Myers v. Holder, 661 F.3d 1178 (9th Cir. 2011)

Meyers v. Holder is an immigration case decided eight months ago in a 2-1 9th Circuit panel decision, and written by the same judge who sought clemency for Shirley Smith despite three Supreme Court reversals. The decision represents a serious departure from integrity and a questionable disrespect for the law.

Meyers originally sought delay of his deportation in federal court and his request was denied. His petition for cert. in the Supreme Court was denied  Returning to the 9th Circuit, he sought mandate to delay deportation until the BIA heard his motion to rehear the case.  The majority opinion cites nothing but a string of cases based on procedural law and ignores the absence of any request to the BIA for reopening the hearing.  No analysis, no reasoning. Motion to stay mandate granted.

The dissenting judge cities the BIA statutory and Agency rule applicable in considering a motion to reopen. Meyers never submitted his request for a stay to the BIA.  The court majority overrides the statute, ignores BIA rules and regulations,  and grants the stay without  any explanation.

Thomas v. Chappell, 678 F.3d 1086 ((9th Cir 2012)

Reversing another death penalty case (2-1), the 9th Circuit panel majority reviews an “ineffective counsel” claim in a case the prosecution will never be able to retry.  The witnesses all were homeless wanderers, unreliable and inconsistent in their testimony. Nonetheless, the jury found the defendant guilty.

On direct appeal from the conviction the California Supreme Court ordered a hearing on the “ineffective counsel” claim, and was critical but did not reverse the verdict.  On habeas corpus in the 9th Circuit the panel first reminded readers the petition had been filed before the effective date of AEDPA.  This case was tried in 1985.

The ragtag witnesses, never identified the defendant as the killer, just testified to various facts linking him to the crime. The defense consisted of attempting to establish a third person committed the crime, also through  various witnesses.  One of the witnesses testified to facts implicating a third person (whose identity was never established) but who subsequently recanted all her testimony.  According to the majority, they didn’t need to consider this fact.

This is another typical 9th Circuit case criticizing counsel.  It is part of a pattern established a decade ago and continues even today.  The majority opinion does nothing more that argue about the relevance of three witnesses, none of whom had important information on direct or rebuttal.  The jury listened to this grabbag of witnesses, saw the evidence and not only found the defendant guilty but imposed the death penalty.

As the dissent points out, the California Supreme Court ordered an evidentiary hearing.  The referee heard the evidence and found the facts did not warrnt reversing the conviction.The California Supreme Court agreed.  But two federal judges disagreed in a case tried in 1985.

The judges on the 9th Circuit have repeatedly overruled the California Supreme Court on “ineffective counsel” claims.  These  judges have no understanding of criminal law trial practice and basically second guess the defense. In this case they chastise counsel for not locating a witness who no one knew existed.  Counsel had the same problem with incoherent witnesses as did the prosecution.  

Rodgers v. Marshall, 678 F.3d 1149 (9th Cir. 2012)

Ignoring Supreme Court decisions requiring deference to state courts under AEDPA, the 9th Circuit   overrules another California Court of Appeals case.

After filing an appeal from his conviction and numerous petitions for habeas corpus in state court, all denied, defendant filed a petition for habeas corpus in federal court.   Denied. He appealed to the 9th Circuit.

The trial record establishes the defendant wavered back and forth in determining whether to represent himself. The trial court judge repeatedly warned him against self representation. Ultimately the defendant did represent himself, and the jury found him guilty.  Without asserting any grounds, the defendant asked the court to appoint counsel to file a motion for new trial.  The trial court denied his request. In a petition to the 9th Circuit, the defendant asked for reversal on grounds the trial court should have granted his motion.

The 9th Circuit panel, reversing all California Court of Appeals decisions, petitions for habeas corpus, and the decision of the district court, first concluded a motion for new trial is a “critical stage” in criminal proceedings and a defendant is entitled to counsel.  But the panel could find no Supreme Court case holding that a defendant who elects self representation, and represents himself at trial, is entitled to representation at a post trial motion.  California courts correctly held that once a defendant decides to representation himself, he waives his right to counsel and revocation of the waiver is not permitted. 

Not in the 9th Circuit. Citing no Supreme Court case to this effect, the panel turns to 9th Circuit precedent  to assist in determining whether a defendant can revoke his waiver of counsel.  Completely ignoring Carey v Musladin, 549 U.S. 70 (2006), a Supreme Court case holding the absence of Supreme Court precedent on an issue disallows invoking circuit court precedent under the standards of AEDPA. Carey, another 9th Circuit reversal, prevents  the circuit court from citing its own precedent for “guidance, ” as the panel states.

Aside from a wrong decision on the legal issue, this is another case of a defendant “gaming the system,” citing no ground for the court to appoint counsel after deciding to self represent. Incidentally the defendant represented himself at sentencing without asking for counsel.

Nedds v. Calderon, 678 F.3d 777 (9th Cir. 2012)

In 1997 Nedds was convicted in state court of possession of illegal drugs supplemented by a record of four prior robbery convictions.  He started the usual course of appeal in state court, all denied; filed repeated habeas corpus petitions in Superior Court, Court of Appeal and California Supreme Court; all denied; then in U.S. District Court; denied.  Appealed to the 9th Circuit and, unsurprisingly, granted.

The Supreme Court has reversed 9th Circuit precedent so often that an inmate can assert “equitable tolling” of the one year limitation imposed by AEDPA for filing habeas corpus in federal court after exhausting state post trial relief.  Changes in the law caused by the Supreme Court overturning decisions of the 9th Circuit equitably tolls the filing date in federal court-according to 9th Circuit precedent;  Harris v. Carter, 515 F.3d 1051 (9th Cir. 2008).

 Prior to 2002 the 9th Circuit had so liberally extended the one year AEDPA deadline filing that almost anyone could escape its limitations; Nino v. Gonzales, 183 F.3d 1003 (9th Cir. 1999). Finally, in Carey v. Saffold, 536 U.S. 214 (2002) the Supreme Court intervened and wrote: “The Ninth Circuit’s rule [on tolling] consequently threatens to undermine the statutory purpose of encouraging prompt filings in federal court in order to  protect the federal system from being forced to hear stale claims.” And these are not the harshest words  used by the Supreme Court in its decision.

Nine years later, in Lakey v. Hickman, 633 F.3d 782 (9th Cir. 2011), the 9th Circuit held the petitioner made no affirmative showing of reliance on discredited 9th Circuit precedent in seeking “equitable tolling,” and denied his petition for habeas corpus. But in Nedds the court wrote “showing of actual reliance may be presumed from the circumstances but [Lakey] does not announce a new affirmative showing of actual reliance.” This statement shreds Lakey.

Nedds alleged nothing in his petition relying on overturned 9th Circuit precedent.  But the court in a footnote exercises manipulation of the “circumstances” in the record warranting the “presumption “of reliance:  “The government argues that Nedds is  precluded from arguing that he is entitled to equitable tolling because of his reliance on now-overruled Ninth Circuit precedent because this specific equitable tolling argument is an uncertified claim not included in the Certificate of Appealability. The Certificate of Appealability was granted with respect to the following issue:s ‘whether the district court properly dismissed appellant’s petition as untimely, including (1) whether appellant is entitled to statutory ‘gap’ tolling, and (2) whether appellant is entitled to equitable tolling based on his lack of access to his legal materials and/or his delayed notice that the California Court of Appeal had denied his state habeas petition.’ This language is probably broad enough to encompass the variant of the equitable tolling argument we address.”

This is an outright misreading of the record.  The petition contains not one word of reliance on overturned 9th Circuit precedent.  Nor is there any such request in any of the petitions filed in state or federal court.