Briggs v. Grounds, 133 S.Ct. 894 (2012)

When the Supreme Court decided the Batson v. Kentucky case, 476 U.S. 79 (1986), a  qquarter centry ago the Justices no doubt intended to prevent an unfair result in criminal cases attributable to race in jury selection.  Statistics are not available from state courts on the efficacy of this decision but it has caused endless legal quarrels for courts to decide.

Since 1986 the Supreme Court has trimmed back federal habeas corpus rulings of state courts by invoking AEDPA.  The 9th Circuit, unsruprisingly, has evaded this federal statute almost from its inception in the 1996 Congressional enactment limiting federal circuit court rulings in deference to state courts. Renico v. Lett, 130 S.Ct. 185 (2010).  In the last term of the Supreme Court the Justices reversed the 9th Circuit  4 times-all  based failure to apply AEDPA.  Th current term is no different.

Unable to find any trial court error, the 9th Circuit scours the record for ineffective assisance of counsel.  Unsuccessful, it turns to jury selection seeking evidence of prosecution  peremptory challenges of minority jurors.  By the time the 9th Circuit reviews the state trial on collateral proceedings (habeas corpus) all state appellate courts and the U.S. District Court have rejected arguments of impermissible exercise of peremptory challenges. The 9th Circuit panel talks about deference and ignores it.

For example: Jckson v. Felkner, 131 S.Ct. 1305  (2011) reversed the 9th Circuit Batson ruling granting granting habeas corpus after all state courts and the districct court respectively affirmed on appeal and denied petitions for habeas corpus.  Here is the Sureme Court:.”The Court of Appeals for the Ninth Circuit reversed [on Batson grounds] in a three-paragraph unpublished memorandum opinion. In so doing, the court did not discuss any specific facts or mention the reasoning of the other three courts that had rejected Jackson’s claim. Instead, after setting forth the basic background of legal principles in the first two paragraphs, the Court of Appeals offered a one-sentence conclusory explanation for its decision. ‘The prosecutor’s proffered race-neutral bases for peremptorily striking the [two] African–American jurors were not sufficient to counter the evidence of purposeful discrimination in light of the fact that two out of three prospective African–American jurors were stricken, and the record reflected different treatment of comparably situated jurors.’”
“That decision is as inexplicable as it is unexplained. It is reversed.”

“The Batson issue before us turns largely on an ‘evaluation of credibility.’” The trial court’s determination is entitled to ‘great deference,’ and must be sustained unless it is clearly erroneous.  That is the standard on direct review. On federal habeas review, AEDPA ‘imposes a highly deferential standard for evaluating state-court rulings’ and ‘demands that state-court decisions be given the benefit of the doubt.’ Renico v. Lett, 130 S.Ct. 1855 (2010)  (internal quotation marks omitted). Here the trial court credited the prosecutor’s race-neutral explanations, and the California Court of Appeal carefully reviewed the record at some length in upholding the trial court’s findings. The state appellate court’s decision was plainly not unreasonable. There was simply no basis for the Ninth Circuit to reach the opposite conclusion, particularly in such a dismissive manner.”  
Harsh words.  In Briggs v. Grounds, a 2-1 decision, the 9th Circuit majority followed the advice in Jackson v. Felkner and affirmed the district court opinion and the state court opinion as well.  Th dissent written by a judge who has never affirmed a death penalty case in ten years and never been inside a criminal courtroom is a direct contradiction of the Supreme Court. 
Cert denied. 133 S.Ct. 786 786 (2012)

Ford v. City of Yakima, 706 F.3d 1188 (9th Cir. 2013)

The scarcity of judicial  resources in federal courts, as in state courts, suggests that judges conserve time and energy for cases of significant legal importance. The 9th Circuit ignores that sage advice and in Ford the panel wrote  a 2-1 opinion that defies understanding.

Police stopped Ford in his moving vehicle for violation of a city ordinance prohibiting loud noise.  He immediately began to rant about a variety of topics, and the police in polite terms repeatedly told him to behave, speak in civil tones and control himself.   Under Washington law the police can either ticket an offender or effect an arrest for misdemeanors.  After frequent attempts to quiet down the defendant, as recorded on audio and video, police arrested Ford for violation of the ordinance.

This trivial incident resulted in a Section 1983 claim filed by Ford against the police officers which the district court judge dismissed.  The 9th Circuit reversed on grounds the police had “chilled [Ford’s] speech” under the First Amendment.  Constitutionalizing conduct is a favorite device in the 9th Circuit. 

The majority panel cites two irrelevant cases the Supreme Court had decided prohibiting  “retaliatory arrest” and “retaliatory prosecution.” The First Amendment prohibits police from penalizing a person solely on the ground of retaliation for derogatory or insulting remarks unless an arrest occurs supported by probable cause; Reichle v. Howards, 132 S.Ct. 2088 (2012)  In one case a man merely shouted profanity and criticism against police; in the other case, police arrested a man for criticizing the officers in a book.  Neither of these cases involved an arrest.

The Supreme Court has held that if probable causes exists for an arrest the speech component vanishes.  Ford does not question the issue of probable cause, and that’s the end ot it.  But according to the 9th Circuit, despite grounds for arrest, a loud mouth can have his First Amendment rights violated.  Why this case was not heard en banc is a mystery.  Probably too trivial.

Ford filed a 1983 claim against police allleging a First Amendment speech violation that should have been heard in small claims court-if at all. The district court found no First Amendment violation and dismissed the claim.  The police also sought qualified immunity but the district court did not address this issue in resolving the absence of a First Amendment violation.

The officers filed qualified immunity but the majority panel held they should have known their conduct violated the First Amendment and denied the defense despite the Supreme Court decision to the contrary.  And this case took five years to the time of appeal.

Marshall v. Rodgers, 133 S.Ct. 1446 (2013)

The 9th Circuit reversed again in a per curiam opinion.  The Supreme Court is determined to compel the 9th Circuit to adhere to (AEDPA) 28 U.S.C. 2254 (d) when reviewing habeas corpus petitions from state court decisions.

The petitioner in state court waived his right to counsel and represented himself.  By the time of his preliminary hearing he changed his mind and retained counsel.  Later, he fired his lawyer and represented himself.  He changed his mind again, and the court appointed counsel.  Prior to trial the petitioner fired his lawyer and he represented himself.  Convicted, he sought counsel to file a motion for new trial. He gave no reason and declined to explain.  Motion denied. He appealed, contending the trial court should have appointed counsel.

The California Court of Appeal correctly confirmed the decision of the trial court as did the U.S. District Court on federal habeas.  On appeal to the 9th Circuit on the same grounds who, according to the panel, scoured the records of other Circuits, held the trial judge erred in not appointing counsel (678 F.3d. 1149 (2012) and reversed.

The Supreme Court conceded the tension between Faretta and Gideon, but the Justices had never ruled on the specific fact situation as in this case. In other words, no ” clearly established Supreme Court law” had been decided under AEDPA.  The Supreme Court said the appointment of counsel largely depends on the discretion of the trial court by considering the ability of the defendant to defend himself; the number of changes in counsel; the delay in the proceedings.  In reversing,  the Supreme Court reminded the 9th Circuit that on collateral review the federal court must accord deference to state courts, and the state court in this case properly applied the law.

Ninth Circuit judges refuse to accord deference to state court decisions despite repeated orders by the Supreme Court to comply with AEDPA. On federal habeas, the federal appellate court must find the state court decision “unreasonable,” not “incorrect.” The Supreme Court correctly reversed on grounds the state appellate court had affirmed on appeal by writing a “reasonalble”  decision. 


Thompson v. Runnels, 657 F.3d 784 (9th Cir. 2011); reversed; 132 S.Ct. 538 (2013)

On remand from the Supreme Court decision in McEven v. Thompson, 132 S.Ct. 538 (2011) after a previous reversal (granting certiorari) a 2-1 majority of a 9th Circuit panel affirmed a 1998 state court conviction of Thompson; 705 F.3d 1089 (9th Cir. 2013). The same judge who wrote the original opinion reversed by the Supreme Court wrote the dissent in this case in a conviction 15 years ago.

The dissent is the kind of judicial condict respsonsible for the inability to finalize state court convictions under AEDPA.  The dissent contends the California Attorney General did not argue the relevant legal principle and therefore waived it. The only issue in the case from start to finish was an alleged Fifth Amendment violation.

The evidence in this case is one of overwhelming guilt.  The only objection raised by the defendant is an alleged MIranda violation which the Supreme Court resolved in Greene v. Fisher, 132 S.Ct. 38 (2011).  Fisher established that a state court must apply Supreme Court decisions published at the time of their rendition.  Nothing could be more logical.  A state court confronted with a Fifth Amendment issue can only apply Supreme Court  law operative at that time.  A Supreme Court decision rendered subsequent to the state court decision is irrelevant.

Not in the 9th Circuit, of course, always seeking state court error. In the last two years the Supreme Court has expanded the impact of AEDPA, particularly at the expense of the 9th Circuit  (4 reversals of death penalty cases in the last term).  The Supreme Court wrote: application of AEDPA [to reverse a state court] is “difficult to meet because its purpose is to ensure that federal habeas corpus relief functions as a guarantee against extreme malfunction of the state criminal justice system and not as a means of error correction.” Greene v. Fisher, 132 S.Ct. 38 (2011).  Nothing could be more relevant – and ignored – to the 9th Circuit. 

Despite the Fisher case,  the dissenting judge tin Thompson who wrote the original opinion reversing the state court conviction, and herself reversed by the Supreme Court, argued in the instant for reversal on remand.  And we wonder why no finality exists in the 9th Circuit.