Monthly Archives: February 2011

Liberal v. Estrada, 632 F.3d 1064 (9th Cir. 2011)

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Appeal from denial of summary judgment denying qualified immunity for defendant police officers and a municipality.

At 1:30 a.m. a police officer driving southbound and stopped at a red light on a city street observed a vehicle northbound. The evidence is in dispute whether the car windows of the driver of the other car were tinted, but according to plaintiff the officer could see each other, and could follow “him with his eyes.” The officer U turned, activated his red lights, and followed plaintiff who made a right turn at the next traffic light, then immediately made a left turn  into a parking lot behind a burger stand, parked near a dumpster and turned off his lights.

According to the Ninth Circuit panel, plaintiff was a “designated driver.
  Obviously the officer did not know that.  And the panel noted the driver was an African American as was his passenger and the third occupant a Mexican American.  How the officer could see that at 1:30 a.m through tinted rear windows is not questioned by the panel. And if the driver was the “designated driver” the other occupants must be intoxicated.

Plaintiff testified traffic was light yet he was uncertain whether a police car exhibiting red lights was following him. At 1:30 a.m.

Does the conduct of the driver warrant investigation? Does driving into an unlit parking lot after two contradictory vehicular turns and extinguishing the car lights while hiding behind a dumpster sound innocent?

The panel launches into an extended legal analysis of the Fourth Amendment and conclude the officer lacked a basis to stop the vehicle or arrest anyone.  This case exemplifies the naivete of 9th Circuit panel members who have no experience in “street work” by police. Experience, intuition and conduct warrant investigation.  And the panel could not resist racial identification.

In suppor of its decision in Liberal the panel cites Rodis v. City of San Francisco, 558 F.3d 964 (9th Cir. 2009) and adds “cert. denied.”  The Rodis 9th Circuit opinion was originally reversed by the Supreme Court and remanded.   On remand the 9th Circuit panel wrote its decison in compliance with the Supreme Court order.  In Liberal, the panel sites Rodis and adds “cert. denied” ignoring the fact the Supreme Court reversed its original opinion.
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Huff v. City of Burbank, 632 F.3d 539 (9th Cir. 2011)

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The principal of a high school contacted police and informed them one of the students (Vincent Huff) had threatened to “shoot up” the school, had been absent from school for two days, and many parents had kept their children at home. In talking with the principal, officers were unable to verify the information but decided to visit the home of the student. Upon arrival, one of the officers telephoned Mrs. Huff, identified himself and said he wanted to talk to her. She agreed, opened the door and came out with her son Vincent. Asked by the officers if any guns were in the house, she said she would get her husband and “went” into the house.
The officers, fearing she fled inside to obtain a weapon, entered the house and spoke to the husband for  approximately ten minutes. Satisfied the rumor was not credible, the officers left the house without arresting anyone and without searching.
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In response to a defense motion for summary judgment, the U.S. District Court found the conduct of the officers reasonable and no violation of the Fourth Amendment occurred .  On appeal, a 2-1 majority of the 9th Circuit panel reversed on grounds the entry was without probable cause, and no exigency occurred warranting entry into the house.

According to the majority, the entry without a warrant violated the Fourth Amendment and no exigency existed to justify an exception to the warrant requirement.  As the dissenting judge points out, the majority “sanitizes” the evidence.  The officer did not testify Mrs. Huff “went” into the house from the outside, she “ran” inside without explanation.  The dissent cites Brigham City v. Stuart, 547 U.S. 398 (2006) for the proposition that officers can enter a house without a warrant if based on “officer safety.”

What should the officers have done after hearing from a school principal that one of her students reportedly would “shoot up” the school?  Ignore the unverified information? And if someone did “shoot up” the school, who would be responsible for not investigating?

Considering all the student deaths by gunshot having occurred recently, the most reasonable option for police is questioning the student.  Officers remained outside the house talking to Mrs. Huff and made no entry until she fled inside.  The officers did not threaten her or engage in any conduct warranting flight. Unaware of her goal, the officers could stand outside and hope no one returned with a gun, or enter to prevent any danger. This is common sense and “reasonable” conduct the Fourth Amendment requires. 

The officers remained in the house only ten minutes, neither arrested nor searched anyone, and departed.  In the litigation, (this case arose on summary judgment) how much money should a jury give the plaintiffs?  This is the kind of frivolous litigation that should result in imposition of attorney fees on counsel who filed this case on evidence of nothing more than inconvenience to the plaintiffs.

USA v. Withers, 638 F.3d 1055 (9th Cir.2011)

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Note: this case was filed in filed in August, 2010 and amended in January, 2011.  The case does not bear a citation in the Federal Reporter and was not designated for non publication.

Although most of the “ineffective counsel” cases arise on collateral review of state court decisions, the U.S. District Court is not immune from reversal on this ground.  In 1998 a federal court jury convicted Withers of a variety of federal crimes. The district court, on procedural and substantive grounds, denied his habeas corpus petition alleging ineffective counsel, and Withers appealed his conviction to the 9th Circuit.  In his appeal, Withers contended the trial judge closed the courtroom during voir dire thereby denying him the right to a public trial as required by the Sixth Amendment to the Constitution.

The record disclosed that the trial court requested all spectators to withdraw from the courtroom to accommodate jury selection in a case that subsequently lasted eighteen days.  Defense counsel raised no objection to courtroom closure, and on appeal from the denial of the habeas corpus petition his appellate counsel raised no objection.

After the 9th Circuit 2-1 panel skirted all objections to the procedural viability of the petition, it discussed the failure of trial and appellate counsel to raise any objection to courtroom closure.  Citing PressEnterprise Co. v. Sup.Ct., 464 U.S. 501 (1982), the court held the failure to allow the public to remain in the courtroom during voir dire qualified as a violation of the Sixth Amendment right of a defendant to a public trial. Failure of both counsel to raise the issue is “ineffective counsel;” Strickland v. Washington, 466 U.S. 668 (1984).

The dissent noted that no one, neither trial counsel  nor appellate counsel, objected to courtroom closure prior to voir dire.  Moreover, trial counsel made no objection to any error in jury selection either during voir dire or in post conviction proceedings. In any other court, this failure to object constitutes a waiver.

The reason for the 9th Circuit decision in Withers is trial inexperience of the panel majority.  If a trial judge expects a lengthy case, (eighteen days) the number of potential jurors in the courtroom must be enough to survive excusing jurors on the ground of hardship. Accordingly, the trial judge cannot assure enough space for a substantial number of potential jurors and simultaneously accommodate the public. In fact, that is exactly what the trial judge said in court. The lawyers all understand this dilemma and for that reason no one objected.  Nothing in the record supports evidence of courtroom closure after the lawyers completed jury selection.

The majority panel cites Sixth Amendment cases decided by other jurisdictions based on an entirely different sets of facts that conceivably would affect the result of improper exclusion of the public during voir dire. Press Enterprise, relied on by the majority, is unrelated to the facts in this case.

The panel remanded this 1998 case to the district court to conduct an evidentiary hearing.

Swarthout v. Cooke, 131 S.Ct.859 (2011) /Gilman v.Schwarzenegger, 2011 WL 198435 (C.A.9)

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In 2008 the California Supreme Court interpreted the relevant state statutes on parole of state prisoners to require the Board of Prison Terms to grant  parole to an applicant unless the record established “some evidence” the prisoner was “currently dangerous” to the public; In re Lawrence, 44 Cal.4th 1181 (2008); In re Shaputis, 44 Cal.4th  1241 (2008).

The test of “current dangerousness” is obviously subjective.  In addition, the Lawrence case held the original conviction alone cannot qualify as the only basis for the Board’s denial of parole. Lawrence and Shaputis  enabled the 9th Circuit to review denials of parole on habeas corpus, and it appeared the federal court would subscribe to California law; Hayward v. Marshall, 603 F.3d 546 92010).

In Swarthout v. Cooke, the 9th  Circuit panel ignored the California Court of Appeals and California Supreme Court decisions upholding the denial of parole to Cooke (and another prisoner, Clay) on grounds  the record contained no evidence of their “current dangerousness,” and the State courts unreasonably determined the facts and the law.The Ninth Circuit also found a “liberty interest” violation of Due Process.

In a summary disposition by the Supreme Court, the Justices reproached the 9th Circuit for completely misunderstanding case law precedent; informed the Ninth Circuit no issue of Due Process existed; and the state court decision is not governed by any federal constitutional law or statute. “. . . [R]esponsibility for assuring the constitutionally adequate procedures governing California’s parole system are properly applied rests with California courts, and is no apart of the Ninth Circuit’s business.”

The Supreme Court also noted the 9th Circuit had misapplied the parole law in a previous case, Pearson v. Muntz  606 F.3d 606 (2010). In other words, the Court reversed the Ninth Circuit in three cases.

Swarthout v. Cooke assures no further 9th Circuit intervention in state parole issues.

In Gilman the 9th Circuit panel concisely summarizes California parole law in a case holding Proposition 9 (amending sections on eligibility for parole)) does not violate the Ex Post Facto Clause of the Constitution. In holding the Clause inapplicable the panel cites  Dept.  of Corrections v. Morales, 115 S.Ct. 1597 (1995) another case reversing a 9th Circuit decision governing parole hearings.

Horel v. Valdovinos, 131 S.Ct. 1042 (2011)

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The trial in Peo. v. Valdovinos was extremely difficult for the prosecution. Witnesses were uncertain and in some cases contradictory in identifying the defendant.  Despite the conflicting evidence, the jury convicted Valdovinos, and the state court ssummarily denied his appeal.  The U. S. District Court denied the petition for habeas corpus.  Valdovious appealed to the 9th Circuit.

Reversed. The 9th Circuit reviewed all the conflicting evidence, and discovered the police had failed to disclose a pre trial photo lineup.  The court also found counsel “ineffective under Sixth Amendment precedent.”

The Supreme Court reversed the 9th Circuit and remanded for “further consideration in light of Harrington v. Richter, 562 U.S._(2011).”  See, Blog.

Valdovinos is the sixth case the Supreme Court has reversed the Ninth Circuit during the current term of the Court.

Dickens v. Brewer, 631 F.3d 1139 (9th Cir. 2011)

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In Brewer v. Landrigan  (See, Blog) the Supreme Court reversed a Ninth Circuit decision staying execution on grounds the FDA had not approved the lethal drug used by the State. In a unanimous per curiam opinion the Supreme Court dismissed this contention in a one page decision not even requring  oral argument. In another decision the Court had approved the death penalty protocol used by Kentucky in Baze v. Rees, 553 U.S. 35 (2008) but Dickens contended the Arizona protocol did not comport with Baze.

In Dickens v. Brewer counsel argued not that the protocol was invalid (indeed he conceded the validity of the protocol) but that nothing guaranteed that Arizona would implement the standards. According to Dickens, past mistakes in executions warrant a prediction of future errors.

The Ninth Circuit panel rejected both arguments.  Dickens presented no evidence that Arizona would use the standards only as a facade.  And every other Circuit Court rejected the complaint that previous errors  in implementing the protocol would not establish  failure or refusal to to comply in future applications of the protocol.

The 9th Circuit did not say so, but to grant a stay on the ground of the possibility of a State’s indifference or failure to apply the protocol would prevent an execution at any time in the future.  The U.S. District Court had granted Arizona summary judgment. Affirmed.

Hrdlicka v. Reniff, 631 F.3d 1044 (9th Cir. 2011)

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The 9th Circuit interferes with state courts not only in criminal cases, but in the management of state facilities as well.  In addition to managing state prisons, the court also supervises county jails.  In Hrdlicka v. Reniff the owner of a publication entitled Crime, Justice & America, distributes the bulletin to county jails.  The publisher requested two county jails (Butte and Sacramento) to distribute his unsolicited publication  to inmates, alleging a First Amendment right of free speech. Both counties denied his request.

The 2-1 panel majority held the publisher had a First Amendment right to send his unsolicited publication to county jails. In support of its opinion, the panel majority cited previous 9th Circuit cases all ordering  prisoners to receive and distribute mail, and. as precedent,  the principle Supreme Court case of Turner v. Safley, 482 U.,S. 78 (1987).  As noted in the dissenting panel opinion, Turner applied to a public forum.  Jail is not a public forum.
Here is the Supreme Court in Turner:  

[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform…. Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have … additional reason to accord deference to the appropriate prison authorities.

The majority panel ignores the “deference” and the “restraint” acccorded state courts, and engages in another instance of “structural reform” condemned  by the Supreme Court in Horne v. Flores, 129 S.Ct.2579 (2009).  Every case cited in the majority panel decision approves some form of administrative change requiring additional staffing and time consuming tasks of sorting mail unsolicited by any inmate. See, for another 9th Circuit imposition of jail management of bulk mail, Prison News v. Lehman, 397 F.3d. 692 (9th Cir. 2005)

Trunk v. City of San Diego, 629 F.3d 1099 (9th Cir. 2011)

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Several years ago one Paulson filed a Complaint in federal court alleging a “Latin Cross” located on a remote desert property offended him, and its size and location violated the Establishment Clause of the First Amendment (Paulson v. City of San Diego, 294 F.3d 1124 (9th Cir. 2002).  After years of litigation, and the 9th Circuit repeatedly ordering removal of the cross, the Supreme Court reversed on procedural grounds and ordered the district court to conduct an evidentiary hearing. (This case was extensively reviewed in an earlier blog); Salazar v. Buono,130 S.Ct. 1803 (2010).

Apparently impatient with the courts, the plaintiff in Trunk v.City of San Diego filed litigation specifically alleging a First Amendment violation despite Supreme Court language in Salazar inferring the Latin cross  did not violate the Establishment Clause.  The Ninth Circuit panel, ostensibly distinguishing the Salazar case, held  the cross violated the First Amendment.

The Ninth Circuit panel wrote a lengthy history of the litigation and cites a litany of its own cases in support of its decision.  The cross was erected in the desert by veterans of World War I in honor of those who died in the war. When the 9th Circuit ordered is removal, the City of San Diego transferred the property to a private owner. Characterized as a “sham” transaction by the 9th Circuit, the property was transferred to the federal government, and Congress confirmed the property as a memorial.  In Buono v. Kempthorne, 527 F.3d 758 (9th Cir. 2008) the 9th Circuit voided the Congressional finding.  Ultimately, as noted above, the Supreme Court reversed the Ninth Circuit but the Justices did not specifically address the First Amendment issue; Salazar v. Buono.

In Trunk, on appeal from a U.S. District Court ruling sspecifically on the Establishment Clause in favor of the government, the 9th Circuit panel  embarked upon a disquisition of religion and memorials, concluding the Latin cross signified a religious perspective prohibited under the First Amendment. In effect, the panel ordered removal of the cross by awarding summary judgment in favor of the plaintiff-the exact opposite of the District Court order. 

As noted by a dissenting judge in the Kempthorne case, aapparently the seventy years since the veterans erected the cross no one was “offended” until the time of the litigation.

Premo v.Moore, 131 S.Ct. 733 (2011) Part II

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On the same day the Supreme Court wrote Harrington v. Richter, 2011 WL 148587 (C.A. 9) Justice Kennedy authored another opinion severely criticizing the 9th Circuit for disregard of the federal statute regulating federal habeas corpus (AEDPA; 28 U.S.C. 2254) and Supreme Court precedent.  The unanimous decision of the Supreme Court suggests a wilful disregard of the statute and Supreme Court case law by the Ninth Circuit.
In Premo, defense counsel entered into negotiations with the prosecutor to plead his client to an offense not requiring the death penalty.  The prosecution had a strong case including a confession by the defendant and two other civilian witnesses.
After the state court imposed Moore’s sentence (for an extremely violent and brutal crime) he appealed on grounds of “ineffective counsel” citing the Supreme Court 1986 case of Strickland v. Washington 466 U.S. 669 (1986).  Moore alleged his counsel should have moved to suppress the confession to police.  The state court denied his  appeal; denied a post trial evidentiary hearing in state court; was denied a petition for habeas corpus in U.S. District Court; state court decision reversed in the Ninth Circuit.
Justice Kennedy gave the Ninth Circuit a lesson in trial advocacy and plea bargaining in addition to explaining the proper test for appellate review of state court decisions in federal courts.  He wrote: “. . . strict adherence to the Strickland standard [is] all the more essential when reviewing the choices an attorney made at the plea bargain stage. Failure to respect the latitude Strickland requires can create at least two problems in the plea context. First, the potential for the distortions and imbalance that can inhere in a hindsight perspective may become all too real. The art of negotiation is at least as nuanced as the art of trial advocacy and it presents questions farther removed from immediate judicial supervision. There are, moreover, special difficulties in evaluating the basis for counsel’s judgment: An attorney often has insights borne of past dealings with the same prosecutor or court, and the record at the pretrial stage is never as full as it is after a trial. In determining how searching and exacting their review must be, habeas courts must respect their limited role in determining whether there was manifest deficiency in light of information then available to counsel. AEDPA compounds the imperative of judicial caution.”
Kennedy concludes by stating: “When 2254 applies, the question is not whether counsel’s acrions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Stickland’s deferential standard.”

Comment:  The Ninth Circuit has a long history of reversing state court decisions by employing the Strickland case. Harrington v. Richter and Premo v. Moore may end a litany of wrong decisions written by the Ninth Circuit, most recently in Knowles v. Mirzayance,  and Wong v. Belmontes.

Premo v. Moore, 131 S.Ct. 733 (2001): (Part I)

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On the same day the Supreme Court reversed the Ninth Circuit in Harrington v. Richter, 2011 WL 148254 C.A.9) the Justices also reversed Premo v. Moore.  In a plea bargain, Moore had pled guilty to a charge of second degree murder in an Oregon state court. Denied post conviction relief in state court on grounds of “ineffective  counsel,” Moore  petitioned the U.S. District Court to issue a writ of habeas corpus. Moore again alleged “ineffective counsel” occurred prior to his plea based on failure of his lawyer to object to his confession to police officers.  On appeal from the district court ruling, the Ninth Circuit panel extensively wrote on the importance of confessions in criminal cases, and failure of counsel to object constituted “ineffective counsel.”
The dissenting judge in the Ninth Circuit decision skewers this principle.  No one doubts the importance of a confession, but under Ninth Circuit reasoning defense counsel must file every motion, frivolous or not, prior to any plea.  The prosecution is unlikely to engage in any plea bargaining under those circumstances. Oregon sought review of the Ninth Circuit decision in the Supreme Court.
Reversed. The Supreme Court verbally lashed the Ninth Circuit again, explaining the role of plea bargaining in criminal cases and the irrelevance of the need for counsel to file a every motion to exclude evidence prior to trial in order to avoid criticism of “ineffectiveness.”  As the Court notes, an appellate court on a cold record cannot intuit the nuances of “plea bargaining, i.e., whether the prosecution has a strong case or not; whether witnesses other than a police officer can testify to a confession; the strength of an alibi; the testimony of accomplices; the trial/ sentencing judge; the likely composition of a jury.  The list of problems for prosecution and defense is endless…
And the most important factor for defense counsel: the death penalty.  Moore had attacked the victim, bound him with tape, threw him in the trunk of a car and eventually killed him.  These facts are sufficient to warrant the death penalty after a trial.  Defense counsel received a reasonable offer from the prosecution for reasons unknown on the record.  But if the defendant refused the offer, the prosecution would continue investigation in an attempt to strengthen the case, and the potential of seeking the death penalty loomed.
Again the Supreme Court explains the role of the Anti-Terrorism statute (AEDPA; 28. U.S.C. 2254) and reproaches the Ninth Circuit for mis interpreting the statute and Supreme Court case law.   
Supreme Court case law. See, discussion of AEDPA in Harrington v. Richter.
The most important part of the case is the Supreme Court explanation of the role of federal courts in reviewing allegations of its leading cases on ineffective counsel; Strickland v. Washington, 466 U.S. 668 (1984).  Federal appellate courts reviewing state court decisions on habeas corpus cannot undertake its own interpretation of Strickland and the effectiveness of counsel.  The court must concede to a state court ruling. and issue the writ only if the state court interpretation is unreasonable, and not interpret Stickland de novo.

Harrington v. Richter, 131 S.Ct. 770 (2011)

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In an emphatic and harsh review of the case in Harrington v. Richter, the Supreme Court again reprimanded the Ninth Circuit for its failure to abide by Congressional rules enacted in the Anti Terrorism & Effective Death Penalty Act restricting federal collateral review of state court decisions in criminal cases (AEDPA; 28 U.S.C. 2254). In a unanimous decision written by Justice Kennedy, he criticized the Ninth Circuit’s refusal to apply the Act and the appellate court’s failure to apply Supreme Court precedent.

Justice Kennedy intially dismisses the Ninth Circuit decision holding that on habeas corpus review of state court decisions the federal court applies a de novo standard in the absence of any written opinion issued by the state court.  AEDPA neither requires written opinions nor does Supreme Court precedent, and every other Circuit Court has rejected the Ninth Circuit interpretation. AEDPA permits  a federal court to reverse a state court decision on habeas corpus only if it finds an unreasonable application of Supreme Court law or an unreasonable interpretation of facts whether the state court writes a decision or not.

At its core, Harrington is an “ineffective counsel” case.  The Ninth Circuit had criticized the defense lawyer who had not submitted evidence of a blood sample found at the scene of the crime but otherwise effectively cross examined witnesses and presented a reasonable defense to the crime of murder.  Justice Kennedy administers another lesson to the Ninth Circuit on trial advocacy. 

The seminal case of “ineffective counsel” is Strickland v. Washington, 466 U.S. 668 (1984 ) a case invoked repeatedly by the Ninth Circuit in previous cases when the court is unable to find any other reason for reversal.  Kennedy skewers the Ninth Circuit application of Strickland, and writes “the pivotal question in determining whether counsel was ineffective] is whether the state court’s application of the Strickland standard was unreasonable [under AEDPA.] This is different from asking whether defense counsel’s performance fell below Strickland’s standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of 28 U.S.C. 2254(d) ‘an unreasonable application of federal law is different from an incorrect application of federal law’ (citation omitted). A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.”