County of Los Angeles, CA v. Mendez,

Another U.S. Supreme Court reversal of the Ninth Circuit by the Justices who specifically identify the mistake of that Circuit in understanding the Fourth Amendment.

The Ninth Circuit had invented the “provocation rule” in criminal cases holding officers liable for conduct in violation of the Fourth Amendment prohibition of unreasonable searches and searches.  In most cases the prohibition suppresses any evidence seized in violation. Federal law has a civil component in Section 42.1983 allowing civil suit for Fourth Amendment violation although the Section does not foreclose admission of evidence. The remedy  is damages.

Officers searching for a parolee entered a makeshift shack without announcing their  identity and lacking a search warrant. The inhabitant, reaching for his BB gun to kill rats caused the officers to fire and injure the man (Davis). Davis sued under 1983 alleging  unlawful entry; absence of search warrant; excessive force. The Ninth Circuit found the excessive force a “seizure” unlawful and the wrongful entry presence of a weapon provoked the officers and the absence of a search warrant resulted in an unlawful search.

The Supreme Court reviewed the role of excessive force as a “seizure” should be a separate claim and an item separate from the other two claims and under Ninth Circuit rules used the two other claims to rule.  The Supreme Court rejects that rule that focuses on the officers subjective intent in lieu of an “unreasonable” seizure.

This analysis is difficult to follow but the case reviews the analysis the Ninth Circuit  should use.




Hall v. Haws, 861 F.3d 977 (9th Circuit 2017)

Not a death penalty case, just life imprisonment without parole for first degree murder. The California Court of Appeals upheld the conviction and sentence; the California Supreme Court denied review; state courts denied habeas corpus.  Now to the federal courts who issued and reviewed endless rulings on habeas corpus and a jury instruction until the district court granted the petition on procedural grounds.  The State of California appealed to the Ninth Circuit, and two of the three judge panel affirmed. The dissent skillfully corrected the error.

The only substantive issue in the case was a jury instruction. If the jury found evidence of property belonging to the victim in the defendant’s clothing at the time of his arrest they  could infer that fact was evidence of his responsibility for the crime.  The prosecution introduced  other evidence in addition to discovery of the victim’s ring  and guilt was well established.

After the panel discourse on habeas corpus the usual liberal panelists granted the petition because the jury instruction  was not just a state statutory error but a violation of due process, a constitutional error! Of course no precedent cited for that invention of the law. The majority conjured up error of the trial court, including a few comments on the California courts who had affirmed the conviction. According to the majority, all the State courts analysis of the jury instruction were unreasonable.

The case consists of an endless discussion of habeas corpus procedure loading up the federal court and then drafting a 2-1 decision. The California State Attorney General should seek certiorari in the Supreme Court. Another reversal will add to the Ninth Circuit record. Two courts, state and federal, review the same case of the trial and reading appeals.  After untold hours of federal time wasted, and all state courts affirm the conviction, and a federal court disagrees. When will Congress remove habeas corpus jurisdiction in federal courts?



Hedlund v. Ryan, 854 F.3d 557 (9th Cir. 2017)

Another state court death penalty case reversed by a Ninth Circuit panel accompanied by a strong dissenting opinion. After the jury voted the death penalty the trial judge reviewed the defendant’s record, including mitigating evidence, and confirmed the verdict. On direct appeal the Arizona Supreme Court affirmed the judgment and sentence.. Continue reading

Nasby v. McDaniel, 853 F.3d 1049 (9th Cir. 2017)

Were it not for the U.S. Supreme Court prior reversal of the U.S. Ninth Circuit Court of Appeals in this case, and reversals of an untold number of other cases, the Nasby case might make sense. Nasby was convicted of murder in 1999 and is still in court filing papers. The result of the decision in this case will require more filings.

Convicted in a Nevada trial court, Nasby’s direct appeal in the Nevada Supreme Court was denied. Several habeas corpus petitions of gibberish filed in state courts were also denied. Nasby filed federal court habeas, all from the state courts decisions, and the district court judge read all their summaries of the evidence. Petition denied. Nasby appealed to the Ninth Circuit.

The Ninth Circuit held that the district court judge should have read the trial record himself instead of the state court judges summaries. As a general rule, this decision is correct. But so many state courts wrote the same objections the sum total probably  matched those in the instant case. Then, unless a petition filed by either party in the Supreme Court is granted and reversed, the panel will remand the case to the district court judge with instructions.

All this for a 1999 conviction. This case illustrates the absence of any need for two jurisdictions to hear a case. The trial judge, direct appeal in state supreme court,  and repeated rulings denying the petition in state court yet the law allows a federal court to review a state court decision. In reality, the federal court reviewing a state court decision on federal habeas corpus undertakes a thorough retrial masked in alleging wrong motions, jury instructions, or some personal objection finding ineffective assistance of counsel. What is the possibility of another trial in a few years?

Hardy v. Chappell, 849 F.3d 803 (9th Cir 2017)

The 9th Circuit wrote one of its worst opinions in beginning the year 2017 that collected seven dissents.  In a state court murder case the jury convicted all three defendants but subsequent evidence established the jury convicted the wrong killer but sentenced death against all three. Evidence was overwhelming. The California Supreme Court affirmed the verdict although acknowledging the error.  The evidence established that the one defendant was nevertheless guilty, even though, not the actual killer, under a conspiracy theory or of aiding and abetting.

The defendant wrongly identified as the killer filed habeas corpus in federal court to avoid the death sentence but his petition was denied. He appealed to the 9th Circuit who reversed the state court judgment.   Additional hearings of the case were held but the panel finally amended its opinion on January, 2017. Incredibly, no rehearing was ordered. Seven judges dissented in lengthy dissents arguing the injustice of requiring a new trial over all three obviously guilty defendants.