Stories about prisoners released from custody on the ground of alleged “factual innocence” are always heart-warming and sensitive. But establishing release from custody on grounds of “ineffective assistance of counsel” is a favorite alternative method of the 9th Circuit.  And “innocence” is not always established.   A twelve person jury found Howard guilty, but the 9th Circuit panel, having heard none of the testimony at trial, retried the case. The Howard case is another example of injustice to the public. As usual.

Howard was charged with murder of one man named Freeman and assault against another man named Ragland. This case was gang related, and those prosecutions are almost always difficult to prove for obvious reasons. But a liquor store employee (not a gang member), observed the shooting of the two men and unqualifiedly testified Howard as the culprit. The girlfriend of the murdered man also witnessed the shooting but was equivocal in her testimony. The defendant testified he was somewhere else.

The jurors, after hearing all the conflicting evidence, listening to the witnesses, and following the judge’s instruction, found Howard “guilty beyond a reasonable doubt.” The trial judge agreed and denied a motion for new trial. Howard appealed the verdict, and a three- judge state Court of Appeal affirmed the conviction, and rejected Howard’s assertion his attorney failed to call Ragland as a witness i.e, “ineffective assistance of counsel.”

The state supreme court denied review of the case. That should have been the end. Howard filed a petition for habeas corpus in Superior Court; denied. He filed the same petition in the Court of Appeal; denied. He failed file a petition for review in the Supreme Court foreclosing his opportunity to file certiorari in the U.S. Supreme Court. He filed a petition for habeas corpus in U.S. district court on the same ground of “ineffective assistance of counsel”; denied by a magistrate judge. The district court refused to give Howard a certificate of appealability, a document mandatorily required before seeking appeal. The 9th Circuit panel filed their own certificate, permitted the appeal, and ordered the district court to conduct an evidentiary hearing on the same ground of ineffective assistance of counsel.

A magistrate judge produced a record at the hearing to establish that a defense investigator and the DA office both tried to find Ragland but were unsuccessful. Despite this record, the magistrate judge found Ragland should have testified and counsel was ineffective in not locating him. The Magistrate judge recommended reversal and the district court judge agreed and reversed the conviction because Ragland had agreed that Howard had not shot him. The AG appealed to the 9th Circuit who accepted the magistrate’s findings.ount the number or people (jurors and judges) who heard this case before the 9th Circuit decision. This panel wondered why trial counsel (now deceased) did not use Ragland to testify.
The reasons: Ragland had 6 prior felony convictions and was on parole. A gang banger whose testimony at a trial would have been useless. Do you want that witness, who allegedly wrote a letter two years later denying Howard shot him, to testify ? Had it occurred to the 9th Circuit panel or the Magistrate judge, none of whom heard any of the evidence at trial, that Ragland’s testimony would have been told to his parole review board to demonstrate his excellent responsibility as a citizen?
No defense lawyer would have called a witness w ho would have been a joke to the jury. In identification cases the lawyers focus on the witness who inculpates the defendant. In this case, the liquor store employee would be intensely cross examined. And counsel would argue misidentification to the jury, particularly when the prosecution witness testified uncertainly.

Apparently the prosecutor did not think much of the defense when the case was returned from the 9th Circuit., and offered Howard retrial. Prosecutors know how difficult it is to retry a criminal case after 10 years. What they should have been done is seek review of the 9th Circuit decision in the Supreme Court.
Whether Howard is guilty is not the issue. Three federal judges on collateral review overturn the jurors, the trial judge, the California Court of Appeal, and the California Supreme Court on direct appeal of the verdict in state court. On habeas decisions, the 9th Circuit reverses the Superior Court, the three California Court of Appeal Justices (again) and the seven California Supreme Court Justices (again).

The most difficult cases for prosecutors and defense counsel are child molestation;  allegations of misconduct imposed on women in the workplace; and  domestic violence. Trials are often “he said-she said,” and the jury hears no corroboration and views no documentation. Jurors must rely exclusively on the testimony of witnesses.  In Cannedy v. Adams that scenario played out, and the jury found the defendant guilty of molesting his teen age stepdaughter.

The verdict and judgment were affirmed on appeal by the California Court of Appeals, and the Justices subsequently denied petitioner’s writ of habeas corpus.  The U.S. district court granted the writ and the 9th Circuit panel affirmed 2-1 on appeal.  The district court wrote its opinion prior to two Supreme Court opinions:  Cullen v. Pinholster, 131 S.Ct. 1388 (2011) and Harrington v. Richter, 131 S.Ct. 770 (2011). The 9th Circuit majority panel, however, cited but ignored both cases on grounds of  “ineffective assistance of counsel,” and the panel resorted to its favorite method of evading AEDPA.

The prosecution witness, a female teenager, testified to the molestation.The jury agreed and found the defendant guilty; the California Court of Appeal affirmed.  Seeking discretionary review in the California Supreme Court, the petitioner presented evidence for the first time that the victim had recanted her testimony. He submitted corroborative testimony from the victim’s friend, a prospective witness, and the victim’s mother who had seen the recantation on the victim’s computer screen. No print- out existed.

At trial the victim had testified she wanted to get away from her stepfather but on the alleged computer screen she denied it.  The problem: no email to corroborate; no witness to to testify; no ability to document the emails.  According to petitioner on habeas corpus in the state court, another witness and the victim’s mother had seen the recantation on the screen but neither one testified in court.  No problem, said the 9th Circuit panel and proceeded to explain how an inconsistent statement could be introduced in evidence without a written document  or production of the witness to validate. The real problem: there is no evidence the victim ever told defense counsel about her friend and her mother having seen the screen.

The majority panel launched into its favorite reversal history: “ineffective assistance of counsel.”  Of course inconsistent statements are admissible, but the first mention of this evidence occurred in state court and resolved against the petitioner on grounds the trial lawyer had never been told about it. The California Supreme Court denied discretionary  review. The California Supreme Court decision is final on  the merits and no petitioner can present evidence to the federal court that was not presented to the state trial court. Cullen and Harrington both rebuked the 9th Circuit for their past practice of allowing a federal petitioner to submit supplement evidence not revealed to the state court. As the dissenting 9th Circuit judge in Cannedy points out, if no one tells the trial lawyer about the names of witnesses or evidence available for trial, counsel is certainly not “ineffective.”

Footnote: The Supreme Court in Cullen clearly and unambiguously ordered federal courts not to consider evidence on habeas corpus unless presented in in state courts. Cannedy is a direct contradiction of this order.

Defendant Johnson was represented by counsel in a California Superior Court. Counsel failed to explain the consequences of a guilty plea to the defendant pursuant to the decision in Peo.v. Vargas, 223 Cal.App.3d 1107 (1990) but the prosecutor miscalculated the sentence to be imposed.  Citing Vargas, the trial court released the defendant and told him if he returned to court the sentence would be reduced.  The defendant failed to return, and when arrested the court imposed the original sentence.

Defendant appealed, contending ineffective assistance of counsel in not raising the erroneous calculation for sentence.  The California Court of Appeal denied his appeal and the California Supreme Court denied a hearing  Defendant sought habeas corpus in federal court. The Magistrate Judge held a heaing, found counsel ineffective, but also determined the defendant would have accepted the Vargas bargain regardless of defense counsel’s failure to calculate the sentence.  The district court judge agreed, granted habeas corpus and remanded to the superior court to re sentence the defendant. The defendant appealed to the 9th Circuit.

That should have been the end of it.  The 9th Circuit in an opinion that ignores AEDPA and the decisions of the U.S. Supreme Court on plea bargains, dismisses the findings of the Magistrate Judge, overrules the California Court of Appeal and California Supreme Court. The 9th Circuit panel grants habeas corpus, orders the sentence vacated and returned to the Superior Court to proceed at the pre plea stage of the proceeedings.

This case has no precedential value at all and should be reversed en banc.  As a practical matter, on remand to the Superior Court the prosecutor will either no longer offer the same plea and go to trial.  If possible, the prosecution will amend the Information to add additional counts or enhancements. If found guilty, the defendant will probably receive the same or higher sentence.

The trial in Peo. v. Valdovinos was extremely difficult for the prosecution. Witnesses were uncertain and in some cases contradictory in identifying the defendant.  Despite the conflicting evidence, the jury convicted Valdovinos, and the state court ssummarily denied his appeal.  The U. S. District Court denied the petition for habeas corpus.  Valdovious appealed to the 9th Circuit.

Reversed. The 9th Circuit reviewed all the conflicting evidence, and discovered the police had failed to disclose a pre trial photo lineup.  The court also found counsel “ineffective under Sixth Amendment precedent.”

The Supreme Court reversed the 9th Circuit and remanded for “further consideration in light of Harrington v. Richter, 562 U.S._(2011).”  See, Blog.

Valdovinos is the sixth case the Supreme Court has reversed the Ninth Circuit during the current term of the Court.

On the same day the Supreme Court wrote Harrington v. Richter, 2011 WL 148587 (C.A. 9) Justice Kennedy authored another opinion severely criticizing the 9th Circuit for disregard of the federal statute regulating federal habeas corpus (AEDPA; 28 U.S.C. 2254) and Supreme Court precedent.  The unanimous decision of the Supreme Court suggests a wilful disregard of the statute and Supreme Court case law by the Ninth Circuit.
In Premo, defense counsel entered into negotiations with the prosecutor to plead his client to an offense not requiring the death penalty.  The prosecution had a strong case including a confession by the defendant and two other civilian witnesses.
After the state court imposed Moore’s sentence (for an extremely violent and brutal crime) he appealed on grounds of “ineffective counsel” citing the Supreme Court 1986 case of Strickland v. Washington 466 U.S. 669 (1986).  Moore alleged his counsel should have moved to suppress the confession to police.  The state court denied his  appeal; denied a post trial evidentiary hearing in state court; was denied a petition for habeas corpus in U.S. District Court; state court decision reversed in the Ninth Circuit.
Justice Kennedy gave the Ninth Circuit a lesson in trial advocacy and plea bargaining in addition to explaining the proper test for appellate review of state court decisions in federal courts.  He wrote: “. . . strict adherence to the Strickland standard [is] all the more essential when reviewing the choices an attorney made at the plea bargain stage. Failure to respect the latitude Strickland requires can create at least two problems in the plea context. First, the potential for the distortions and imbalance that can inhere in a hindsight perspective may become all too real. The art of negotiation is at least as nuanced as the art of trial advocacy and it presents questions farther removed from immediate judicial supervision. There are, moreover, special difficulties in evaluating the basis for counsel’s judgment: An attorney often has insights borne of past dealings with the same prosecutor or court, and the record at the pretrial stage is never as full as it is after a trial. In determining how searching and exacting their review must be, habeas courts must respect their limited role in determining whether there was manifest deficiency in light of information then available to counsel. AEDPA compounds the imperative of judicial caution.”
Kennedy concludes by stating: “When 2254 applies, the question is not whether counsel’s acrions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Stickland’s deferential standard.”

Comment:  The Ninth Circuit has a long history of reversing state court decisions by employing the Strickland case. Harrington v. Richter and Premo v. Moore may end a litany of wrong decisions written by the Ninth Circuit, most recently in Knowles v. Mirzayance,  and Wong v. Belmontes.

On the same day the Supreme Court reversed the Ninth Circuit in Harrington v. Richter, 2011 WL 148254 C.A.9) the Justices also reversed Premo v. Moore.  In a plea bargain, Moore had pled guilty to a charge of second degree murder in an Oregon state court. Denied post conviction relief in state court on grounds of “ineffective  counsel,” Moore  petitioned the U.S. District Court to issue a writ of habeas corpus. Moore again alleged “ineffective counsel” occurred prior to his plea based on failure of his lawyer to object to his confession to police officers.  On appeal from the district court ruling, the Ninth Circuit panel extensively wrote on the importance of confessions in criminal cases, and failure of counsel to object constituted “ineffective counsel.”
The dissenting judge in the Ninth Circuit decision skewers this principle.  No one doubts the importance of a confession, but under Ninth Circuit reasoning defense counsel must file every motion, frivolous or not, prior to any plea.  The prosecution is unlikely to engage in any plea bargaining under those circumstances. Oregon sought review of the Ninth Circuit decision in the Supreme Court.
Reversed. The Supreme Court verbally lashed the Ninth Circuit again, explaining the role of plea bargaining in criminal cases and the irrelevance of the need for counsel to file a every motion to exclude evidence prior to trial in order to avoid criticism of “ineffectiveness.”  As the Court notes, an appellate court on a cold record cannot intuit the nuances of “plea bargaining, i.e., whether the prosecution has a strong case or not; whether witnesses other than a police officer can testify to a confession; the strength of an alibi; the testimony of accomplices; the trial/ sentencing judge; the likely composition of a jury.  The list of problems for prosecution and defense is endless…
And the most important factor for defense counsel: the death penalty.  Moore had attacked the victim, bound him with tape, threw him in the trunk of a car and eventually killed him.  These facts are sufficient to warrant the death penalty after a trial.  Defense counsel received a reasonable offer from the prosecution for reasons unknown on the record.  But if the defendant refused the offer, the prosecution would continue investigation in an attempt to strengthen the case, and the potential of seeking the death penalty loomed.
Again the Supreme Court explains the role of the Anti-Terrorism statute (AEDPA; 28. U.S.C. 2254) and reproaches the Ninth Circuit for mis interpreting the statute and Supreme Court case law.   
Supreme Court case law. See, discussion of AEDPA in Harrington v. Richter.
The most important part of the case is the Supreme Court explanation of the role of federal courts in reviewing allegations of its leading cases on ineffective counsel; Strickland v. Washington, 466 U.S. 668 (1984).  Federal appellate courts reviewing state court decisions on habeas corpus cannot undertake its own interpretation of Strickland and the effectiveness of counsel.  The court must concede to a state court ruling. and issue the writ only if the state court interpretation is unreasonable, and not interpret Stickland de novo.

In an emphatic and harsh review of the case in Harrington v. Richter, the Supreme Court again reprimanded the Ninth Circuit for its failure to abide by Congressional rules enacted in the Anti Terrorism & Effective Death Penalty Act restricting federal collateral review of state court decisions in criminal cases (AEDPA; 28 U.S.C. 2254). In a unanimous decision written by Justice Kennedy, he criticized the Ninth Circuit’s refusal to apply the Act and the appellate court’s failure to apply Supreme Court precedent.

Justice Kennedy intially dismisses the Ninth Circuit decision holding that on habeas corpus review of state court decisions the federal court applies a de novo standard in the absence of any written opinion issued by the state court.  AEDPA neither requires written opinions nor does Supreme Court precedent, and every other Circuit Court has rejected the Ninth Circuit interpretation. AEDPA permits  a federal court to reverse a state court decision on habeas corpus only if it finds an unreasonable application of Supreme Court law or an unreasonable interpretation of facts whether the state court writes a decision or not.

At its core, Harrington is an “ineffective counsel” case.  The Ninth Circuit had criticized the defense lawyer who had not submitted evidence of a blood sample found at the scene of the crime but otherwise effectively cross examined witnesses and presented a reasonable defense to the crime of murder.  Justice Kennedy administers another lesson to the Ninth Circuit on trial advocacy. 

The seminal case of “ineffective counsel” is Strickland v. Washington, 466 U.S. 668 (1984 ) a case invoked repeatedly by the Ninth Circuit in previous cases when the court is unable to find any other reason for reversal.  Kennedy skewers the Ninth Circuit application of Strickland, and writes “the pivotal question in determining whether counsel was ineffective] is whether the state court’s application of the Strickland standard was unreasonable [under AEDPA.] This is different from asking whether defense counsel’s performance fell below Strickland’s standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of 28 U.S.C. 2254(d) ‘an unreasonable application of federal law is different from an incorrect application of federal law’ (citation omitted). A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.”