U.S. Rodriguez, 128 S.Ct. 1783 (2008) Statutory interpretation is admittedly complex, particularly when federal and state sentences apply to an individual defendant. In U.S. v. Rodriquez, 464 F.3d 1072 (2002) the Ninth Circuit attempted to determine the appropriate sentence for a defendant with multiple convictions in state and federal court. Applying the Armed Criminal Career Act (ACCA) 18 U.S.C. 922, the court concluded that the sentence enhancement for Rodriguez should only be five years for a defendant convicted twice for burglary and three prior serious drug offenses. The decision cited with enthusiasm its prior case interpreting this statute, U.S. v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) as precedent for reducing the sentence. The Supreme Court granted review in U.S. v. Rodriquez, 128 S.Ct. 1783 and reversed the Ninth Circuit. Here is the Supreme Courts comment: The Ninth Circuits holding that the maximum term was five years contorts ACCAs plain terms . . .The Ninth Circuits interpretation is also inconsistent with the way in which the concept of the maximum term of imprisonment is customarily understood by participants in the criminal justice process.” The balance of the Supreme Court decision repudiates entirely the rationale of the Ninth Circuit reducing the appropriate punishment. The Supreme Court not only reversed the Ninth Circuit decision, but the Justices clearly dismissed the ability of that court to understand criminal law as practiced in state and federal courts. In addition, the Supreme Court comments approach disbelief in the Ninth Circuit rationale for its decision. The effect of the Supreme Court decision in Rodriguez erases eight years of erroneous law enforced by the Ninth Circuit based on the Corona case (and its progeny) decided in the year 2000. All the cases cited in the Ninth Circuit decision in Rodriguez based upon the Corona Sanchez rule were obliterated. What is the cost of this to the California public?

Duncan v. Ornoski (Warden) 2008 WL 2498104 (9th Cir.) June 24, 2008 Within a few days after its indefensible opinion in Belmontes v. Ayers (529 F.3d 834 (9th Cir. 2008), a Ninth Circuit panel reversed the conviction of state court prisoner Henry Duncan on grounds his counsel was ineffective in defense of a murder charge. In 1984, Duncan was employed as a cashier at a restaurant where the victim worked as his supervisor. Employees found her body, repeatedly stabbed, the day after the murder, the room covered with blood, and money from receipts as well as the key to the safe missing. A broken knife handle lay next to her body and bloody shoe prints were imprinted on the floor. In addition to collecting blood samples, investigators removed fingerprints and palm prints from the scene but none matched Duncans prints at that time. Three months later a second entry and theft in the same room resulted in money stolen from the safe presumably opened by the key previously removed on the night of the murder. Police arrested and printed Duncan, and this time his fingerprints and palm prints matched the bloody prints taken at the murder scene. The bloody shoe prints also matched Duncans shoes. An investigator testified Duncans prints taken after the murder were unreadable, explaining the initial inability to match. The key to the safe was found in Duncans car. An expert prosecution witness testified that the blood samples found at the scene of the murder could not be matched because he had no sample from Duncan. When the prosecution sought a court order to extract a blood sample from Duncan, his counsel objected and neither side introduced evidence of blood sampling. With indisputable evidence establishing his clients presence at the scene of the murder, counsel unquestionably faced a challenge to avoid the conviction and the death penalty. The jury found Duncan guilty of murder-a killing in the course of a robbery-and voted the death penalty. On appeal, the California Supreme Court affirmed the convictiion; Peo. v. Duncan, 53 Cal.3d 955 (1991) At a subsequent post conviction hearing, counsel testified he wanted the absence of any evidence of blood comparison at the trial, fearing a positive result would doom his client who had admitted to him he was present in the room on the night of the murder. The risk was too great and counsel wanted the jury to hear no evidence of Duncans presence at the scene any more than they had already heard. Or, if the blood sample did not match, the jury would want to know who was in the room beside Duncan. No such evidence existed. The Ninth Circuit panel, of course, knew better. Failure to obtain a blood sample, even surreptitiously if possible, qualified counsel as ineffective l. Yet knowing his client had already told him of his presence at the murder scene, indicating culpability, the decision not to secure a blood sample is a risk a lawyer must take-other than in the Ninth Circuit. At the post conviction hearing, counsel testified he attempted to establish a third person had committed the murder but, according to the Ninth Circuit panel, he never presented any physical evidence tying anyone else to the scene. What physical evidence could counsel present? The evidence unequivocally established Duncans fingerprints, palm prints, and bloody shoe print were found in the money room. Duncan worked on the premises, knew the location of money and returned to the restaurant a second time to steal more money with the key to the safe found in his car-a separate crime to which he pled guilty. In fact, said the California Supreme Court in 1991, All of the physical evidence that was presented at trial tied Duncan to the crime scene; Peo. v. Duncan, supra. Perhaps if Duncan had testified-the panel says nothing about that fact but the California Supreme Court wrote in its decision that Duncan did not testify-he would have identified the other party. For counsel, the only basis to escape culpability lay in establishing Duncan did not personally kill the victim, or acted as an accessory. Duncan produced no such evidence because none existed. The Ninth Circuit panel only repeats the failure of counsel to obtain a blood sample ad nauseam and criticizes this strategic omission. The Ninth Circuit again reweighed the evidence, speculated on the outcome and chastised counsel who faced overwhelming evidence of guilt and presented no blood sample somehow mitigating the sentence. The murder occurred in 1984. In 2008 the prosecution must retry the sentencing phase of the case unless the full Ninth Circuit panel reverses this panel decision. The Supreme Court denied cert.; 129 S.Ct. 1614 (2008) The Ninth Circuit panel did not close the door on other claims despite affirming the conviction on the merits: We need not reach Duncans remaining claims as they pertain only to the penalty phase and our decision . . . vacating Duncans sentence renders those claims moot. In other words, this decision is not the end of the case.

Belmontes v. Ayers (Warden) 529 F.3d 834 (9th Cir. 2008) June 16, 2008 Rehearing denied: 551 F.3d 864 (9th Cir. 2008) Ignoring the trial record, indifferent to its two previous reversals by the Supreme Court, and impervious to the emotional drain on family and friends of the victim caused by her vicious murder committed by a stranger (Belmontes), a Ninth Circuit panel (2-1) reversed the death penalty of this state court prisoner for the third time. The dissent writes a scathing decision excoriating the majority for rewriting the trial record. The majority decision begins by conceding the California Supreme Court originally affirmed the conviction and sentence of Belmontes with this language: The properly admitted evidence in this case-in particular the circumstances of the crime-was simply overwhelming. All California courts subsequently denied post conviction claims, and the federal district court denied Belmontes petition for habeas corpus. The Ninth Circuit panel in Belmontes listed all its previous decisions reversed in the same case by the Supreme Court but found one issue never litigated: defense counsel was ineffective in presenting mitigating evidence during the death penalty phase. The panel, reminding the reader its decision was unaffected by Congressional enactment of the Anti Terrorism and Death Penalty Act of 1996, a statute designed to prevent the Ninth Circuit from writing decisions similar to this third Belmontes decision, specifically mandates federal courts to afford deference to state court decisions. Not bound by this statute for Belmontes conviction in 1979, the panel ignored the California Supreme Court and the federal district court. The Supreme Court never addressed the ineffective counsel argument in its second reversal of Belmontes and sent the case back to the Ninth Circuit for further proceedings consistent with this opinion. Here is the Ninth Circuit panels interpretation of that language: The [Supreme] Court remanded, [returned] leaving us the task of resolving Belmontes remaining penalty phase claims, primarily ineffective assistance of counsel. The Supreme Court said nothing of the sort. The two judge Ninth Circuit panel majority criticized defense counsel for insufficient preparation of mitigating evidence in an attempt to humanize Belmontes, a challenging task for someone who burglarized a home and killed a defenseless woman by smashing her head with a dumbell in excess of twenty times. In fact, counsel presented several witnesses who testified to Belmontes childhood, his religious conversion in jail and an expert witness who testified Belmontes suffered from rheumatic fever. Although the Ninth Circuit panel repeatedly asserted rheumatic fever was a significant factor never developed to the jury, the expert witness diagnosed the condition as pretty mild. The panel also recited Belmontes drug history although neither the defendant nor any witness ever testified to his use of drugs on the night of the murder. Counsel for Belmontes was compelled to make a strategic choice. Presenting character evidence from other witnesses of his good behavior and non violence in mitigation of the death penalty opened up the prosecution to introduce evidence of a prior murder committed by Belmontes. Due to difficulties in securing testimony for that case, the prosecution accepted a plea to accessory after the fact. But the prosecution had other witnesses prepared to testify that Belmontes subsequently confessed to the murder. This devastating evidence was withheld from the jury based on counsels strategy not to introduce character evidence which the prosecution was prepared to rebut. Defense counsel explained this strategy at a subsequent hearing in federal court. The majority criticizes failure of counsel to produce Belmontes school records. To prove what? that his school record as a child was relevant? And this: another document in the California Youth Authority file suggested that Belmontes might (emphasis added) be suffering from depression. Based on that possibility, here is the next sentence from the court: Despite [defense counsels] awareness of . . . the possibility (emphasis added) that Belmontes suffered from depression . . . Jurors are not impressed by evidence of possible depression. In Belmontes penalty phase testimony, he second guessed the jury verdict, showed little remorse, and could not articulate in any concrete way in which he would contribute to society if sentenced to life in prison. He did not explain any of the mitigation evidence or offer the jury any reasons why the jury should spare his life. According to the panel majority, this was counsels fault. In a footnote to the text, here is what the panel majority said after citing another death penalty case previously decided by the Ninth Circuit: …Belmontes crime only involved one victim (emphasis added) who was killed because she surprised Belmontes and his confederates during a robbery. A robbery initiated by a burglary, planned by Belmontes and his cohorts, using false pretenses to gain entry, followed by a brutal and horrifying crime. If Belmontes was surprised by the presence of an occupant of the residence, all he had to do was depart.