Johnson v. Finn, 665 F.3d 1063 (9th Cir. 2012)

This case was originally decided by the 9th Circuit in September, 2011 and returned to the district court on remand after previously  overruling the California state court case on habreas; Johnson v. Finn, 665 F.3d 1063 (9th Cir. 2011).  In the Finn case, as in all state cases, the 9th Circuit panel scours the record seeking reversal.  They focus on jury selection, ineffective assistance of counsel, jury instructions and particularly on the death penalty phase of capital cases  The 9th Circuit record consists of  a dismal  reversal of every death penalty case in the last decade except 2.  Th 9th Circuit reversal record  the Supreme Court is disgraceful.

The 9th Circuit court specializes in prosecutorial exercise of peremptory challenges of black jurors and almost any evidence will do.  In Finn the federal magistrate judge on habeas corpus concluded the prosecutor had wrongfully excused black jurors and sent her report to the district court judge. He rejected the result. Whereupon the 9th Circuit panel on appeal held the district court judge cannot reject a magistrate’s finding until he holds a hearing.  Why a second hearing?  The judge assigned the [Batson] motion to the magistrate judge and they disagreed on the result.

The 9th Circuit panel spent endless pages confirming the right of the magistrate judge to weigh the credibility of the prosecutor’s testimony at the habeas hearing  and how important this practice is to assess credibility.  This judicial comment is the same court that ignores immigration court issues of credibility routinely.  The 9th Circuit panel also ignores the fact the trial judge in state court, and the Court of Appeal,  rejected the challenged  prosecutorial  decision to exclude jurors.  The Supreme Court has repeatedly held the trial judge is the best person to judge credibility of the prosecuter in explaining his reasons for excusing juors.  Not in the 9th Circuit.

This holding is another verbal tweaking of the evidence and another social justice issue.  The California Court of Appeal rejected the defense argument and that should be the end of it.

It is time to reconsider the role of federal habeas corpus review of state court cases.  The Supreme Court, in reversing the 9th Circuit several years ago, disallowed it to hear search and seizure cases on habeas from state courts.  Recently it told the 9th Circuit to get out of state parole hearings.  It’s time to get the 9th Circuit out of state court judgments entirely.

On remand, the district court ordered release or retrial in accord with the 9th Circuit order. 


Stankewitz v. Wong, 698 F.3d 1163 (9th Cir. 2012)

This case sets a new high in judicial excess and injustice. Stankewitz shot and killed an innocent woman in 1978. Convicted of murder and sentenced to death, the California Supreme Court reversed the conviction. Stankewitz was retried, convicted and sentenced to death again on overwhelming evidence.  The aggravating evidence on the penalty phase was replete with a record of unending violence against other people. The California Supreme Court affirmed the conviction; 793 P.2d 23 (1996).

The petition for habeas corpus  in the district court was denied but on appeal the 9th Circuit reversed and ordered an evidentiary hearing on the penalty phase.  The district court held a hearing and inexplicably granted the petition.  The state appealed but in a 2-1 decision the 9th Circuit panel affirmed in an opinion so naive, so unjust that it is disgraceful; Stankewitz v. Woodford, 365 F.3d 706 (9th Cir. 2004).  The panel remanded the case for another  evidentiary hearing in the district court.

According to the majority, Stankewitz  presented significant mitigating evidence, to the district court,  enough to warrant a reversal on grounds of “ineffective assistance of counsel.”  This is the 9th Circuit’s favorite legal weapon despite its repeated reversals by the Supreme Court as recently as in its last term.

The evidence submitted in district court by Stankewitz consisted of documents describing a “troubled childhood.” A “troubled childhood” does not warrant kidnapping and shooting an innocent person in the head from one foot away.  Or a robbery while beating the victim severely;  Or shooting at a police officer during a car pursuit;  Or throwing pieces of glass in a correction officer’s  face; of repeatedly getting in fights with other inmates.  All this evidence was presented to the jury on the penalty phase, and the 9th Circuit panel  thinks failure of counsel to present  evidence of  a “troubled childhood”, qualifies as “ineffective assistance of counsel.”  No jury will consider a “troubled childhood” as mitigating the death penalty when confronted with evidence of a life of violence.

Here is the aggravating evidence: “[inI its penalty phase presentation, the prosecution put before the jury substantial evidence of Stankewitz’s violent, antisocial behavior. Multiple witnesses testified, for instance, that Stankewitz severely beat a 70–year–old man, stole his car and then participated in a highspeed chase and shootout that resulted in a police officer being shot in the head, with strong implications that Stankewitz was the shooter. Several other witnesses testified about Stankewitz’s attack on a youth counselor at the California Youth Authority, his armed robbery and kidnapping of Jesus Meraz, his stabbing of a fellow inmate, his attack on several police officers who were attempting to book him and various violent outbursts while he was in jail. To the extent additional evidence of the violent emotional outbursts that are part of Stankewitz’s history would have had an aggravating impact, it would have been marginal relative to the evidence of antisocial behavior already before the jury.

As the dissent points out, even if trial counsel was ineffective, the district court did not find his conduct prejudicial, a mandate  of the seminal Strickland  v. Washington case, 466 U.S. m668 (1984);   Nor did the majority  consider that a defendant  presenting “mitigation” evidence opens to the door for the prosecution to  offer additional aggravating evidence in rebuttal.

Stankewitz is another in the endless list of reversals involving the death penalty in a case previously affirmed by a state court on habeas corpus. The aggravating evidence would have been marginal. Reversed because of  a “troubled childhood.”

Cudjo v. Ayers, 698 F.3d 752 (9th Cir. 2012)

The 9th Circuit has unilaterally developed a two tiered system of “justice” applying its own interpretation of the law despite Congressional attempts to limit federal habeas corpus authority and ignoring the repeated record of Supreme Court reversals.  In 3 cases decided by the 9th Circuit on habeas corpus, the court has overruled the California Supreme Court.

Citing, but Ignoring AEDPA , Supreme Court precedent, and imposing its own view of social justice and ideology, the court has made federal habeas corpus a “second opinion” of state supreme courts, its own district courts, and the Supreme Court.

In last year’s term the Supreme Court reversed the 9th Circuit in 17 out of 24 cases.  This year is likely to result in a similar percentage.  The discouraging element of this embarrassing record is the inability of prosecutors to re try cases decades old having been reversed by the 9th Circuit despite affirmance of conviction by California courts.

Cudjo is an example of the device used by the 9th Circuit to superficially apply the California state court decision and yet overrule it.  Several years ago (40) the Supreme Court decided Chambers v. Mississippi, 410 U.S. 484 ( 1973) allowing due process to trump the hearsay rule in some cases.  The Court concluded that if a witness inculpates a third party who allegedly confessed to the crime alleged against the defendant, he must be allowed to testify despite the inadmissibility of the testimony under general hearsay rules.  The Court proposed a test for admissibility that is amorphous, fact intensive and contingent on the decision of the trial judge who is supposed to initially determine if the testimony is “trustworthy.”

The California Supreme Court, applying the Chambers rule, concluded the trial judge had made an erroneous decision in disallowing the testimony of a witness who wanted to implicate a third party.  In other words , the judge committed error.  But the appellate court read the entire trial record and concluded the error harmless.  The 9th Circuit panel agreed the state court found trial error, but it was not harmless and overruled the state court.

This is arrogance on display.  Why should the 9th Circuit, repeatedly warned to be deferential to state courts in federal habeas hearings, be allowed to simply reach a different conclusion than  the state supreme court on the same trial record?  

To summarize: the state court said the trial court erred in refusing to allow tesitmony based on hearsay because it was not trustworthy, but the trial record was not sufficiently prejudicial to warrant a reversal.  According to the 9th Circuit panel, who never saw any witnesses at trial, thought it was prejudicial.

Determining whether to allow a witness to testify that a third party confessed to the crime alleged against the defendant is not confined just to testimony.  The record of the witness, i.e., when did he report the confession to police- if ever- and other evidence in the trial all must be considered before the court admitts the testimony. 

The 9th Cricut panel, never having tried a criminal case, has no understanding of trials, as it has repeatedly proven.

 Cudjo is just another subjective opinion.  Ready for rehearing or Cert.

Mojica v. Holder, 689 F.3d 1133 (9th Cir.)

The 9th Circuit’s reputation for overruling the BIA and rendering opinons supported by its social justice mentality is legendary. Accordingly, the volume of immigration appeals overwhelms its court calendar because the possibility of BIA reversal is pervasive.

The Supreme Court finally interceded and rejected – again – another 9th Circuit opinion imputing to a child her father’s lawful permanent residence status. Of course the 9th Circut  had ruled otherwise and rendered its decision in another familiar evasion of Supreme Court precedent by not publishing the decision. 

Having only recently conceded its misinterpretation of parole decisions, the 9th Circuit is now acknowledging error in its immigration decisions.  Unfortunately the Supreme Court cannot review all 9th Circuit cases on immigration, given its reversals in so many other  categories.

Note: In an unrelated case, the 9th Circuit held BIA authority trumps federal court opinions.  Garfias v. Holder, 2012 WL 5077187 (C.A. 9).


Hall v. City of Los Angeles, 697 F.3d 1059 (9th Cir. 2012)

There is a school of thought in the law entitled “Social Justice.” Its core belief is the elimination of law and equity, ignore precedent and the common law, and decide a case according to what are the best interests of the party.  Of course under this theory no one can rely on judicial certainty in the course of living and so you just throw it up against a wall and see if it sticks.

No court does it better than the 9th Circuit. The evidence in Hall established he was convicted of robbery, served 19 years in prison, and his conviction affirmed by the state court of appeal.  On appeal he had alleged police had procured his confession falsely. In a federal habeas corpus hearing the district court  found the conviction had been obtained by false evidence and a coerced conviction.  Hall filed a 1983 action against the City and several of its police officers alleging a 14th Amendment substantive due process violation  based on the false conviction and coerced confession.

1983 allows no 14th Amendment violation for coerced confessions; only the 5th Amendment provides that relief.  Accordingly, the district court dismissed the claim as wrongfully pled.  Hall submitted an amended complaint but failed to fulfill the procedural requirements necessary to permit an amended complaint, and the court granted summary judgment on that same claim. 

When Hall filed his 1983 action the district court denied his motion to amend on 5th Amendment grounds because the 9th Circuit had already found that claim meritless. Hall appealed to the 9th Circuit challenging the district court 14th Amendment ruling. 

Hall never asserted his 5th Amendment right in any proceeding, including the instant appeal from the district court. Five years of litigation, after two summary judgments and consistently alleging a 14th Amendment violation, including the current appeal, the 2-1 majority let him amend his complaint to allege a 5th Amendment violation on grounds of manifest injustice.

Whether Hall’s conviction in state court, overruled on federal habeas petition, has merit is not the issue.  As the dissenting judge points  out, Hall never contended a 5th Amendment violation, the correct claim alleging a coerced confession.  The majority panel simply ignored district court rulings, Hall’s brief on appeal, and oral argument. Instead, the majority allowed him the opportunity to amend a complaint on grounds already repeatedly denied.

This is “social justice.”  A misreading of the evidence, and allowing a party to amend pleadings after 5 years of discovery.  The dissent makes the majority opinion sound even worse.