Ayala v. Davis illustrated another 9th Circuit device to stall imposition of the death penalty evidenced by its per curiam opinion written by the same judge who has never affirmed a death penalty conviction in state courts. The Supreme Court reversed.
In Davis v. Ayala,135 S.Ct. 2187 (2015) the Supreme Court rejected a Batson motion granted by the 9th Circuit decision in Ayala v. Wong, 756 F.3d 656 (2014). On remand, the Justices did not address other Ayala claims, including a claim of state violation of the Vienna convention. So, now the 9th Circuit on remand had to review a claim not resolved in its original reversed opinion. And critics ask why executions take so long.
The district court had denied Ayala’s Vienna motion but neither the 9th Circuit nor the Supreme Court ruled on it. Had the 9th Circuit found in favor of Ayala in its per curiam opinion (2016 WL 61002), another appeal to the Supreme Court would have been filed by the state. Fortunately, the 9th Circuit denied the Vienna claim with knowledge the Supreme Court had already denied similar claims in state courts.
This case is not an unusual 9th Circuit device for delay. On appeal from the district court, leave some claims without decision and rule on other claims. If the Supreme reverses the claims asserted, it cannot rule on claims not addressed at the 9th Circuit level and require remand and resolution, another hearing-and possible appeal again to the Supreme Court.
For a discussion of the original case, see above, Davis v. Ayala, 135 S.Ct. 2187 (2015).
A federal district court judge in Jones decided the California death penalty was unconstitutional on grounds it violated the Eighth Amendment. The judge ruled, citing no case, after encouraging the petitioner to amend his original petition which had not alleged any Eighth Amendment violation. On appeal, the 9th Circuit panel cautiously reversed the district court pursuant to a Supreme Court decision disallowing new Constitutional rules by federal appellate courts on collateral review. The 9th Circuit has ignored that rule indirectly for over a decade.
The 9th Circuit appellate panel in Jones cited Teague v. Lane, 489 U.S. 288, a case holding that “federal courts may not consider novel constitutional theories on habeas review. That principle serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered.” Sawyer v. Smith, 497 U.S. 227.The 9th Circuit has reversed so many state court cases by citing its own precedents, and ignoring or distinguishing Supreme Court decisions, that its panel decision in Jones was a surprise. The panel reversed the district court.
But apparently other 9th Circuit panelists did not agree, and in Deck v. Jenkins the 2-1 majority wrote one of the worst opinions ever-and that is saying a lot. In Deck, six judges, responding to denial of an en banc hearing, wrote a scathing dissent contending the majority panel reversal of the state court decision disrespected Supreme Court decisions, particularly Davis v. Ayala, 135 S.Ct. 2187 (2015). In Davis the Supreme Court specifically lashed the 9th Circuit verbally for ignoring AEDPA. According to the Supreme Court, federal habeas corpus exists only to review the failure of the state court procedural machinery. Never mentioned by ;the panel majority in Deck.
The 2-1 majority in Deck contended somehow Brecht v. Abrahamson, 507 U.S. l619 undermined AEDPA. Aside from the dissenting judges in Deck, how this decision could possibly occur was repudiated by a footnote in the dissenting opinion. The late Justice Scalia citied fourteen cases of Supreme Court reversals of the 9th Circuit for failing to apply AEDPA.
This decision in Deck, surely to be granted cert., ought to be the final straw for the Supreme Court in allowing 9th Circuit jurisdiction in habeas cases from state courts.