Williams v. Swarthout, 2015 WL 4910100, (C.A. 9) [Non Pub.)

Another mistaken decision  by the 9th Circuit – which the panel left unpublished and simultaneously permitted a rehearing or rehearing en banc.

In 2014 a 9th Circuit panel reversed a California  Court of Appeal opinion on grounds the state court trial judge in a criminal case made a mistake in advising the jury who subsequently found Williams guilty; Williams v. Swarthout, 771 F.3d 501 (9th Cir. 2014).  Williams originally filed a petition for habeas corpus in district court. The district court agreed with the California appellate court and denied the petition. Williams appealed to the 9th Circuit, and the panel reversed the district court and granted the petition.  In its decision, the panel stayed enforcement and remand pending a Supreme Court case decision in Ayala v. Davis, another 9th Circuit case.

In Ayala, the Supreme Court reversed the 9th Circuit panel in very clear language, criticising it for refusing to defer to state courts as required by AEDPA.  Based on the Supreme Court ruling in Ayala, the 9th Circuit panel vacated its stay and issued a weak single paragraph (Swarthout v. Williams, 2015 WL 4910100) affirming the district court ruling denying habeas corpus and withdrawing its own previous opinion in Williams v. Swarthout 771 F.3d 501.

The same judge who has been repeatedly reversed by the Supreme Court wrote the original decision in Williams granting the petition for habeas corpus. Reversed again.

Shelton v. Marshall, 796 F.3d 1075 (9th Cir.2015)

A 9th Circuit panel, defying reason and determined to ignore Supreme Court precedent, has reversed another California Supreme Court conviction of a vicious and sordid murder case tried in 1981.  A petition for habeas corpus by Shelton submitted to the 9th Circuit in November 20, 2014, vacated without any explanation on November 25, 2014, and resubmitted on August 7, 2015, ought to be the end of habeas corpus jurisdiction in the 9th Circuit.  The decision is another example of 9th Circuit refusal to defer to state court rulings as required by the Supreme Court. The relevant statute of limitations for filing the petition had obviously run, but the court approved on grounds of ” newly  discovered evidence.”

Three men, including Shelton, Thomas and Silva agreed to kidnap someone for no apparent reason.  While driving in their vehicle, they stopped another vehicle by flashing a red light. Abducting the man and woman occupants, the three men put the victims in the back of Shelton’s truck and drove to a secluded cabin in the mountains of Lassen County. According to Thomas who testified at trial, whom the prosecutor offered immunity, Silva and Thomas  chained the man to a tree; the woman was not imprisoned but raped.

Thomas testified that on the following day, Silva and Shelton went out to see the man chained to a tree. Silva fired 45 bullets into the body of the victim followed by Shelton who fired additional shots. Silva and Thomas dismembered the body and concealed the parts in the ground. Silva killed the woman the following day. All three men were ultimately arrested.  Shelton led police to the dismembered body and admitted previously discussing kidnapping with Silva.

Prior to trial, defense counsel for Thomas told the prosecutor that his client was not following directions and might have a mental problem.  The prosecutor offered Thomas immunity,and defense counsel waived an evidentiary hearing on competency but the agreement was not disclosed to the court or jury. Shelton testified to a different version of the facts than Thomas, admitted his participation in the kidnapping, but had killed no one.  The jury found him guilty of kidnapping, first degree murder of the male victim, and second degree murder of the woman. For some reason, jurors did not impose the death penalty. The California Court of Appeals affirmed the conviction, and the California Supreme Court denied review.

Years later, after allegedly discovering the pre trial arrangement between defense counsel for Thomas and  the prosecutor, Shelton filed a habeas petition in the California Superior Court.  The court denied the petition on the ground the evidence sufficient for conviction without evidence of the agreement between the defense lawyer and the prosecutor.  Shelton filed a petition in the district court.  Denied on the same grounds.

The 9th Circuit panel on appeal, in an opinion by the same judge who has never affirmed  a death penalty case in a decade and reversed by the Supreme Court  more than any other judge, reversed on Brady grounds.  According to the judge, the potential of impeachment of Thomas by introduction of the pre trial agreement could have affected the jury verdict.  Aside from the futility of this objection-the jury listened to the evidence of Thomas and Shelton and obviously disagreed with Shelton’s version of the facts as ludicrous.  Three men kidnap two people, drive them to  a secluded location, chain the man, kill him, rape the woman and then kill her. Shelton testified he didn’t know Silva was going to shoot the man.

The jury listened to Thomas’ testimony and obviously understood it without any  competency hearing necessary.  The jury would have considered any inconsistencies in Thomas’ testimony. In addition, Thomas did admitt at trial he had been promised immunity if he testified.  This is standard prosecution practice in murder cases and always argued to the jury by defense counsel.  The jury was well aware of the possibility of self interest.  And Thomas could have refused to take any competency test in any event.

The 9th Circuit used the California Superior Court habeas corpus decision, the “last reasoned decision” despite prior affirmance of the conviction by the California Court of Appeal and denied review by the California Supreme Court. First, the panel listed the rules under Brady and  said the Superior Court had not complied with the third rule requiring prejudice to the defendant, i.e “material” evidence, the judicial equivalent of “prejudice” to the defendant.  The panel, lacking any legal error at trial and ignoring the California Court of Appeal and California Supreme Court, held the  real issue on appeal is: the evidence did not prove Shelton committed first degree murder which requires premeditation and deliberation.

If you kidnap two people, transfer them to a secluded cabin, chain one victim to a tree and then shoot him, that is not evidence of deliberation or premeditation for murder in the first degree-particularly when Shelton discussed kidnapping with Silva beforehand?  Shelton could only be convicted of murder in the second degree of the woman because Thomas gave no testimony implicating Shelton.

AEDPA did not apply, said the panel,  because the Superior Court decision was not a “reasonable application of Supreme Court law.”  (Nor the California Court of Appeal, the California Supreme Court, and the federal district court.) This is the new 9th Circuit rule on appeal to avoid AEDPA.  No evidence established Shelton guilty of first degree murder in the absence of premeditation and deliberation. This decision is not habeas corpus; it is a direct appeal prohibited by the Supreme Court. And it is naivete at its worst.

The panel wrote that the prosecution had produced no direct evidence of first degree murder, only circumstantial evidence-both equally considered under California law.  Yes, Shelton did not confess to establish “direct evidence.”  But the jury did not consider Shelton’s absurd testimony, and they accepted the Thomas version of the facts.  If we look at footnote 15 and its incomprehensible concession that Shelton might have lied (having no self interest) and ignoring his implausible testimony, he would not have been convicted of murder.  This makes no sense.  The woman was killed by Silva and there is no evidence Shelton was involved.  Her murder was of the second degree as to Shelton, no doubt in his culpability as an accomplice. Silva had been convicted of murder in the first degree.

The panel vacates the first degree murder conviction of Shelton on the ground of lack of premeditation.  The duty of a federal appellate court is to state the law, not retry the case and find the absence of premeditation despite all the contrary decisions of California courts and their own district court.  But the panel gratuitously allowed the District Attorney to retry this 1981 case.

Note: Silva had also been convicted several years ago and the 9th Circuit reversed his conviction on the same flimsy ground of non disclosure of the agreement between defense counsel and prosecution;  279 F.3d 825 (9th Cir. 2002); 416 F.3d 980 (9th Cir. 2005).  The jury sentenced Silva to death but the 9th Circuit wrote another of its usual familiar decisions on the death penalty. For some reason, the California Attorney General (Lockner) did not seek certiorari.