U.S. v. Apel, 134 S.Ct.1144 (2014) reversing (9th Circuit

Ninth Circuit reversed again.  Although defendant Apel was decided by the Supreme Court in February, 2014, and the remand issued immediately, the 9th Circuit did not get around to finally deciding the case until September, 2014. Even then the panel had to amend its opinion for reasons unclear.  The Supreme Court had basically reversed the 9th Circuit opinion and all the panel had to do was affirm the district court judgment against Apel. /wich they did in one paragraph.  U.S. v. Apel, 767 F.3d 800 (9th Cir. 2014).

The case was factually uncontested. The 9th Circuit had held federal statute 18 U.S.C. 1382 (prohibiting civilians from entering a section of a military base) inapplicable to Apel who had been repeatedly informed his conduct (throwing blood at a military sign and walking on prohibited areas) was unacceptable. The Supreme Court merely held military property is under the jurisdiction of the commander of the base and he was entitled to prevent people from committing misconduct. The Supreme Court dismissed the argument that the military had allowed an easement for civilian traffic qualified as limited federal jurisdiction.  Unanimously reversed.

Ryan v. Wood, 135 S.Ct., 21 (2014) reversing Wood v. Ryan, 759 F.3d 1076

The 9thCircuit has used every conceivable device to reverse state court death penalty decisions.  When unable to find any legal error on collateral review, the panel invokes “ineffective assistance. of counsel.”  The Supreme Court decision in Martinez v. Ryan permitting ineffective assistance challenges to post conviction counsel offered the 9th Circuit another opportunity for reversal.  But Wood v. Ryan, a 2-1 decision, exceeded all expectations in any death penalty case.

A state of Arizona jury found Wood guilty of first degree murder and sentenced him to death.  After all the customary delay incurred by the 9th Circuit on federal habeas, the panel ran out of excuses. The Arizona judge signed Wood’s death warrant, and the State scheduled an execution date.  Wood filed a petition seeking a stay of execution citing First Amendment grounds.   Yes, free speech, freedom of religion, free press and assembly forbade execution without a hearing.  According to defense counsel, Wood was entitled to know what drugs the state intended to use. The court granted the stay!

The dissenting opinion characterizes this argument as ” novel.” No, it is not novel.   There are far better denigrating words to describe this absurd tactic.  It took the Supreme Court 24 hours to vacate this complete departure from reason.  Worse yet, it adds to the 9th Circuit reversal record now at an all time high.

In succession, another 9th Circuit decision was reversed by the Supreme Court decided even before the new term began in October.   And on the opening day of the new term the Supreme Court reversed the 9th Circuit again in a per curiam opinion criticizing the appellate court for “time and again” refusing to fellow precedent. Then, one week later, the Supreme Court granted two more certs. from the 9th Circuit.

Clabourne v. Ryan, 745 F.3d 362 (9th Cir. 2014)


Another death penalty case decided by 9th Circuit citing the Supreme Court decision in Martinez v. Ryan, 132 S.Ct. 1309 (2012), a case Justice Scalia predicted would add to the chaos of federal courts of appeal.  Clabourne is an example of that foresight in this  1982 conviction. Martinez permits an inmate to allege ineffective assistance of counsel on post conviction proceedings if the state disallows this defense on appeal.

As usual, the facts are brutal and warrant the death penalty.  Clabourne and two of his friends invited a woman to their house to serve drinks.  Upon her arrival, Clabourne raped the woman, stabbed her, and then strangled her.  An autopsy revealed numerous puncture wounds on the body of the victim.  In addition to several witnesses who offered confirming testimony implicating Clabourne, the prosecution introduced a complete confession to a deputy sheriff.  The jury voted the death penalty.

The Arizona Supreme Court reversed the sentencing on grounds of ineffective trial counsel and remanded for resentencing. The judge sentenced the death penalty again and the state supreme court affirmed. At a federal habeas proceeding the district court denied the Clabourne petition alleging ineffective representation of counsel during remand for resentencing for failure to present additional medical evidence and not objecting to the confession (Miranda) introduced at the original trial. Clabourne appealed to the 9th Circuit.

After conceding that a previous 9th Circuit opinion (Deitrich v. Ryan) was inconclusive under Martinez, the panel rambles on about what standards should be used for the Martinez case under an ineffective counsel Strickland claim.  The panel finally decides to remand this 1982 case again after discussing the Miranda issue.  The law on Miranda had changed after the original trial and the panel held the resentencing was a new trial and the decision should be made under the new Supreme Court case.

Comment: Justice Scalia was right. Martinez will make a shambles of federal corpus already in place at the 9th Circuit.  Resentencing is not a trial.  it is only the penalty phase.  This case will remain in the court forever.