Monthly Archives: November 2009

Wong v. Belmontes, 130 S.Ct. 383 (2009)

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This Blog recited the evidence of the horrifying facts in Ayers v. Belmontes 549 U.S. 7 (2006); Blog, July 2006. The jury convicted Belmontes and voted the death penalty. The California Supreme Court affirmed the conviction and penalty in 1988; Peo. v. Belmontes, 755 P.2d 310 (1988). Unable to obtain post-trial relief in state courts, Belmontes filed a petition for habeas corpus in federal court. The U.S. District Court denied the petition but on appeal the Ninth Circuit discovered instructional error and reversed; Belmontes v. Woodford, 350 F.3d 861 (9th Cir. 2003). California sought cert., and the Supreme Court reversed the Ninth Circuit for its failure to follow Supreme Court precedent. In a two line decision, the Justices and sent the case back to the Ninth Circuit for reconsideration of its decision; Brown v. Belmontes, 544 U.S. 945 (2005). In its “reconsidered” decision, the Ninth Circuit reversed again on grounds counsel for Belmontes was “ineffective;” Belmontes v. Ayers, 529 F.3d 834 (9th Cir. 2008). The State of California sought cert. again in the Supreme Court. Granted. The Supreme Court reversed the Ninth Circuit in an opinion decrying Ninth Circuit reasoning as incomprehensible; Wong, Id., 130 S.Ct. 383 (2010).
On remand, the 9th Circuit was “compelled” to confirm the District Court denial of habeas corpus; 608 F.3d 1117 (2010).

Brodheim v. Cry, 584 F.3d 1262 (9th Cir. 2009)

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A California state prisoner, Brodheim, filed an action (presumably 42 U.S.C. 1983) alleging prison officials violated his First Amendment rights. “The claimed violation occurred when a prison official denied Brodheim’s written ‘interview request,’ and noted on the denial that Brodheim should be ‘careful’ what he writes and requests in his administrative grievances. This was also followed by a request from the same official that Brodheim be transferred out of the California Medical Facility (CMF) due to his filing of grievances and this lawsuit;” Brodheim, Id. This “grievance” led the Ninth Circuit into an endless discussion of the law on prison staff retaliation against prisoners exercising First Amendment rights. That this frivolous and innocuous complaint described above against a prison official (Cry) warrants federal court intervention is ludicrous. In effect, that’s what the U.S District Court said in dismissing the Complaint, and that’s what the California Court of Appeal said on Brodheim’s petition for habeas corpus in State court. On appeal from the district court decision, the Ninth Circuit notes that Brodheim had filed sixty complaints against prison officials. According to the the Ninth Circuit panel, the “warning” on the administrative report harmed him by “chilling” his exercise of Constitutional rights to file a Complaint. First, the Ninth Circuit disposes of the prison official’s (Cry) contention the case is resolved under the doctrine of res judicata. The panel launches into an incomprehensible discussion of res judicata and the differences in analysis by California courts and federal courts. Second, the Ninth Circuit also states the law of retaliatory action toward a prisoner alleging violation of First Amendment rights is “clearly established.” By what court? Not the Supreme Court because all the cases cited for this proposition in Brodheim are Ninth Circuit cases. To the extent the Supreme Court has established a basic First Amendment right of prisoners to file grievances, no one would classify Brodheim’s absurd complaint as worthy of litigation. And this is not the first time the Ninth Circuit has heard Brodheim’s cases. In a previous decision, the Ninth Circuit actually reversed a different U.S. District Court judge who had ruled that Brodheim was entitled to “work credits” in prison under the Equal Protection and Due Process Clauses. Brodheim is serving a life sentence in prison for murder. California law prohibits awarding work credits for prisoner sentenced for life as it is irrelevant. That District Court judge is the same one now running the California prison system.

Bobby v. Van Hook, 130 S.Ct. 13 (2009)

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The Ninth Circuit has repeatedly reversed death penalty cases on grounds of “ineffective counsel.” With a single exception, the Ninth Circuit overruled, in effect, every state supreme court decision affirming a conviction and sentence in death penalty cases since the year 2000. No matter what investigation defense counsel undertook to investigate and present mitigating evidence, the scope was always deficient.
In Van Hook, a unanimous Supreme Court wrote a narrow decision criticizing the Sixth Circuit for slavishly adhering to the ABA rules on the duty of defense counsel in capital cases. Although the Supreme Court focused on, and rejected, ABA rules as “guidelines” for defense counsel, the Justices indirectly criticized federal courts insisting on an endless quest by defense counsel for mitigation evidence.
In Van Hook, the Supreme Court never mentions the Ninth Circuit record of reversals of capital cases, but its decision warrants the conclusion that judicially arguing over whether counsel “investigated enough” is no longer sufficient to set aside a death penalty case already affirmed by a state court. In all cases the Ninth Circuit invokes habeas corpus to mandate a new trial, release from custody, or re sentencing despite decisions by a trial judge, the state supreme court, and a U.S. District Court judge who have affirmed the trial and sentence.
Reversed & remanded.

U.S. v. Moriel-Luna, 585 F.3d 1191 (9th Cir. 2009)

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Moriel-Luna entered the United States four times illegally, was arrested, convicted and sentenced each time for commission of various crimes. Each time he was ordered deported after serving his sentence. After his first deportation order he married a U.S. citizen. In his latest appeal of the fourth deportation order, he argued the IJ had failed to inform him after his first deportation hearing of the potential for adjusting his status. The Ninth Circuit remanded to the IJ to determine whether Luna was properly informed of that potential, and if not, whether he had been prejudiced; 244 Fed.Appx. 810 (C.A. 9). On rehearing, the IJ rejected his application because Luna could not adjust his status unless he possessed a visa. He didn’t, and the IJ ordered his deportation. Luna appealed to the Ninth Circuit. After an extensive discussion of immigration law in a case that could have been disposed of in two paragraphs, the Ninth Circuit panel affirmed the IJ order. But in a footnote the court said that one of Luna’s convictions, an assault with a deadly weapon, might not be a federal firearm offense and therefore not a basis for deportation based on his conviction for assault with a deadly weapon. What cost to the public for four illegal entries?: Entering the county four times illegally (Border patrol); arrested after entry for a crime each time (police); four times in custody (Sheriff); four times prosecuted (prosecutor and defense lawyer); court time four times (judge; court staff); four times in prison (prison guards) ; IJ time (two hearings-IJ and staff); Court of Appeal time [twice]) (3 judges and staff).