Amado v. Gonzales, 734 F.3d 936 (9th Cir. 2013)

This case confirms every previous Supreme Court reprimand of the 9th Circuit in collaterally reviewing state court convictions.  “Habeas corpus is a guard against extreme malfunctions in state criminal justice systems, not a substitute for ordinary error correction through appeal;” Harrington v. Richter, 131 S.Ct.770 (2011).  Collateral review (after the state court has affirmed a conviction) is subject to deference by federal courts and applies only if the decision is an unreasonable application of federal law and not a de novo appeal; AEDPA. “The habeas standard is difficult to meet because it was meant to be;” Harrington. The majority of the 2-1 9th Circuit panel completely ignores AEDPA in Amado v. Gonzales and retrys the trial entirely on its own initiative as though on appeal.

In a gang prosecution the testimony of witnesses other than law enforcement officers is not likely to come from anyone except other gang members. Obviously these witnesses are unreliable, often fear retaliation, and credibility always an issue.  In the Amado case, a black gang planned to forcibly enter a school bus carrying members of another gang.  When the bus arrived and stopped, the gang members stormed aboard and began beating and shooting riders. According to the witnesses who did testify, Amado was among the attackers who ran toward the bus when it stopped.  Some doubt arose whether he was carrying a gun, but he was not convicted of possessing a firearm; he was convicted of aiding abetting.

One of the witnesses for the prosecution was severely impeached and at trial recanted his statements he had given to police prior to trial implicating Amado and his possession of a firearm.  In fact, the witness was only briefly cross examined, presumably for recanting although he was also on probation for commission of a robbery. But Amado was tried as an aider and abetter, not a principal, and carrying a gun is irrelevant for that charge.  The majority panel wades into the trial record, speculates on what the jury might think if the prosecution had disclosed the recanting witness was on probation for commission of a robbery.

The prosecution conceded it failed to disclose the prior criminal record of this witness although that information was reflected in the witness’s probation report.  According to the panel majority, this non disclosure violated the Brady rule, and if disclosed the jury might have questioned the credibility of the recanting witness. On the defense motion for new trial the trial judge agreed the disclosure should have been made but doubted the consequence of influencing the jury who had already heard a witness recant his testimony yet they voted for a guilty verdict.  According to defense counsel, he did not discover the prior robbery conviction prior to trial and also that the witness was a member of a gang.

Many of the judges on the 9th Circuit have never tried a criminal case or presided over one.  Their naiveté is deplorable.  When a witness recants his pre trial statements to police implicating the defendant what does the jury think of his credibility?  In spite of that, the jury convicted Amado.  Other witnesses also implicated Amado, and the record does not disclose whether Amado testified.  The jury could understand all the witnesses were either gang members or familiar with gang members and knew credibility was in issue. The trial judge, who heard all the witnesses, refused a motion for new trial even assuming the prosecution should have disclosed the robbery conviction and probation report.

Where was defense counsel prior to trial?   This is a gang case and the first task a defense counsel does is demand the criminal records of all the witnesses because the probability of them having committed crimes themselves is obvious.  Defense counsel neither made no such request of the prosecution nor searched the records. And apparently he did not ask his client if any of the witnesses had criminal records.

The majority panel concludes the failure to disclose the information requires a new trial.  How do you think the prosecution will be able to do that?  This case, more than any other, ought to result in a Supreme Court decision to refuse federal appellate courts from hearing habeas corpus of state courts at all.  State courts can be limited only to cert. by the defendant alleging a “malfunction of the state court system.” The Supreme Court has previously denied the 9th Circuit reviewing state court search and seizure cases and parole hearings.


Marshall v. Henry, 224 Fed.Appx. 635

In 1986 a jury convicted Robert Henry of murder in a California state court and the judge sentenced him to life imprisonment without possibility of parole. The Court of Appeals affirmed the conviction and the California Supreme Court denied review. Henry filed petitions for habeas corpus in state court and all were denied. In 2005 Henry filed a petition for habeas corpus in U.S. District Court contending he was “actually innocent” of the crime. The judge denied his request and refused to issue a certificate of appealability (COA) based on petitioner’s contention.
Henry appealed to the Ninth Circuit who accepted his lack of a COA and, in an unpublished opinion filed in 2007, ordered the District Court to provide a hearing on the issue of actual innocence; Marshall v. Henry, 224 Fed.Appx. 635 (9th Cir. 2007). The Ninth Circuit panel recited no facts of the underlying case and, without any legal analysis, held that petitioner only needed a low threshold to establish his actual innocence. In a two page opinion the panel ordered the trial court to hold a hearing on that issue. No legal citation for this opinion, no concern for the 18 year delay in filing the petition, no weighing the evidence, nothing other than a ukase.
On seeking review of this decision, the California Attorney General argued that the Henry case conflicts with the Supreme Court rule in Herrera v. Collins, 506 U.S. 390 (1993) “[B]ecause of the very disruptive effect that entertaining claims of actual innocence would have on the need for finality, and the enormous burden that having to retry cases based on often stale evidence would place on the States, the threshold showing for such an assumed right would necessarily be extraordinarily high and the evidence would have to be truly persuasive; Schlup v. Delo, 513 U.S. 298 (1995).”
The Henry case invites any petitioner to argue “actual innocence” without supporting evidence recited in the record, undermines state courts as fact finders, clashes with federalism and erodes the finality of a conviction. Despite Supreme Court cases directly to the contrary, the Justices denied review (certiorari); Marshall v. Henry, 2007 WL 2329696.
 Compare Henry with Smith v. Baldwin, 466 F.3d 805 (9th Cir. 2006). Evidence conclusively established that Smith and one Edmonds prepared to burglarize the home of an elderly couple by arming themselves with a crowbar and a rope. During the burglary, Smith killed the husband and seriously injured his wife. Smith pled no contest to felony murder and was sentenced in 1989. Prior to Henry’s plea, the prosecution had offered Edmonds immunity and a reduced sentence in exchange for his testimony implicating Smith.
After Smith pled, Edmonds received a reduced sentence. Smith filed petitions in the Oregon courts-all denied- alleging “ineffective counsel” at his plea. Approximately three years later, Edmonds was released from prison and submitted an affidavit alleging Smith was not the killer, although not personally acknowledging his own responsibility. The prosecution warned Edmonds that if he testified to this effect at a hearing they would potentially move to vacate his plea, seek the death penalty and file a perjury charge. Unsurprisingly, Edmonds withdrew his offer to testify.
Nonetheless, Smith petitioned the District Court claiming lack of due process, prosecutorial misconduct and actual innocence. The magistrate held a hearing, found no reason to grant the petition because Edmonds now refused to testify. Smith appealed to the Ninth Circuit. The principle issue on appeal was not the merits of Smith’s argument but whether his failure to timely assert actual innocence in state court barred his appeal. The Ninth Circuit panel, in a 2-1 decision, held that “[we] presume Edmonds affidavit to be true for the purposes of determining whether Smith is procedurally barred from proceeding in federal court.” The panel cited no authority for this statement.
What followed was an argument by the majority panelists supporting every possible inference that a reasonable jury would find that Smith did not kill the victim. In a lengthy recital of all the possibilities, the panel majority finally held that Smith can present his constitutional claim (lack of due process) that he never asserted until the Edmonds affidavit. According to the majority, the prosecution threats to file a new case against Edmonds and seek the death penalty amounted to prosecutorial misconduct.
The dissent is a blistering rebuttal. Aside from the fact Edmonds committed another brutal crime after his release on the instant offense, Smith pled to felony murder. Speculating on what a jury would do in a case never tried is an exercise in futility. Even if Edmonds testified Smith was not the killer, who was? Both entered the house, bludgeoned one victim and killed the other. Under any state law they are principal/accomplice and equally guilty. The majority opinion is essentially empty rhetoric. Apparently other members of the Ninth Circuit agree with the dissenting judge that no prisoner has ever succeeded in establishing actual innocence in all the years since the Supreme Court allowed this contention in Schlup v. Delo, 513 U.S. 298 (1995).