Jones v. Harrington, 829 F.3d 1128 (9th Cir 2016)

A convicted murderer will be released from prison  in this case based on a 9th Circuit opinion and cannot be retried absent rehearing or certiorari.

At trial, the prosecution introduced defendant’s confession of murder but without any other witnesses or physical evidence. The jury voted the death penalty, the trial judge affirmed the conviction, and the California Court of Appeal confirmed the judgment.   Jones filed habeas corpus in district court and the judge denied the petition.  Jones appealed to the 9thCircuit, and a 2-1 majority panel reversed the judgment on grounds the detectives violated the Miranda case.  The dissent took the majority to task.

Jones had been arrested and subsequently interviewed by two detectives. At one point during the conversation, Jones said “he didn’t want to talk any more,” but in the next sentence he said “because you [the detectives] aren’t listening” and continued talking. According to the majority, that first statement invoked Miranda and ended the conversation.  On its face, that interpretation is arguable, except in the next breath Jones continued talking.  In other words, he did not want to stop talking, he just wanted the detectives to listen, and he resumed.

Both interpretations are reasonable but in a federal habeas petition the 9th Circuit must defer to state courts under Supreme Court decisions. The majority ignored this injunction as it has so many times in the past. The majority said the detectives also lied to Jones  at another point in the conversation. The Supreme Court has never disapproved that ruse and, in fact, approved it. Jones was subjected to no threats, promises, or duress.  When the Supreme Court invented Miranda the rationale allegedly involved resolving the constant conflict between the officers and the suspect in respective versions of their conversations and to prevent any use of force or threats to a suspect in the secluded location of the police department.

This case turns into a Miranda debate between the panelists and an endless discussion of linguistics no suspect could understand. But once again the 9th Circuit uses its own decision and ignores the state court.  Rehearing is assured, and if denied and absent certiorari a murderer will go free on a misguided understanding he can now kill again.

Lopez v. Smith, 135 S.Ct. 1 (2014)

The overwhelming evidence in Lopez v. Smith ,135 S.Ct.1 (2014) 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 resembled a staged robbery. A California jury rendered a guilty verdict.

At the conclusion of the prosecution case, the prosecutor 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 the 9th Circuit 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 state court  conviction on grounds the state appellate court opinion “unreasonable.” The Supreme Court reversed, concluding the 9th Circuit had “time and again” misinterpreted the facts, finessed 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, 768 F.3d 1015 (9th Cir.2014) 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.

In Lopez v. Smith, and in innumerable other cases, 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).

Two years later the 9th Circuit panel amended its 2014 order, and six judges dissented from a denial of rehearing.  In scathing language, the dissenting judges cited the repeated 9th Circuit reversals  by the Supreme Court. In a footnote, the author of the dissent cited the late Justice Scalia and his list of citations for those cases; Deck v.Jenkins, 814 F.3d 954 (9th Cir. 2016).

Frustrated by 9th Circuit reversals is not a recent event for the Supreme Court. Several years ago the 9th Circuit reversed a California case involving a search and seizure involving the Fourth Amendment. Stone v. Powell, 428 U.S. 465 (1976). Police arrested and searched Powell pursuant to a local vagrancy law and found a weapon involved in his commission of a previous murder. Convicted, the sentence confirmed on appeal, and his petition for habeas corpus denied by the district court, Stone appealed to the 9th Circuit. The panel overruled the conviction on grounds of an unconstitutional vagrancy law.

Not only did the Supreme Court reverse the 9th Circuit, the Justices prevented the court from hearing any future state cases on Fourth Amendment issues. Undeterred, the 9th Circuit has found a circuitous route around this ruling in the civil rights statute. 42 U.S.C. 1983 permits standing to anyone who alleges a civil rights violation to file litigation seeking damages against the individual law enforcement officer and the employer. Because the Supreme Court has held that unlawful use of force on a person in the course of an arrest is an unreasonable seizure under the Fourth Amendment, a circuitous civil action escapes the ruling.

Mays v. Clark, 807 F.3d 968 (9th Cir. (2015)

Apparently the 9th Circuit has finally gotten the word to stop ignoring Supreme Court precedent and follow the law.  In a state habeas case admittedly containing evidence subject to reversal, the 9th Circuit’s most liberal judges actually affirmed a state court of appeal -although the facts are “troubling”, said the panel.

This case was ripe for reversal under 9th Circuit rules; a Miranda problem the panel would have solved in favor of reversal if not for the Supreme Court. Ninth Circuit judges like Miranda cases because the facts are easily reinterpreted and state court decisions ignored.

But the Supreme Court did deny cert. in a different excessive force case decided earlier by a 9th Circuit panel .  Perhaps the Mays case is just an accident.

Four 9th Circuit Cases Reversed (2016) [See, Section on Recent Cases]

Three weeks prior to the end of the current Supreme Court term the Justices have reversed four U.S. Court of Appeals Ninth Circuit decisions. Once again, the 9th Circuit has retained the award for the most reversed federal circuit court in the United States. Ignoring Supreme Court precedent and ruling on habeas corpus petitions de novo instead of the deferential mandate required by the Antiterrorism & Effective Death Penalty Act, 9th Circuit judges repeatedly tried to evade the statute by collateral attack of habeas corpus. All petitions for writs in these cases were previously denied by the California Supreme Court and federal district courts. Kernan v. Honojosa, 2016 DJDAR 4604.

Supreme Court animosity toward the 9th Circuit rose sharply in Johnson v. Lee 2016 DJDAR 5160. Filing habeas corpus in federal court requires all prior state court habeas corpus petitioners to have initially exhausted all their claims filed on direct appeal from a conviction in state court. The Supreme Court has previously held the procedural rules of a state court must be “firmly established and regularly followed.” The petitioner in Lee contended the California Supreme Court had not followed this rule.

After the California Supreme Court denied her petition, Lee filed habeas corpus in federal district court. Denied in that venue, she appealed to the 9th Circuit where the panel ordered the warden in California to prepare an analysis of the two year period the California Supreme Court had denied habeas without following the Supreme Court rule. The warden submitted a report but the 9th Circuit panel disliked the results and reversed the conviction for murder.

Reversed and remanded by the Supreme Court, the 9th Circuit panel reversed again. In review of this second decision the Supreme Court discounted the panel again and wrote “[T]he Ninth Circuit decision profoundly misapprehends what makes a state procedure adequate.” The California Supreme Court had firmly established and regularly followed the federal rule.

The Supreme Court added that federal habeas corpus will not lie when a petitioner does not allege trial court error on appeal from state court judgment of conviction. Lee never raised the alleged claim of procedural error on appeal from the judgment in state court. The Supreme Court reversed again. A California law professor commented that California had “notoriously unclear habeas procedures.” Apparently he has not read 9th Circuit reversals on habeas corpus.

Another procedural error occurred in Spokeo Inc. v. Robins, 2016 DJDAR 4566. Article III of the U.S. Constitution requires federal courts to limit their jurisdiction to “cases and controversies,” not abstract or hypothetical issues. Characterized as “standing,” the courts have not always agreed on the issue because each case is factually based and the definition ambiguous. In any event, personal injury is required, subject to judicial review and warranting the authority to provide a judicial remedy. According to the Supreme Court, when analyzing Article III standing the court must consider “concreteness” and “particularization.”

The Supreme Court discussed these issues in some detail and explained the distinction between the two elements. The justices concluded the 9th Circuit panel failed to satisfy both. “Particularization” refers to personal injury; “concreteness” requires a real injury, not an abstract one. The Supreme Court reversed and remanded for the 9th Circuit panel to apply these rules.

Unquestionably, procedural rules and their application lack dramatic impact. Yet, had the 9th Circuit decisions prevailed, an inmate serving a sentence for murder would have been released. Johnson v. Lee was tried in 1997. In Kerman v. Hinojosa the inmate was serving nineteen years for armed robbery. In both these cases retrial would have been highly unlikely and both inmates released.

Despite these cases, a 9th Circuit panel continued to reverse state courts collaterally on habeas corpus. In Currrie v. McDowell, 2016 DJDAR 5486, a murder case tried in 1995, the panel reversed the state court conviction on grounds the prosecutor peremptorily challenged a black juror under the rule in Batson v. Kentucky, 476 U.S, 79 (1986). The Batson decision and its result, invented by the Supreme Court without judicial precedent and mandating a new trial absent any legal error, are grossly disproportionate to the crime and completely unrelated to the trial and jury verdict. In Currie, a legally error free trial is reversed after two decades for excusing a juror. With a retrial unlikely, the 9th Circuit majority panel releases a convicted murderer.

In Currie, the murder conviction was tried by a California trial judge who denied the Batson motion; appeal to the Court of Appeals denied; review by the California Supreme Court denied; petition for a writ in federal district court denied. But the 9th Circuit three judge panel who have never tried a criminal case reversed fifteen judges. A1995 case ready for the Supreme Court.

That a murder case should be reversed by a federal court rendered in a solid conviction is disgraceful. The killer will go free on evidence entirely unrelated to the crime. And this 9th Circuit practice has been repeated repeatedly resulting in injustice to the people of the state.

The U.S. Constitution includes habeas corpus applicable to federal courts. No duplication of this rule in the Constitution applies to the states, and for over a century the federal court s never applied its Constitutional language to state courts except in rare cases involving sentencing. In Fay v. Noia, 372 U.S. 391 (1963) a 6-3 decision, Justice Brennan discovered an historical common law indigenous to habeas corpus and applicable to state court judges who ruled on federal questions.

As Congress continued to expand federal law, the federal courts began reviewing state court decisions involving questions of federal statutory and Constitutional questions. In time, the Supreme Court removed 9th Circuit habeas corpus jurisdiction in Fourth Amendment cases. Later, the Court ended 9th Circuit habeas review of state parole hearings. In the last decade the Supreme Court has frequently reversed the 9th Circuit in other state cases and tightened federal habeas corpus substantive and procedural review. These decisions have repeatedly reversed the 9th Circuit in innumerable decisions involving Constitutional issues.

The time has come for the Supreme Court to reinterpret federal habeas corpus law and remove the 9th Circuit from any further jurisdiction over state court decisions. Not only will removal reduce the endless appeals of 9th Circuit mandated retrials and the cost and interference with state sovereignty, the record would confirm finality of state court judgments and stop the endless reversals resulting in injustice. No reason justifies two jurisdictions trying the same case twice.


McDaniels v. Kirkland, 813 F.3d 770 (9th Cir. 2015)

Twenty years ago Congress enacted the AntiTerrorism and Effective Death Penalty Act (AEDPA;1996) limiting federal appellate courts, under strict  conditions, from granting  habeas corpus petitions overruling state court judgments. Although the Act applied to all federal appellate courts, the reversal record of the 9th Circuit provided the rationale for the statute.

Innumerable 9th Circuit cases were reversed by the Supreme Court during the two decades that followed enactment of AEDPA.  Ending the second decade in December, 2015, the 9th Circuit wrote McDaniels v. Kirkland, 813 F.3d 776 (9th Cir.(2015) and Shirley v. Yates., 2015 WL l 7422606.  Both cases cited the Supreme Court decision in Batson v. Kentucky, 476 U.S. 79 (1986). Batson, predicated on the all purpose Equal Protection Clause, disallowed peremptory challenges of potential jurors based on their race. 

In McDaniels, the court in a rehearing wrote that the pretrial written questionnaires of jurors in state trial court had been lost, and the record of defense objections to prosecution peremptory challenges on voir dire was challenged. Neither issue in McDaniels was submitted as part of the state appellate court habeas file. The Supreme Court decision in Cullen v. Pinholster, 563 U.S.170 (2011) prevents any federal appellate court on a habeas habeas petition to review evidence not presented in the state appellate court habeas review.   But that rule did not apply  in this case wrote the 9th Circuit.

The 9th Circuit rehearing in McDaniels held the evidence of a Batson violation was argued in the state trial court and therefore the federal court on habeas can consider all evidence even if the petitioner did not present it to the state appellate court. This evasion ignores Supreme Court precedent in Pinholster and common sense.

In Shirley v. Yates, a 9th Circuit panel decision written by a judge who had never tried a criminal case and who read the voir dire transcript of a state court trial, tried to find some reason for reversal of the judgment and state court confirmation on appeal. In fact, he opened the decision with an obvious dislike of the sentence imposed on the defendant.  Unable to find any state trial court error under conventional 9th Circuit reversals, no improper jury instructions on the merits or the sentence, no  ineffective counsel, no jury misconduct, no prosecutorial misconduct or failure to disclose exculpatory or mitigating evidence, the author of the Shirley opinion focused on voir dire.

The result exemplified an academic hair splitter opinion, lawyerly parsed, and unintelligible frustrating justice by reversing the California Court of Appeal and causing and freeing a guilty man unless the prosecutor can find all the witnesses. In the absence of a rehearing, the panel decision will cause another Supreme Court reversal to increase the 9th Circuit Shirley record.

The evidence in the case supported the jury verdict and denial of a motion for new trial.  Once again a 9th Circuit panel abuses its habeas authority, disposes of AEDPA on unsupported grounds, and ignores the Supreme Court warning to accept the judgment of the trial court judge in a Batson hearing. A guilty man escapes on  grounds of an alleged prosecution challenge based on race.

The Supreme Court has repeatedly written that the issue of voir dire and the use of peremptory challenges depends on an intangible variety of factors other then race.  Conduct, demeanor, uncertainty, language, and a judgmental sense are incapable of explanation.  Race does not necessarily result in the exercise of a challenge, and an appellate court reading a cold record cannot possibly determine factors the prosecutor considered at the trial.

The one person who can judge the rationale of a prosecutor in excusing a juror is the trial court judge.  A neutral, the trial judge can sense a reason for the dismissal or not.  The Supreme Court has stated the trial judge decision in a Batson hearing is virtually dispositive.  In this case the trial judge supported the prosecutor.The 9th Circuit panel who never saw any of the jurors, never heard them, tried to compare the questions with other jurors.   The questions can be exactly the same, and one juror accepted while the other excused unrelated to race.

This practice, named a “comparative juror analysis” enabled the panel to undertake an alternative Batson objection never made in the state appellate court or trial court.  Those judges, said the panel, should have rendered the comparative juror analysis.  This incoherent rule, again invented by the Supreme Court, requires the reviewing court to compare the questions and answers by excused  and non excused jurors in jury questionnaires and the trial record on voir dire. According to the 9th Circuit, the comparative juror analysis rule is the “only tool available for review.” This statement reflects the subjective opinion of a judge rendering judgment of the prosecutor without knowledge of any collateral facts.

Pre trial questionnaires may reflect some factors the prosecution (and the defense) want to know, but written responses are no substitute for actual questioning by counsel.  Answers to questions on paper are important, but verbal answers to questions the prosecution asks of a potential juror in court are more critical. The voice and personal presence of a potential juror outweighs the “comparative analysis” of reading a cold voir dire transcript.  The answers of the juror to prosecution questions on voir can be indecisive, inconsistent with the questionnaire, abrupt, querulous, language mistakes, uncertainty, or demeanor.  Any number of personal factors warrant exercise of a peremptory challenge, despite similarity of questions and answers between jurors excused and non excused.

Prosecutor decisions to excuse a potential juror are not based solely on the individual person. Intangible issues include the nature of the crime(s) charged, the experience of defense counsel, the judge, the witnesses level of credibility, the possible sentence, media publicity, use of accomplices, the composition with other potential jurors, and multiple defendants. In capital cases the attitude of a juror in imposing the death penalty, in addition to deciding the merits, may justify excusing a juror.

In the years that followed Batson, the courts were flooded with endless delays holding hearings prior to trial, and the decision provided an automatic ground for appeal in state and federal courts.  The 9th Circuit eagerly seized on Batson as another method to reverse state courts but was reversed by a unanimous decision of the Supreme Court with the comment “The 9th Circuit merely substituted its own opinion.” Rice v. Collins, 546 U.S.333 (2006).