Doe v. Ayers, 782 F.3d 425 (9th Cir. 2015)

Another case written by a 9th Circuit panel reversing jury imposition of the death  penalty phase of a state court trial. Unsurprisingly, the judge who wrote the 39 page opinion – including footnotes – has never affirmed a capital case and was allegedly “randomly” selected..  The judge, “randomly” selected in a disproportionate number of cases on death penalties, has been reversed by the Supreme Court more than any judge in the country. Nor has the second judge on the panel ever affirmed a death penalty case. If the case is not reheard en banc, the Supreme Court will hear it.  And reverse.

The court starts with the observation that the procedural history of the case began in 2005, ten years ago, with the Supreme Court in reversing the 9th Circuit and ordering remand.  Without exploring the habeas corpus arguments, apparently Doe still has another pending case in addition to the current case.

In a curious and probably unlawful act, the panel deleted captions naming the district court judge and the defendant -petitioner- himself.  This hypocrisy will also be challenged. There is no authority for this, or at least the court cites none.

The facts of the brutal murder are horrific, and the judge writes that all murders are in that category. But, he writes, in capital cases the crime must be “egregious.” to warrant the death penalty.  There is no citation for this disgusting and insensitive characterization of raping and murdering a handcuffed woman in this case.

The merits of this case and the penalty were confirmed  by the California Supreme Court and the federal court district judge, but the petitioner filed his petition before Congressional enactment of AEDPA enabling the 9th Circuit panel to evade the rules of current jurisprudence-in which the court has repeatedly been reversed by the Supreme Court .  As noted in the next post, the 9th Circuit is finished with granting habeas corpus in state cases filed after 1996-the year Congress enacted AEDPA.

The court panel concludes that the attorney who tried this case did so “ineffectively” but insufficiently to warrant reversal on the merits.  On the penalty phase the court writes endlessly on the lack of experience and the mistakes of appointed counsel.  Curiously, in a subsequent hearing this lawyer agreed he made mistakes.  Why did the trial court, monitoring the case, not sense these mistakes and inquire of counsel of the course he was taking?  In any event, this disclosure by the attorney almost suggests he made these mistakes on purpose to preserve an appeal of a guilty client.

Without reviewing the horrible, but not “egregious,” facts, any jury would have imposed. the death penalty regardless of any mistakes by counsel.  The evidence of guilt is overwhelming and the mitigating evidence is the usual defenses.

Note: To read a more sensible and less theoretical death penalty case, see Elmore v. Sinclair, 2015 WL 1447149.

Woods v. Donald, 135 S.Ct. 1372 (2015)

Woods v. Donald is a 6th Circuit case on certiorari, but  the Supreme Court has now indirectly prevented the 9th Circuit from circumventing state courts in habeas corpus cases.  The facts in the case are relatively unimportant; it is the Supreme Court language that applies to a challenge by petitioner of ineffective assistance of counsel. Under the familiar 28 U.S.C.2254  (AEDPA) statute a federal court can only order habeas corpus if a state court decision on the merits is “contrary to, or involved an unreasonable application of, federal law as determined by the Supreme Court …” The 9th Circuit has repeatedly evaded this statute and reversed state court decisions invoking a direct review procedure rather than a collateral one.
Here is the Supreme Court language in Woods: “AEDPA’s standard is intentionally‘ “difficult to meet,’ White v. Woodall, 134 S.Ct. 1697, 1702 (2014) (quoting Metrish v. Lancaster, 133 S.Ct. 1781, 1786 (2013). We have explained that ‘clearly established Federal law’ for purposes of s. 2254 (d)(1) includes only the holdings, as opposed to the dicta, of this Court’s decisions.’ White, 134 S.Ct @ 1702 . And an ‘unreasonable application of’ those holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice.’ 13 4 S.Ct. @ 1792 (same). To satisfy this high bar, a habeas petitioner is required 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 well understood and comprehended in existing law beyond any possibility for fairminded disagreement, Harrington v. Richter, 131 S.Ct. 770 (2011). Adherence to these principles serves important interests of federalism and comity. AEDPA’s requirements reflect a presumption that state courts know and follow the law.’  Woodford v. Visciotti 123 S.Ct. 357 (2011). When reviewing state criminal convictions on collateral review, federal judges are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong. Federal habeas review thus exists as ‘a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal, Harrington v. Viscotti, supra. This is especially true for claims of ineffective assistance of counsel, where AEDPA review must be ‘doubly deferential’  in order to afford ‘both the state court and the defense attorney the benefit of the doubt.’ Burt v. Titlow, 134 S.Ct. 10, 13 (2013)  (quoting Cullen v. Pinholster, 131 S.Ct.1388 (2011).”
The Court continues to expand these rules by instructing ederal courts to dentify a Supreme Court case relevant to the claimant’s challenge.  In cases alleging ineffective assistance of counsel, the ruling is doubly deferential (as in Woods v. Donald’s claim.)   The Court added additional language on according state courts comity and federalism, and issued a clear warning to the 9th Circuit that it discontinue its reversal of state court cases on habeas corpus.


9th Cir. Recent Cases in Supreme Court 2014-2015 Term

At  the end of the year 2014 we begin reviewing all 9th Circuit cases reversed by the Supreme Court during the 2015 calendar year. The end of the calendar year does not coincide with the Supreme Court term which began in October, 2014 and concludes in July, 2015. In January, 2015 the current term will continue. So, we include all the cases in 2014-2015 in the current term.

All the cases decided during the year from January 1, 2014  to January 1, 2015 cited here are in the Blog for further discussion.


Habeas Corpus: The Supreme Court gave the 9th Circuit another harsh lesson on habeas corpus in a 6th Circuit case.  (This Circuit is trying to match the 9th Circuit reversal record); Woods v. Donald, 2015 WL 1400852.  See the Blog for discussion.

Habeas Corpus: A week before the current term of the Supreme Court had even begun, the Justices reversed the 9th Circuit; Scialabba v. de De Osorio, 134 S.Ct. 2191 (2014). When the current term opened on October 6, 2014 the Court again reversed the 9th Circuit in a unanimous per curiam opinion. Lopez v. Smith, 135 S.Ct. 1 (2014).The overwhelming evidence in Lopez v. Smith cast no doubt he had killed his wife in their house. Police found Smith’s DNA evidence: on the body of the dead victim; on the lethal weapon; on jewelry removed from the house where the murder occurred concealed in the trunk of his car. A criminal evidence expert testified the ransacked house was a staged robbery. The jury rendered a guilty verdict of murder.

At the conclusion of the prosecution case, the prosecutor had obtained a trial court approved jury instruction defining the crime of aiding and abetting in addition to first degree murder instructions already submitted. Defense counsel objected, arguing he had no notice of the change in prosecution theory. All California appellate courts have rejected this argument, as did the trial court and Court of Appeal in this case, on grounds anyone who aids and abets is as guilty as the principle. The 9th Circuit panel on habeas review disagreed and overruled the California courts.

In Lopez v. Smith, and the cases cited above, the 9th Circuit has repeatedly evaded the restrictions imposed on federal habeas corpus jurisdiction mandated by the AntiTerrorism and Effective Death Penalty Act (AEDPA; 28 U.S.C. 2254). Federal law allows habeas relief only “if the state court decision was contrary to, or involved, an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. 2254 (d) (1). Parker v. Mathews, 132 S.Ct. 2148 (2012)..

AEDPA also requires federal courts “deference” to state appellate courts in habeas proceedings. The 9th Circuit panel in Lopez cited only their own precedents, and overruled the conviction on grounds the state appellate court opinion “unreasonable.” The Supreme Court reversed, concluding the 9th Circuit had “time and again” misinterpreted the facts and Supreme Court law under AEDPA and ignored deference to state courts.

               Lopez v. Smith is a heavily cited per curiam opinion without footnotes, but the dissenting opinion in Deck v. Jenkins lists an embarrassing number of Supreme Court cases reversing the 9th Circuit for failing to comply with AEDPA. In one Supreme Court case a Justice singled out the 9th Circuit for repeated violations of AEDPA committed by panels’ misapplication of habeas corpus precedent. In addition, the 9th Circuit has ignored or evaded almost every state court death penalty case for the last decade on habeas corpus grounds despite California Supreme Court affirmation on the merits and the penalty.


Immigration: De Osorio v Mayorkas, 134 S.Ct. 2191 (2014).  The district court had originally upheld a BIA decision interpreting an immigration statute and was affirmed on appeal by the 9th Circuit panel.  Rehearing was granted en banc and reversed; 695 F.3d 1003  (9th Cir.) by the usual judges.  Cert. to the Supreme Court and the en banc decision reversed. In a tiny one sentence order the 9th Circuit on remand affirmed the district court.

Immigration: Aragon-Salazar v. Holder, 769 F3d 699 (9th Cir. 2014. Petitioner appealed the BIA decision not to allow him to file cancellation of removal because he lied subsequent to his application and ineligible under the relevant statute. The 2-1 majority held the statute ambiguous as to when it was timely. The dissent skewers this reasoning.(Oct. 29, 2014).

Immigration: Kerry v. Din, 718 F.3d 856 (9th Cir 2014). Petitioner was denied a visa based on security concerns.  The 2-1 majority decided the court had judicial review of this administrative decision issued by the Secretary of State.  Here is the dissent: “The majority opinion acknowledges the doctrine of consular [State Dept.] nonreviewability and the “highly constrained” nature of our judicial review of the denial of a visa, see Bustamante v. Mukasey, 531 F.3d 1059, 1060 (9th Cir.2008), but in practice it fails to accept that doctrine and act within that constraint. Instead, assuming that judicial review must be more robust, it imposes upon the Government an obligation to provide information about a visa denial that, by statute, the government is specifically not required to provide when it denies a visa based on concerns for national security or terrorism. I respectfully dissent.”

Petition for cert granted: 135 S.Ct. 44