Ali v. Hickman (Warden), 571 F.3d 902 (9th Cir. 2009); Amended: 584 F.3d 174 (9th Cir. 2009) Note: The Supreme Court denied cert. in Ali v. Hickman on March 29, 2010 despite its decision in Berghuis v. Smith 130 S.Ct. 1382 (2010 ) reversing a Sixth Circuit decision discussing the policy of a fair cross section of the community in selecting jurors. Although the issues in both cases are not identical, the Supreme Court expresses its impatience with federal appellate courts who ignore AEDPA in the context of jury composition or selection. The Court in Berghuis said: “As the Michigan Supreme Court correctly observed, [no decision] of this Court specifies the method or test courts must use to measure the representation of distinctive groups in jury pools. The courts below and the parties noted three methods employed or identified in lower federal court decisions: absolute disparity, comparative disparity, and standard deviation;” Citations omitted. “Each test is imperfect. Absolute disparity and comparative disparity measurements, courts have recognized, can be misleading when, as here, ‘members of the distinctive group comprise [only] a small percentage of those eligible for jury service.’ And to our knowledge, ‘[n]o court … has accepted [a standard deviation analysis] alone as determinative in Sixth Amendment challenges to jury selection systems.’; *** In an unusually harsh and critical decision in Hickman, a Ninth Circuit panel criticized the California Court of Appeal for affirming a conviction in state court and subsequently denying a petition for habeas corpus. In the petition for habeas corpus filed in federal court, the three judge panel characterized the Court of Appeal decision as “incorrect” and “unreasonable.” The panel similarly used derisive language in dismissing the California Attorney General’s argument attempting to justify the conviction. The U.S. District Court refused to issue a writ of habeas corpus but survived intemperate language written by the panel on appeal. The irony: this Ninth Circuit panel decision is wrong; completely wrong, and has written an indefensible opinion without any citation of relevant authority and in defiance of the Anti Terrorism and Death Penalty Act (AEDPA). To begin, the trial court committed no evidentiary error, no instructional error, no prosecutorial misconduct, and jurors committed no misconduct. The panel also avoided ruling on an allegation of “ineffective counsel”, the frequent ground for reversal when the Ninth Circuit can unearth nothing else. The only ground for appeal lay in voir dire of the jury. When a federal court reviews a state court conviction on habeas corpus, the standard of review is narrowly circumscribed under AEDPA; 28 U.S.C. 2254. AEDPA standards constrain review of state convictions, and the issue of discriminatory use of peremptory challenges on racial grounds does not come to the Ninth Circuit for independent judgment on whether the state courts acted correctly or incorrectly, but for consideration of whether the state court’s adjudication on the merits “(1) 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding; 28 U.S.C. 2254 (d); Lockyer v. Andrade, 538 U.S. 63 (2003). In challenging a prosecution decision to excuse a juror on racial grounds during voir dire, the Ninth Circuit panel holds that the trial court must conduct a “comparative juror” analysis. The absurdity of this rule, an appellate court reviewing a trial court record without ever seeing the juror’s demeanor, attitude, language, excuses or innumerable other factors suggesting to the prosecutor a reason to excuse a minority juror, is demonstrated in Ali v. Hickman. At trial, counsel for Ali objected to the prosecutor exclusion of two minority jurors; the court held a hearing; the prosecutor laid out the reason for the decision; the court found the prosecutor’s rationale not based on race and denied the defendant Ali’s motion. At no time did counsel request a comparative jury analysis.

District Attorney’s Office for the Third Judicial District v. Osborne, 2009 WL 1685601 (U.S.) Sixteen years ago an Alaska jury convicted William Osborne and a co defendant of kidnapping, assault, and sexual assault of a young woman. In the course of police investigation of the crimes, the officers found evidence subsequently tested for DNA resulting in narrowing the identification of Osborne as one of the culprits. During the trial, Osborne refused an offer to submit to a more reliable DNA test available to defendants. The Alaska courts affirmed the conviction and Osborne sought post conviction relief seeking access to the results of a more sophisticated DNA test unavailable at the time of trial. At an evidentiary hearing ordered by the Alaska court, the lawyer who represented Osborne at the trial testified she believed he was guilty and did not want to submit him to another more reliable DNA test. She intended to rely on mis identification by the victim. Two Alaska court of appeals denied the DNA request. While serving his sentence, Osborne ultimately qualified for parole and confessed to the crimes. At a parole hearing he repeated his confession. Based on the victim’s identification, the confessions, the DNA test, and other corroborating evidence, the Alaska court denied his request for access to current DNA testing as unavailable under statutory Alaska law. After release on parole Osborne was arrested for another offense. The State of Alaska sought revocation of his parole. Instead of filing habeas corpus to vacate his revocation of parole, and without asserting “actual innocence,” Osborne began his request in the U.S. District Court for access to currently available DNA testing of the evidence introduced at trial by filing a 42 U.S.C. 1983 cause of action (for “deprivation of any rights . . .secured by the Constitution”) and alleging a Fourteenth Amendment Due Process violation. The district court judge denied the request. The Ninth Circuit reversed and remanded to the district court judge who agreed Osborne had a limited right to the test. On Alaska’s appeal from that ruling to the Ninth Circuit, the court resolved neither the 1983 cause of action nor the alleged Due Process violation. The three judge panel unearthed Brady v. Maryland, 373 U.S. 83 (1963), a Supreme Court case mandating prosecution pre trial disclosure to the defense of exculpatory or mitigating evidence. The Ninth Circuit cited no case applying the Brady rule to post trial procedures. The State of Alaska sought certiorari, granted by the Supreme Court. The Supreme Court reversed the Ninth Circuit, summarily dismissing the Brady v. Maryland claim. Instead, the Court identified two grounds applicable to deny Osborne’s request. First, Osborne essentially sought to reverse his state court conviction by obtaining access to a DNA test. But a federal court reviewing a state court conviction must proceed under the procedural rules of habeas corpus, precisely the kind of remedy Osborne should have sought. Instead he filed a 1983 and Due Process claim directly in federal court. Federal courts reviewing state court convictions in a habeas corpus proceeding must respect state court appellate rulings unless those courts violate “clearly established Supreme Court law.” No clearly established law existed for the request Osbourn sought-and the Ninth Circuit knew that. To finesse the rules of habeas corpus, and invoke 1983 and Due Process, the Ninth Circuit needed a case decided by the Supreme Court for “clearly established law” and found Brady. Even defense counsel arguing in the Supreme Court agreed the case inapplicable. Secondly, the Supreme Court has distinguished two categories of Due Process: procedural and substantive. Under the doctrine of Constitutional protection of “liberty interests” inherent in the Due Process clause, federal courts will deny a remedy pursuant to a habeas corpus petition if the State provides an adequate procedural method for vindication of Constitutional rights. The Court examined Alaska law and cited several procedural mechanisms Osborne can invoke to adequately protect his rights. As long as the state courts provide an adequate forum for resolution of that claim, and no procedural hurdles are unfair, the prisoner (or in this case a parolee) can vindicate his claim. Substantive due process to protect “liberty interests,” an amorphous doctrine at best, includes “principles of fundamental fairness rooted in the traditions and conscience of the American people as fundamental.” In the Osborne case, no such history exists. Substantive due process Constitutionalizes an issue and forecloses the American people or a legislature from amendment or revocation of a court decision. To confirm substantive due process in the context of the facts in Osborne, federal courts would be swamped in rule making decisions not suited to their role. The Supreme Court conceded Osborne could argue his “liberty interest” and identified several procedural avenues he can pursue to vindicate his alleged right to DNA access under Alaska law. The Supreme Court identifies forty six state legislatures and the federal government which have provided the right to post conviction DNA testing under certain conditions, the vast majority mandating a claim of “actual innocence”, not just trial court error. Given the two confessions Osborne gave to the parole authorities, this is a significant hurdle. Alaska is one of the few states that has not provided a comparable statute. But as the Supreme Court points out, the Alaska courts do provide alternative remedies available to Osborne other than 1983 and the Due Process Clause. The most important element in the Court’s decision is refusal to allow a free standing substantive right under the Due Process Clause to compel a state to perform post trial DNA proceedings. The application of DNA testing is essentially an evidentiary issue best resolved in the laboratory of each state and its relevant law. The Court confirmed the right of individual states to legislate with appropriate procedural conditions to avoid endless appeals in state and federal courts. In other words, the Supreme Court has acknowledged the role of state sovereignty in responding to the developing scientific world of DNA. Justice Alito filed a succinct concurrence. Osborne denied submitting to a second DNA test during his trial in the Alaska courts. Once that strategic decision is made, he wrote, the defendant “games the system” by asking for the test after conviction.

The Supreme Court has concluded its 2008-2009 term by reversing fourteen out of fourteen Ninth Circuit cases but this embarrassing record does not include cases previously decided by the Ninth Circuit that are now overruled; Nijhawan v. Holder, 129 S.Ct. 2294 (2009). Federal law consists, in part, of two different statutes the courts have used but interpreted differently in unrelated contexts. Under the Armed Career Criminal Act (ACCA) a sentencing court may increase the sentence of a defendant in a criminal case who has been convicted of prior “violent felonies” as defined in the statute. Under a different Act, (INA) an alien convicted of an “aggravated felony” is subject to deportation if the fraud exceeds $10,000. A sentencing court in a current criminal case must determine whether a prior conviction, or plea, qualifies as a “violent felony” to enhance the sentence, or in a deportation hearing the IJ must determine whether the prior conviction is an “aggravated” felony warranting deportation. In each case the prior court proceedings are marginal or uninformative. In Nijhawan, the question becomes: what records of the prior proceedings can the IJ consider. The Supreme Court has used the terms “categorical approach” (generic definition of the crime) and “modified categorical approach” (fact specific circumstances) in attempting to resolve this issue in criminal cases and deportation cases respectively. Cases in the Courts of Appeal are legion. In Nijhawan, the Court ruled that the IJ judge should not read the ACCA definition of criminal fraud (generic ) into the civil proceeding of deportation if the petitioner was previously convicted of fraud. The IJ can consider not only the bare record of the prior conviction but the specific facts and circumstances of that case in determining whether the fraud exceeded $10,000. Although Nijhawan could be confined to its application of fraud statutes, it overrules the Ninth Circuit opinion in Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir. 2008) and the cases upon which it relies. The Ninth Circuit used the wrong test.

Determined never to allow an execution in states within its jurisdiction, the Ninth Circuit reversed another conviction and death penalty voted by an Arizona jury in a horrendous murder. Scott and two other defendants planned the murder of a five year old child to obtain life insurance proceeds based on an insurance policy issued to one the the defendants as a beneficiary. During the course of the police investigation, Scott confessed to the conspiracy among the defendants, led police to the dead body of the child, and admitted his role in the execution. He also disclosed the location of the firearm used to kill the child and bloody shoes worn by one of the other defendants. At trial he changed his story and said he was “duped” by the other defendants. The jury voted the death penalty. His conviction affirmed on appeal by the Arizona Supreme Court, Scott filed for post conviction relief in state court on grounds his lawyer did not call his father to the witness stand to ask for leniency. Petition denied. He subsequently submitted a second petition alleging the usual “ineffective counsel” defense. Denied on the grounds Arizona law prohibits amended petitions. The federal district court denied his petition. Scott appealed to the Ninth Circuit and a per curiam panel held Arizona had not followed state law permitting amended petitions for “good cause.” According to the Ninth Circuit panel, this failure to apply state law did not constitute an “independent and adequate” procedural ground for “exhaustion” of state remedies as required by federal law. In support of that opinion, the panel cited one Arizona case. And Scott had “exhausted” state post conviction remedies because the state court should have read the Appendix to his brief to find an allegation of “ineffective counsel.” In the course of the post trial proceedings, Scott fired his lawyer, and the newly appointed lawyer filed twenty three claims for relief. On his “ineffective counsel” claim, the Ninth Circuit panel said Scott was an alcoholic -“which may have” contributed to cognitive problems. “May have.” And this: appellate counsel allegedly failed to challenge the jury finding that the crime was committed for pecuniary gain. “Thus it is possible …” that the jury might not have voted the death penalty if this mitigating factor was taken into consideration. This speculation defies the prosecution case and the evidence in support of the murder. And the court holds the trial court should have allowed Scott’s father to testify and ask the jury for leniency. On what ground? These factors are so tenuous, so frivolous, it is no wonder the Ninth Circuit inhibits imposition of the death penalty. In this case, Scott was convicted in 1991. And is still in court in 2009. Pet. for cert filed 8/31/ 2009

Safford Unified School District #1 v. Redding, 129 S.Ct. 2633 (2009) The Supreme Court has held that school officials can search students on school premises if they have a reasonable suspicion a boy or girl possesses drugs. But the scope of the search cannot include removing a student’s clothing to confirm the report. In Safford the Ninth Circuit had prohibited this kind of search (mis characterized as a “strip search”) but denied the school principal and his staff qualified immunity on grounds the search was prohibited by “clearly established Constitutional law.” The Supreme Court reversed, informing the Ninth Circuit that these intensive searches were not “clearly established” and the staff were entitled to qualified immunity. The Ninth Circuit easily evades Supreme Court rulings on a test comparable to this. Under Supreme Court jurisprudence, in order to immunize public officials for conduct in the course of their duties, they must have violated “clearly established a Constitutional law,” i.e., in Safford a Fourth Amendment prohibition against unreasonable searches. When a court invokes the phrase “clearly established Constitutional law” it can achieve any conclusion on the facts. Which is precisely what the Ninth Circuit routinely does. The federal courts, and the Ninth Circuit in particular, supervise public schools and inform them of approved federal practices; manage the Los Angles Police Dept.; manage State prisons; manage hospitals; supervise jails; know what’s better about naval warfare training tactics, and informs defense counsel of appropriate tactics in trial. Of course the Ninth Circuit knew the search in Safford was unreasonable and a “clearly established” violation of a Constitutional provision. Until the Supreme Court told the court it was wrong. Although the Supreme Court did prohibit the search in Safford, as did the Ninth Circuit, it reversed that court, again, on the issue of qualified immunity.