Amado v. Gonzales, 734 F.3d 936 (9th Cir. 2013)

This case confirms every previous Supreme Court reprimand of the 9th Circuit in collaterally reviewing state court convictions.  “Habeas corpus is a guard against extreme malfunctions in state criminal justice systems, not a substitute for ordinary error correction through appeal;” Harrington v. Richter, 131 S.Ct.770 (2011).  Collateral review (after the state court has affirmed a conviction) is subject to deference by federal courts and applies only if the decision is an unreasonable application of federal law and not a de novo appeal; AEDPA. “The habeas standard is difficult to meet because it was meant to be;” Harrington. The majority of the 2-1 9th Circuit panel completely ignores AEDPA in Amado v. Gonzales and retrys the trial entirely on its own initiative as though on appeal.

In a gang prosecution the testimony of witnesses other than law enforcement officers is not likely to come from anyone except other gang members. Obviously these witnesses are unreliable, often fear retaliation, and credibility always an issue.  In the Amado case, a black gang planned to forcibly enter a school bus carrying members of another gang.  When the bus arrived and stopped, the gang members stormed aboard and began beating and shooting riders. According to the witnesses who did testify, Amado was among the attackers who ran toward the bus when it stopped.  Some doubt arose whether he was carrying a gun, but he was not convicted of possessing a firearm; he was convicted of aiding abetting.

One of the witnesses for the prosecution was severely impeached and at trial recanted his statements he had given to police prior to trial implicating Amado and his possession of a firearm.  In fact, the witness was only briefly cross examined, presumably for recanting although he was also on probation for commission of a robbery. But Amado was tried as an aider and abetter, not a principal, and carrying a gun is irrelevant for that charge.  The majority panel wades into the trial record, speculates on what the jury might think if the prosecution had disclosed the recanting witness was on probation for commission of a robbery.

The prosecution conceded it failed to disclose the prior criminal record of this witness although that information was reflected in the witness’s probation report.  According to the panel majority, this non disclosure violated the Brady rule, and if disclosed the jury might have questioned the credibility of the recanting witness. On the defense motion for new trial the trial judge agreed the disclosure should have been made but doubted the consequence of influencing the jury who had already heard a witness recant his testimony yet they voted for a guilty verdict.  According to defense counsel, he did not discover the prior robbery conviction prior to trial and also that the witness was a member of a gang.

Many of the judges on the 9th Circuit have never tried a criminal case or presided over one.  Their naiveté is deplorable.  When a witness recants his pre trial statements to police implicating the defendant what does the jury think of his credibility?  In spite of that, the jury convicted Amado.  Other witnesses also implicated Amado, and the record does not disclose whether Amado testified.  The jury could understand all the witnesses were either gang members or familiar with gang members and knew credibility was in issue. The trial judge, who heard all the witnesses, refused a motion for new trial even assuming the prosecution should have disclosed the robbery conviction and probation report.

Where was defense counsel prior to trial?   This is a gang case and the first task a defense counsel does is demand the criminal records of all the witnesses because the probability of them having committed crimes themselves is obvious.  Defense counsel neither made no such request of the prosecution nor searched the records. And apparently he did not ask his client if any of the witnesses had criminal records.

The majority panel concludes the failure to disclose the information requires a new trial.  How do you think the prosecution will be able to do that?  This case, more than any other, ought to result in a Supreme Court decision to refuse federal appellate courts from hearing habeas corpus of state courts at all.  State courts can be limited only to cert. by the defendant alleging a “malfunction of the state court system.” The Supreme Court has previously denied the 9th Circuit reviewing state court search and seizure cases and parole hearings.


James v. Ryan, 733 F3d. 911 (9th Cir. 2013)

After having been reversed  by the Supreme Court (Ryan v. James, 133 S.Ct. 579 (2013), the 9th Circuit panel on remand rewrote its decision that will be reversed again when the State of Arizona files cert.

In a sadistic, vicious and brutal murder the defendant James kidnapped the victim, crushed his head with a rock, and threw him down an abandoned mine shaft to his death. James was convicted and sentenced to death in 1981 by an Arizona state court jury. After all appeals in state court were denied, James filed 3 post conviction habeas corpus petitions. All petitions alleged ineffective counsel (among other claims) and were denied by state court judges.  In the last (3d) petition the state court judge wrote: “. . .[as] to the entire petition . . . there are no genuine or material issues of fact or law that are in dispute that would entitle [James] to an evidentiary hearing.  No colorable claims have been made.” With that unambiguous statement, all the allegations of ineffective counsel were denied on substantive grounds. The U.S. district court agreed and denied James’ federal habeas corpus petition.

The 9th Circuit holds the state court language is a procedural ruling, the petition is not decided on the merits, and therefore AEDPA is inapplicable. Having reversed all Arizona courts and the U.S. district court judge, the panel reversed the state court penalty phase and remanded for a hearing on mitigation evidence and the ineffective counsel allegation. A 1981 case reversed once by the Supreme Court and destined for another one (unless the 9th Circuit votes to hear it en banc).

The Supreme Court has verbally lashed the 9th Circuit repeatedly for evading AEDPA, and this case is a dramatic example of judicial misapplication of the record. Harrington v. Richter, 562 U.S._ (2011).  All the habeas corpus claims in Arizona state court assert ineffective counsel.   The state court judge in the last petition wrote a 38 page opinion clearly denying the validity of all the ineffective counsel claims.  There is no procedural interpretation and the case has been decided on the merits. Another example of 9th Circuit defiance of AEDPA and the Supreme Court.

Vega v. Ryan, 735 F.3d 1093 (9th Cir. 2013); Rewritten: 757 F.3d 960 (9th Cir. 2014)

Ignoring AEDPA again and writing a decision as though on direct appeal of a state court decision – a practice repeatedly condemned by the Supreme Court – a 9th Circuit panel reversed another case on collateral review.  Not only did the panel overrule the Arizona Court of Appeal and the Arizona Supreme Court, but reversed the U.S.District Court as well. All courts had denied the petition for habeas corpus.

The district court held an evidentiary hearing on the usual “ineffective assistance of counsel” argument alleging trial counsel had failed to read the records before trial. The  magistrate judge recommended dismissal of the petition for habeas corpus.  The district court judge agreed, but there is nothing in the record to show that counsel had failed to read the file when preparing for trial. The  9th Circuit panel cites no evidence in the evidentiary hearing to support that assertion.

Vega was convicted of sexual misconduct with his stepdaughter whose mother testified at trial her daughter had recanted her allegations. Despite cross examination of the victim on this issue, the jury convicted the defendant.  Several weeks after the trial, counsel learned the victim had previously recanted in talking with a Catholic priest.  No one, including Vega,  had told counsel about this evidence, and the Arizona Court of Appeal and the Arizona Supreme Court held this evidence not “newly discovered.”  The trial was the third trial against the defendant, and based on the two prior trials Vega and his prior trial lawyers were all aware of this recantation. Yet nothing in the record establishes the other lawyers or Vega  told counsel at the third trial. When counsel did learn of the second recantation he immediately filed a motion to vacate the verdict.  The trial court, in addition to the Arizona Court of Appeals, the Arizona Supreme Court and the  district court judge all denied the appeal and post verdict proceedings.

How can a lawyer be “ineffective” if the defendant knows about important information and fails to tell counsel about it? The panel says the additional recantation would possibly have tilted the balance in defendant’s favor.  If the jury hears the mother of the victim tesity her daughter recanted her testimony and the jurors nevertheless convicted the defendant, where does this judicial conclusion emerge?

Congress must address eliminating federal court habeas corpus review of state courts. The record demonstrates a constant misconstruction of which this case is another example.

Note: The 9th Circuit panel withdrew the original opinion and rewrote it resulting in the same judgment.

Lujan v. Garcia, 734 F.3d 917 (9th Cir. 2013); Cert. denied, 2014 WL 3854 265

Another state court conviction reversed by a 9th Circuit panel on habeas corpus grounds after the California Court of Appeal affirmed the verdict of first degree murder.

The evidence was overwhelming. The defendant Lujan repeatedly expressed his intention to kill his estranged wife.  He did so by lying in wait, smashing her head with a concrete block and, at the same time, killed a deputy sheriff whom she was dating. Killed the same way.

Detectives interviewed Lujan, informed him of his right to silence, and discussed the right to counsel but not precisely as worded in the standard Miranda card. Later on, the defendant asked if he could have an attorney present, and the detective explained obtaining an attorney on Sunday might be difficult but the decision was up to him.  The detective added some informal information and said the decision to have a lawyer lay in the defendant’s hands. Without reciting all the questions asked of Lujan, the tenor of the conversation was cordial and non threatening. The entire conversation was recorded and confirmed the absence of any coercion or threats.

At the trial in state court, Lujan admitted committing the murder, and the jury found him guilty. On appeal, the California Court of Appeal agreed the Miranda admonition “incomplete” but the confession at trial restating the same information Lujan  gave the detective created harmless error.  The federal district court on habeas corpus agreed on the incorrect explanation of of the Miranda warning. The 9th Circuit embraced this decision citing Harrison v. U.S., 392 U.S. 219 (1968-a case decided during the hey days of Supreme Court constitutional inventions).

The purpose of the Miranda rule informing suspects of the right to counsel and silence emerged to remove the constant argument of inconsistent statements between law enforcement officers and suspects occurring in a confined and threatening environment.  The Supreme Court attempted to eliminate allegations of “involuntary” statements elicited from suspects in custody by advising them of their right to silence and to the assistance of counsel. Well intentioned, but repeatedly expanded by other courts beyond its rationale as written by the Supreme Court.  Lujan is an example.

Because detectives did not read the form Miranda card but spoke to Lujan informally, without threatening or misleading him, the 9th Circuit panel granted habeas.  The trial court even ruled the confession was not involuntary.  In other words, the entire rationale underlying Miranda was absent. That consequence did not deter the 9th Circuit despite the California Court of Appeal decision or AEDPA.  In fact, because the defendant had confessed at trial, the admissibility of the confession in custody became redundant.  “No”, said the panel, if the inadmissible confession induced the defendant to testify it constituted “fruit of the poisoned tree” and could not be introduced in evidence.

Here is a case of a voluntary confession, confirmed by the defendant’s testimony at trial, upheld on appeal by a state court, but reversed by the 9th Circuit. The purpose of the Fifth Amendment prohibition of compulsory self incrimination is completely lacking in the  transcript of the confession.  The detective tried to explain to Lujan the option of talking to him or not, with or without an attorney.  According to the 9th Circuit panel, the detective failed to tell Lujan he could have an attorney before and during the questioning.  This is form over substance and a complete mis application of Miranda rationale.  Now a   man unquestionably convicted of murdering two people may go free or his retrial impaired.

It is time for Congress to end the endless charade of 9th Circuit reversals of state court convictions many years afterward on habeas corpus grounds.   Lujan is a perfect example. Under AEDPA the federal court has a heavy burden to reverse state courts on collateral review and must accept a reasonable state court decision-even if incorrect.  In reading the Court of Appeal decision, the state court judges interpreted the Miranda admonition and the questioning reasonably.

Note:  In November, 2014 the Supreme Court denied cert. in this 1998 case.  This unjust decision, quibbled over by a 9th Circuit  panel on habeas corpus after affirmance by the California Court of Appeal in a clearly established brutal murder case,  is a disgrace.  The 9th Circuit case is 14 years old and must be retried for the third time.

Stanton v. Sims, 134 S.Ct. 3 (2013) Affirmed on remand: 739 F.3d 450 (9th Cir. 2014)

In a case that had “reversal” written all over it, the Supreme Court reversed the 9th Circuit (again) in a brief per curiam opinion. The facts are written in the 9th Circuit opinion on p.2 of the blog (Sims v. Stanton), but briefly: at 1:00 a.m. an officer responded to a reported disturbance at a location in a gang area.  When he saw three men walking down the street, two quickly walked away into a nearby house but one continued. The officer, presuming that man might be involved in the disturbance, ordered him to stop. The man refused, hurried toward a gated house, and entered the yard. The office chased him, crashed through the gate, and accidentally collided with a woman standing behind the gate. She sued the officer who filed qualified immunity.

The 9th Circuit refused the defense, contending the officer violated the “curtilage” and committed a Fourth Amendment violation. Aside from the silliness of the plaintiff in suing an officer who accidentally injured her in pursuit of a man, the 9th Circuit denied qualified immunity.  The Supreme Court, without commenting on the absurdity of this case and the wholly inapplicable rationale of invoking Fourth Amendment law, held that the officer in hot pursuit of a suspect under the facts of this case can enter the curtilage without a warrant for misdemeanors (P.C.148-refusing to comply with lawful order) as well as felonies and upheld the defense of qualified immunity.

Apparently if someone is injured by a law enforcement officer, acting in the course of his duties, the 9th Circuit will find civil damages without any consideration of conduct accidentally inflicted without any intent to injure someone and does not even qualify as negligence.  The officer was unaware of anyone standing in the yard behind the gate at 1:00 a.m. in the morning.  In fact, the officer’s conduct was not even negligence let alone a 1983 case.

The 9th Circuit holds an embarrassing record of refusing to find qualified immunity.  Several years ago the court refused qualified immunity to officers who were in a high speed chase of an automobile.  The passenger either fell out of the vehicle or was thrown out, and the officers were unable to stop in time to avoid striking him.  In a 1983 lawsuit by the estate of the passenger alleging violation of due process, the 9th Circuit refused qualified immunity to the officer.  Reversed in a scathing opinion by the Supreme Court; County of Sacramento v. Lewis, 523 U.S. 835 (1998). There are more cases.

Urooj v. Holder, 734 F.3d 1075 (9th Cir. 2013

This Blog does not often discuss immigration cases because of their volume and despite innumerable judicial mistakes in the 9th Circuit.  But Urooj v. Holder, a 2-1 decision, illustrates the total absence of common sense in the 9th Circuit.

The undisputed record establishes that Urooj lied about her application for asylum, paid an “acquaintance” to memorize her false story at the IJ hearing, and who interpreted for her. At the IJ hearing, Urooj refused to answer any questions asked by the government lawyer who introduced her sworn statement conceding her false answers on grounds of impeachment. The IJ ordered her removal.

The 9th circuit panel held the government has the burden of proof to establish loss of a right to asylum. Why?  The person seeking asylum should have the burden of establishing the right to live in the U.S.  In any event, because the petitioner refused to answer questions posed by the government, the latter introduced her admission of false statements as impeachment (of her silence) evidence.  According to the 9th Circuit panel, since Urooj refused to answer questions, there was nothing to impeach, her silence was irrelevant, and no adverse conclusion could be drawn by the IJ.

Absurd.  This person, admitting she lied and refused to answer questions, is allowed to stay in this country?  Using evidentiary rules in litigation for impeachment in an IJ hearing?  If the panel insisted on using federal evidence law all they had to do was convert the impeachment statement to substantive law.  Is this panel decision form over substance? And now the case has to be reheard.  And we  wonder why the 9th Circuit has such a backlog and why we don’t review their immigration decisions.   This case can be decided in 2 paragraphs.