Johnson v. Williams, 2013 WL 610199 C.A. 9 (reversed 133 S.Ct. 1088 (2013)

Note: (Subsequent opinion ). One of the judges on the 9th Circuit (who is repeatedly reversed) wrote some kind of complaint about the Supreme Court reversal of his opinion in this case.  He didn’t know what to do when the mandate from the Supreme Court arrived.  He concluded the Supreme Court had reversed him and there was was nothing he could do about writing  another opinion.  730 F.3d 1212 (9th Cir. 2013). 

The Supreme Court reversed the Ninth Circuit again-unanimously.The 9th Circuit continued its reversal record in an unrelenting quest for error, misinterpreting the record, parsing  AEDPA and Supreme Court precedent as written in Harrington v. Richter, 562 U.S.-(2011).

In a state court criminal trial, the jury foreman wrote the judge that one juror out of eleven refused to join in their decision; expressed views on jury nullification; and required a rule even stricter than “guilty beyond a reasonable doubt.”  The judge, after questioning the foreman, the juoror, and other jurors, ultimately decided to excuse the one holdout. After replacement of the juror, the panel found the defendant guilty. Defendant appealed.

The California Court of Appeal affirmed the conviction  discussing California Supreme Court law on excusing jurors.  The Court of Appeal opinion not only discussed the Supreme Court decision on excusing jurors (U.S. v. Wood, 299 U.S. 123 (1936) but considered other federal court decisions on the subject. The California Court of Appeal did not specifically discuss the Sixth Amendment right to a jury trial and its rationale for the court to require a unanimous verdict. 

Defendant filed a habeas corpus petition in U.S. District Court. Denied.  On appeal to the 9th Circuit, the panel held the California Court of Appeal did not consider the Sixth Amendment right to a jury trial,.and therefore had not “adjudicated the Sixth Amendment issue on its merits” as required by AEDPA in state court appellate decisions.

The rules under AEDPA require federal Circuit Court of Appeals affirmance of convictions in reviewing habeas corpus petitions to consider those cases with issues in state courts “adjudicated on their merits.” But petitioners frequently submit wheelbarrows of complaints in their habeas corpus petitions.  What language should the state appellate court use in responding to the flood of claims to establish the judges have considered all claims “adjudicated on their merits.”

The 9th Circuit held the California Court of Appeal discussed state law on excusing jurors but not federal law on the Sixth Amendment. Despite the similarity of law in both jurisdictions, according to the 9th Circuit panel the failure to include resolution on Sixth Amendment grounds required reversal.

The Supreme Court, in a unanimous opinion, rejected this decision.  An appellate court cannot address every claim filed in habeas corpus petitions, no matter how frivolous.  In most cases, the state court resolves meritorious claims and ignores the balance by writing “all other claims dismissed.”  Under the 9th Circuit view, the state appellate court must address every federal claim, a task of impossible proportions.

The Supreme Court held that state court appellate decisions stating “all claims dismissed on their merits” is sufficient to comply with the “adjudicated on the merits ” rule of AEDPA.  The Supreme Court left a presumption of compliance under this rule but rebuttal was possible only in rare cases. This tiny exception is fodder for 9th Circuit reversals.

Aside from the application of procedural rules for habeas corpus cases, Johnson v. Williams qualifies as another example of judicial hairsplitting.  The evidence of guilt was overwhelming and the jury found the defendant guilty beyond a reasonable doubt. Excusing the single juror is correctly supported by evidence and not attributable to a juror insisting on innocence.  The state appellate court denied the appeal on substantially the same grounds as the Sixth Amendment. And the Supreme Court agreed.     



Cudjo v. Ayers, 698 F.3d 752 (9th Cir. 2012)

The 9th Circuit has unilaterally developed a two tiered system of “justice” applying its own interpretation of the law despite Congressional attempts to limit federal habeas corpus authority and ignoring the repeated record of Supreme Court reversals.  In 3 cases decided by the 9th Circuit on habeas corpus, the court has overruled the California Supreme Court.

Citing, but Ignoring AEDPA , Supreme Court precedent, and imposing its own view of social justice and ideology, the court has made federal habeas corpus a “second opinion” of state supreme courts, its own district courts, and the Supreme Court.

In last year’s term the Supreme Court reversed the 9th Circuit in 17 out of 24 cases.  This year is likely to result in a similar percentage.  The discouraging element of this embarrassing record is the inability of prosecutors to re try cases decades old having been reversed by the 9th Circuit despite affirmance of conviction by California courts.

Cudjo is an example of the device used by the 9th Circuit to superficially apply the California state court decision and yet overrule it.  Several years ago (40) the Supreme Court decided Chambers v. Mississippi, 410 U.S. 484 ( 1973) allowing due process to trump the hearsay rule in some cases.  The Court concluded that if a witness inculpates a third party who allegedly confessed to the crime alleged against the defendant, he must be allowed to testify despite the inadmissibility of the testimony under general hearsay rules.  The Court proposed a test for admissibility that is amorphous, fact intensive and contingent on the decision of the trial judge who is supposed to initially determine if the testimony is “trustworthy.”

The California Supreme Court, applying the Chambers rule, concluded the trial judge had made an erroneous decision in disallowing the testimony of a witness who wanted to implicate a third party.  In other words , the judge committed error.  But the appellate court read the entire trial record and concluded the error harmless.  The 9th Circuit panel agreed the state court found trial error, but it was not harmless and overruled the state court.

This is arrogance on display.  Why should the 9th Circuit, repeatedly warned to be deferential to state courts in federal habeas hearings, be allowed to simply reach a different conclusion than  the state supreme court on the same trial record?  

To summarize: the state court said the trial court erred in refusing to allow tesitmony based on hearsay because it was not trustworthy, but the trial record was not sufficiently prejudicial to warrant a reversal.  According to the 9th Circuit panel, who never saw any witnesses at trial, thought it was prejudicial.

Determining whether to allow a witness to testify that a third party confessed to the crime alleged against the defendant is not confined just to testimony.  The record of the witness, i.e., when did he report the confession to police- if ever- and other evidence in the trial all must be considered before the court admitts the testimony. 

The 9th Cricut panel, never having tried a criminal case, has no understanding of trials, as it has repeatedly proven.

 Cudjo is just another subjective opinion.  Ready for rehearing or Cert.