant legal principle and therefore waived it. The only issue in the case from start to finish was an alleged Fifth Amendment violation.

The evidence in this case is one of overwhelming guilt.  The only objection raised by the defendant is an alleged MIranda violation which the Supreme Court resolved in Greene v. Fisher, 132 S.Ct. 38 (2011).  Fisher established that a state court must apply Supreme Court decisions published at the time of their rendition.  Nothing could be more logical.  A state court confronted with a Fifth Amendment issue can only apply Supreme Court  law operative at that time.  A Supreme Court decision rendered subsequent to the state court decision is irrelevant.

Not in the 9th Circuit, of course, always seeking state court error. In the last two years the Supreme Court has expanded the impact of AEDPA, particularly at the expense of the 9th Circuit  (4 reversals of death penalty cases in the last term).  The Supreme Court wrote: application of AEDPA [to reverse a state court] is “difficult to meet because its purpose is to ensure that federal habeas corpus relief functions as a guarantee against extreme malfunction of the state criminal justice system and not as a means of error correction.” Greene v. Fisher, 132 S.Ct. 38 (2011).  Nothing could be more relevant – and ignored – to the 9th Circuit. 

Despite the Fisher case,  the dissenting judge tin Thompson who wrote the original opinion reversing the state court conviction, and herself reversed by the Supreme Court, argued in the instant for reversal on remand.  And we wonder why no finality exists in the 9th Circuit.

After the state court court of appealed affirmed his conviction for murder, Sessoms filed habeas corpus in U.S district court.  Petition denied.  He appealed, and the 9th Circuit panel affirmed the decision; Sessoms v. Runnels, 650 F.3d 1276 (9th Cir. 2011). An en banc hearing (6-5) reversed.  In yet another rejection of Supreme Court precedent, the 9th Circuit majority mandated release of Sessoms or retrial-if the prosecution can produce enough evidence after a trial ending in 1999.

The majority began its opinion with this statement: “Tio Sessoms, a nineteen year old black man, sat alone in an eight by – ten foot interrogation room.” That opening remark forecasts the result of the en banc decision.  And the court does not describe the crime, it only  says the victim was stabbed and choked. Nothing about the unlawful entry of the victim’s house, killing  him, stealing cash and two cars, and fleeing the state.  

The legal issue in the case revolves around Sessoms’ confession to police and its admissibility in trial under Miranda.  The 9th Circuit panel, without detailing the facts to the reader, wrote an en banc 6-5 opinion overruling a state appellate court, a district court judge, and a previous 9th Circuit panel decision.  The serious en banc split confirms the Circuit’s indifference to AEDPA (Anti Terrorism & Effective Death Penalty Act (AEDPA); 28 U.S.C. 2254 (d), the federal statute mandating federal court deference to state courts in habeas corpus rulings unless the state decision is an “unreasonable.application of established Supreme Court law or based on an unreasonable application of the facts. ”

If a three judge state court panel, a district court judge, a three judge panel of the 9th Circuit and 5 en banc dissenting judges agree the state court decision was not “unreasonable,” it is absurd to think the en banc decision should prevail. 

Sessoms surrendered himself. The police conducted his interview without using duress, threats, force, or making any promises.   Before the officers even began their interview, Sessoms asked whether a lawyer was available, but not that he wanted counsel or refused to talk.  The officers, without answering, advised him of his Miranda rights. Under established Supreme Court precedent, an ambiguous answer from a suspect in custody to the two rights of silence and counsel authorizes the officer to clarify the response; U.S. v. Davis, 512 U.S. 452 (1994). 

Davis is the leading case on this issue confirming the right of officers to clarify an ambiguous answer after informing a suspect of Miranda rights.  But Sessoms opened the conversation before the officers said anything.  According to the 9th Circuit, Davis only applies to ambiguous answers after advisement of Miranda rights, not  before.

Congress enacted AEDPA to prevent just this kind of sophistry.  When a decision of 11 en banc judges splits 6-5, a prior 9th Circuit panel has affirmed a district court judge, and a state appellate panel has affirmed the conviction on direct appeal, that 6 en banc judges can tell all these other judges the state court decision is “unreasonable” is judicial.hubris.

Note: Sessoms is one of innumerable reversals by the 9th Circuit evading AEDPA. Another example: Jackson v. Nevada, 2012 WL 3156377 (C.A. 9 ). The trial judge excluded evidence submitted by the defense.  The state court upheld the conviction; the district court on habeas agreed.  On appeal, the 9th Circuit ostensibly applied AEDPA and reversed.  

 These two cases are examples of numerous decisions by the 9th Circuit ignoring the restrictions of AEDPA.  In the last term of the Supreme Court, the Justices verbally lashed the 9th Circuit for its repeated evasion of AEDPA, but the underlying problem is a linguistic one.  AEDPA uses the word “unreasonable” application of Supreme Court law to warrant federal court reversal of a state court decisions on habeas corpus.  The word “unreasonable” is abstract, not concrete, incapable of application without the surrounding circumstances and even then involves a subjective opinion.  Whether the majority en banc panel interprets Sessom’s remarks in violation of Miranda or not, the court is mandated to affirm the state court decision unless the interpretation is “unreasonable.” 

Not only do the words “reasonable”, or “unreasonable” vary contingent on context, the word varies in legal terms.  For example, in a Supreme Court case explaining objections based on alleged “ineffective assistance of [trial] counsel,” the Justices said this: “Federal habeas courts must guard against the danger of equating unreasonableness of counsel under Strickland v. Washington, 466 U.S. 668 (1984) [the leading case on ineffective assistance of counsel] with unreasonableness under U.S.C. 2254(d).  When 2254(d) applies, the question is not whether counsel’s actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland’s’s deferential standard;” Harrington v. Richter, 131 S.Ct.770,788 (2011). 

Thus, whether a state court decision is “reasonable” or “unreasonable” depends not only on context and subjective opinion but the applicable legal rules in issue.   Moreover, AEDPA requires the state court ruling to qualify as “unreasonable” as distinct from confirming a decision “reasonable.”  This linguistic distinction compels the 9th Circuit to find fault with the state court decision rather than confirm its “reasonableness.” On habeas corpus cases,  the distinction between these two words imposes on federal courts the burden of establishing an erroneous state court decision, not confirming a correct one.

Aside from the injustice caused by the reversal in the Sessoms case, who was convicted by overwhelming evidence submitted by the dissenting judges, some 9th Circuit judges merely ignore AEDPA and impose their own policy decisions.  And these judges do not review direct appeals from state court convictions.  Ninth Circuit  decisions are on collateral review, and state courts are entitled not only to deference but an exercise of jurisdictional respect.

Compare the California Supreme Court decision in Peo. v. Saudeda-Contreras, 2012 WL 3263996. The defendant gave an equally ambiguous statement to officers informing him of his rights under Miranda.. The California Supreme Court unanimously agreed that officers can clarify the answer if necessary.

In summary, regardless of the facts, jurists will disagree over the proper interpretation of Miranda’s application.  In Saudeda a reversal would have made no difference on retrial since he was seen burning his girlfriend in a trash can.  In Sessoms the defendants choked and stabbed the victim to death.  Incidentally, what would be the appropriate sentence in these two cases?

Both Sessoms and Jackson will be reversed by the Supreme Court.