Kernan v. Cuero, 138 S.Ct. 4 (2017)

An unusual case. The defendant pled guilty to the charge against him and the sentence of 14 years. Subsequently,the prosecutor amended the complaint and added an additional count. The state court permitted it although the sentence was higher. The defendant agreed to the new sentence as explained to him by the judge.

After sentencing, the defendant appealed, the district court affirmed the conviction. The Ninth Circuit reversed the state law (which permits the above process at trial court) and the U.S Supreme Court reversed.

The Justices said no Supreme Court case had held any of its precedent violated this state law or decision on the subject described above. Ninth Circuit reversed.

Maqiuz v. Hedgpeth, 907 f3d 1212 (9th Cir.)

McDonald, an active gang member, committed a robbery of a woman in an area close to gang territory but without any evidence by clothing or statements that he was a member of a gang. At his trial a deputy sheriff testified extensively to McDonald’s membership in the gang and their policy of committing crime to gain territory, add graphics on buildings, and frighten the community.

The prosecution added illegal possession of a weapon and commission of a prior robbery, both enhancements to a sentence of robbery .The state court jury found the defendant guilty of robbery and included the enhancements in the sentence. The California Court of Appeal and state Supreme Court upheld the guilty verdict and sentence. Defendant subsequently filed habeas corpus in federal District Court but the judge confirmed all state court decisions. The defendant filed habeas corpus of this decision and appealed to the Ninth Circuit. The majority of the three judge panel affirmed the verdict but reversed the gang member enhancement.

The court majority (the 9th Circuit panel) decision held the deputy’s testimony insufficient to support the jury verdict of sentence enhancements. The dissenting judge cited federal law-now in a federal case-and Supreme Court precedent to apply AEDPA rules warranting a different result upholding the jury on the gang membership.This 2-1 vote overruled all California courts and the federal district court.


Immigration: Sexton v. Beaudreau, 2018 WL 3148261(Supreme Court)

The U.S. Supreme Court has repeatedly reversed Ninth Circuit  habeas corpus decisions of state criminal cases, Constitutional issues of Fourth Amendment, Sixth Amendment, Eighth Amendment  and a host of other subjects. One other category of non criminal cases is immigration. The volume and public interest are limited in judicial immigration rulings despite widespread national interest in immigration.

For these reasons we cannot report all Ninth Circuit decisions. But to illustrate Supreme Court rulings we print those cases. Sexton v. Beaudreaux, 2018 WL 3148261 applies. The Ninth Circuit reversed denial of a state petition for habeas corpus on grounds of ineffective counsel. “The Court of Appeals decision ignored well-established principles.  It did not consider the reasonable grounds that could have supported the state court’s summary decision, and it analyzed the respondent’s arguments without any  meaningful deference to the state court….The Ninth Circuit’s opinion was not just wrong.  It also committed fundamental errors that this Court has repeatedly admonished courts to avoid.”

More criticism ensued but this statement suffices to consider the Supreme Court opinion of the Ninth Circuit.



Hardy v. Chappell, 849 F.3d 803 (9th Cir 2017)

The 9th Circuit wrote one of its worst opinions in beginning the year 2017 that collected seven dissents.  In a state court murder case the jury convicted all three defendants but subsequent evidence established the jury convicted the wrong killer but sentenced death against all three. Evidence was overwhelming. The California Supreme Court affirmed the verdict although acknowledging the error.  The evidence established that the one defendant was nevertheless guilty, even though, not the actual killer, under a conspiracy theory or of aiding and abetting.

The defendant wrongly identified as the killer filed habeas corpus in federal court to avoid the death sentence but his petition was denied. He appealed to the 9th Circuit who reversed the state court judgment.   Additional hearings of the case were held but the panel finally amended its opinion on January, 2017. Incredibly, no rehearing was ordered. Seven judges dissented in lengthy dissents arguing the injustice of requiring a new trial over all three obviously guilty defendants.

Lopez v. Smith, 135 S.Ct. 1 (2014)

The overwhelming evidence in Lopez v. Smith ,135 S.Ct.1 (2014) cast no doubt he had killed his wife in their house. Police found Smith’s DNA evidence on the body of the dead victim; on the lethal weapon; on jewelry removed from the house where the murder occurred concealed in the trunk of his car. A criminal evidence expert testified the ransacked house resembled a staged robbery. A California jury rendered a guilty verdict.

At the conclusion of the prosecution case, the prosecutor obtained a trial court approved jury instruction defining the crime of aiding and abetting in addition to first degree murder instructions already submitted. Defense counsel objected, arguing he had no notice of the change in prosecution theory. All California appellate courts have rejected this argument, as did the trial court and Court of Appeal in this case, on grounds anyone who aids and abets is as guilty as the principle. The 9th Circuit panel on habeas review disagreed and overruled the California courts.

In Lopez v. Smith the 9th Circuit repeatedly evaded the restrictions imposed on federal habeas corpus jurisdiction mandated by the AntiTerrorism and Effective Death Penalty Act (AEDPA; 28 U.S.C. 2254). Federal law allows habeas relief only “if the state court decision was contrary to, or involved, an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. 2254 (d) (1). Parker v. Mathews, 132 S.Ct. 2148 (2012).

AEDPA also requires federal courts “deference” to state appellate courts in habeas proceedings. The 9th Circuit panel in Lopez cited only their own precedents, and overruled the state court  conviction on grounds the state appellate court opinion “unreasonable.” The Supreme Court reversed, concluding the 9th Circuit had “time and again” misinterpreted the facts, finessed Supreme Court law under AEDPA, and ignored deference to state courts.

Lopez v. Smith is a heavily cited per curiam opinion without footnotes, but the dissenting opinion in Deck v. Jenkins, 768 F.3d 1015 (9th Cir.2014) lists an embarrassing number of Supreme Court cases reversing the 9th Circuit for failing to comply with AEDPA. In one Supreme Court case a Justice singled out the 9th Circuit for repeated violations of AEDPA committed by panels’ misapplication of habeas corpus precedent. In addition, the 9th Circuit has ignored or evaded almost every state court death penalty case for the last decade on habeas corpus grounds despite California Supreme Court affirmation on the merits and the penalty.

In Lopez v. Smith, and in innumerable other cases, the 9th Circuit has repeatedly evaded the restrictions imposed on federal habeas corpus jurisdiction mandated by the AntiTerrorism and Effective Death Penalty Act (AEDPA; 28 U.S.C. 2254). Federal law allows habeas relief only “if the state court decision was contrary to, or involved, an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. 2254 (d) (1). Parker v. Mathews, 132 S.Ct. 2148 (2012).

Two years later the 9th Circuit panel amended its 2014 order, and six judges dissented from a denial of rehearing.  In scathing language, the dissenting judges cited the repeated 9th Circuit reversals  by the Supreme Court. In a footnote, the author of the dissent cited the late Justice Scalia and his list of citations for those cases; Deck v.Jenkins, 814 F.3d 954 (9th Cir. 2016).

Frustrated by 9th Circuit reversals is not a recent event for the Supreme Court. Several years ago the 9th Circuit reversed a California case involving a search and seizure involving the Fourth Amendment. Stone v. Powell, 428 U.S. 465 (1976). Police arrested and searched Powell pursuant to a local vagrancy law and found a weapon involved in his commission of a previous murder. Convicted, the sentence confirmed on appeal, and his petition for habeas corpus denied by the district court, Stone appealed to the 9th Circuit. The panel overruled the conviction on grounds of an unconstitutional vagrancy law.

Not only did the Supreme Court reverse the 9th Circuit, the Justices prevented the court from hearing any future state cases on Fourth Amendment issues. Undeterred, the 9th Circuit has found a circuitous route around this ruling in the civil rights statute. 42 U.S.C. 1983 permits standing to anyone who alleges a civil rights violation to file litigation seeking damages against the individual law enforcement officer and the employer. Because the Supreme Court has held that unlawful use of force on a person in the course of an arrest is an unreasonable seizure under the Fourth Amendment, a circuitous civil action escapes the ruling.

Four 9th Circuit Cases Reversed (2016) [See, Section on Recent Cases]

Three weeks prior to the end of the current Supreme Court term the Justices have reversed four U.S. Court of Appeals Ninth Circuit decisions. Once again, the 9th Circuit has retained the award for the most reversed federal circuit court in the United States. Ignoring Supreme Court precedent and ruling on habeas corpus petitions de novo instead of the deferential mandate required by the Antiterrorism & Effective Death Penalty Act, 9th Circuit judges repeatedly tried to evade the statute by collateral attack of habeas corpus. All petitions for writs in these cases were previously denied by the California Supreme Court and federal district courts. Kernan v. Honojosa, 2016 DJDAR 4604.

Supreme Court animosity toward the 9th Circuit rose sharply in Johnson v. Lee 2016 DJDAR 5160. Filing habeas corpus in federal court requires all prior state court habeas corpus petitioners to have initially exhausted all their claims filed on direct appeal from a conviction in state court. The Supreme Court has previously held the procedural rules of a state court must be “firmly established and regularly followed.” The petitioner in Lee contended the California Supreme Court had not followed this rule.

After the California Supreme Court denied her petition, Lee filed habeas corpus in federal district court. Denied in that venue, she appealed to the 9th Circuit where the panel ordered the warden in California to prepare an analysis of the two year period the California Supreme Court had denied habeas without following the Supreme Court rule. The warden submitted a report but the 9th Circuit panel disliked the results and reversed the conviction for murder.

Reversed and remanded by the Supreme Court, the 9th Circuit panel reversed again. In review of this second decision the Supreme Court discounted the panel again and wrote “[T]he Ninth Circuit decision profoundly misapprehends what makes a state procedure adequate.” The California Supreme Court had firmly established and regularly followed the federal rule.

The Supreme Court added that federal habeas corpus will not lie when a petitioner does not allege trial court error on appeal from state court judgment of conviction. Lee never raised the alleged claim of procedural error on appeal from the judgment in state court. The Supreme Court reversed again. A California law professor commented that California had “notoriously unclear habeas procedures.” Apparently he has not read 9th Circuit reversals on habeas corpus.

Another procedural error occurred in Spokeo Inc. v. Robins, 2016 DJDAR 4566. Article III of the U.S. Constitution requires federal courts to limit their jurisdiction to “cases and controversies,” not abstract or hypothetical issues. Characterized as “standing,” the courts have not always agreed on the issue because each case is factually based and the definition ambiguous. In any event, personal injury is required, subject to judicial review and warranting the authority to provide a judicial remedy. According to the Supreme Court, when analyzing Article III standing the court must consider “concreteness” and “particularization.”

The Supreme Court discussed these issues in some detail and explained the distinction between the two elements. The justices concluded the 9th Circuit panel failed to satisfy both. “Particularization” refers to personal injury; “concreteness” requires a real injury, not an abstract one. The Supreme Court reversed and remanded for the 9th Circuit panel to apply these rules.

Unquestionably, procedural rules and their application lack dramatic impact. Yet, had the 9th Circuit decisions prevailed, an inmate serving a sentence for murder would have been released. Johnson v. Lee was tried in 1997. In Kerman v. Hinojosa the inmate was serving nineteen years for armed robbery. In both these cases retrial would have been highly unlikely and both inmates released.

Despite these cases, a 9th Circuit panel continued to reverse state courts collaterally on habeas corpus. In Currrie v. McDowell, 2016 DJDAR 5486, a murder case tried in 1995, the panel reversed the state court conviction on grounds the prosecutor peremptorily challenged a black juror under the rule in Batson v. Kentucky, 476 U.S, 79 (1986). The Batson decision and its result, invented by the Supreme Court without judicial precedent and mandating a new trial absent any legal error, are grossly disproportionate to the crime and completely unrelated to the trial and jury verdict. In Currie, a legally error free trial is reversed after two decades for excusing a juror. With a retrial unlikely, the 9th Circuit majority panel releases a convicted murderer.

In Currie, the murder conviction was tried by a California trial judge who denied the Batson motion; appeal to the Court of Appeals denied; review by the California Supreme Court denied; petition for a writ in federal district court denied. But the 9th Circuit three judge panel who have never tried a criminal case reversed fifteen judges. A1995 case ready for the Supreme Court.

That a murder case should be reversed by a federal court rendered in a solid conviction is disgraceful. The killer will go free on evidence entirely unrelated to the crime. And this 9th Circuit practice has been repeated repeatedly resulting in injustice to the people of the state.

The U.S. Constitution includes habeas corpus applicable to federal courts. No duplication of this rule in the Constitution applies to the states, and for over a century the federal court s never applied its Constitutional language to state courts except in rare cases involving sentencing. In Fay v. Noia, 372 U.S. 391 (1963) a 6-3 decision, Justice Brennan discovered an historical common law indigenous to habeas corpus and applicable to state court judges who ruled on federal questions.

As Congress continued to expand federal law, the federal courts began reviewing state court decisions involving questions of federal statutory and Constitutional questions. In time, the Supreme Court removed 9th Circuit habeas corpus jurisdiction in Fourth Amendment cases. Later, the Court ended 9th Circuit habeas review of state parole hearings. In the last decade the Supreme Court has frequently reversed the 9th Circuit in other state cases and tightened federal habeas corpus substantive and procedural review. These decisions have repeatedly reversed the 9th Circuit in innumerable decisions involving Constitutional issues.

The time has come for the Supreme Court to reinterpret federal habeas corpus law and remove the 9th Circuit from any further jurisdiction over state court decisions. Not only will removal reduce the endless appeals of 9th Circuit mandated retrials and the cost and interference with state sovereignty, the record would confirm finality of state court judgments and stop the endless reversals resulting in injustice. No reason justifies two jurisdictions trying the same case twice.


U.S. v. Lee, 821 F.3d 1124 (9th Cir. 2016)


A dissenting judge in the U.S. 9th Circuit Court of Appeals has finally written a scathing  accurate dissent in a case and commented on repeated jurisprudential clashes between the court and the U.S. Supreme Court. U.S. v. Lee. Other 9th Circuit judges have previously dissented in opinions within the boundaries of submitted cases, but not always challenging decisions of the circuit in the language of Judge Ikuta in Lee.

For the last decade the 9th Circuit, invoking habeas corpus on Constitutional issues, has repeatedly reversed state supreme courts within its federal jurisdiction, but the Supreme Court has reversed that court more than any other federal appellate court. During the described era the Justices stripped 9th Circuit jurisdiction in state Fourth Amendment issues and in state parole hearings: “state parole is none of your business.”

In Cavasos v. Smith, 132 S.Ct. 2 (2011) a 9th Circuit habeas panel reversed a state court jury conviction two times on grounds the defense presented a better case at trial. Reversed each time by the Supreme Court, instead of the panel writing another opinion, an unknown person contacted the Governor’s office. In two weeks Governor Brown granted the defendant clemency.

In 1996 a frustrated Congress enacted legislation restricting federal habeas corpus intervention by all federal courts on state court judgments. In the Anti Terrorism & Effective Death Penalty Act, a federal court could only overrule state court decisions unsupported by “clearly established” Supreme Court law-not local precedent. Prior to the statute, the 9th Circuit on habeas corpus had reviewed state decisions de novo under rules on direct appeal.

Confronted by the statute, Ninth Circuit judges no longer allegedly relied on their own interpretation of the Constitution but introduced the Sixth Amendment right to counsel. The Supreme Court had already fulfilled the right of an accused to jury and counsel. The 9th Circuit invented a supplemental issue requiring “effective” counsel. These cases formed the majority of 9th Circuit reversals, each time panels criticizing defense counsel for ineffectively conducting an investigation or trial. Almost every case involved the death penalty, and confirmed the objective of a majority of 9th Circuit judges seeking to terminate capital punishment.

The 9th Circuit undertook another interpretation of “clearly established” Supreme Court decisions. In Batson v. Kentucky, 476 U.S. 79 (1986) the Supreme Court had held prosecutors could no longer peremptorily challenge potential jurors on grounds of race. The 9th Circuit immediately applied the case to overrule a state court by asserting the prosecutor had challenged a potential black juror. The prosecution sought certiorari of the decision, and the Supreme Court reversed with the comment : “The Ninth Circuit court substituted its own opinion.”

Frequent reversal of 9th Circuit habeas corpus opinions of state cases compelled the Supreme Court to eventually require federal courts to “defer” to state courts. Despite the rule, the record of Supreme Court reversals continued and led several 9th Circuit judges to refer to their embarrassment year after year. Judge Ikuta wrote: “Judicial disregard for Supreme Court habeas jurisprudence is inherent in the opinions of the Court of Appeal for the Ninth Circuit here under review.” This language summarizes judicial disregard of the law. In one case a 9th Circuit judge criticized numerous state court “mistakes, ” ignoring the record of the 9th Circuit.

Concerned with the Supreme Court rule mandating “deference” to state courts, 9th Circuit judges discovered another method of reversing cases in habeas corpus. Statutory reference under AEDPA permits reversal only if the state court decision constituted an “unreasonable interpretation” of federal law or of the factual record. The word “unreasonable” is an abstract word, contingent on the facts and subjectively decided. This statutory interpretation requires federal habeas corpus review to merely conclude the state court decision “unreasonable”. As the Supreme Court said, “merely a substitution of opinion.”

The 9th Circuit found yet another alternative to reverse state court convictions under habeas corpus and apply the rules of direct review. After the state supreme court affirmed a conviction, the defendant filed habeas in federal court. The 9th Circuit allowed the district court to conduct hearings on evidence never submitted in state court nor alleged on appeal. The Supreme Court has discontinued this unfair process.

A federal district court judge, ignoring the Supreme Court and its repeated reversal record of the 9th Circuit, and oblivious to federal or state law, asked a habeas petitioner to rewrite his petition to argue the California death penalty unconstitutional. The U.S. Supreme Court and the California Supreme Court have both repeatedly rejected this argument for several years, the former as recently as two weeks ago denying certiorari. Even the 9th Circuit reversed the district court. Boyer v. Chapell, 793 F.3d 1092 (9th Cir. 2015).

Another federal district court judge, who probably never tried a criminal gang case, decided to overrule the California Supreme Court affirmance of a conviction in a case tried in 1985,and a denial of certiorari by the U.S. Supreme Court. Williams v. Davis, 2016 WL 1254149. Gang cases are obviously the most difficult for the prosecution. Witnesses fearful of retribution, immunized accomplices, witnesses who recant or testify inconsistently, and questionable identification. This judge granted habeas in a case 35 years old and impossible for the prosecution to retry when witnesses willing and able to testify have either died or unavailable.

In Williams, a single federal judge retrys a case, ignores a unanimous jury verdict, alleges the prosecutor withheld witness notes from the defense, and chastises the California Supreme Court opinion. The law thirty five years ago did not require pre trial prosecution discovery. And, according to the district court, the California criminal justice system is “dysfunctional.” Unfortunately, the judge forgot to mention this thirty five year old case does not include 9th Circuit reversals as relevant.

Reading Supreme Court cases reflects policy decisions of a majority, not the law. Many of these judges oppose the death penalty and have used excuses consisting of prosecution misconduct, ineffective assistance of counsel, voir dire challenges, and “lawyerly parsed” [Supreme Court] jury instructions, or penalty errors. The Supreme Court has tightened the habeas rules in criminal cases and Congress has attempted to limit federal jurisdiction. The Supreme Court should strip federal habeas corpus review comparable to their decisions on the Fourth Amendment and parole.

Granting habeas petitions not only affects the lives of victims, families and friends. Retrying a case several years after conviction often proves impossible. Incredibly, the attorney general who represents the state has made no comments on the 9th Circuit, more concerned with child truancy, and ignoring her commitment to serve four years while rying to get another job.

The governor, attorney general and the state legislature have done nothing to limit federal interference in California courts and the repeated hearings, release of inmates, delay and cost. The governor wants to spend billions on a train, the attorney general travels around the state soliciting votes, and the legislature more concerned about issuing drivers licenses increasing traffic the City of Los Angeles tries to control. Although not entirely alone, at least one voice is crying in the wilderness.


Jones v. Chappel, 806 F.3d 538 (9th Cir. 2015)

In California death penalty case Jones v. Davis, several troubling issues arose. The petitioner at the habeas corpus hearing in district court alleged the California legal system excessively delayed death penalty convictions violating the 8th Amendment prohibiting cruel and unusual punishment. Despite the prior California Supreme Court ruling to the contrary on appeal, the district court judge ignored the merits of the petition and expressed his concern the California death penalty was unconstitutional on a different ground. He allowed petitioner four days to file an amended petition to assert a “new claim” of systemic dysfunction of the state court. The petitioner complied.

After a hearing on the amended petition, the district court judge found the California death penalty post conviction process unconstitutional on 8th Amendment grounds; Jones v. Chappel, 31 F.Supp.3d 1050. The court cited no precedent, including 9th Circuit decisions having been overruled by the Supreme Court in almost every death penalty case in the last decade. The conduct of the district court, ignoring the death penalty issue written by the petitioner in the original petition, and requesting an amended petition on other grounds he suggested, is a serious question. In effect, the court ordered petitioner to file a claim of unconstitutional conduct by California courts without citing any judicial precedent or statute for systemic dysfunction and in conflict with Supreme Court decisions. Nothing more than a personal opinion, not legally sanctioned. The state appealed to the 9th Circuit.

The 9th Circuit panel wrote they were compelled to grant the appeal by the State of California, and reversing the district court order granting habeas corpus, on grounds the Supreme Court had previously filed a case prohibiting appellate courts from writing a “new rule” on habeas corpus appeals. Rarely has the 9th Circuit followed this rule over the years but the significance of the Jones case probably affected the court worrying about certiorari to the Supreme Court. The Justices have repeatedly denied 8th Amendment claims the death penalty qualifies as “cruel and unusual punishment.”

The second troubling issue arises from footnote 2 of the panel opinion suggesting petitioner seek review of the claim elsewhere as asserted in his own petition or the amended petition recommended by the district court. The options included the state court. Yet the panel opinion, after extensively discussing its inability to write a new rule on habeas petitions, and having contended to rule otherwise would more cause more delay, nevertheless suggests petitioner try “other means” in the footnote. This interpretation implies either the petitioner return to the California Supreme Court for reconsideration on the issue of systemic dysfunction, or citizens file an Initiative.

The panel could have foreclosed petitioner from proceeding in federal court by citing the federal Anti Terrorism and Effective Death Penalty Act (AEDPA) requiring state prisoners to exhaust all post conviction claims in state court before filing habeas in federal court. The petitioner had not complied with the statute in district court, and never cited AEDPA to the panel. In fact, petitioner conceded he did not file either the original or amended petition in state court mandated by the exhaustion rule. The panel circumvented this issue having decided petitioner had sought a “new rule” held by the Supreme Court. By suggesting petitioner could continue his quest for challenges to the death penalty, he could conceivably go back to state court and exhaust all his claims as required by law and, if the claims were denied, come back to the district court. This incongruous recommendation defies understanding.

Undoubtedly petitioner will seek certiorari in the Supreme Court, surprising the Justices that the 9th Circuit had denied a petition for habeas corpus in a death penalty case. Absent a rehearing, the 2-1 majority in the 9th Circuit opinion will survive in Washington.

The Jones case is obviously not the first constitutional challenge to the death penalty per se on grounds of cruel and unusual punishment and despite repeated denial by the Supreme Court, but the decision does expose the California state government to criticism for its indolence, in part because the Governor, Attorney General and the Legislature will do nothing to clarify or restructure the legal system. The Governor has ignored any congestion in post conviction proceedings and merely cut the judicial budget. The Attorney General personally opposes the death penalty and is busy with the important alternative of child truancy and abandoning her promise to serve as Attorney General for four more years. The Legislature has not held a committee hearing to review post conviction remedies, and refused to adequately fund the lawyers who write habeas corpus briefs and those who do appellate work in death penalty cases.

The state government is not alone. The federal government enacted legislation in 1996 to cabin the role of federal courts, particularly the 9th Circuit, in the AEDPA. The statute, repeatedly evaded by the 9th Circuit whose panels have granted habeas corpus despite the rulings of the California Supreme Court. The latter has upheld almost all death penalty cases on overwhelming evidence and not by academic hair splitting and ineffective assistance of counsel decisions written by 9th Circuit panels. Congress should tighten AEDPA to eliminate federal rulings on state habeas as enacted in 1996.

The 9th Circuit recently requested the state supreme court to adopt a statute of limitations rule identifying the amount of time a state prisoner must file a petition for federal habeas corpus after a state judgment is affirmed. The state supreme court has not replied. The 9th Circuit justifiably warrants a “bright line” for state habeas limitation rules in order to determine its own statute of limitations filings in federal courts.

California law allows petitioner to file habeas three times independently in state court: the Superior Court; the Court of Appeal; the California Supreme Court. Assuming all these courts deny the petition, a petitioner can then seek certiorari in the Supreme Court. If denied, then file in the district court; if denied; appeal in the 9th Circuit; if denied, back to the Supreme Court.

All these California laws can be changed. There is no need for the state supreme court to hear habeas corpus on the same ground it just rejected in direct appeal. The state Attorney General, who represents the state, endorses all these identical options to assure a defendant convicted by a unanimous jury, a motion for new trial denied, and an automatic appeal to the California Supreme Court alleging violation of Constitutional rights, are protected. These endless appeals are unnecessary.

Habeas petitioners invoke two jurisdictions. The claims are identical and in some cases the federal court must return the case to the state court to exhaust local claims. After the state court rules, the petitioner files an amended petition in federal court. Two jurisdictions on the same case causing incessant delay.The amended petition in Jones complained about systemic delay in his case, and the judge ruled on his own policy. But not a word in his opinion about the 9th Circuit who have overruled the California Supreme Court in almost every death penalty case during the last decade. On policy, masked in judicial rhetoric.


Lawrence Waddington is a retired judge of the Los Angeles Superior Court and author of recently published “Disorder in the Court” at He also edits the 9th Circuit blog titled “-The 9the Circuit Watch.”


Grace v. Herzog, 798 F.3d 840 (9th Cir. 2015); Reyes v. Lewis, 798 F.3d 815 (9th Cir.2015); U.S. v. Rodriguez-Vega, 797 F.3d 781 (9th Cir. 2015)

Another 9th Circuit opinion, oblivious to Supreme Court law, reverses a Washington state court appeal on a 2-1 habeas ground.  This panel simply will not read the  numerous opinions of the Supreme Court telling them to abide by habeas corpus rules and not reverse a state court opinion even if incorrect.  The Court further told the 9th Circuit in Davis v. Ayala, 135 S.Ct. 2187 (2015) that habeas corpus can reverse state court decisions only “to guard against extreme malfunction of its courts. ”

The jury convicted the defendant Grace on two misdemeanor counts and one felony count of attempted assault.  In one misdemeanor count the court instructed the jury on a lesser included offense.  In the attempted assault conviction the court did not instruct on the lesser included offence of “brandishing a weapon.”  Counsel for the defendant did not ask for this instruction, and according to the panel this omission constituted 6th Amendment ineffective counsel under Strickland. Not  a word of compliance to AEDPA or any “extreme malfunction” in Washington courts.

The panel cites numerous cases from other jurisdictions on inclusion of lesser included offenses in jury instructions, none from the 9th Circuit.  Some of these decisions hold failure to instruct the jury on a lesser included offense is ineffective counsel; others hold differently.  Naturally, the 9th Circuit panel take the petitioner’s  argument. As the dissent points out, AEDPA in federal courts is not a direct appeal; it is a collateral attack and the 9th Circuit must defer to state court opinions.  In addition, the petitioner was convicted of a felony.  Obviously the jury unanimously agreed; why would submitting a lesser offense instruction to the jury make any difference?

This case is another example of 9th Circuit indifference to Supreme Court law.  When will the Supreme Court strip the 9th Circuit of federal habeas?  The Grace court  cites not a single case to comment about the Supreme Court opinion on the Davis decision almost achieving that goal.

Ineffective assistance of counsel has been a 9th Circuit repeated attempt to override state courts when they could not find any legal error.  In this case, the same ruling is absurd. Rehearing or cert. recommended.

Reyes v. Lewis, 798 F.3d 815 (9th Cir. 2015)

The 9th Circuit panel granted habeas in another state court case with nothing but a direct review of the California Court of Appeal.  The Supreme Court has repeatedly objected to the direct appeal approach -which is this case – and the 9th Circuit continues to ignore it.  The case is nothing more than an interpretation of Miranda rules already decided by the California Court of Appeal.

U.S. v. Rodriguez-Vega, 797 F.3d 781, (9th Cir. 2015)

Immigration: Ineffective counsel

In a plea agreement by an illegal alien smuggler whom the BIA ordered deported, counsel told his client deportation was “virtually certain” based on the criminal proceedings.  The district  court ordered deportation  The 9th Circuit reversed because counsel should have told her she would be deported.  Ineffective counsel.

In the first  place, what is the 6th Amendment doing in immigration court?.  Thanks to Ferguson, Missouri citizen protector former faux Attorney General Holder who supported this kind of façade.  In this case, counsel told his client her deportation was “virtually certain.”  Considering that the client had pled guilty to assisting illegal entry of aliens, she must have known the result. No, said the 9th Circuit,  counsel must specifically say deportation will be the result.

In his declaration, counsel thought the offense might not be categorized by the court  as an aggravated felony-not a deportable offense alone.  He was wrong.  And the 9th Circuit  writes another obscure decision .



Mann v. Ryan, 774 F.3d 1203 (C.A. 9) Rehearing Granted; 797 F.3d 654 (C.A.9)

This case was originally submitted December 24, 2014; rehearing granted in December 2015. As of July, 2016 no further decision.

There is no need to summarize this case.  Judge Kozinski tells us the result of  another 9th Circuit reversal of a state death penalty case: “Once more unto the breach. Time and again, we have been admonished for disregarding Congress’s clear instruction that federal judges in habeas proceedings must adopt a’highly deferential standard’ under which state-court decisions [are] given the benefit of the doubt. Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam) (internal quotation marks omitted). In clear violation of this principle, the majority today seizes upon imprecise language in a single sentence of a state court’s otherwise well-reasoned and comprehensive opinion, and uses it to sweep aside AEDPA’s restrictions on the scope of our review. The majority not only fails to faithfully apply Supreme Court precedent, it also creates a split with two other circuits.”

“If we are not summarily reversed, Mann’s death sentence will surely be reimposed by the state court. One way or the other, Mann will be executed, if he doesn’t die of old age first. But only after he—and the families of the two people he killed 25 years ago—endure what may be decades of further uncertainty. Where’s the justice in that? I respectfully dissent from Part III of the majority’s opinion.”
“This is not an unusual case. The state court, though it may have used some loose language, did nothing unreasonable. Defense counsel, though he could have pursued more evidence, was entirely competent, even expert. Yet the majority holds that the state of Arizona is unable to carry out the punishment it lawfully imposed. It was almost twenty years ago that Eric Mann was sentenced to death for his self-serving and sadistic crimes. That’s how long it takes to navigate the tortuous path from initial sentencing to federal habeas review. Our justice system cannot function effectively if we are compelled to re-start the arduous post-conviction process in even a typical case such as this. No judge or lawyer is perfect. Holding them to unreasonable standards means that capital defendants—and the families of their victims—live out their whole lives in an interminable cycle of litigation.
There’s no virtue to endless delay; we disserve all concerned when we paralyze the judicial process. I would respect the state of Arizona’s sovereign judgment and allow Eric Mann to suffer the punishment justly and lawfully imposed on him.”
These words eloquently justify criticizing the 9th Circuit panels who repeatedly overrule state courts and reject the analysis the Supreme Court has imposed on it in habeas corpus cases.


Williams v. Swarthout, 2015 WL 4910100, (C.A. 9) [Non Pub.)

Another mistaken decision  by the 9th Circuit – which the panel left unpublished and simultaneously permitted a rehearing or rehearing en banc.

In 2014 a 9th Circuit panel reversed a California  Court of Appeal opinion on grounds the state court trial judge in a criminal case made a mistake in advising the jury who subsequently found Williams guilty; Williams v. Swarthout, 771 F.3d 501 (9th Cir. 2014).  Williams originally filed a petition for habeas corpus in district court. The district court agreed with the California appellate court and denied the petition. Williams appealed to the 9th Circuit, and the panel reversed the district court and granted the petition.  In its decision, the panel stayed enforcement and remand pending a Supreme Court case decision in Ayala v. Davis, another 9th Circuit case.

In Ayala, the Supreme Court reversed the 9th Circuit panel in very clear language, criticising it for refusing to defer to state courts as required by AEDPA.  Based on the Supreme Court ruling in Ayala, the 9th Circuit panel vacated its stay and issued a weak single paragraph (Swarthout v. Williams, 2015 WL 4910100) affirming the district court ruling denying habeas corpus and withdrawing its own previous opinion in Williams v. Swarthout 771 F.3d 501.

The same judge who has been repeatedly reversed by the Supreme Court wrote the original decision in Williams granting the petition for habeas corpus. Reversed again.

Shelton v. Marshall, 796 F.3d 1075 (9th Cir.2015)

A 9th Circuit panel, defying reason and determined to ignore Supreme Court precedent, has reversed another California Supreme Court conviction of a vicious and sordid murder case tried in 1981.  A petition for habeas corpus by Shelton submitted to the 9th Circuit in November 20, 2014, vacated without any explanation on November 25, 2014, and resubmitted on August 7, 2015, ought to be the end of habeas corpus jurisdiction in the 9th Circuit.  The decision is another example of 9th Circuit refusal to defer to state court rulings as required by the Supreme Court. The relevant statute of limitations for filing the petition had obviously run, but the court approved on grounds of ” newly  discovered evidence.”

Three men, including Shelton, Thomas and Silva agreed to kidnap someone for no apparent reason.  While driving in their vehicle, they stopped another vehicle by flashing a red light. Abducting the man and woman occupants, the three men put the victims in the back of Shelton’s truck and drove to a secluded cabin in the mountains of Lassen County. According to Thomas who testified at trial, whom the prosecutor offered immunity, Silva and Thomas  chained the man to a tree; the woman was not imprisoned but raped.

Thomas testified that on the following day, Silva and Shelton went out to see the man chained to a tree. Silva fired 45 bullets into the body of the victim followed by Shelton who fired additional shots. Silva and Thomas dismembered the body and concealed the parts in the ground. Silva killed the woman the following day. All three men were ultimately arrested.  Shelton led police to the dismembered body and admitted previously discussing kidnapping with Silva.

Prior to trial, defense counsel for Thomas told the prosecutor that his client was not following directions and might have a mental problem.  The prosecutor offered Thomas immunity,and defense counsel waived an evidentiary hearing on competency but the agreement was not disclosed to the court or jury. Shelton testified to a different version of the facts than Thomas, admitted his participation in the kidnapping, but had killed no one.  The jury found him guilty of kidnapping, first degree murder of the male victim, and second degree murder of the woman. For some reason, jurors did not impose the death penalty. The California Court of Appeals affirmed the conviction, and the California Supreme Court denied review.

Years later, after allegedly discovering the pre trial arrangement between defense counsel for Thomas and  the prosecutor, Shelton filed a habeas petition in the California Superior Court.  The court denied the petition on the ground the evidence sufficient for conviction without evidence of the agreement between the defense lawyer and the prosecutor.  Shelton filed a petition in the district court.  Denied on the same grounds.

The 9th Circuit panel on appeal, in an opinion by the same judge who has never affirmed  a death penalty case in a decade and reversed by the Supreme Court  more than any other judge, reversed on Brady grounds.  According to the judge, the potential of impeachment of Thomas by introduction of the pre trial agreement could have affected the jury verdict.  Aside from the futility of this objection-the jury listened to the evidence of Thomas and Shelton and obviously disagreed with Shelton’s version of the facts as ludicrous.  Three men kidnap two people, drive them to  a secluded location, chain the man, kill him, rape the woman and then kill her. Shelton testified he didn’t know Silva was going to shoot the man.

The jury listened to Thomas’ testimony and obviously understood it without any  competency hearing necessary.  The jury would have considered any inconsistencies in Thomas’ testimony. In addition, Thomas did admitt at trial he had been promised immunity if he testified.  This is standard prosecution practice in murder cases and always argued to the jury by defense counsel.  The jury was well aware of the possibility of self interest.  And Thomas could have refused to take any competency test in any event.

The 9th Circuit used the California Superior Court habeas corpus decision, the “last reasoned decision” despite prior affirmance of the conviction by the California Court of Appeal and denied review by the California Supreme Court. First, the panel listed the rules under Brady and  said the Superior Court had not complied with the third rule requiring prejudice to the defendant, i.e “material” evidence, the judicial equivalent of “prejudice” to the defendant.  The panel, lacking any legal error at trial and ignoring the California Court of Appeal and California Supreme Court, held the  real issue on appeal is: the evidence did not prove Shelton committed first degree murder which requires premeditation and deliberation.

If you kidnap two people, transfer them to a secluded cabin, chain one victim to a tree and then shoot him, that is not evidence of deliberation or premeditation for murder in the first degree-particularly when Shelton discussed kidnapping with Silva beforehand?  Shelton could only be convicted of murder in the second degree of the woman because Thomas gave no testimony implicating Shelton.

AEDPA did not apply, said the panel,  because the Superior Court decision was not a “reasonable application of Supreme Court law.”  (Nor the California Court of Appeal, the California Supreme Court, and the federal district court.) This is the new 9th Circuit rule on appeal to avoid AEDPA.  No evidence established Shelton guilty of first degree murder in the absence of premeditation and deliberation. This decision is not habeas corpus; it is a direct appeal prohibited by the Supreme Court. And it is naivete at its worst.

The panel wrote that the prosecution had produced no direct evidence of first degree murder, only circumstantial evidence-both equally considered under California law.  Yes, Shelton did not confess to establish “direct evidence.”  But the jury did not consider Shelton’s absurd testimony, and they accepted the Thomas version of the facts.  If we look at footnote 15 and its incomprehensible concession that Shelton might have lied (having no self interest) and ignoring his implausible testimony, he would not have been convicted of murder.  This makes no sense.  The woman was killed by Silva and there is no evidence Shelton was involved.  Her murder was of the second degree as to Shelton, no doubt in his culpability as an accomplice. Silva had been convicted of murder in the first degree.

The panel vacates the first degree murder conviction of Shelton on the ground of lack of premeditation.  The duty of a federal appellate court is to state the law, not retry the case and find the absence of premeditation despite all the contrary decisions of California courts and their own district court.  But the panel gratuitously allowed the District Attorney to retry this 1981 case.

Note: Silva had also been convicted several years ago and the 9th Circuit reversed his conviction on the same flimsy ground of non disclosure of the agreement between defense counsel and prosecution;  279 F.3d 825 (9th Cir. 2002); 416 F.3d 980 (9th Cir. 2005).  The jury sentenced Silva to death but the 9th Circuit wrote another of its usual familiar decisions on the death penalty. For some reason, the California Attorney General (Lockner) did not seek certiorari.

Comstock v. Humphries, 786 F.3d 701 (9th Cir. 2015)

Ninth Circuit judges have employed every verbal manipulation in the book on habeas corpus cases but this one is unbeatable.  First, the panel announces it is bound by AEDPA and deference to state courts on habeas corpus. Second,  recites all the appellate limitations imposed on the 9th Circuit by the Supreme Court. Third, the district court had denied the petition so review  on appeal of that decision was de novo.  The Nevada Supreme Court had  previously affirmed the conviction, but the Nevada Supreme Court had not made a finding of facts and conclusions of law on the underlying issue of the case.That failure voided all previous judicial decisions, and the panel could review de novo.

The underlying facts are not crucial to the issue itself, i.e., habeas corpus decisions by the 9th Circuit.  Comstock is a routine Brady case, i.e., an alleged failure of the prosecutor to disclose evidence favorable to the defense.  The trial judge denied a motion for a new trial on the Brady issue; The Nevada Supreme Court denied appellant’s state court appeal on the same issue; the district court affirmed the state court; on habeas, the 9th Circuit panel reviewed the record as though on appeal and reversed on the ground the Nevada Supreme Court had not made a finding of facts and conclusions of law.

This case is nothing more than an appeal from the district court in trial- not habeas corpus. AEDPA requires deference, not a finding of facts and conclusions of law-which happens to be the job of the trial judge in the appropriate case.  The Brady issue in the case is arguable, but a trial is not just a law review.  The jury may not believe the defendant or his witnesses no matter what the Brady issue.  The trial judge sees that, not the appellate court on a cold record.

Woods v. Donald, 135 S.Ct. 1372 (2015)

Woods v. Donald is a 6th Circuit case on certiorari, but  the Supreme Court has now indirectly prevented the 9th Circuit from circumventing state courts in habeas corpus cases.  The facts in the case are relatively unimportant; it is the Supreme Court language that applies to a challenge by petitioner of ineffective assistance of counsel. Under the familiar 28 U.S.C.2254  (AEDPA) statute a federal court can only order habeas corpus if a state court decision on the merits is “contrary to, or involved an unreasonable application of, federal law as determined by the Supreme Court …” The 9th Circuit has repeatedly evaded this statute and reversed state court decisions invoking a direct review procedure rather than a collateral one.
Here is the Supreme Court language in Woods: “AEDPA’s standard is intentionally‘ “difficult to meet,’ White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (quoting Metrish v. Lancaster, 133 S.Ct. 1781, 1786 (2013). We have explained that ‘clearly established Federal law’ for purposes of s. 2254 (d)(1) includes only the holdings, as opposed to the dicta, of this Court’s decisions.’ White, 134 S.Ct @ 1702 . And an ‘unreasonable application of’ those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice.’ 13 4 S.Ct. @ 1792 (same). To satisfy this high bar, a habeas petitioner is required to ‘show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement, Harrington v. Richter, 131 S.Ct. 770 (2011). Adherence to these principles serves important interests of federalism and comity. AEDPA’s requirements reflect a presumption that state courts know and follow the law.’  Woodford v. Visciotti 123 S.Ct. 357 (2011). When reviewing state criminal convictions on collateral review, federal judges are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong. Federal habeas review thus exists as ‘a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal, Harrington v. Viscotti, supra. This is especially true for claims of ineffective assistance of counsel, where AEDPA review must be ‘doubly deferential’  in order to afford ‘both the state court and the defense attorney the benefit of the doubt.’ Burt v. Titlow, 134 S.Ct. 10, 13 (2013)  (quoting Cullen v. Pinholster, 131 S.Ct.1388 (2011).”
The Court continues to expand these rules by instructing ederal courts to dentify a Supreme Court case relevant to the claimant’s challenge.  In cases alleging ineffective assistance of counsel, the ruling is doubly deferential (as in Woods v. Donald’s claim.)   The Court added additional language on according state courts comity and federalism, and issued a clear warning to the 9th Circuit that it discontinue its reversal of state court cases on habeas corpus.


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.