Associated Gen. Contractors of America, etc. v. Cal. Dept. of Transportation, 713 F.3d 1187 (9th Cir. 2013)

The California Dept. of Transportation has found a way to avoid Prop. 209. The Dept. filed for a federal grant that is unambiguously affirmative action.  The grant requires the Dept. to hire specifc race and gender – specific based preferences in the transportation contracting business.  The Secretary of Transportation must distribute 10 % of the funds to “disadvantaged  business enterprises.”

AGC challenged the federal act on Equal Protaection grounds. According to the 9th Circuit, AGC must have standing to challenge this grant but the plaintiffs could not provide evidence that any of their members had been injured.  This statement is absurd.  By carving out specific groups for racial and gender preference the grant forecloses anyone else from particiating in bids on contracts.  This judicial maxim is incomprehensible.

In order to pass the  strict scrutiny test of the Fourteenth Amendment the applicant must establish evidence of impermissible discrimination.  The Dept. expended tax money to conduct a test (that could have been used for other projects) evidencing discrimination. Of course the taxpayer lost.  The court also agreed with the anecdotal evidence supplied by the Dept.

All of AGC’s objections were summarily disposed of by a court determined to undermine California law. Maybe the Supreme Court will reach a different conclusion in the absence of a rehearing in the 9th Circuit.

Ryan v. Schad, 133 S.Ct. 2548 (2013)

Note: this case has been discussed previously. See, List of cases 

In 1978 Schad strangled a 78 year old librarian to death, and a jury voted the death penalty; his conviction on appeal was affirmed by the Arizona Supreme Court. Further habeas corpus hearings were held in state and federal courts (below), and ultimately the Supreme Court denied Schad’s petition for certiorari from the 9th Circuit. Under federal rules, the 9th Circuit panel should have issued its mandate immediately, but instead it stayed the writ at Schad’s request. Arizona sought a motion to vacate the stay and filed a petition for certiorari in the Supreme Court. The application for a stay  was denied but the Court granted the petition. 

The 9th Circuit panel, sua sponte, construed Schad’s request to stay issuance of  mandate in order for the court to reconsider a motion it had previously denied allegedly pending a ruling on a collateral case. In addition, the 9th Circuit panel stayed the execution of the death penalty ordered by a state court.  

The Supreme Court vacated the 9th Circuit stay on grounds the panel had misconstrued and contradicted its own prior ruling.   According to the Supreme Court, the 9th Circuit “abused its discretion.” The justices ordered issuance of the mandate immediately and disallowed  the 9th Circuit from conducting further proceedings. 

In the last decade the Supreme Court has frequently reprimanded 9th Circuit panels in their propensity to issue habeas corpus overruling state courts. In the last week of the 2012-2013 term the Supreme Court issued four 9th Circuit reversals of death penalty cases.   But Schad is even more serious than the  manipulation of the record in Wong v.   Belmontes, 558 U.S. 15 (2009). In Schad, the 9th Circuit panel reversed its own prior decision not only in violation of federal rules but challenging its integrity. An abuse of discretion at the federal district court level is common, but in the appellate court the damage to litigants is incalculable.

Nor is this case only an outlier and unusual.  In Harris the Supreme Court and Troy v. Brown (cites omitted) reversed the 9th Circuit by substituting itself for the jury. After the third reversal the Governor pardoned Harris within three weeks.  Someone on the 9th Circuit invited a gubernatorial decision.  

Critics of the death penalty cite the fiscal crisis in California to justify revoking capital punishment.  Schad confirms the delay in executions is not attributable to cost but to  indefensible 9th Circuit reversals of state court judgments. Schad is a 1985 conviction finally concluded in 2013-almost 30 years later.


Cannedy v. Adams, 706 F.3d 1148 (9th Cir. 2013)

The most difficult cases for prosecutors and defense counsel are child molestation;  allegations of misconduct imposed on women in the workplace; and  domestic violence. Trials are often “he said-she said,” and the jury hears no corroboration and views no documentation. Jurors must rely exclusively on the testimony of witnesses.  In Cannedy v. Adams that scenario played out, and the jury found the defendant guilty of molesting his teen age stepdaughter.

The verdict and judgment were affirmed on appeal by the California Court of Appeals, and the Justices subsequently denied petitioner’s writ of habeas corpus.  The U.S. district court granted the writ and the 9th Circuit panel affirmed 2-1 on appeal.  The district court wrote its opinion prior to two Supreme Court opinions:  Cullen v. Pinholster, 131 S.Ct. 1388 (2011) and Harrington v. Richter, 131 S.Ct. 770 (2011). The 9th Circuit majority panel, however, cited but ignored both cases on grounds of  “ineffective assistance of counsel,” and the panel resorted to its favorite method of evading AEDPA.

The prosecution witness, a female teenager, testified to the molestation.The jury agreed and found the defendant guilty; the California Court of Appeal affirmed.  Seeking discretionary review in the California Supreme Court, the petitioner presented evidence for the first time that the victim had recanted her testimony. He submitted corroborative testimony from the victim’s friend, a prospective witness, and the victim’s mother who had seen the recantation on the victim’s computer screen. No print- out existed.

At trial the victim had testified she wanted to get away from her stepfather but on the alleged computer screen she denied it.  The problem: no email to corroborate; no witness to to testify; no ability to document the emails.  According to petitioner on habeas corpus in the state court, another witness and the victim’s mother had seen the recantation on the screen but neither one testified in court.  No problem, said the 9th Circuit panel and proceeded to explain how an inconsistent statement could be introduced in evidence without a written document  or production of the witness to validate. The real problem: there is no evidence the victim ever told defense counsel about her friend and her mother having seen the screen.

The majority panel launched into its favorite reversal history: “ineffective assistance of counsel.”  Of course inconsistent statements are admissible, but the first mention of this evidence occurred in state court and resolved against the petitioner on grounds the trial lawyer had never been told about it. The California Supreme Court denied discretionary  review. The California Supreme Court decision is final on  the merits and no petitioner can present evidence to the federal court that was not presented to the state trial court. Cullen and Harrington both rebuked the 9th Circuit for their past practice of allowing a federal petitioner to submit supplement evidence not revealed to the state court. As the dissenting 9th Circuit judge in Cannedy points out, if no one tells the trial lawyer about the names of witnesses or evidence available for trial, counsel is certainly not “ineffective.”

Footnote: The Supreme Court in Cullen clearly and unambiguously ordered federal courts not to consider evidence on habeas corpus unless presented in in state courts. Cannedy is a direct contradiction of this order.