Nasby v. McDaniel, 853 F.3d 1049 (9th Cir. 2017)

Were it not for the U.S. Supreme Court prior reversal of the U.S. Ninth Circuit Court of Appeals in this case, and reversals of an untold number of other cases, the Nasby case might make sense. Nasby was convicted of murder in 1999 and is still in court filing papers. The result of the decision in this case will require more filings.

Convicted in a Nevada trial court, Nasby’s direct appeal in the Nevada Supreme Court was denied. Several habeas corpus petitions of gibberish filed in state courts were also denied. Nasby filed federal court habeas, all from the state courts decisions, and the district court judge read all their summaries of the evidence. Petition denied. Nasby appealed to the Ninth Circuit.

The Ninth Circuit held that the district court judge should have read the trial record himself instead of the state court judges summaries. As a general rule, this decision is correct. But so many state courts wrote the same objections the sum total probably  matched those in the instant case. Then, unless a petition filed by either party in the Supreme Court is granted and reversed, the panel will remand the case to the district court judge with instructions.

All this for a 1999 conviction. This case illustrates the absence of any need for two jurisdictions to hear a case. The trial judge, direct appeal in state supreme court,  and repeated rulings denying the petition in state court yet the law allows a federal court to review a state court decision. In reality, the federal court reviewing a state court decision on federal habeas corpus undertakes a thorough retrial masked in alleging wrong motions, jury instructions, or some personal objection finding ineffective assistance of counsel. What is the possibility of another trial in a few years?

Melendres v. Arpaio, 784 F.3d 1254 (9th Cir. 2015)

Federal courts, including the Supreme Court, but specifically the Arizona federal district court and the 9th Circuit, have done everything possible to preclude enforcement of immigration laws in Arizona. In addition, federal courts have taken over the state legislative and executive offices to manage immigration in the state.  The State legislature has been overruled and sweeping federal court injunctions control the executive.

The latest case, Melendres v. Arpaio illustrates the inability of Arizona to enforce border control judicially, and the federal Department  of Justice also insists on preemptive authority to enforce immigration law, a decision easily waived or delegated, to foreclose the state of Arizona enforcing the law.  Injunctions in civil cases ordinarily order one party to discontinue certain acts or conditions of another party, and the detriment to that party is substantial. But in the context of immigration, public agencies must submit to the policy decisions of a single judge. Here is an example of an injunction issued by a district court judge recited in the 9th Circuit opinion:

“[As a result of the evidence”], the district court permanently enjoined Defendants from “(1) detaining, holding or arresting Latino occupants of vehicles in Maricopa County based on a reasonable belief, without more, that such persons are in the country without authorization; (2) using race or Latino ancestry as a factor in deciding whether to stop any vehicle with a Latino occupant, or in deciding whether a vehicle occupant was in the United States without authorization; (3) detaining Latino occupants of vehicles stopped for traffic violations for a period longer than reasonably necessary to resolve the traffic violation in the absence of reasonable suspicion that any of them have committed or are committing a violation of federal or state criminal law; (4) detaining, holding or arresting Latino occupants of a vehicle … for violations of the Arizona Human Smuggling Act without a reasonable basis for believing that, under all the circumstances, the necessary elements of the crime are present; and (5) detaining, arresting or holding persons based on a reasonable suspicion that they are conspiring with their employer to violate the Arizona Employer Sanctions Act.”

In addition the judge ordered the Sheriff’s Office to begin officer training in the Fourth Amendment, training in racial profiling (how do you do that?), and appointment of a Monitor with extensive authority to evaluate all programs.  At state expense.

That a federal court could run a sheriff’s office is an incredible display of judicially unauthorized conduct.  But this is not the first arrogant act.  The federal district court, with the agreement of the 9th Circuit, managed the Nogales School District for 30 years to make sure English was taught to Spanish speaking children illegally in this country.  Even the Supreme Court could not approve that-and did not.

The 9th Circuit is also running California prisons, ordering prisoners released for no reason other than because the prisons are crowded. And recently the 9th Circuit ordered a class action of 33,000 inmates who alleged deficient medical services in Nevada prisons despite the fact not all the prisoners needed medical service. Parsons v. Ryan, above This is not the first case the 9th Circuit has invoked solicitude for rapists, burglars, murderers, robbers and thieves.

N.B. Judge Lawrence Waddington has published his book on the 9th Circuit entitled “Disorder in the Court.”



Thornton v. Brown, 757 F.3d 834 (9th Cir. 2014)

“Today, a panel of our Court [9th Circuit] disregards ‘the strong considerations of comity’ between federal courts and the States, grasping power for itself where it is difficult to imagine that  . . . a State has a stronger interest; ” (citing  Preiser v. Rodriguez, 411 U.S. 475 (1973). In this quote written by a judge in the Thornton dissenting opinion, he adds that “the majority frustrates the State’s sovereign power to punish offenders under federal habeas corpus.” What is he talking about?
This decision is not the first time the 9th Circuit has usurped the power of state courts to manage criminal cases.  Repeatedly reversing decisions of state supreme courts by avoiding the Congressionally approved Antiterrorism and Effective Death Penalty Act of 1996 (28 U.S.C. 2254), the 9th Circuit has worked havoc on a system of federalism designed to narrow federal court authority in reviewing state cases rather than expanding it.
The facts of this case:  An inmate of a California prison, convicted under sex violation laws, challenged statutorily mandated parole conditions requiring him to wear a device monitoring his location during the length of parole. Instead of filing habeas corpus corpus, he filed a complaint under 42 U.S.C. 1983, the misused federal civil rights law, to enjoin the parole condition. In a dissertation on the federal law of remedies, the court panel majority discussed under what conditions an inmate could invoke 1983 instead of habeas and concluded the statute does not prohibit federal jurisdiction as long as the complaint seeks an injunction and not revision of either his sentence or money damages.

As the dissent points out, using 1983 avoids the limitations of 28 U.S.C. 2254 and allows attorney fees as well. The dissenters (there are several) focus on the underlying issue of federalism because of repeated attempts by some 9th Circuit judges to continue overruling state supreme court cases on habeas corpus   To avoid the limitations imposed by 2254, completely absent from this civil case, (and to finesse the death penalty in other cases), counsel for Thornton decided to try another route.  Section 1983 avoids federal limitations imposed on federal courts by the Supreme Court on state parole cases, the Fourth Amendment, and the requirement of state exhaustion before an inmate applies for a federal remedy.

Cert. in Thornton (absent rehearing) should be a certainty. This case was decided in July 2013 and amended in February 2014.The Governor has taken no action to file the Supreme Court. The Attorney General has done nothing either.