Monthly Archives: October 2011

James v. Schriro (Warden), 652 F.3d 855 (9th Cir. 2011

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The 9th Circuit will utilize every rhetorical device in its attempt to avoid confirming the death penalty.  Without reciting the brutal facts in this case -even the panel that decided the case conceded that savagely beating the victim, throwing his body down a mine shaft and piling railroad ties on him – was a despicable crime.  But of course, this is irrelevant and a jury, or a judge (under former law) might mitigate the death sentence imposed by considering James’ sordid life history.
The problem confronting the 9th Circuit panel required evading the three recent Supreme Court decisions (all from the 9th Circuit) severely limiting federal court review on habeas corpus.  In order to avoid the language  of AEDPA in this case, confining federal court review of a state court adjudication “on the merits,” the panel found a procedural device.  If a state court does not provide a consistent procedural rule on habeas corpus, the federal court can review and decide the case without AEDPA limitations.

Arizona state court rules provide that the court will not consider post conviction claims not raised on direct appeal. James did not raise “ineffective counsel” in state court on direct appeal from his conviction nor on his first post conviction review.   That should end it under Arizona rules. No, said the 9th Circuit, the state court has not applied its procedural rule consistently, and the federal court can consider an ineffective counsel claim for that reason.

James filed three post conviction habeas petitions in state court.  The first was denied on grounds he had not raised it on appeal.  The second petition did raise “ineffective counsel” but the Arizona court barred the claim based on the ruling in the first petition.  As was the rule in the third petition.  The 9th Circuit panel seized on the third petition as the last “reasoned decision” of a state court adopting the decision in the first petition and its failure to raise  ineffective counsel on direct appeal

What follows in his federal petition is a pathetic and voluble recital of James’ life history and his involvement in drugs. There was no evidence he was under the influence of drugs or alcohol at the time of the crime.  In fact, the series of events leading up to the crime required considerable deliberation and planning consistent with malice.

This case is another example of an unending policy of the 9th Circuit to frustrate the death penalty.  That  a person has faced a difficult and miserable life does not excuse deliberate homicide.

Allison v. Diaz, 132 S.Ct. 75 (2011); Reversing 9th Cir. 405 Fed.Appx.123 (C.A.9)

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In an unpublished memorandum opinion, the 9th Circuit reversed another death penalty case on grounds of ineffective counsel.  Using the wrong legal test, as it has for years, the court cited insufficient investigation and poor strategy by counsel.

Reversed. The Supreme Court ordered the 9th Circuit  to review its decision in light of Harrison v. Richter, 562 U.S._2011).

This case continues the 9th Circuit record of reversal in death penalty cases using the wrong analysis.  And it has done so for the last decade.

Trunk v. City of San Diego, 660 F.3d 1091 (9th Cir.2011) dissenting from 629 F.3d 1099 (9th Cir. 2011)

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The animus to religion by the majority of 9th Circuit judges is evident from their decision in Trunk v. City of San Diego, et al.).  Almost one hundred years ago private parties erected the Mt. Soledad cross in San Diego County to memorialize men who had died in war.  As time passed, approximately 2000 crosses were added to the memorial.  Ultimately the City of San Diego transferred the property to the federal government. At no time in the last 76 years has the location  ever served as the site for religious services.  But apparently some people were offended at this alleged symbol of Christianity and sued to demolish the cross.
In a decision that ignores Supreme Court precedent established in Salazar v. Buono, 130 S.Ct. 183 ( 2010, reversing the 9th Circuit), a majority of 9th Circuit judges held the memorial violates the Establishment Clause  of the First Amendment.

The dissenting judges in Trunk cite two Supreme Court cases directly in conflict with this decision.  The leading case of Van Orden v. Perry, 545 U.S. 677 (2005) upheld the display of the Ten Commandments on pubic property, and concluded the courts must evaluate the use of the display, its context, and the history of the monument.  The undisputed evidence in Trunk established the monument served as a memorial, not the governmental endorsement of religion. The 9th Circuit majority ignored the history of the monument, its use, the absence of challenge in almost a century, and unrelated to any religious practices.

The majority decision  also ignores Lynch v. Donnelley, 465 U.S. 668 (1984), a Supreme Court decision approving display of a creche on public property at Christmas: “Of course the crèche is identified with one religious faith but no more so than the examples we have set out from prior cases in which we found no conflict with the Establishment Clause.  It would be ironic, however, if the inclusion of a single symbol of a particular historic religious event, as part of a celebration acknowledged in the Western World for 20 centuries, and in this country by the people, by the Executive Branch, by the Congress, and the courts for two centuries, would so “taint” the City’s exhibit as to render it violative of the Establishment Clause. To forbid the use of this one passive symbol—the crèche—at the very time people are taking note of the season with Christmas hymns and carols in public schools and other public places, and while the Congress and Legislatures open sessions with prayers by paid chaplains – would be a stilted over-reaction contrary to our history and to our holdings. If the presence of the crèche in this display violates the Establishment Clause, a host of other forms of taking official note of Christmas, and of our religious heritage, are equally offensive to the Constitution.”
The majority decision in Trunk is an “over -reaction.” If a creche displayed on public property at Christmas does not violate the Establishment Clause, an unadorned simple cross on a mountain signifying respect for those who sacrificed their lives in war does not either.

Hrdlicka v. Reniff, 656 F.3d 942 (9th Cir. 2011)

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No court interferes more with administration of prisons than the 9th Circuit. The Supreme Court has repeatedly reversed 9th Circuit expansion of prison inmates substantive rights beyond their scope almost as much as its reversals of habeas corpus.

A publisher sought an order directing the Sheriff of Butte County to allow county jail prisoners access to a publication discussing  prison conditions and potential remedies for prisoners.  The majority opinion upholds the right of county jail prisoners to receive unsolicited (junk) mail  from a private citizen. The grounds: First Amendment rights.

Here is the dissent: “The court today holds that the First Amendment mandates that county jails distribute unsolicited junk mail to their inmates, or face a burdensome lawsuit from the junk mail publisher; Turner v. Safley, 482 U.S. 78 (1987).  Given that Turner decided only the standard of review to apply when a prison regulation impinges upon inmates’ First Amendment rights, the majority’s interpretation is an extraordinary leap since all agree that no inmate rights are at stake in this case. Regrettably, the majority’s opinion is completely untethered from Supreme Court precedent and in considerable tension with our own case law. It further complicates the already ‘inordinately difficult undertaking’ of prison administration.”

“Challenges to jail or prison regulations limiting outside contact with prisoners undoubtedly involve the balancing of constitutional imperatives. The majority focuses almost entirely upon those implicated by the First Amendment. But also among them is that running a jail ‘requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.’ Therefore the separation of powers ‘counsel[s] a policy of judicial restraint,” particularly ‘[w]here a state penal system is involved.”

And finally: “the majority ignores the separation of powers and unnecessarily injects the federal courts into a matter peculiarly within the province of the legislative and executive branches of government (citing Turner).'”

When the delegates from thirteen states met in Philadelphia, they specifically rejected construction of a federal government supervising the states.  The first Ten Amendments to the Constitution all limited power conferred on the federal government. In the 9th Circuit, this mandate is repeatedly ignored although the Supreme Court incorporated some of the Amendments applicable to states. The 9th Circuit manages a broad number of state activities.  Aside from busing, the court supervises county jails, state prisons, schools, and a variety of other categories, imposing its policy decisions indifferent to the rationale of the Constitution.  Hrdlicka represents another duty imposed on county jails to receive, distribute and collect publication of unsolicited junk mail under the 9thCircuit interpretation the First Amendment.

Log Cabin Republicans v. U.S., 658 F.3d 1162 (9th Cir. 2011)

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The 9th Circuit panel ruling on the enforcement of the military use of a “Don’t Ask, Don’ Tell” polilcyi was dismissed on ground the lawsuit had been rendered moot by other sources.  Nevertheless, a concurring judge wrote a scholarly and neutral opinion outlining the role of he judiciary in resolving issues of “Due Process.”  Elegantly phrased he said this. 

“The [Supreme] Court has imposed  … dual limitations on substantive due process analysis to preserve the fiduciary’s proper role in the constitutional structure. “[E]xtending constitutional protection to an asserted right or liberty interest … to a great extent[ ] place[s] the matter outside the arena of public debate and legislative action.” (cite omitted). Whenever the Court expands the concept of substantive due process, moreover, it risks “subtly transform[ing]” the liberty protected by the due process clause to “the policy preferences of the Members of th[e] Court.”

      In short, when confronted with assertions of new fundamental rights, rather than invite innovation the Court has counseled caution. The Court has developed a trusted method reflecting that caution. And while the Court has on occasion departed from its established method, it has not licensed lower courts to do so. Most important, when a right is not rooted in our constitutional text, traditions, or history, our authority as judges is at its end. We must then leave the task of identifying and protecting new rights where the Constitution leaves it—with the political branches and the people.”
This truncated statement applies to cases previously decided by the 9th Circuit on policy grounds, not Constitutional predicates.  The Supreme Court has repeatedly denounced judicial attempts to expand the role of equal protection and due process not only in discovering new “liberty interests” but in countless other
cases has reversed the 9th Circuit for expanding Constitutional rights. In fact, the Supreme Court reviewed the role of federal courts and the extent of “due process” as early as in a 1997 case reversing the 9th Circuit; Washington v. Glucksberg,  521 U.S.7 02 (1997 ).

Payton v. Cullen (Warden), 558 F.3d 690 (9th Cir. 2011)

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For those who oppose the death penalty, here are the facts of a 1980 conviction and sentence: “William Charles Payton raped and murdered Pamela Montgomery in the early hours of the morning on May 26, 1980. She had been stabbed twelve times, six of the wounds in a line from Montgomery’s stomach to her groin. After that he repeatedly stabbed Patricia Pensinger with a knife, as well as her ten-year old son Blaine who was trying to help his mother. Pensinger suffered 40 stab wounds to her face, neck, back, and chest; Blaine had 23 stab wounds to his face, neck, and back. They survived. Payton’s wife testified that when he got home at 6:15 AM, his clothes, face, and hands were covered in blood.”
At no time has Payton argued innocence for a crime commited 31 years ago. Here is the record of the 9th Circuit after conviction: “The California Supreme Court affirmed on direct appeal and on habeas review. People v. Payton, 3 Cal.4th 1050, 13 Cal.Rptr.2d 526, 839 P.2d 1035 (Cal.1992). Payton filed a federal habeas petition on May 3, 1996; in two orders, one issued June 1, 1999 and the other December 17, 1999, the district court granted summary judgment for the state on guilt phase claims, and for Payton on a claim of instructional error applying California’s “factor (k).” Cal.Penal Code § 190.3(k). Having granted the writ on this sentencing issue, the court did not address the merits of other penalty phase claims—IV(A)(5), IV(C)(1)-(17), IV(D), and V(A)-(D). The parties cross-appealed.”

The three-judge panel reversed on the factor (k) issue, and affirmed on Payton’s claims that his counsel rendered ineffective assistance in failing to investigate and present evidence about his personal, family, and mental background and to pursue the background of a jailhouse informant during the penalty phase; that prosecutorial misconduct offended due proccess; and that he received inadequate funds to develop defenses and investigate informants. Payton v. Woodford, 258 F.3d 905, 922–25 (9th Cir.2001). The panel also rejected Payton’s arguments that his counsel prejudicially failed to develop and present evidence of Post Traumatic Stress Disorder (PTSD) resulting from service in Vietnam, and that his sentence should be reversed for cumulative error. Id . at 925. The case was reheard en banc. Payton v. Woodford, 273 F.3d 1271 (9th Cir.2001) (granting rehearing en banc and ordering panel opinion not to be cited as precedent). The en banc panel reinstated the district court’s decision on factor (k), Payton v. Woodford, 299 F.3d 815, 822 (9th Cir.2002) (en banc), applying pre-AEDPA standards. The Supreme Court held that AEDPA applied. Woodford v. Payton, 538 U.S. 975, 123 S.Ct. 1785, 155 L.Ed.2d 662 (2003). Applying AEDPA, the en banc panel again affirmed on factor (k), Payton v. Woodford, 346 F.3d 1204, 1206–07 (9th Cir.2003), and the Supreme Court reversed. Brown v. Payton, 544 U.S. 133, 147, 125 S.Ct. 1432, 161 L.Ed.2d 334 (2005). On August 15, 2005, the en banc panel remanded to the district court to consider Payton’s “remaining claims not already addressed on the merits.”

 On remand, Payton sought to relitigate several issues that the district court (and the three-judge panel) had previously decided. The district court believed that it could rehear previously adjudicated claims, but saw no convincing reason to do so. It addressed the “remaining claims” that had not been resolved, denying each and thus, denying relief on Payton’s petition. The court granted a certificate of appealability (COA) on Claim IV(C)(15), which challenges the constitutionality of California’s lethal injection protocol.”
In 2011, Payton continues to litigate and even now this 9th Circuit decision specifically allows him to challenge the death penalt, its enforcement left dithering in U.S. District Court (Protocol by Cal. Office of Administraive Law approved July 30, 2010; Cal. Code. Regs.tit. 15 ss3349 et seq. (2010).

Jackson v. Ryan, 659 F.3d 1215 (9th Cir. 2011) Withdrawing 2011 WL 3850774 (C.A. 9)

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On September 1, 2011 the 9th Circuit panel (3-0) reversed a conviction on grounds the judge issued an improper jury instruction.  Another habeas corpus reversal of a state court. On September 27, 2011 the court issued an order, signed by only two of the three judge panel, as follows:

“The opinion filed on September 1, 2011 is hereby WITHDRAWN. The panel will issue a new opinion in due course. No petitions for rehearing or rehearing en banc will be entertained as to the withdrawn opinion. The parties will be afforded a renewed opportunity to file petitions for rehearing or rehearing en banc after the issuance of a new opinion.”
Not any explanation for this unilateral withdrawal.

Although not a precedent, the original opinion was another attempt to avoid AEDPA on grounds of due process.  The Supreme Court has already condemned this practice.

U.S. v. Rodgers, 656 F.3d 1023 (9th Cir. 2011)

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The Rogers case illustrates another example of judicial naivete coupled with the inability to properly apply the Fourth Amendment.
The court approved the initial stop of a vehicle at 3:30 a.m. driven by a fifty one year old male accompanied by a young female passenger in a high juvenile prostitution location.  Although the basis for the stop was a vehicle registration violation, later proving not illegal, the officer determined the female’s answers to questions by the officer were inconsistent.  Further information revealed an arrest warrant in her name. The officer sought further confirmation of her identity, although the arrest warrant was sufficient, but did not arrest Rogers.
Noting that the female passenger lacked any identification, or any purse or wallet, he looked in the console and found drugs.  Rogers was arrested
Rogers contended the officer lacked probable cause to search the vehicle for identification.  The 9th Circuit panel (2-1) agreed and suppressed evidence against Rogers, an armed career criminal in possession of a firearm (from a previous conviction).
The dissent skewers the majority analysis but fails to explain the rationale of the Fourth Amendment originally decided by the Supreme Court to deter unlawful police conduct. In this case, the officer engaged in extensive conversation with the female, carefully evaluated the presence of a fifty one year old male driving a young female at 3:30 in an area of juvenile prostitution;  His search was not a rummage, but an attempt to determine  the female’s age and identity.  No one was arrested prior to the search. No one was personally searched  This conduct is a credit to the offier’s capacity to conduct a thorough investigation.  There is not the slightest evidence of conduct consistent with Fourth Amendment rules intending to deter officer misconduct.
This is an other example of the misuse of the rationale for the Fourth Amendment and the consequent release of an armed career criminal.