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.