Tuesday, September 30, 2008

Federal Habeas Corpus Reigned In : Crater v. Galaza, 491 F.3d 1119 (9th Cir. 2008)

In Crater v. Galaza, 491 F.3d 1119 (9th Cir. 2007) a three judge panel of the Ninth Circuit upheld Congressional enactment of 28 U.S.C. 2254 (d) (1) formally known as the Antiterrorism & Effective Death Penalty Act (AEDPA). A petition for rehearing and rehearing en banc was denied.Five judges dissented from the denial of rehearing and one dissenter wrote an opinion contending Congress lacked power to enact AEDPA. Crater became the law of the circuit but another Ninth Circuit panel was considering the same issue in Irons v. Carey, 505 F.3d 846 (9th Cir. (2007) and decided after Crater. One of the judges in Irons sought supplemental briefing from counsel on the Constitutional authority of Congress to enact AEDPA, clearly signaling Congress acted in violation of the separation of powers doctrine. After supplemental briefing, the Irons court grudgingly acknowledged Crater foreclosed their opinion as precedent in the Ninth Circuit.For that reason the author of the Irons opinion wrote the dissent in Crater.Only four other judges joined his opinion. The Crater court confines itself to a discussion of separation of powers and the right of Congress to limit federal intervention in reviewing state court convictions.AEDPA restricts federal courts from issuing a writ of habeas corpus unless the claim asserted by a state court prisoner "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Although this language is not explicit, the statute unmistakably aims to curtail the power of federal courts. Although the Supreme Court has not expressly determined the constitutionality of AEDPA, the Justices have had the opportunity to address the issue and declined to do so; Williams v. Taylor, 529 U.S. 362 (2000). Reasonable minds can differ on the separation of powers doctrine.But the language of the dissenting judge in the denial of rehearing is disturbing, even approaching arrogance.The judge frequently refers to the curative power of federal courts in correcting the judgment of state courts."Thus, the federal court is required under AEDPA to uphold a state court proceeding that it determines violated the Constitution. . . Other language proclaims the superiority of federal courts in reviewing state court convictions different than their own interpretation.The irony lies in a federal court correcting state courts when the Supreme Court has reproached the Ninth Circuit repeatedly for ignoring precedent and wrongly interpreting the law in 21 out of 22 cases during the 2006-2007 term. In an earlier Blog (Click on Blog, above) entitled "Vindictive Prosecution" we reviewed USA v. Jenkins, 504 F.3d 694 (9th Cir. 2007) foreclosing prosecutors from prosecuting Sharon Jenkins for a crime she testified to committing on the witness stand defending herself from charges of another crime.The petition for rehearing en banc was, astonishingly, denied over the dissent of seven Ninth Circuit Judges.The lead judge in dissent wrote this: "By concluding that prosecutors should have sacrificed the resources necessary to pursue the charges before Jenkins admitted to the crimes under oath, the opinion oversteps our judicial function. . . the Jenkins opinion creates the preposterous rule that a defendant can shield himself from future prosecution for unrelated crimes by openly admitting to them on the stand;" Jenkins.

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