Adding another case to the already crowded reversal record of the 9th Circuit, the Supreme Court reversed that court in a case previously affirmed by the California Supreme Court. In Knowles v. Mirzayance, 129 S.Ct. 1411 (2009) the jury returned a verdict of “guilty” of first degree murder. That verdict confirms Mirzayance killed another person with malice, intentionally and with premeditation. Mirzayance had also entered a plea of “not guilty by reason of insanity” (NGI) bifurcated and to be tried after the “guilty” verdict. Counsel for Mirzayance, an experienced criminal trial lawyer, knew that a jury who had just found all the elements of first degree murder was highly unlikely to find the defendant insane. In addition, counsel could not secure testimony from the parents of Mirzayance because they had not appeared at the sentencing hearing on the merits of the trial and declined to testify at the NGI hearing. Under these circumstances, any hope of a favorable jury verdict was futile and counsel and client withdrew the plea. After the California courts affirmed the conviction, Mirzayance filed the first round of habeas corpus in federal district court and the judge denied the petition. On appeal, the Ninth Circuit reversed and remanded to the trial court for an evidentiary hearing on the allegation of ineffective counsel. The Magistrate Judge at the hearing agreed with counsel’s decision, the district court judge agreed, and Mirzayance appealed again. On the second appeal, the 9th Circuit reversed again on grounds of ineffective counsel.The State sought review in the Supreme Court. The Justices unanimously reversed the 9th Circuit in dismissive language and remanded to the Ninth Circuit with instructions to deny the petition. This case is another example of 9th Circuit attempts to avoid the application of the Anti Terrorism and Death Penalty Act (AEDPA) requiring federal courts to defer to state courts in the absence of an unreasonable state court ruling. The Supreme Court in Mirzayance told the 9th Circuit it had applied the wrong rule in evaluating the doctrine of ineffective counsel; criticized the court for not deferring to the State Court decision affirming the conviction; refused to indulge the “strong presumption that counsel’s conduct falls with the wide range of reasonable professional assistance;” ignored the factual findings issued by the Magistrate Judge; derided the notion “the law requires counsel to investigate every conceivable line of mitigation evidence…”

The Ninth Circuit has granted an en banc rehearing (525 F.3d 742 (9th Cir. 2009)) of a three judge panel which had actually affirmed the conviction but not the death sentence of Pinholster. The California Supreme Court had previously upheld the the conviction and sentence and the Ninth Circuit reviewed on habeas corpus; Pinholster v. Ayers, 525 F.3d 742 (9th Cir. 2008). The obvious reason for the rehearing: an attempt by those on the Ninth Circuit determined to prevent imposition of the death penalty. On December 9, 2009 the en banc court affirmed the three judge panel in a ruling that unequivocally confirms this statement. See, 2009 WL 4641748 (C.A. 9) and supplemental Blog.