Grace v. Herzog, 798 F.3d 840 (9th Cir. 2015); Reyes v. Lewis, 798 F.3d 815 (9th Cir.2015); U.S. v. Rodriguez-Vega, 797 F.3d 781 (9th Cir. 2015)

Another 9th Circuit opinion, oblivious to Supreme Court law, reverses a Washington state court appeal on a 2-1 habeas ground.  This panel simply will not read the  numerous opinions of the Supreme Court telling them to abide by habeas corpus rules and not reverse a state court opinion even if incorrect.  The Court further told the 9th Circuit in Davis v. Ayala, 135 S.Ct. 2187 (2015) that habeas corpus can reverse state court decisions only “to guard against extreme malfunction of its courts. ”

The jury convicted the defendant Grace on two misdemeanor counts and one felony count of attempted assault.  In one misdemeanor count the court instructed the jury on a lesser included offense.  In the attempted assault conviction the court did not instruct on the lesser included offence of “brandishing a weapon.”  Counsel for the defendant did not ask for this instruction, and according to the panel this omission constituted 6th Amendment ineffective counsel under Strickland. Not  a word of compliance to AEDPA or any “extreme malfunction” in Washington courts.

The panel cites numerous cases from other jurisdictions on inclusion of lesser included offenses in jury instructions, none from the 9th Circuit.  Some of these decisions hold failure to instruct the jury on a lesser included offense is ineffective counsel; others hold differently.  Naturally, the 9th Circuit panel take the petitioner’s  argument. As the dissent points out, AEDPA in federal courts is not a direct appeal; it is a collateral attack and the 9th Circuit must defer to state court opinions.  In addition, the petitioner was convicted of a felony.  Obviously the jury unanimously agreed; why would submitting a lesser offense instruction to the jury make any difference?

This case is another example of 9th Circuit indifference to Supreme Court law.  When will the Supreme Court strip the 9th Circuit of federal habeas?  The Grace court  cites not a single case to comment about the Supreme Court opinion on the Davis decision almost achieving that goal.

Ineffective assistance of counsel has been a 9th Circuit repeated attempt to override state courts when they could not find any legal error.  In this case, the same ruling is absurd. Rehearing or cert. recommended.

Reyes v. Lewis, 798 F.3d 815 (9th Cir. 2015)

The 9th Circuit panel granted habeas in another state court case with nothing but a direct review of the California Court of Appeal.  The Supreme Court has repeatedly objected to the direct appeal approach -which is this case – and the 9th Circuit continues to ignore it.  The case is nothing more than an interpretation of Miranda rules already decided by the California Court of Appeal.

U.S. v. Rodriguez-Vega, 797 F.3d 781, (9th Cir. 2015)

Immigration: Ineffective counsel

In a plea agreement by an illegal alien smuggler whom the BIA ordered deported, counsel told his client deportation was “virtually certain” based on the criminal proceedings.  The district  court ordered deportation  The 9th Circuit reversed because counsel should have told her she would be deported.  Ineffective counsel.

In the first  place, what is the 6th Amendment doing in immigration court?.  Thanks to Ferguson, Missouri citizen protector former faux Attorney General Holder who supported this kind of façade.  In this case, counsel told his client her deportation was “virtually certain.”  Considering that the client had pled guilty to assisting illegal entry of aliens, she must have known the result. No, said the 9th Circuit,  counsel must specifically say deportation will be the result.

In his declaration, counsel thought the offense might not be categorized by the court  as an aggravated felony-not a deportable offense alone.  He was wrong.  And the 9th Circuit  writes another obscure decision .