This case was originally written by the Supreme Court in October, 2014 (Smith v. Lopez, 135 S.Ct.1 (2014), reversing the 9th Circuit panel decision in Lopez v. Smith, 731 F.3d 859 (9th Cir. 2014), and discussed extensively in Recent Cases in the 9th Circuit Watch blog.
On August 21, 2015, in a one paragraph order, the 9th Circuit panel wrote that the Supreme Court had reversed Lopez in an October 2014 per curiam decision.The 9th Circuit panel took almost one year to publish its reversed decision. One year to read a Supreme Court per curiam decision? And in that decision, the justices not only reversed on legal grounds but specifically named the 9th Circuit as violative of Supreme Court decisions.
In addition, this 9th Circuit order written today that ” the judgment of the district court granting Smith’s petition for a writ of habeas corpus is REVERSED, and the matter is REMANDED…[to the district court] (caps in original).” Nothing said about the 9th Circuit panel not only reversed but severely reprimanded by the Supreme Court.
This case is discussed more thoroughly in the blog on Commentary.
This case was originally submitted December 24, 2014; rehearing granted in December 2015. As of July, 2016 no further decision.
There is no need to summarize this case. Judge Kozinski tells us the result of another 9th Circuit reversal of a state death penalty case: “Once more unto the breach. Time and again, we have been admonished for disregarding Congress’s clear instruction that federal judges in habeas proceedings must adopt a’highly deferential standard’ under which state-court decisions [are] given the benefit of the doubt. Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam) (internal quotation marks omitted). In clear violation of this principle, the majority today seizes upon imprecise language in a single sentence of a state court’s otherwise well-reasoned and comprehensive opinion, and uses it to sweep aside AEDPA’s restrictions on the scope of our review. The majority not only fails to faithfully apply Supreme Court precedent, it also creates a split with two other circuits.”
“If we are not summarily reversed, Mann’s death sentence will surely be reimposed by the state court. One way or the other, Mann will be executed, if he doesn’t die of old age first. But only after he—and the families of the two people he killed 25 years ago—endure what may be decades of further uncertainty. Where’s the justice in that? I respectfully dissent from Part III of the majority’s opinion.”
“This is not an unusual case. The state court, though it may have used some loose language, did nothing unreasonable. Defense counsel, though he could have pursued more evidence, was entirely competent, even expert. Yet the majority holds that the state of Arizona is unable to carry out the punishment it lawfully imposed. It was almost twenty years ago that Eric Mann was sentenced to death for his self-serving and sadistic crimes. That’s how long it takes to navigate the tortuous path from initial sentencing to federal habeas review. Our justice system cannot function effectively if we are compelled to re-start the arduous post-conviction process in even a typical case such as this. No judge or lawyer is perfect. Holding them to unreasonable standards means that capital defendants—and the families of their victims—live out their whole lives in an interminable cycle of litigation.
There’s no virtue to endless delay; we disserve all concerned when we paralyze the judicial process. I would respect the state of Arizona’s sovereign judgment and allow Eric Mann to suffer the punishment justly and lawfully imposed on him.”
These words eloquently justify criticizing the 9th Circuit panels who repeatedly overrule state courts and reject the analysis the Supreme Court has imposed on it in habeas corpus cases.
Usually we do not discuss immigration cases due to the volume of 9th Circuit litigation-which usually reverses the BIA. Now and then a case comes along that frustrates immigration judges. And if the public knew about the 9th Circuit record that would demand a change.
The petitioner came to this country illegally from El Salvador in the mid 70’s as a young boy allegedly fleeing torture. In 1992 he was convicted of voluntary manslaughter, sentenced to eleven years in prison, and placed in removal proceedings. Thereafter, he spent several years in seeking relief (10 years) in legal action in the U.S. The BIA ordered his removal and the petitioner appealed to the 9th Circuit contending he was entitled to withhold removal under one federal statute and a deferral of removal under another federal statute (Convention Against Torture (CAT). The BIA held petitioner did not file evidence of any deferred removal claim and is ineligible to seek removal. CAT allows deferred removal if the petitioner is subject to torture if returned to his original country.
The 9th Circuit undertook a study of a “crime of violence” prohibiting deferral under CAT using its “categorical approach” and concluded the federal statute requires evidence of an intentional act. But California law of voluntary manslaughter does not require an intentional act. Therefore, the conviction of voluntary manslaughter does not constitute a “crime of “violence” under the federal statute. The panel ignored looking at the charge and sentence for manslaughter and its implications. Eleven years is a strong sentence. Nor did the panel look at the transcript of the charge and sentence even if a review court is restricted to the statutory language.
The other kind of “categorical approach,” a modified version, was not raised by the government so they waived it, said the panel. But the petitioner did not waive deferral of removal by not filing supporting evidence in his brief. So an illegal alien convicted of voluntary manslaughter can stay (or return) in the United States on remand unless the BIA can find differently. Had the 9th Circuit reviewed the California statute, the charge and sentence, and whether the manslaughter was intentional, even if not statutorily required, they might have differed. Maybe.
In a footnote, the panel states that petitioner was removed in 2013 and banned from returning within ten years. You would think this case moot. Apparently not.