Note: The 9th Circuit has done it again. The court took Arizona’s motion for rehearing and peitioner’s motion to remand under submission (709 F.3d 1317 (2013)  pending a ruling in Dietrich v. Ryan, 619 F.3d 1038 (9th Cir. 2010).   Reversed in 131 S.Ct. 2449 (2011).  In Dietrich (below) the Supreme Court reversed the 9th Circuit and remanded. The panel wrote another opinion and on October 3, 2012 a rehearing en banc in Dietrich was granted. As of March,  2013 no opinion has been written in Dietrich.   

A 9th Circuit panel originally decided this case in July, 2011: 650 F.3d 1301 (9th Cir. 2011); withdrew the case and filed an amended opinion in January 2013. Eighteen months to revise an opinion originally distorting  the record.  In its amended opinion the panel tries to correct the record and is wrong again.The rationale: a death penalty case written by a two judge majority neither of whom have ever supported the death penalty.  The dissent is devastating.

Unable to find prejudice in jury selection; prosecution misconduct; Brady violation; Confrontation Clause violation; evidentiary error; improper jury instructions; error- free sentencing; or ineffective assistance of counsel, the panel could only discover trial judge bias.  Nothing in the record supports this ruling but it was the only charge the panel could find.  This case has en banc written all over it.

An Arizona state court judge tried an error free trial, and the jury convicted the defendant in the  brutal and heinous murder of an innocent victim.  The judge sentenced the defendant   to death (prior to Ring). The evidence was overwhelming, and the defendant never asserted “factual innocence.” The Arizona state court affirmed on appeal without any objection by defendant to judicial bias.  

The defendant filed a post conviction Arizona procedural rule appealing the trial judge decision not to appoint two lawyers for trial in a death penalty case.  Arizona statutes contain no such requirement.The defendant appealed this ruling, accusing the trial judge of bias, and the chief judge assigned a different judge to hold a hearing. The hearing judge found no bias.  The U.S. District Court found no bias on habeas. The defendant (appellant) appealed.

Only the 9th Circuit could find bias in a court record that consisted of the trial judge’s defense of her ruling not to appoint two defense lawyers.  No actual bias was alleged, just a possible inference despite any evidence the trial judge expressed an opinion on guilt or innocence; engaged in an inappropriate rant; or dismissed defense evidence. 

The majority panel cited Supreme Court cases requiring triers of fact to recuse themselves if a financial condition or relationship exists benefiting the judge.  Requests for recusal exist all the time, and absent evidence of the financial issue, or the judge holding someone in contempt and then sentencing them, judges decide whether to recuse themselves -as several have in the 9th Circuit.    

According to the 9th Circuit panel, the court should have held an evidentiary hearing, and not to do so violated due process.  To say this rule qualifies as a case of first impression is the most charitable characterization.

But what about AEDPA?  The 9th Circuit has found a new way around its terms.  The federal appellate court first finds the state court decision is not “reasonable,” either of law or fact, and  therefore review de novo.  This is unprecedented from the record in this case and a complete disregard of all the rules the Supreme Court has laid down, mostly in reversing the 9th Circuit.  In fact, the Supreme Court, if not the 9th Circuit, will reverse this case in a per curium decision accompanied by a verbal lashing