Browning v. Baker, 875 F.3d 444 (2017 (9th Cir.)

In 1996 Congress enacted the AntiTerror and Effective Death Penalty Act (AEDPA) to reduce the impact of a U.S. Supreme Court decision adding federal habeas corpus in the U.S. Constitution to jurisdiction in state courts. Federal courts began to review state court criminal cases in habeas corpus petitions to reverse judgments already decided. The imposition exceeded its expectation as federal courts rendered decisions far exceeding legislative intentions.

In time, the language of the Act came very close to almost ending federal habeas review of state courts. Federal appellate courts, particularly the Ninth Circuit, evaded the statutory language and was repeatedly reversed by the U.S. Supreme Court. In the words of a Supreme Court Justice, AEDPA was intended “only to guard against extreme malfunction in the state justice system not a substitute for ordinary error correction through appeal.”

This test rarely fits the decisions of the Ninth Circuit as demonstrated in a November 2017 case of Browning v. Baker. No case illustrates better a complete disregard of AEDPA and its purpose as expressed in the dissent. The 2/1 majority opinion in Browning is just that in the words of the Justice: correction through appeal. The majority repeats the entire state court trial record of a robbery admittedly involving conflicting testimony. The jury, who sat through the trial and evaluated testimony and its credibility, unanimously voted for “guilty.” The majority of judges in the Ninth Circuit saw no witness, and the trial judge made no legal mistakes-including affirmation of the jury verdict. But the majority in the Ninth Circuit didn’t like some of the witnesses and re tried the case. Certiorari  is assured.






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