In another death penalty case the Ninth Circuit has stymied the state court system and authorized a further “evidentiary hearing.” Eight judges dissented. Here is the language of the dissent: “The majority opinion [not referenced here ]substantially erodes AEDPA’s requirement that a person challenging the constitutionality of his state conviction diligently pursue his claim in state court in order to obtain an evidentiary hearing in federal court. 28 U.S.C. 2254(e)(2). Not only does the majority’s decision contravene the Supreme Court’s decision in Williams [v. Taylor] by permitting an evidentiary hearing in the absence of an initial showing of diligence by the petitioner, it effectively eviscerates the diligence requirement altogether by endorsing a simultaneous hearing on both the petitioner’s diligence and the merits of his claim of ineffective assistance of counsel (IAC). In approving of a single hearing on both issues, the court allows a petitioner to present new evidence on the merits of his underlying claim in a full-blown evidentiary hearing without first establishing that he was diligent in developing such evidence in state court. Moreover, the majority’s decision effectively eliminates the requirement that a petitioner present a colorable claim for federal habeas relief before a federal court may grant an evidentiary hearing. Schriro v. Landrigan, 550 U.S. 465, 474 (2007). The potential for mischief created by the majority’s approach is evident here, where it urges an evidentiary hearing on the merits of Schad’s IAC claim without ever considering the double deference owed under Strickland v. Washington, 466 U.S. 668 (1984) and AEDPA. Knowles v. Mirzayance, 129 S.Ct. 1411, 1420 (2009) (explaining that a federal court’s evaluation of a Strickland claim under 2254(d)(1) must be deferential to both the state court’s decision and counsel’s strategic choices). We should have reheard this case en banc to rectify these departures from Supreme Court precedent and to correct what district courts in our circuit are likely to perceive as a confusing directive to hold evidentiary hearings where Congress and the Supreme Court have determined that none are permitted.” “After more than thirty years of litigation, this case has not come to rest. Schad was convicted of first-degree murder in 1979, and was sentenced to death in 1985 following a retrial. The majority’s order remanding for further proceedings and a possible evidentiary hearing ensures that the litigation will continue for several more years despite every indication that it should end.” This dissent speaks for itself. A majority of Ninth Circuit judges will not allow imposition of the death penalty under any circumstances. One judge dissented from the three panel decision in addition to the eight judges who dissented from a hearing en banc. This case will undoubtedly be reviewed by the Supreme Court.
Schad v. Ryan (Dept of Corrections ), 606 F.3d 1022 (9th Cir.2010)