In Crater v. Galaza, 491 F.3d 1119 (9th Cir. 2007) a three judge panel of the Ninth Circuit upheld Congressional enactment of 28 U.S.C. 2254 (d) (1) formally known as the Antiterrorism & Effective Death Penalty Act (AEDPA). A petition for rehearing and rehearing en banc was denied.Five judges dissented from the denial of rehearing and one dissenter wrote an opinion contending Congress lacked power to enact AEDPA. Crater became the law of the circuit but another Ninth Circuit panel was considering the same issue in Irons v. Carey, 505 F.3d 846 (9th Cir. (2007) and decided after Crater. One of the judges in Irons sought supplemental briefing from counsel on the Constitutional authority of Congress to enact AEDPA, clearly signaling Congress acted in violation of the separation of powers doctrine. After supplemental briefing, the Irons court grudgingly acknowledged Crater foreclosed their opinion as precedent in the Ninth Circuit.For that reason the author of the Irons opinion wrote the dissent in Crater.Only four other judges joined his opinion. The Crater court confines itself to a discussion of separation of powers and the right of Congress to limit federal intervention in reviewing state court convictions.AEDPA restricts federal courts from issuing a writ of habeas corpus unless the claim asserted by a state court prisoner “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” Although this language is not explicit, the statute unmistakably aims to curtail the power of federal courts. Although the Supreme Court has not expressly determined the constitutionality of AEDPA, the Justices have had the opportunity to address the issue and declined to do so; Williams v. Taylor, 529 U.S. 362 (2000). Reasonable minds can differ on the separation of powers doctrine.But the language of the dissenting judge in the denial of rehearing is disturbing, even approaching arrogance.The judge frequently refers to the curative power of federal courts in correcting the judgment of state courts.”Thus, the federal court is required under AEDPA to uphold a state court proceeding that it determines violated the Constitution. . . Other language proclaims the superiority of federal courts in reviewing state court convictions different than their own interpretation.The irony lies in a federal court correcting state courts when the Supreme Court has reproached the Ninth Circuit repeatedly for ignoring precedent and wrongly interpreting the law in 21 out of 22 cases during the 2006-2007 term. In an earlier Blog (Click on Blog, above) entitled “Vindictive Prosecution” we reviewed USA v. Jenkins, 504 F.3d 694 (9th Cir. 2007) foreclosing prosecutors from prosecuting Sharon Jenkins for a crime she testified to committing on the witness stand defending herself from charges of another crime.The petition for rehearing en banc was, astonishingly, denied over the dissent of seven Ninth Circuit Judges.The lead judge in dissent wrote this: “By concluding that prosecutors should have sacrificed the resources necessary to pursue the charges before Jenkins admitted to the crimes under oath, the opinion oversteps our judicial function. . . the Jenkins opinion creates the preposterous rule that a defendant can shield himself from future prosecution for unrelated crimes by openly admitting to them on the stand;” Jenkins.

The Ninth Circuit issued an order withdrawing the published case of Khalid Me Almousa, 518 F.3d 738 (9th Cir. 2008) and denying the right of counsel to cite the case in the future. The petition for panel rehearing was granted. A petition for rehearing en banc may be filed; 2008 WL 4330339. On rehearing, the 2-1 majority filed a non published decision; 294 Fed. Appx. 277 All without explanation by the court. The Immigration Judge (IJ) denied Almousa’s request for asylum. On appeal, Almousa contended he was a minor, and the Ninth Circuit 2-1 majority remanded the case to the IJ to determine whether this issue, never raised before in any proceeding, precluded his deportation. Here is the dissent: . . .”this issue [minority] was not raised in the asylum application itself, before the IJ or in [Almousa’s] pro se appeal.” And quoting the majority, “‘[age] may provide an exception to the exhaustion rule’. . . Absolutely no supporting authority is cited to bolster this novel attempt to bootstrap us into jurisdiction over an unexhausted issue.” And on the merits the dissenting judge wrote:”This [case] is a quintessential factfinding function that should not be hijacked on appellate review. Note: a petitioner must “exhaust” his administrative and procedural remedies in papers filed in support of his application before the IJ or otherwise forfeit the right to allege those claims on appeal.

During its last term, the Supreme Court reversed the Ninth Circuit in twenty out of twenty two cases. Included in this list the Court decided Chamber of Commerce of U.S v. Brown, 128 S.Ct. 2408 (2008), a decision interpreting a California statute clearly favoring labor by forbidding employers to enage in any non union activity if they accepted grants in excess of $10,000. The Ninth Circuit cast aside all objections to this one sided statute, and the Chamber appealed. The Supreme Court reversed in this language: “The Court of Appeals’ judgment reversing the summary judgment entered for the Chamber of Commerce is reversed and the case is remanded for further proceedings consistent with this opinion.” On remand to the Ninth Circuit, here is its order: “This case was remanded to us from the United States Supreme Court (citation omitted). In light of the Supreme Court’s decision we vacate our opinion . . .” The Supreme Court did not just “remand” the case. The Court “reversed” and remanded. You would never know that by reading the Ninth Circuit interpretation of the Supreme Court order.

Three reversals plus one a waste of time. All decided by the Ninth Circuit in one day. Cox v. Del Papa (Warden), 542 F.3d 669 (9th Cir. 2008): [Miranda and competency hearing for waiver of Miranda rights]; Paulino v. Harrison (Warden), 542F.3d. 692 (9th Cir. 2008): [Exclusion of jurors on racial grounds]; Rodriguez v. Smith (Warden), 541 F.3d 1180 (9th Cir. 2008): [Prison regulations]; Rodriguez v. U.S., 542 F.3d. 704 (9th Cir. 2008): [Damages against the government awarded to illegal aliens.] 1. Cox v. Del Papa (Warden), 2008 WL 4070435 (C.A.9): The Ninth Circuit spent innumerable pages in determining whether to grant habeas corpus in a state court conviction in which the prisoner alleged the trial court should have been given him a competency hearing to determine whether he knowingly and voluntarily waived his Miranda rights. To resolve this frivolous question both sides had to call psychiatrists. 2. Paulino v. Harrison (Warden) (II), 2008 WL 4970694 (C.A.9): Reversed a state court conviction on grounds the trial court did not seek a reply from the prosecutor to defense counsel who questioned prosecution challenges to minority jurors pursuant to Batson v. Kentucky, 476 U.S. 79 (1986). In fact, the trial judge concluded the challenges were justified from his own observation of the excused jurors and required no reason the prosecutor needed to reply. The Ninth Circuit begins its decision by misprinting the date the state court jury convicted Paulino of murder, but in 2004 the court had earlier decided a procedural question in this case on habeas subsequent to the state conviction; Paulino v. Castro (I), 371 F.3d 1083 (2004). That decision also did not contain the date of conviction. Paulino having previously filed habeas petitions in state court (denied) prior to filing in federal court, his probable date of conviction is in the late1990s. In other words, the Ninth Circuit decided Paulino II on September 4, 2008, approximately thirteen years after conviction. The prosecutor used five of her six peremptory challenges to excuse African Americans during voir dire of the jury. The final jury consisted of one African American. Only after the fifth strike did defense counsel object on Batson grounds. In a colloquy with counsel at the bench, the trial judge [found] that there were objective reasons for all of these jurors to be excused . . . I can see the objective reasons that seem to be present here . . . The prosecutor made no comment but when defense counsel called the courts attention to the statistical disparity of prosecution strikes, the court said: I can understand why [the prosecutor] would be uncomfortable with each of [the jurors]. The trial judge continued: “But when I look at every one, juror number three and all the people she knew that had been arrested-and I don’t think she told us all the ones she knew. If you kinda go down the line, I can see why [the prosecutor] would be uncomfortable with each of them. Based on that, I find no prima facie case.” Under the Batson test, the burden is on the moving party to establish an inference of racial bias when counsel excuse jurors. In effect, the defense makes the objection, the prosecutor replies and the judge decides. The rules are more detailed but this three step process must occur according to the Ninth Circuit, and the judge in Paulino II failed to ask the prosecutor for her reasons in excusing jurors. Obviously the trial judge, who must ultimately resolve a defense objection, simply dispensed with the need for the prosecutor to explain the reasons for her strikes because justification was so obvious. The Supreme Court has repeatedly reminded appellate courts in general, and the Ninth Circuit in particular, to defer to the trial judge who occupies the best position to assess prosecutorial rationale for striking jurors; Rice v. Collins, 546 U.S. 333 (2006). The judicial decision is usually contingent on the prosecutors reasons. But if the reasons are so obvious to the court, what is the point of a formalistic review of the second step? If the court observes the jurors and concludes the reasons for strikes are obvious, what is the reason for holding this procedural dance? The Ninth Circuit panel in Paulino cites its former opinion as precedent; Yee v. Duncan, 463 F.3d 8983 (9th Cir. 2006). In Duncan, the prosecutor explained his reasons for excusing seven out of eight minority jurors but could not remember the reason for excusing one other juror. Although the state court affirmed the conviction, the Ninth Circuit granted habeas corpus on grounds that inability to explain excusing a single juror without explanation violated the Batson test. The court also cites Turner v. Marshall, 63 F.3d 807 (9th Cir. 1995). “[w]e concluded that the ‘prosecution’s exclusion of five out of nine available African American venirepersons removed a sufficient percentaage of African-Americans to establishe a pattern of discrimination.’ In Turner, four African Americans (out of twelve) remained on the jury. Removing 55% was sufficient to to raise an issue of discrimination. In other words, voir dire will be reviewed as a quota. Here’s a quote from another judge in Paulino: “But it does not matter that the prosecutor might have had good reasons to strike the prospective jurors. What matters is the real (italcis in original) reason they were stricken.” (Is this coherent?) Note: The prosecution is unlikely to retry Paulino after the passage of years. Another injustice. A more questionable result in Paulino also occurred when the Ninth Circuit panel refused to be bound by the Anti-Terrorism and Effective Death Penalty Act (AEDPA) U.S.C. 2254, the federal statute requiring deference to state courts which had already affirmed the conviction. According to the Ninth Circuit, in yet another attempt to evade AEDPA, the state court used the wrong standard. 3. Rodriguez v. Smith (Warden), 2008 WL 4070264 (C.A.9) Congress has enacted numerous statutes governing the management of prisons, and implementation of the rules is the responsibility of prison officials. Acting upon the advice of the Office of Legal Counsel, the Bureau of Prisons applied one of the rules to prisoner Rodriguez. Another rule, arguably conflicting, enabled the Ninth Circuit to find the two statutes ambiguous. The majority of the court panel (2-1) rejected the opinion of Office of Legal Counsel, and, citing its own precedent, held the ambiguity favors the prisoner. Rodriguez exemplifies another Ninth Circuit decision siding with a prisoner after construing the alleged ambiguous statutes in his favor. As the dissent in Rodriguez points out, the panel majority ignores Supreme Court decision to the contrary. 4. Rodriguez v.U.S., (different Rodriguez) 2008 WL 4070886 (C.A.9): Critics of illegal immigration frequently cite the cost of enforcing federal law to curb entry and deportation of illegal aliens. In addition, these critics ought to include the cost of a recent civil suit filed in federal court by plaintiffs who were awarded almost one million dollars, plus attorney fees, for an alleged unlawful entry into a house by an immigration agent seeking an illegal alien. The one million dollars does not include the cost of agent salaries, the trial judge, the U.S. Attorney staff, and court staff and appeal-an appeal remanded for further hearing on attorney fees. At taxpayer expense.