Clabourne v. Ryan, 745 F.3d 362 (9th Cir. 2014)

 

Another death penalty case decided by 9th Circuit citing the Supreme Court decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012), a case Justice Scalia predicted would add to the chaos of federal courts of appeal.  Clabourne is an example of that foresight in this  1982 conviction. Martinez permits an inmate to allege ineffective assistance of counsel on post conviction proceedings if the state disallows this defense on appeal.

As usual, the facts are brutal and warrant the death penalty.  Clabourne and two of his friends invited a woman to their house to serve drinks.  Upon her arrival, Clabourne raped the woman, stabbed her, and then strangled her.  An autopsy revealed numerous puncture wounds on the body of the victim.  In addition to several witnesses who offered confirming testimony implicating Clabourne, the prosecution introduced a complete confession to a deputy sheriff.  The jury voted the death penalty.

The Arizona Supreme Court reversed the sentencing on grounds of ineffective trial counsel and remanded for resentencing. The judge sentenced the death penalty again and the state supreme court affirmed. At a federal habeas proceeding the district court denied the Clabourne petition alleging ineffective representation of counsel during remand for resentencing for failure to present additional medical evidence and not objecting to the confession (Miranda) introduced at the original trial. Clabourne appealed to the 9th Circuit.

After conceding that a previous 9th Circuit opinion (Deitrich v. Ryan) was inconclusive under Martinez, the panel rambles on about what standards should be used for the Martinez case under an ineffective counsel Strickland claim.  The panel finally decides to remand this 1982 case again after discussing the Miranda issue.  The law on Miranda had changed after the original trial and the panel held the resentencing was a new trial and the decision should be made under the new Supreme Court case.

Comment: Justice Scalia was right. Martinez will make a shambles of federal corpus already in place at the 9th Circuit.  Resentencing is not a trial.  it is only the penalty phase.  This case will remain in the court forever.

 

Ryan v. Schad, 133 S.Ct. 2548 (2013)

Note: this case has been discussed previously. See, List of cases 

In 1978 Schad strangled a 78 year old librarian to death, and a jury voted the death penalty; his conviction on appeal was affirmed by the Arizona Supreme Court. Further habeas corpus hearings were held in state and federal courts (below), and ultimately the Supreme Court denied Schad’s petition for certiorari from the 9th Circuit. Under federal rules, the 9th Circuit panel should have issued its mandate immediately, but instead it stayed the writ at Schad’s request. Arizona sought a motion to vacate the stay and filed a petition for certiorari in the Supreme Court. The application for a stay  was denied but the Court granted the petition. 

The 9th Circuit panel, sua sponte, construed Schad’s request to stay issuance of  mandate in order for the court to reconsider a motion it had previously denied allegedly pending a ruling on a collateral case. In addition, the 9th Circuit panel stayed the execution of the death penalty ordered by a state court.  

The Supreme Court vacated the 9th Circuit stay on grounds the panel had misconstrued and contradicted its own prior ruling.   According to the Supreme Court, the 9th Circuit “abused its discretion.” The justices ordered issuance of the mandate immediately and disallowed  the 9th Circuit from conducting further proceedings. 

In the last decade the Supreme Court has frequently reprimanded 9th Circuit panels in their propensity to issue habeas corpus overruling state courts. In the last week of the 2012-2013 term the Supreme Court issued four 9th Circuit reversals of death penalty cases.   But Schad is even more serious than the  manipulation of the record in Wong v.   Belmontes, 558 U.S. 15 (2009). In Schad, the 9th Circuit panel reversed its own prior decision not only in violation of federal rules but challenging its integrity. An abuse of discretion at the federal district court level is common, but in the appellate court the damage to litigants is incalculable.

Nor is this case only an outlier and unusual.  In Harris the Supreme Court and Troy v. Brown (cites omitted) reversed the 9th Circuit by substituting itself for the jury. After the third reversal the Governor pardoned Harris within three weeks.  Someone on the 9th Circuit invited a gubernatorial decision.  

Critics of the death penalty cite the fiscal crisis in California to justify revoking capital punishment.  Schad confirms the delay in executions is not attributable to cost but to  indefensible 9th Circuit reversals of state court judgments. Schad is a 1985 conviction finally concluded in 2013-almost 30 years later.