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.. 1486

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.

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

Posted by Commentator on  December 5, 2017

Category: Habeas Corpus

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 state court of appeal held that the trial court judge correctly ruled by excusing a single juror who explicitly said he would not follow the law.  A perfectly correct decision but not in the 9th Circuit who reversed the state court on habeas corpus.  Naturally, the Supreme Court reversed the 9th Circuit for not following Supreme Court precedent and ignoring AEDPA. The Supreme Court remanded the case to the 9th Circuit (again) who upheld the California court this time. Yet even

Once again the 9th Circuit ignores the IJ and BIA and concludes the evidence does not support an order of removal.The panel orders the case reheard for an alien who has been in this country for eight years litigating his removal after not complying with the entrance act for asylum. The dissent writes about safety in this country and alien’s non compliance with the law. Why does the 9th Circuit want these people in this country?

Crittenden was convicted of murder in 1995, and the case affirmed on mandatory appeal to the California Supreme Court. The 9th Circuit on habeas corpus appeal wrote rehearings and remanding to the District Court. Finally in 2011 the district court made another decision on remand.The case has been sitting in the 9th Circuit for another five years. Finally, in 2015 the 9th Circuit concluded the prosecutor had violated Batson. In 2016 what are the chances of retrying a murderer? The ground for appeal by the defendant: the

Arrested, tried, and convicted for a  a major robbery spree committed by Frost in 2003, (thirteen years ago) he was tried in state court, and the overwhelming evidence convinced the jury of his guilt. On appeal in state court, the justices denied his argument of “structural” error at the trial. Frost argued the trial court had refused to allow his counsel to argue the prosecution had not established its burden of proof, and, in addition he committed the robbery under duress. This inconsistent argument to

Although the Blog no longer tracks immigration cases due to the volume and fact based evidence, occasionally one appeal exemplifies the 9th Circuit. Some judges on the 9th Circuit are so  predictable that their name on the panel  hearing a case on appeal predicts the result. William Fletcher fits that role.  He has never affirmed a death penalty case, always sides with the petitioner in habeas corpus, and allows immigrants with a criminal record to remain in the

When the Constitution was written, the authors from the thirteen states would never have approved federal court review of their own state court decisions. Only after a century of constitutional enactment did the U.S. Supreme Court discover habeas corpus enabling federal review of state criminal cases. The 9th Circuit continues to rule repeatedly on state court cases ignoring or mis applying  Supreme Court decisions (for a list of decisions reversing the 9th Circuit, see Deck v. Jenkins,.   Hardy is no exception. Hardy v. Chappell, a

A well written case on the Fourth Amendment. Although the Fourth Amendment is in the Bill of Rights, the Supreme Court has held it is not a constitutional right nor a personal right. The purpose of the exclusionary rule is to protect the right by excluding evidence in criminal cases lacking probable cause to arrest or search and only to avoid extreme police misconduct.  Evidence of exclusion in a criminal case is not excluded in civil

At least some judges on the 9th Circuit are applying the Supreme Court mandate to apply deference to state court decisions on federal habeas.  To a 2-1 panel majority the petitioner had argued the prosecutor allegedly implied from her closing statements that the defendant did not take the stand and submitted no rebuttal evidence to the prosecution case. The Supreme Court has disallowed any comment at trial on the failure of a defendant to testify  under the aegis of the Fifth Amendment. 

Curiel v. Miller, 830 F.3d 864 (9th Cir. 2016)

Posted by Commentator on  August 10, 2016

Category: Uncategorized

Ten years ago a jury convicted Curiel of murder and sentenced him to life imprisonment. All state court hearings affirmed the conviction as did the three judge 9th Circuit panel.  Reheard, the panel reversed on grounds the California court rules misapplied tolling.  One judge, Stephen Reinhardt concurred in a lecture informing  California courts how to operate.  Reinhardt should know, after all, he and the 9th Circuit have been reversed by the Supreme Court more than any other court in the country . He does make

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

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

Posted by Commentator on  July 30, 2016

Category: Habeas Corpus

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

Both these 9th Circuit cases were reversed by the Supreme Court.  The decisions were reviewed by Commentator and printed in the Los Angles Daily Journal. Kernan was reversed on the wrong use of “standing” by the 9th Circuit panel.  Spokeo was reversed for failure to use the deferential  standard of AEDPA.  

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

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

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

There is something unusual about this case. It was initially decided on an unknown earlier date but the published date is in December, 2015. The facts in the case are allegations of a sex violation to a minor who testified.  The prosecution also introduced a lengthy confession by the defendant. The jury convicted. The California Court of Appeal affirmed, the California Supreme Court denied review, as did the federal district court on habeas.  The defendant appealed to the

U.S. v. Lee, 821 F.3d 1124 (9th Cir. 2016)

Posted by Commentator on  May 21, 2016

Category: Habeas Corpus

  A dissenting judge in the U.S. 9th Circuit Court of Appeals has finally written a scathing  accurate dissent in a case and commented on repeated jurisprudential clashes between the court and the U.S. Supreme Court. U.S. v. Lee. Other 9th Circuit judges have previously dissented in opinions within the boundaries of submitted cases, but not always challenging decisions of the circuit in the language of Judge Ikuta in Lee. For the last decade

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