Wilkerson v. Wheeler, 772 F.3d 834 (9th Cir. 2015)

Only in the 9th Circuit can a panel ignore the pleadings and invent a rule never sought  in the Complaint or argued at trial. Wilkerson, a prison inmate under life sentence for crimes not described by the panel, filed a 42 U.S.1983 case against state correction officers alleging claims of questionable constitutional dimension. He had previously filed an administrative complaint dismissed by state prison officials; his state habeas corpus petition was denied; he then filed his 1983 complaint in U.S. district court.  At trial, the jury denied his allegations. Wilkerson appealed to the 9th Circuit.

Prison Corrections officers testified at trial they informed Wilkerson to return to his cell after he had copied some of his documents.  He refused, and officers were compelled to physically restrain him in compliance with their order.  Under the Heck v. Humphrey case, 512 U.S. 477 (1944) an inmate cannot testify in a 1983 case if a jury decision would render an attack on his sentence or duration of imprisonment.  But, according to the 9th Circuit, Wilkerson had been sentenced for life and therefore the Heck case inapplicable.  In other words, an inmate sentenced for life can file a 1983 case without restrictions imposed by 1983 Supreme Court law.

The 9th Circuit panel recited the officer’s testimony that Wilkerson refused to obey their order to return  to his cell, and he kicked and twisted.  The district court had denied Wilkerson his testimony under the Heck doctrine, and, in effect, the officer’s testimony was uncontradicted.  The 9th Circuit panel said the Heck rule prevented Wilkerson from testifying to the facts, but he could allege legal error.  How you allege legal error without the facts is an interesting question.

So, the panel said the district court judge had not instructed the jury correctly and that  the error is a legal question, not a factual issue.  Had Wilkerson testified that he offered no physical resistance, said the panel, the jury  might have found the officers used excessive force. Therefore, the judge should have modified the jury instruction to say the conduct Wilkerson engaged in for 1983 purposes did not have to necessarily be physical (according to Wilkerson.). That is the legal error. Oh.

Not only is this academic hairsplitting absurd, this jury instruction was never submitted,  argued or briefed by Wilkerson. He objected to the Heck rule that he could not testify but made no request for the district court to explain that resistance may not necessarily be confined to physical evidence.

Here is a case of a life sentence imposed prisoner whose administrative complaint in prison against the correction officers was denied; his habeas corpus petition denied; his trial lost, has now added to the time it took to have a jury originally find him guilty (the panel does not describe the crimes he committed to warrant a life sentence.)  The 9th Circuit has reversed the district court in this 1983 case, and now the judge must conduct another 1983 trial with some kind of modified jury instruction.  A frivolous complaint matched to a frivolous decision. Congress enacted the Prison Reform Litigation Act (42 U.S.C. 1997) to prevent just this kind of judicial verbal manipulation.

Mann v. Ryan, 774 F.3d 1203 (9th Cir. 2014)

Another death penalty case reversed by a 9th Circuit panel in a 2-1 majority. This case qualifies as one of the worst decisions ever rendered  by a 9th Circuit panel and warrants an en banc hearing.  If denied, when the case on certiorari goes to the Supreme Court, their reversal language will exceed any other in their constant chastisement of the 9th Circuit.  This case does not even come close to the repeated explanation of federal habeas corpus authority issued by the Supreme Court.

This case is a 1989 execution planned by Mann, and he executed it by killing two men inside a house. Mann and another person scrupulously cleaned and renovated the house where the execution occurred, both destroyed their weapons and buried the dead bodies in a remote location.  The former girlfriend of Mann was present during the crime .Later, she reported the crime to police and testified at the trial.  The jury convicted Mann, who did not testify, and the judge imposed the death sentence.

Even the majority opinion demonstrates excellent representation by defense counsel.  At the sentencing hearing, counsel had introduced more than enough mitigation testimony at the trial, including a psychologist who testified Mann’s  head injury suffered as an adolescent did not affect his judgment.  Evidence that Mann thoroughly cleaned the house of any incriminating evidence, destroyed the weapons, and dumped the bodies in a remote area hardly suggests any cognitive impairment.

The Arizona Supreme Court affirmed the merits and sentence. The federal district court affirmed.  On appeal to the 9th Circuit, Mann alleged the usual “ineffective assistance of counsel” argument -so commonly used in the 9th Circuit the judges refer to it by its acronym; IAOC).  At an evidentiary hearing held after trial, the defense lawyer testified he considered recusing himself because the defendant wanted to lie at the trial, and counsel would not engage in perjury.  Further, Mann  had previous convictions which would make impeachment of his testimony even worse.  There is not a shred of mitigating testimony that would have changed the judge’s sentence.

Not according to the 9th Circuit panel, citing Strickland v. Washington, 466 U.S. 668 (1984) and ignoring all the Supreme Court habeas corpus jurisprudence demanding the 9th Circuit to respect AEDPA and not to rule on collateral review as you would on direct review. The test: to reverse on  habeas corpus: the federal court must find the state decision had been the result of an incompetent state judicial system.  The rest of the Mann opinion cites alleged failures of counsel to get medical records, interview witnesses, and other defense tools.

According to the panel, the sentencing judge mistakenly applied the Strickland standard as “clearly established federal law.”  The author of the Mann opinion should have read all the Supreme Court cases on the double deference accorded to state court decisions required to violate Strickland.

No lawyer in the 9th Circuit can escape the obvious fact that the death penalty will never be invoked no matter what it takes – including misinterpretation of the law as evidenced by the judicial manipulation in Schad v. Ryan.

For confirmation of this observation, read the dissent.

Some day, the Supreme Court will forbid federal habeas corpus in the 9th Circuit just as the Justices did in state search and seizure and parole cases. Ninth Circuit  panels have issued a  constant stream of opinions based on ineffective assistance of counsel when the court cannot find legal error.

Here is what the Supreme Court told the 6th Circuit about habeas corpus in Burt v.Titlow, 134 S.Ct. 10 (2013)   “AEDPA instructs that, when a federal habeas petitioner challenges the factual basis for a prior state-court decision rejecting a claim, the federal court may overturn the state court’s decision only if it was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding;” 28 U.S.C. § 2254(d)(2). The prisoner bears the burden of rebutting the state court’s factual findings “by clear and convincing evidence.” § 2254(e)(1). We have not defined the precise relationship between § 2254(d)(2) and § 2254(e)(1), and we need not do so here. See Wood v. Allen, 558 U.S. 290, 293, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010). For present purposes, it is enough to reiterate “that a state-court factual determination is not unreasonable merely because the federal habeas court would have reached a different conclusion in the first instance.” Id., at 301, 130 S.Ct. 841. AEDPA likewise imposes a highly deferential standard for reviewing claims of legal error by the state courts: A writ of habeas corpus may issue only if the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by” this Court. § 2254(d)(1).

[3] Headnote Citing References[4] Headnote Citing References AEDPA recognizes a foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights. “[T]he States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause. Under this system of dual sovereignty, we have consistently held that state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States.” Tafflin v. Levitt, 493 U.S. 455, 458, 110 S.Ct. 792, 107 L.Ed.2d 887 (1990). This principle applies to claimed violations of constitutional, as well as statutory, rights. See Trainor v. Hernandez, 431 U.S. 434, 443, 97 S.Ct. 1911, 52 L.Ed.2d 486 (1977). Indeed, “state courts have the solemn responsibility equally with the federal courts to safeguard constitutional rights,” and this Court has refused to sanction any decision that would “reflec[t] negatively upon [a] state court’s ability to do so.” Ibid. (internal quotation marks omitted). Especially where a case involves such a common claim as ineffective assistance of counsel under Strickland—a claim state courts have now adjudicated in countless criminal cases for nearly 30 years—“there is no intrinsic reason why the fact that a man is a federal judge should make him more competent, or conscientious, or learned … than his neighbor in the state courthouse.” Stone v. Powell, 428 U.S. 465, 494, n. 35, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (internal quotation marks omitted). [Headnote Citing ReferencesRecognizing the duty and ability of our state-court colleagues to adjudicate *16 claims of constitutional wrong, AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court. AEDPA requires “a state prisoner [to] show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error … beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. ––––, ––––, 131 S.Ct. 770, 786–787, 178 L.Ed.2d 624 (2011). “If this standard is difficult to meet”—and it is—“that is because it was meant to be.” Id., at ––––, 131 S.Ct., at 786. We will not lightly conclude that a State’s criminal justice system has experienced the “extreme malfunctio[n]” for which federal habeas relief is the remedy. Id., at ––––, 131 S.Ct., at 786 (internal quotation marks omitted).






Ryan v. Henry, 775 F.3d 1112 (9th Cir. 2014)

The Supreme Court reverses the 9th Circuit more than any other federal court, and the current term will duplicate that record.  But in the 9th Circuit’s latest case some of the “usual suspects” try another device to avoid the death penalty as they did in Schad v. Ryan.  That case is an embarrassing rendition of “appellate abuse” described by the Supreme Court.  The 9th Circuit panel ignored the mandate of the Supreme Court denial of Schad’s petition for certiorari.  Instead, the 9th Circuit panel returned his case to the district court for further hearings. That 9th Circuit decision is not a case of negligence; it was a defiance of the Supreme Court intentionally rendered.

The 9th Circuit has done it again.  Ryan v. Henry is willful appellate defiance of federal rules of procedure.  The mind numbing rendition of the procedural history of the case is an attempt to once again subvert a death penalty decision. The Supreme Court had denied Henry’s petition for certiorari on an issue of alleged structural error in the trial court and his appeal denied by a 9th Circuit panel. Henry petitioned for a rehearing of  the result and sought reconsideration of the en banc hearing.

Granted- in violation of 9th Circuit rules- the panel reheard the petition in conjunction with a related case.  In a final decision by the Chief Judge, he denied the petition to stay the proceedings until the related case  was decided. The unrelated case (with similar issues) was consolidated, argued and the court ruled the stay in Henry was decided.

In this thirty year old case, Henry only argued the penalty.  Factual innocence was never an issue.