Friday, December 18, 2009

Quon v. Arch Wireless Operating Co., 529 F.3d 892 (9th Cir. 892 (2008); City of Ontario, Cal. v. Quon, 130 S.Ct. 2619) (2009)

In a personal attack upon a dissenting judge, the Ninth Circuit panel in Quon v. Arch Wireless Operating Co., Inc. wrote this: "No poet ever interpreted nature as freely as Judge Ikuta interprets the record on this appeal. The dissent is not bound by the facts, even those found by the jury; nor is it confined to the actual fact-driven Fourth Amendment holding. The dissent's lofty views of how the City of Ontario Police Department (OPD) should have guided the use of its employees' pagers are far removed from the gritty operational reality at the OPD. I write only to correct the seriously flawed underpinnings of the dissent and to demonstrate that our opinion carefully and correctly applied the tests set forth in O'Connor v. Ortega, 480 U.S. 709, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987). That our opinion follows Supreme Court precedent and accords with our sister circuits is obviously why this appeal failed to win the support of a majority of our active judges for rehearing en banc." "The dissent selectively recites facts to support its disagreement with the outcome of our panel's Fourth Amendment analysis (citation omitted). Set forth below are the key factual findings that the dissent either mis characterizes or over-looks entirely." Apparently this injudicious and tactless arrogance did not persuade the Supreme Court. The Justices granted cert.; City of Ontario, Cal. v. Quon, 2009 WL 1146443 (C.A. 9). The Supreme Court reversed, City of Ontario, 130 S.Ct. 2619 (2010). Apparently the sarcastic and insulting personal attack, including its own careful consideration of the law was wrong.  Just wrong.  

Monday, December 14, 2009

Prisoner's Rights: Supreme Court Reverses Ninth Circuit: Phillips v. Hust, 129 S.Ct. 1036 (2009); Remand Confirms Qualified Immunity; Phillips v. Hust, 588 F.3d 652 (9th Cir. 2009)

Hust v. Phillips, 507 F.3d 1171 (9th Cir. 2009); Reversed by Supreme Court In Phillips v. Hust, 129 S.C 1036 (2009) the Supreme Court reversed the Ninth Circuit and that court rewrote its opinion, denied denied petitioner's request, and confirmed the right of the librarian to qualified immunity; Below is the original Ninth Circuit opinion reprinted from an earlier Blog: February 3, 2009. Prisons are not for comfort, or literary pursuits. Prisons exist to punish those who have committed heinous crimes. For another example of wasting judicial resources, in Phillips v. Hust, 507 F.3d 1171 (2007) a Ninth Circuit panel criticized the librarian at a state prison for not permitting Phillips to use a copying machine to file his petition for certiorari in the Supreme Court. Although the Ninth Circuit never identified a date of Phillips imprisonment, the District Court referenced the eighteen years of litigation. The librarian denied the allegation. Moreover, the Ninth Circuit denied the librarian qualified immunity and sent the case back to the district court for computation of damages; Phillips v. Hust, 477 F.3d. 1070 (9th Cir. 2007). Award: $1500.00; Phillips v. Hust, 338 F.Supp.2d 1148. The dissent in the Ninth Circuit deplores the majority reasoning and its refusal to allow the librarian qualified immunity. Here is the language of the dissenting judge: All I can add to [the dissent of another judge] is my utter astonishment that were leaving an opinion on the books that not only denies the prison librarian qualified immunity but actually holds her liable. Her transgression? Failing to help a prisoner bind a brief in a way thats not even permitted . . . by the Supreme Courts rules. Its perfectly clear that a timely petition, bound or unbound, would have been accepted by the Supreme Court . . . How the prison librarian violated any of his rights, let alone his clearly established rights, is a mystery that repeated readings of the majority opinion do not dispel . . . The dissent was signed by a total of ten judges. The case arose on summary judgment but the Attorney General filed a petition for review in the Supreme Court. Review granted; January, 2009; 129 S.Ct. 1036 (2009). Petition Granted 1/26/2009: 129 S.Ct. 1036 (2009). Reversed. On remand to the Ninth Circuit the court granted librarian Hust's motion for summary judgment; 588 F.3d 652 (9th Cir. 2009)

Wednesday, December 2, 2009

First Amendment Establishment Clause: Ninth Circuit Eliminates State Voluntary School Program; Winn v. Arizona Christian School Tuition Organization, 562 F.3d 1002 (9th Cir. 2009)

When drafting the First Amendment prohibiting the establishment of a national state church, the authors of the Constitution would never have anticipated the inordinate amount of litigation over judicial interpretation of the text. Because all schools in 1787 were private, no one worried about public assistance to private schools. And the first ten amendments to the Constitution applied only to the national government, not the states. All that has changed since the Supreme Court "incorporated" the First Amendment into state law. Few would quarrel with an Establishmentment Clause violation if a State program provided outright gifts of public funds to private schools. But several states have attempted to offer an option to parents of children who elect to attend private schools, in most cases religious ones. Tax credits, vouchers and other alternatives survived the Establishment Clause in the decision of the Supreme Court in Zelman v. Simmons-Harris, 536 U.S. 639 (2002). The Court held that if the State offers vouchers to all school children who have an opportunity to participate, the program does not "establish" religion. The Arizona Legislature enacted legislation allowing parents to set up a program, admittedly detailed, but essentially allowing school children to participate in alternatives to public schools and receive a tax credit. All children could participate in any school of their choice. The State did nothing more than offer parents an option they could elect for their children. . The Arizona Supreme Court upheld the program, (Kotterman v. Killian, 972 P.2d 606 (1999) yet dissatisfied taxpayers filed a claim in U.S. District Court alleging the Arizona program violated the Establishment Clause. The district court dismissed the case (Winn v. Hibbs, 361 F.Supp. 2d 1117 (2005) and the plaintiffs appealed to the Ninth Circuit. Despite similarity of the Arizona program with the voucher system approved by the Supreme Court in its Zelman decision, a three judge panel of the Ninth Circuit held the statute violated the Establishment Clause. The Ninth Circuit refused to hear this case en banc, confirming again the animus toward religion that exists in that circuit. The dissenting judge dissected the reasoning of the three judge panel in an opening paragraph: "I dissent not only because Winn cannot be squared with the Supreme Court's mandate in Zelman, but also because the panel's holding casts a pall over comparable educational tax-credit schemes in states across the nation and could derail legislative efforts in four states within our circuit to create similar programs. In short, the panel's conclusion invalidates an increasingly popular method for providing school choice, jeopardizing the educational opportunities of hundreds of thousands of children nationwide." Not only is the Winn decision biased against religion as one judge noted in an unrelated case- the American people are not in danger of a theological jihad- by allowing a tax deduction but its decision overrules the Arizona Supreme Court in yet another example of disrespect to the shield of state sovereignty. Ten years after the Arizona Supreme Court upheld the legislation, a federal court of three unelected tenured federal judges dismantles the program.

Thursday, November 19, 2009

Wong v. Belmontes, 130 S.Ct. 383 (2009)

This Blog recited the evidence of the horrifying facts in Ayers v. Belmontes 549 U.S. 7 (2006); Blog, July 2006. The jury convicted Belmontes and voted the death penalty. The California Supreme Court affirmed the conviction and penalty in 1988; Peo. v. Belmontes, 755 P.2d 310 (1988). Unable to obtain post-trial relief in state courts, Belmontes filed a petition for habeas corpus in federal court. The U.S. District Court denied the petition but on appeal the Ninth Circuit discovered instructional error and reversed; Belmontes v. Woodford, 350 F.3d 861 (9th Cir. 2003). California sought cert., and the Supreme Court reversed the Ninth Circuit for its failure to follow Supreme Court precedent. In a two line decision, the Justices and sent the case back to the Ninth Circuit for reconsideration of its decision; Brown v. Belmontes, 544 U.S. 945 (2005). In its "reconsidered" decision, the Ninth Circuit reversed again on grounds counsel for Belmontes was "ineffective;" Belmontes v. Ayers, 529 F.3d 834 (9th Cir. 2008). The State of California sought cert. again in the Supreme Court. Granted. The Supreme Court reversed the Ninth Circuit in an opinion decrying Ninth Circuit reasoning as incomprehensible; Wong, Id., 130 S.Ct. 383 (2010).
On remand, the 9th Circuit was "compelled" to confirm the District Court denial of habeas corpus; 608 F.3d 1117 (2010).

Sunday, November 15, 2009

Brodheim v. Cry, 584 F.3d 1262 (9th Cir. 2009)

A California state prisoner, Brodheim, filed an action (presumably 42 U.S.C. 1983) alleging prison officials violated his First Amendment rights. "The claimed violation occurred when a prison official denied Brodheim's written 'interview request,' and noted on the denial that Brodheim should be 'careful' what he writes and requests in his administrative grievances. This was also followed by a request from the same official that Brodheim be transferred out of the California Medical Facility (CMF) due to his filing of grievances and this lawsuit;" Brodheim, Id. This "grievance" led the Ninth Circuit into an endless discussion of the law on prison staff retaliation against prisoners exercising First Amendment rights. That this frivolous and innocuous complaint described above against a prison official (Cry) warrants federal court intervention is ludicrous. In effect, that's what the U.S District Court said in dismissing the Complaint, and that's what the California Court of Appeal said on Brodheim's petition for habeas corpus in State court. On appeal from the district court decision, the Ninth Circuit notes that Brodheim had filed sixty complaints against prison officials. According to the the Ninth Circuit panel, the "warning" on the administrative report harmed him by "chilling" his exercise of Constitutional rights to file a Complaint. First, the Ninth Circuit disposes of the prison official's (Cry) contention the case is resolved under the doctrine of res judicata. The panel launches into an incomprehensible discussion of res judicata and the differences in analysis by California courts and federal courts. Second, the Ninth Circuit also states the law of retaliatory action toward a prisoner alleging violation of First Amendment rights is "clearly established." By what court? Not the Supreme Court because all the cases cited for this proposition in Brodheim are Ninth Circuit cases. To the extent the Supreme Court has established a basic First Amendment right of prisoners to file grievances, no one would classify Brodheim's absurd complaint as worthy of litigation. And this is not the first time the Ninth Circuit has heard Brodheim's cases. In a previous decision, the Ninth Circuit actually reversed a different U.S. District Court judge who had ruled that Brodheim was entitled to "work credits" in prison under the Equal Protection and Due Process Clauses. Brodheim is serving a life sentence in prison for murder. California law prohibits awarding work credits for prisoner sentenced for life as it is irrelevant. That District Court judge is the same one now running the California prison system.

Wednesday, November 11, 2009

Bobby v. Van Hook, 130 S.Ct. 13 (2009)

The Ninth Circuit has repeatedly reversed death penalty cases on grounds of "ineffective counsel." With a single exception, the Ninth Circuit overruled, in effect, every state supreme court decision affirming a conviction and sentence in death penalty cases since the year 2000. No matter what investigation defense counsel undertook to investigate and present mitigating evidence, the scope was always deficient.
In Van Hook, a unanimous Supreme Court wrote a narrow decision criticizing the Sixth Circuit for slavishly adhering to the ABA rules on the duty of defense counsel in capital cases. Although the Supreme Court focused on, and rejected, ABA rules as "guidelines" for defense counsel, the Justices indirectly criticized federal courts insisting on an endless quest by defense counsel for mitigation evidence.
In Van Hook, the Supreme Court never mentions the Ninth Circuit record of reversals of capital cases, but its decision warrants the conclusion that judicially arguing over whether counsel "investigated enough" is no longer sufficient to set aside a death penalty case already affirmed by a state court. In all cases the Ninth Circuit invokes habeas corpus to mandate a new trial, release from custody, or re sentencing despite decisions by a trial judge, the state supreme court, and a U.S. District Court judge who have affirmed the trial and sentence.
Reversed & remanded.

Thursday, November 5, 2009

U.S. v. Moriel-Luna, 585 F.3d 1191 (9th Cir. 2009)

Moriel-Luna entered the United States four times illegally, was arrested, convicted and sentenced each time for commission of various crimes. Each time he was ordered deported after serving his sentence. After his first deportation order he married a U.S. citizen. In his latest appeal of the fourth deportation order, he argued the IJ had failed to inform him after his first deportation hearing of the potential for adjusting his status. The Ninth Circuit remanded to the IJ to determine whether Luna was properly informed of that potential, and if not, whether he had been prejudiced; 244 Fed.Appx. 810 (C.A. 9). On rehearing, the IJ rejected his application because Luna could not adjust his status unless he possessed a visa. He didn't, and the IJ ordered his deportation. Luna appealed to the Ninth Circuit. After an extensive discussion of immigration law in a case that could have been disposed of in two paragraphs, the Ninth Circuit panel affirmed the IJ order. But in a footnote the court said that one of Luna's convictions, an assault with a deadly weapon, might not be a federal firearm offense and therefore not a basis for deportation based on his conviction for assault with a deadly weapon. What cost to the public for four illegal entries?: Entering the county four times illegally (Border patrol); arrested after entry for a crime each time (police); four times in custody (Sheriff); four times prosecuted (prosecutor and defense lawyer); court time four times (judge; court staff); four times in prison (prison guards) ; IJ time (two hearings-IJ and staff); Court of Appeal time [twice]) (3 judges and staff).

Tuesday, October 20, 2009

Ineffective Counsel: Ninth ; Sechrest v. Ignatio, 549 F.3d 789 (9th Cir. 2008); McDaniel v. Sechrest, 130 S.Ct. 243 (2009) (U.S.) Cert. Den.

The Supreme Court has denied cert. in McDaniel v. Sechrest, 2009 WL 2058161 (C.A. 9) in yet another "ineffective counsel" case. Apparently the defense lawyer stipulated that the prosecutor could call a doctor who had examined Sechrest in the capacity of a defense witness. Although obviously unusual, defense counsel testified in a post evidentiary hearing that he thought the testimony would be more favorable. Admittedly questionable, but if the defendant had called the witness the testimony would have been the same. Or, if he did not call the doctor at all, there would have been no testimony. The result would have been the same. Here is the Ninth Circuit summary of the evidence: "On May 14, 1983, [the defendant] kidnapped and murdered ten-year old Maggie Weaver and nine -year-old Carly Villa. A few weeks later, two men found the girls' bodies in [a canyon] a remote area east of Reno, Nevada." This one sentence matter-of-fact rendition of a vicious murder of two young children surely did not warm the hearts of the parents. The court wrote nothing about the facts of the double homicide of two innocent and vulnerable children, and the defendant had no defense having confessed voluntarily to committing the crime, (even the Ninth Circuit panel could not reverse on Miranda grounds). But the prosecutor in his closing argument to the jury referred to the pathetic defense case as a "sham" and defense counsel failed to object. "Highly prejudicial" said the Ninth Circuit, so harmful the court vacated the death penalty. The Ninth Circuit panel evaded the obvious procedural default of the defendant on his writ of habeas corpus and the court held it was not prevented form resolving another legal issue never raised in the defendant's state court post conviction filing. When the prosecutor argued for the death penalty to the jury, he apparently mis cited the State of Nevada rules on parole and the defendant's eligibility for release from custody. The last straw: Sechrest was convicted in 1983 and the Supreme Court denied cert in 2009. And the case is not over. The Ninth Circuit panel ordered further evidentiary hearings.

Monday, October 19, 2009

Styers v. Schriro, 574 F.3d 1026 (9th Cir. 2008); Ryan v. Styers, 130 S.Ct. 379 (2009) (U.S.) Cert. Den.

Ryan v. Styers, 574 F.3d 1026; Cert. Den., 130 S.Ct. 379 (2009) Styers planned and executed his live-in womans four year old child, presumably to obtain insurance proceeds. The jury found him guilty and the court sentenced him to death. The Arizona Supreme Court affirmed the conviction as did the U.S. District Court on habeas corpus. On appeal, the Ninth Circuit held the doctors who testified on behalf of Styers could not connect his alleged post traumatic stress disorder to the killing. According to the Ninth Circuit, this nexus test is Constitutional error as the trial court must consider all mitigating evidence without considering nexus. The Arizona Supreme Court did just that as the Ninth Circuit concedes: [T]he Arizona Supreme Court considered all of the proffered evidence. Despite that statement written by the Arizona Supreme Court on Styer's appeal from his conviction in state court, the Ninth Circuit nevertheless reversed. Inexplicably, the Supreme Court denied review; Ryan v. Styers, 2009 WL 3162206 (U.S.). The Ninth Circuit continues to invoke a variety of reasons to reverse death penalty cases. In Styers, the Arizona Supreme Court affirmed the conviction for murder and death sentence on direct appeal as did the U.S. District Court on habeas corpus. As a tentative observation, the Ninth Circuit refuses to affirm a death penalty case with the single exception of a murderer who the court nevertheless encouraged him to seek clemency from the Governor and congratulated him on writing a book in prison.

Tuesday, October 6, 2009

Nurre v. Whitehead, 580 F.3d 1087 (9th Cir. 2009)

Music students graduating from a Washington state high school had played musical instruments during graduation exercises of seniors for several years. In 2005 the school received complaints (the court does not say how many) that one of the songs contained religious connotations. In 2006 the graduating seniors in the Music Department selected an instrumental version of "Ave Maria." The students who wanted to play "Ave Maria" thought the song best displayed their musical ability and was a "pretty piece." According to the principal of the school, she refused to approve the music on grounds of a potential violation of the Establishment Clause of the First Amendment. She also worried about complaints from parents. One of the students, Kathryn Nurre, sued the principal and the school district for violation of free speech and hostility to religion under the Establishment Clause. The Ninth Circuit upheld the right of the principal, who held advanced degrees in education, to withhold performance of "Ave Maria" despite her previous unawareness of the title or the music. The two judge majority panel produced the usual cases on the Establishment Clause and ultimately denied the students' claims. Being "offended" is now sufficient in Ninth Circuit case law to establish "standing." The ultimate resolution of the Ninth Circuit decision confirmed the right of the principal to deny the students playing an instrumental piece of medieval music without lyrics during a graduation ceremony. As noted in the dissent, the principal's concern with violating the Establishment Clause is sufficient justification to invoke it. So, worrying about a First Amendment violation is sufficient to confirm the rationale expressed by the principal. The Supreme Court in general and the Ninth Circuit in particular have lost their moorings in an attempt to interpret the Establishment Clause. The First Amendment was written in the shadow of English history to reject the "state church" of Henry VIII and Elizabeth. These two monarchs, in repudiating the Catholic religion during their reigns, tormented, terrorized and executed anyone who refused to subscribe to their new religion. Thousands fled England to escape the persecution of King and Queen. The core of the Establishment Clause is just that: state dominance of religion and coercive power to enforce its will. When Congress initially adopted the Bill of Rights, none applied to the individual states, which in some states had an "established church." Only "incorporating" the First Amendment into the Fourteenth Amendment enabled the Supreme Court to impose its interpretation on individual states. Now, the Ten Commandments, a crhe, a county seal, crosses in a desert, all violate the Establishment Clause in the interest of not endorsing a "state religion." The courts have never applied the rationale that the Establishment Clause forbids religious "coercion", i.e.,compelling someone to subscribe to a religion and punish their refusal to conform. Refusing to allow students to play an instrumental version of "Ave Maria," without lyrics, and the song undoubtedly foreign to the vast number of students at the high school-including the principal-defies comprehension.
The Supreme Court denied Cert. in 2010

Saturday, October 3, 2009

Death Penalty: Ninth Circuit Reverses Two Cases: Schad v. Ryan, 581 F.3d 1019 (9th Cir. 2009); Hamilton v. Ayers, 583 F.3d 1100 (9th Cir. 2009)

Schad Ryan The Ninth Circuit continues to reverse death penalty sentences no matter how horrific the crime, the paucity of mitigating evidence, the rejection of state supreme court and U.S. District Court decisions confirming the sentence, and the inexperience of Ninth Circuit judges who have never tried a criminal case. The cost and the delay, the indifference to "finality" of convictions, disrespect for "comity" of the states, and oblivious to the Congressional mandate to limit federal appellate courts in habeas corpus review under the Anti-Terrorism & Effective Death Penalty Act (AEDPA) have stymied imposition of the death penalty. The Ninth Circuit has reversed all death penalty cases for the last decade with only a single exception. When the Ninth Circuit can't find wrongful prosecution exercise of peremptory challenges of minority jurors, lack of prosecutorial misconduct, no evidential error, or incorrect jury instructions, the court reverses based on "ineffective counsel" representing the defendant at trial or on appeal. No matter what counsel does in defense of the merits or mitigation of the sentence, it is "ineffective. Two recent decisions illustrate the objections cited by the Ninth Circuit in reversing the death penalty sentence. In August, 1978, an elderly man was found dead in the underbrush off the shoulder of a highway. Medical evidence established someone had strangled the victim with a cord knotted around his neck. Police subsequently found an abandoned vehicle rented by one Edward Schad, which had been stolen. Schad drove across the country using the victim's car and purchasing gasoline with his credit card. Additional evidence conclusively established Schad's culpability. Convicted of first degree murder and sentenced to death, the Arizona Supreme Court affirmed the conviction, as did the United States Supreme Court on cert. After four years of unsuccessfully attempting to set aside his conviction in state court, Schad filed a petition for habeas corpus in U.S. District court; denied. On appeal, the Ninth Circuit affirmed all challenges to the conviction but reversed the sentence previously upheld by the Arizona Supreme Court and the U.S District Court. Schad and his counsel spent four years in state court post-conviction proceedings. Counsel obtained 37 continuances, retained an investigator, a psychiatrist, collected declarations of Schad's good character from others, but never alleged "ineffective counsel" until the end of the four year period. The District Court concluded the extended period of time spent in investigation lacked "due diligence" required to set aside a conviction or sentence in habeas corpus proceedings and denied the motion. On appeal, the Ninth Circuit said counsel had not presented enough evidence of Schad's "troubled childhood "despite the probation report extensively reciting his abusive parents. " Not enough" on the "troubled childhood" said the majority of the Ninth Circuit panel. And, said the panel, the District Court should hold a hearing to determine whether Schad proceeded with "due diligence." A reading of the court decision reflects that counsel submitted substantial mitigating evidence at the trial, and whatever else of the "troubled childhood" that could have been produced would never have influenced the sentence. In addition, Schad had been previously convicted of second degree murder. The dissent skewered the majority decision. In the post-conviction proceedings, defense counsel could produce no evidence that would change anyone's mind. A "troubled childhood" does not justify strangling an innocent man, stealing his car and driving around the country on his credit card. Convicted and sentenced originally in 1979, retried, convicted and sentenced in 1985, the Ninth Circuit has ordered another hearing in 2009. If the result is not in his favor: another appeal; Schad v. Ryan, 581 F.3d 1019 (9th Cir. 2009) Hamilton v. Ayers "Troubled childhood" also is the excuse for insufficient mitigation evidence in sentencing the defendant to death in Hamilton v. Ayers. Hamilton methodically planned to execute his pregnant wife and collect insurance money. The evidence was overwhelming, and the cold blooded planning for the execution caused the jury to vote the death penalty in 1982. Affirmed on appeal by the California Supreme Court, the conviction confirmed in U.S. District Court (habeas corpus), and reversed on appeal in the Ninth Circuit on grounds defense counsel was "ineffective." Convicted in 1982, appeal decided in 2009; Hamilton v. Ayers, 583 F.3d 1100 (9th Cir. 2009). The California Attorney General should appeal both of these miscarriages of justice.

Friday, July 31, 2009

Ineffective Counsel: Rehearing en banc Denied: Moore v. Czerniak, 574 F.3d 1092 (9th Cir. 2009)

Moore v. Czerniak, 574 F.3d 1092 (9th Cir. 2009) Previously published at 534 F.3d 1128 (9th Cir. 2008) and withdrawn. This case has been extensively summarized in the Blog on August 6, 2008. On July 28, 2009 the 2-1 majority Ninth Circuit panel denied a rehearing and the court denied a rehearing en banc. The majority rewrote its opinion, as did the dissenting judge, but the rhetorical battle over this decision consumed an endless number of pages by the dissenters and a rebuttal by the author of the majority opinion. The majority opinion is replete with factual errors, reweighs the evidence and reaches a legal decision that can only be described as incoherent. The horrendous facts warrant the death penalty (or life without parole) in a case now decades old. The new rule for counsel in criminal cases is to make every motion possible, regardless of the evidence and the merits of the prosecution, in order to avoid a ruling of "ineffective counsel." The court majority completely lacks an understanding of criminal law and practice. The prosecutor offered the defendant a favorable plea to avoid the death penalty for a first degree murder conviction. Undoubtedly the proposed disposition took into consideration the failure of the police to properly warn the defendant of his Miranda rights but the prosecution possessed a confession from two lay witnesses in addition to other evidence. According to the majority, defense counsel should have made a motion to suppress the confession to the police. The offer from the prosecutor to defense counsel was probably this: if you make a motion to suppress, the plea bargain is "off the table" and we go to trial and seek the death penalty.The defendant accepted the offer and pled guilty, knowingly and voluntarily, based on the evidence. The Ninth Circuit, having granted the habeas corpus petition denied by the U.S. District Court judge (and the conviction previously affirmed by the Oregon Supreme Court), enables Moore to go to trial. He can now expect the prosecution to seek the death penalty and there will be no more plea bargaining. This case is a prime example of injustice to the citizenry of Oregon. Cert to the Supreme Court should be automatic in the face of Supreme Court precedent to the contrary; Knowles v. Mirzayance, 129 S.Ct. 420 ( 2009); Carey v. Musladin, 127 S.Ct. 649(2006).

Monday, July 27, 2009

Jury: Comparable Juror Analysis: Ali v. Hickman, 584 F.3d 1174 (9th Cir. 2009) Amended Opinion

Ali v. Hickman (Warden), 571 F.3d 902 (9th Cir. 2009); Amended: 584 F.3d 174 (9th Cir. 2009) Note: The Supreme Court denied cert. in Ali v. Hickman on March 29, 2010 despite its decision in Berghuis v. Smith 130 S.Ct. 1382 (2010 ) reversing a Sixth Circuit decision discussing the policy of a fair cross section of the community in selecting jurors. Although the issues in both cases are not identical, the Supreme Court expresses its impatience with federal appellate courts who ignore AEDPA in the context of jury composition or selection. The Court in Berghuis said: "As the Michigan Supreme Court correctly observed, [no decision] of this Court specifies the method or test courts must use to measure the representation of distinctive groups in jury pools. The courts below and the parties noted three methods employed or identified in lower federal court decisions: absolute disparity, comparative disparity, and standard deviation;" Citations omitted. "Each test is imperfect. Absolute disparity and comparative disparity measurements, courts have recognized, can be misleading when, as here, 'members of the distinctive group comprise [only] a small percentage of those eligible for jury service.' And to our knowledge, '[n]o court ... has accepted [a standard deviation analysis] alone as determinative in Sixth Amendment challenges to jury selection systems.'; *** In an unusually harsh and critical decision in Hickman, a Ninth Circuit panel criticized the California Court of Appeal for affirming a conviction in state court and subsequently denying a petition for habeas corpus. In the petition for habeas corpus filed in federal court, the three judge panel characterized the Court of Appeal decision as "incorrect" and "unreasonable." The panel similarly used derisive language in dismissing the California Attorney General's argument attempting to justify the conviction. The U.S. District Court refused to issue a writ of habeas corpus but survived intemperate language written by the panel on appeal. The irony: this Ninth Circuit panel decision is wrong; completely wrong, and has written an indefensible opinion without any citation of relevant authority and in defiance of the Anti Terrorism and Death Penalty Act (AEDPA). To begin, the trial court committed no evidentiary error, no instructional error, no prosecutorial misconduct, and jurors committed no misconduct. The panel also avoided ruling on an allegation of "ineffective counsel", the frequent ground for reversal when the Ninth Circuit can unearth nothing else. The only ground for appeal lay in voir dire of the jury. When a federal court reviews a state court conviction on habeas corpus, the standard of review is narrowly circumscribed under AEDPA; 28 U.S.C. 2254. AEDPA standards constrain review of state convictions, and the issue of discriminatory use of peremptory challenges on racial grounds does not come to the Ninth Circuit for independent judgment on whether the state courts acted correctly or incorrectly, but for consideration of whether the state court's adjudication on the merits "(1) 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding; 28 U.S.C. 2254 (d); Lockyer v. Andrade, 538 U.S. 63 (2003). In challenging a prosecution decision to excuse a juror on racial grounds during voir dire, the Ninth Circuit panel holds that the trial court must conduct a "comparative juror" analysis. The absurdity of this rule, an appellate court reviewing a trial court record without ever seeing the juror's demeanor, attitude, language, excuses or innumerable other factors suggesting to the prosecutor a reason to excuse a minority juror, is demonstrated in Ali v. Hickman. At trial, counsel for Ali objected to the prosecutor exclusion of two minority jurors; the court held a hearing; the prosecutor laid out the reason for the decision; the court found the prosecutor's rationale not based on race and denied the defendant Ali's motion. At no time did counsel request a comparative jury analysis.

Friday, July 10, 2009

Evidence: DNA Test; Supreme Court Reverses Ninth Circuit: DA's Office etc. v. Osborne, 129 S. Ct. 2308 (2009)

District Attorney's Office for the Third Judicial District v. Osborne, 2009 WL 1685601 (U.S.) Sixteen years ago an Alaska jury convicted William Osborne and a co defendant of kidnapping, assault, and sexual assault of a young woman. In the course of police investigation of the crimes, the officers found evidence subsequently tested for DNA resulting in narrowing the identification of Osborne as one of the culprits. During the trial, Osborne refused an offer to submit to a more reliable DNA test available to defendants. The Alaska courts affirmed the conviction and Osborne sought post conviction relief seeking access to the results of a more sophisticated DNA test unavailable at the time of trial. At an evidentiary hearing ordered by the Alaska court, the lawyer who represented Osborne at the trial testified she believed he was guilty and did not want to submit him to another more reliable DNA test. She intended to rely on mis identification by the victim. Two Alaska court of appeals denied the DNA request. While serving his sentence, Osborne ultimately qualified for parole and confessed to the crimes. At a parole hearing he repeated his confession. Based on the victim's identification, the confessions, the DNA test, and other corroborating evidence, the Alaska court denied his request for access to current DNA testing as unavailable under statutory Alaska law. After release on parole Osborne was arrested for another offense. The State of Alaska sought revocation of his parole. Instead of filing habeas corpus to vacate his revocation of parole, and without asserting "actual innocence," Osborne began his request in the U.S. District Court for access to currently available DNA testing of the evidence introduced at trial by filing a 42 U.S.C. 1983 cause of action (for "deprivation of any rights . . .secured by the Constitution") and alleging a Fourteenth Amendment Due Process violation. The district court judge denied the request. The Ninth Circuit reversed and remanded to the district court judge who agreed Osborne had a limited right to the test. On Alaska's appeal from that ruling to the Ninth Circuit, the court resolved neither the 1983 cause of action nor the alleged Due Process violation. The three judge panel unearthed Brady v. Maryland, 373 U.S. 83 (1963), a Supreme Court case mandating prosecution pre trial disclosure to the defense of exculpatory or mitigating evidence. The Ninth Circuit cited no case applying the Brady rule to post trial procedures. The State of Alaska sought certiorari, granted by the Supreme Court. The Supreme Court reversed the Ninth Circuit, summarily dismissing the Brady v. Maryland claim. Instead, the Court identified two grounds applicable to deny Osborne's request. First, Osborne essentially sought to reverse his state court conviction by obtaining access to a DNA test. But a federal court reviewing a state court conviction must proceed under the procedural rules of habeas corpus, precisely the kind of remedy Osborne should have sought. Instead he filed a 1983 and Due Process claim directly in federal court. Federal courts reviewing state court convictions in a habeas corpus proceeding must respect state court appellate rulings unless those courts violate "clearly established Supreme Court law." No clearly established law existed for the request Osbourn sought-and the Ninth Circuit knew that. To finesse the rules of habeas corpus, and invoke 1983 and Due Process, the Ninth Circuit needed a case decided by the Supreme Court for "clearly established law" and found Brady. Even defense counsel arguing in the Supreme Court agreed the case inapplicable. Secondly, the Supreme Court has distinguished two categories of Due Process: procedural and substantive. Under the doctrine of Constitutional protection of "liberty interests" inherent in the Due Process clause, federal courts will deny a remedy pursuant to a habeas corpus petition if the State provides an adequate procedural method for vindication of Constitutional rights. The Court examined Alaska law and cited several procedural mechanisms Osborne can invoke to adequately protect his rights. As long as the state courts provide an adequate forum for resolution of that claim, and no procedural hurdles are unfair, the prisoner (or in this case a parolee) can vindicate his claim. Substantive due process to protect "liberty interests," an amorphous doctrine at best, includes "principles of fundamental fairness rooted in the traditions and conscience of the American people as fundamental." In the Osborne case, no such history exists. Substantive due process Constitutionalizes an issue and forecloses the American people or a legislature from amendment or revocation of a court decision. To confirm substantive due process in the context of the facts in Osborne, federal courts would be swamped in rule making decisions not suited to their role. The Supreme Court conceded Osborne could argue his "liberty interest" and identified several procedural avenues he can pursue to vindicate his alleged right to DNA access under Alaska law. The Supreme Court identifies forty six state legislatures and the federal government which have provided the right to post conviction DNA testing under certain conditions, the vast majority mandating a claim of "actual innocence", not just trial court error. Given the two confessions Osborne gave to the parole authorities, this is a significant hurdle. Alaska is one of the few states that has not provided a comparable statute. But as the Supreme Court points out, the Alaska courts do provide alternative remedies available to Osborne other than 1983 and the Due Process Clause. The most important element in the Court's decision is refusal to allow a free standing substantive right under the Due Process Clause to compel a state to perform post trial DNA proceedings. The application of DNA testing is essentially an evidentiary issue best resolved in the laboratory of each state and its relevant law. The Court confirmed the right of individual states to legislate with appropriate procedural conditions to avoid endless appeals in state and federal courts. In other words, the Supreme Court has acknowledged the role of state sovereignty in responding to the developing scientific world of DNA. Justice Alito filed a succinct concurrence. Osborne denied submitting to a second DNA test during his trial in the Alaska courts. Once that strategic decision is made, he wrote, the defendant "games the system" by asking for the test after conviction.

Sunday, July 5, 2009

Immigration: Supreme Court Reverses (Indirectly) a Ninth Circuit Immigration Case: Nijhawan v. Holder, 129 S.Ct. 2294 (2009)

The Supreme Court has concluded its 2008-2009 term by reversing fourteen out of fourteen Ninth Circuit cases but this embarrassing record does not include cases previously decided by the Ninth Circuit that are now overruled; Nijhawan v. Holder, 129 S.Ct. 2294 (2009). Federal law consists, in part, of two different statutes the courts have used but interpreted differently in unrelated contexts. Under the Armed Career Criminal Act (ACCA) a sentencing court may increase the sentence of a defendant in a criminal case who has been convicted of prior "violent felonies" as defined in the statute. Under a different Act, (INA) an alien convicted of an "aggravated felony" is subject to deportation if the fraud exceeds $10,000. A sentencing court in a current criminal case must determine whether a prior conviction, or plea, qualifies as a "violent felony" to enhance the sentence, or in a deportation hearing the IJ must determine whether the prior conviction is an "aggravated" felony warranting deportation. In each case the prior court proceedings are marginal or uninformative. In Nijhawan, the question becomes: what records of the prior proceedings can the IJ consider. The Supreme Court has used the terms "categorical approach" (generic definition of the crime) and "modified categorical approach" (fact specific circumstances) in attempting to resolve this issue in criminal cases and deportation cases respectively. Cases in the Courts of Appeal are legion. In Nijhawan, the Court ruled that the IJ judge should not read the ACCA definition of criminal fraud (generic ) into the civil proceeding of deportation if the petitioner was previously convicted of fraud. The IJ can consider not only the bare record of the prior conviction but the specific facts and circumstances of that case in determining whether the fraud exceeded $10,000. Although Nijhawan could be confined to its application of fraud statutes, it overrules the Ninth Circuit opinion in Kawashima v. Mukasey, 530 F.3d 1111 (9th Cir. 2008) and the cases upon which it relies. The Ninth Circuit used the wrong test.

Friday, July 3, 2009

Death Penalty: Ninth Circuit Reverses Again: Scott v. Schriro, 567 F.3d 573 (9th Cir. 2009)

Determined never to allow an execution in states within its jurisdiction, the Ninth Circuit reversed another conviction and death penalty voted by an Arizona jury in a horrendous murder. Scott and two other defendants planned the murder of a five year old child to obtain life insurance proceeds based on an insurance policy issued to one the the defendants as a beneficiary. During the course of the police investigation, Scott confessed to the conspiracy among the defendants, led police to the dead body of the child, and admitted his role in the execution. He also disclosed the location of the firearm used to kill the child and bloody shoes worn by one of the other defendants. At trial he changed his story and said he was "duped" by the other defendants. The jury voted the death penalty. His conviction affirmed on appeal by the Arizona Supreme Court, Scott filed for post conviction relief in state court on grounds his lawyer did not call his father to the witness stand to ask for leniency. Petition denied. He subsequently submitted a second petition alleging the usual "ineffective counsel" defense. Denied on the grounds Arizona law prohibits amended petitions. The federal district court denied his petition. Scott appealed to the Ninth Circuit and a per curiam panel held Arizona had not followed state law permitting amended petitions for "good cause." According to the Ninth Circuit panel, this failure to apply state law did not constitute an "independent and adequate" procedural ground for "exhaustion" of state remedies as required by federal law. In support of that opinion, the panel cited one Arizona case. And Scott had "exhausted" state post conviction remedies because the state court should have read the Appendix to his brief to find an allegation of "ineffective counsel." In the course of the post trial proceedings, Scott fired his lawyer, and the newly appointed lawyer filed twenty three claims for relief. On his "ineffective counsel" claim, the Ninth Circuit panel said Scott was an alcoholic -"which may have" contributed to cognitive problems. "May have." And this: appellate counsel allegedly failed to challenge the jury finding that the crime was committed for pecuniary gain. "Thus it is possible ..." that the jury might not have voted the death penalty if this mitigating factor was taken into consideration. This speculation defies the prosecution case and the evidence in support of the murder. And the court holds the trial court should have allowed Scott's father to testify and ask the jury for leniency. On what ground? These factors are so tenuous, so frivolous, it is no wonder the Ninth Circuit inhibits imposition of the death penalty. In this case, Scott was convicted in 1991. And is still in court in 2009. Pet. for cert filed 8/31/ 2009

Thursday, July 2, 2009

Qualified Immunity: Safford Unified Sch. Dist. #1 v. Redding, 129 S.Ct. 2633 (2009)

Safford Unified School District #1 v. Redding, 129 S.Ct. 2633 (2009) The Supreme Court has held that school officials can search students on school premises if they have a reasonable suspicion a boy or girl possesses drugs. But the scope of the search cannot include removing a student's clothing to confirm the report. In Safford the Ninth Circuit had prohibited this kind of search (mis characterized as a "strip search") but denied the school principal and his staff qualified immunity on grounds the search was prohibited by "clearly established Constitutional law." The Supreme Court reversed, informing the Ninth Circuit that these intensive searches were not "clearly established" and the staff were entitled to qualified immunity. The Ninth Circuit easily evades Supreme Court rulings on a test comparable to this. Under Supreme Court jurisprudence, in order to immunize public officials for conduct in the course of their duties, they must have violated "clearly established a Constitutional law," i.e., in Safford a Fourth Amendment prohibition against unreasonable searches. When a court invokes the phrase "clearly established Constitutional law" it can achieve any conclusion on the facts. Which is precisely what the Ninth Circuit routinely does. The federal courts, and the Ninth Circuit in particular, supervise public schools and inform them of approved federal practices; manage the Los Angles Police Dept.; manage State prisons; manage hospitals; supervise jails; know what's better about naval warfare training tactics, and informs defense counsel of appropriate tactics in trial. Of course the Ninth Circuit knew the search in Safford was unreasonable and a "clearly established" violation of a Constitutional provision. Until the Supreme Court told the court it was wrong. Although the Supreme Court did prohibit the search in Safford, as did the Ninth Circuit, it reversed that court, again, on the issue of qualified immunity.

Sunday, June 21, 2009

Evidence in Plain Sight Indmissible: Rehearing Ordered: U.S. Nevils, 548 F.3d (9th Cir. 2009)

U.S. v. Nevils, 548 F.3d 802 (9th Cir. 2008) Rehearing ordered, June 16, 2009; 570 F.3d 1123 (9th Cir. 2009) Only in the Ninth Circuit could an appellate court decide a case like this. The result is so inconceivable the court has ordered a rehearing en banc. Police officers entered an apartment and found Nevils asleep with a loaded automatic weapon in his lap and a loaded handgun by his side. Drugs and money were in plain sight on a nearby nightstand. Needless to say the jury convicted Nevils. The court majority (2-1) did not think Nevils knowingly possessed the weapons, and some unknown party had left all these items in plain sight. Aside from ignoring the fact the jury heard all the evidence and obviously disbelieved the defendant, the Ninth Circuit majority reversed. From the dissent to a reversal on appeal of a defendant convicted or possessing firearms: "Earl Nevils [defendant] was surprised when two LA police officers with guns drawn ordered him not to move [from a sleeping position in bed]. But Nevils was not amazed in the least by the circumstances in which he found himself: he had a loaded, chambered semiautomatic Tec 9 on his lap and a loaded, chambered .40 caliber pistol by his leg. Nor was he astonished by the marijuana, ecstasy, cash and a cellphone on a table a foot away. Although the unoccupied apartment was not his, Nevils wasn't the least bewildered at finding himself in Apartment # 6-officers had found drugs and guns in the apartment just three weeks earlier and had arrested Nevils there for parole violation. According to one of the officers, Nevils first impulse was to 'grab towards his lap' where the Tec 9 lay and 'then he stopped and put his hands up.' He later exclaimed to an officer, 'I don't believe this s---. Those m------------ left me sleeping and didn't wake me.' The jury found him guilty of being a felon in possession." "The [2-1] majority panel overturns his conviction because it finds the evidence insufficient to show that Nevils knowingly possessed the weapons. It surmises that it is equally plausible that someone-anyone, actually, since the defense couldn't finger any person in particular-set Nevils up by placing the guns on him while he was in a drunken stupor. Thus, the majority concludes, no reasonable juror-certainly not the twelve who did-could have found that Nevils knowingly possessed the guns. I respectfully dissent."

Monday, June 8, 2009

Immigration: U.S. Attorney General Weakens Immigration Laws: Torrez-Chavez v. Holder, 567 F.3d 1096 (9th Cir. 2009)

While Congress bulks up employment of border control agents, funds an impenetrable wall between the United States and Mexico, and immigration agents continue raids on employers who hire illegal aliens, the Attorney General (AG) rescinds a policy of the previous administration disallowing the use of "ineffective counsel" as a defense in deportation hearings. The rationale of the current AG for abolishing this rule is incoherent and irrelevant : "...the introduction of a new procedural framework depended in part on Attorney General Mukasey's conclusion there is no constitutional right to effective assistance of counsel in [deportation] removal hearings. Because that conclusion is not necessary to decide these cases under [the previous rule]or to initiate the rulemaking process, this order vacates the [previous rule]in its entirety." Not only is this explanation incoherent but plainly wrong. The right of defendants in criminal cases to the "effective assistance of counsel" at trial and sentencing emanates from the Sixth Amendment to the Constitution applicable to criminal cases only. Immigratrion hearings are not criminal cases, only civil proceedings at best and then only administrative hearings. While Congress attempts to stem the tide of illegal aliens, the AG places a major leak in the dike by allowing interminable delays in deportation hearings while applicants allege their counsel was "ineffective." Unlike criminal cases, counsel are not mandatory in deportation hearings, but when retained the Immigration Judges will now try to determine whether their representation was "ineffective." Using what standard? The same as in criminal cases? There is no comparison between counsel who represent defendants against prosecutors in criminal cases and counsel retained in an administrative hearing of aliens facing deportation. Given the Ninth Circuit's embrace of the AG's abolition of a sensible rule on appeal from Immigration Judge decisions, the courts can expect a flood of challenges to deportation designed to delay the proceedings. Assuming counsel is somehow found "ineffective," the case must be re heard. And appealed. The Supreme Court has never ruled that "ineffective counsel" is a ground of appeal from an immigration hearing nor that applicants in immigration hearings are entitled to counsel. Even the Ninth Circuit has held that immigration hearings are civil in nature and applicants are not entitled to counsel unless the proceedings are "fundamentally unfair" and violate due process: Torrez-Chavez v. Holder, 567 F.3d 1096 (2009). The AG has also "clarified" a Board order denying discretion of an IJ to reopen proceedings based on events occurring after entry of final order of removal, including failure by counsel to file a timely petition for review. Previously the Fourth Circuit had held to the contrary but the Supreme Court vacated the order citing the AG's "clarification"; Afanwi v. Holder, 2009 Wl 31618444. Expect more delay.

Monday, May 25, 2009

Immigration: Overstaying Visa for Twenty Years: Delgado v. Holder, 563 F.3d 863 (9th Cir. 2009)

Delgado v. Holder, 563 F.3d 863 (9th Cir. 2009) Delgado entered the United States in 1989 under a non immigrant visa. He was subsequently convicted three times for driving under the influence of alcohol. In 2001 the government finally decided to deport him and the immigration judge (IJ) denied Delgado's petition for cancellation of removal and asylum. Delgado appealed. On the petition for cancellation of removal, the Ninth Circuit panel held Congress had stripped the court of jurisdiction to hear appeals from BIA decisions, and could not afford Delgado relief. According to the relevant statute, the Ninth Circuit could not overrule the Bureau of Immigration Appeals (BIA) ruling that Delgado had committed a "particularly serious crime" and subject to deportation. But the statute applicable to asylum read differently, and the Court did have jurisdiction over whether Delgado had committed a "particularly serious crime." The court admitted driving under the influence was "dangerous", but not "serious." In other words, Delgado did not injure, maim or kill anyone so the IJ should consider the merits of his asylum petition. Apparently three convictions for drunk driving is "serious" but not "dangerous." Aside from this linguistic hairsplitting, Delgado can drive drunk for as as many times as he wants without deportation. Just serve the sentence and return to society-unless his frivolous petition for asylum is denied. The Ninth Circuit continues to read review of administrative hearings conducted by IJs as though the procedure was a criminal trial. In fact, in another case, the Ninth Circuit reversed the IJ because the petitioner alleged "ineffective counsel." This is the popular defense of the Ninth Circuit in reversing trial courts in death penalty cases. The current Attorney General is reviewing a decision of the previous AG eliminating this ridiculous interpretation by the Ninth Circuit. This case is not final. The court in Delgado v. Holder had granted a rehearing from its previous decision (546 F.3d 1017 (9th Cir. 2008)) and is allowing further petitions of its current opinion for rehearing en banc. And this appeal was written in 2009, twenty years from entry into the United States and eight years from denial of the petitions.

Wednesday, April 1, 2009

Immigration Costs: Colwell v. Dept. of Health & Human Services, 558 F.3d 1112 (9th Cir. 2009)

Aside from the cost of border patrol agents, Immigration Judges, detention facilities, jails, prisons (state and federal), prosecutors and public defenders (state and federal), district court judges, Court of Appeal Judges and staff, border construction, Coast Guard personnel, police officers, sheriff's deputies, California Highway Patrol officers, hospitals and ER doctors, a federal statute and implementing federal regulations requires a physician to provide free translation services to limited English proficient persons. Non compliance results in loss of federal funding; Title VI; citations and regulations omitted; Colwell v. Dept. of Health & Human Services; 558 F.3d 1112 (9th Cir. 2009. Who has computed these costs to taxpayers?

Friday, March 27, 2009

Ineffective Counsel: Supreme Court Reverses Ninth Circuit: Knowles v. Mirzayance, 129 S.Ct. 1411 (2009)

Adding another case to the already crowded reversal record of the 9th Circuit, the Supreme Court reversed that court in a case previously affirmed by the California Supreme Court. In Knowles v. Mirzayance, 129 S.Ct. 1411 (2009) the jury returned a verdict of "guilty" of first degree murder. That verdict confirms Mirzayance killed another person with malice, intentionally and with premeditation. Mirzayance had also entered a plea of "not guilty by reason of insanity" (NGI) bifurcated and to be tried after the "guilty" verdict. Counsel for Mirzayance, an experienced criminal trial lawyer, knew that a jury who had just found all the elements of first degree murder was highly unlikely to find the defendant insane. In addition, counsel could not secure testimony from the parents of Mirzayance because they had not appeared at the sentencing hearing on the merits of the trial and declined to testify at the NGI hearing. Under these circumstances, any hope of a favorable jury verdict was futile and counsel and client withdrew the plea. After the California courts affirmed the conviction, Mirzayance filed the first round of habeas corpus in federal district court and the judge denied the petition. On appeal, the Ninth Circuit reversed and remanded to the trial court for an evidentiary hearing on the allegation of ineffective counsel. The Magistrate Judge at the hearing agreed with counsel's decision, the district court judge agreed, and Mirzayance appealed again. On the second appeal, the 9th Circuit reversed again on grounds of ineffective counsel.The State sought review in the Supreme Court. The Justices unanimously reversed the 9th Circuit in dismissive language and remanded to the Ninth Circuit with instructions to deny the petition. This case is another example of 9th Circuit attempts to avoid the application of the Anti Terrorism and Death Penalty Act (AEDPA) requiring federal courts to defer to state courts in the absence of an unreasonable state court ruling. The Supreme Court in Mirzayance told the 9th Circuit it had applied the wrong rule in evaluating the doctrine of ineffective counsel; criticized the court for not deferring to the State Court decision affirming the conviction; refused to indulge the "strong presumption that counsel's conduct falls with the wide range of reasonable professional assistance;" ignored the factual findings issued by the Magistrate Judge; derided the notion "the law requires counsel to investigate every conceivable line of mitigation evidence..."

Wednesday, March 25, 2009

Death Penalty: En banc granted: Pinholster v. Ayers, 525 F.3d 742 (9th Cir. 2009)

The Ninth Circuit has granted an en banc rehearing (525 F.3d 742 (9th Cir. 2009)) of a three judge panel which had actually affirmed the conviction but not the death sentence of Pinholster. The California Supreme Court had previously upheld the the conviction and sentence and the Ninth Circuit reviewed on habeas corpus; Pinholster v. Ayers, 525 F.3d 742 (9th Cir. 2008). The obvious reason for the rehearing: an attempt by those on the Ninth Circuit determined to prevent imposition of the death penalty. On December 9, 2009 the en banc court affirmed the three judge panel in a ruling that unequivocally confirms this statement. See, 2009 WL 4641748 (C.A. 9) and supplemental Blog.

Monday, February 23, 2009

First Amendment: Latin Cross Case. Immigration: Supreme Ct. Grants Cert.; S.F. strip search reheard by 9th Cir.

Latin Cross Buono v. Kempthorne (Secretary of the Interior) 527 F.3d 758 (9th Cir. 2008) The Supreme Court grants cert.: Salazar v. Buono, 2009 WL 425076 See, review of this case on Blog dated 5/22/2008.

Tuesday, February 3, 2009

Prisoner's Rigts; Evidence; Qualified Immunity. Supreme Court Grants Cert. in Hust v. Phillips, 507 F.3d 1171 (9th Cir. 2009); City & Co. of S.F v. Rodis, 558 F.3d 964 (9th Cir. 2009); McDaniel v. Brown, 525 F.3d 787 (9th Cir. 2009)

Prisoner's Rights: Hust v. Phillips, 507 F.3d 1171 (9th Cir. 2009) Prisons are not for comfort, or literary pursuits. Prisons exist to punish those who have committed heinous crimes. For another example of wasting judicial resources, in Phillips v. Hust, 507 F.3d 1171 (2007) a Ninth Circuit panel criticized the librarian at a state prison for not permitting Phillips to use a copying machine to file his petition for certiorari in the Supreme Court. Although the Ninth Circuit never identified a date of Phillips imprisonment, the District Court referenced the eighteen years of litigation. The librarian denied the allegation. Moreover, the Ninth Circuit denied the librarian qualified immunity and sent the case back to the district court for computation of damages; Phillips v. Hust, 477 F.3d. 1070 (9th Cir. 2007). Award: $1500.00; Phillips v. Hust, 338 F.Supp.2d 1148. The dissent in the Ninth Circuit deplores the majority reasoning and its refusal to allow the librarian qualified immunity. Here is the language of the dissenting judge: All I can add to [the dissent of another judge] is my utter astonishment that were leaving an opinion on the books that not only denies the prison librarian qualified immunity but actually holds her liable. Her transgression? Failing to help a prisoner bind a brief in a way thats not even permitted . . . by the Supreme Courts rules. Its perfectly clear that a timely petition, bound or unbound, would have been accepted by the Supreme Court . . . How the prison librarian violated any of his rights, let alone his clearly established rights, is a mystery that repeated readings of the majority opinion do not dispel . . . The dissent was signed by a total of ten judges. The case arose on summary judgment but the Attorney General filed a petition for review in the Supreme Court. Review granted; January, 2009; 129 S.Ct. 1036 (2009). Petition Granted 1/26/2009: 129 S.Ct. 1036 (2009)

Monday, January 26, 2009

Standing: Injury in Fact No Longer Required: Barnes-Wallace v. City of San Diego, 551 F.3d 875 (2009)

Barnes-Wallace v. City of San Diego, 551 F.3d 875 (2009) Today, our court [Ninth Circuit] promulgates an astonishing new rule of law for the nine Western States. Henceforth, a plaintiff who claims to feel offended by the mere thought of associating with people who hold different views has suffered a legally cognizable injury-in-fact. No other circuit has embraced this remarkable innovation, which contradicts nearly three decades of the Supreme Court's []standing[] jurisprudence. In practical effect, the three-judge panel majority's unprecedented theory creates a new legal landscape in which almost anyone who is almost offended by almost anything has standing to air his or her displeasure in court. I must respectfully, but vigorously, dissent from our failure to rehear this case en banc. This opening sentence in the Barnes-Wallace opinion is astonishing not only for the vigor of its language but also for the consequences of the majority decision. What fact pattern can account for this paragraph in an appellate court decision dissenting from a refusal to hold an en banc hearing in Barnes-Wallace? Alleging violation of the Establishment Clause and the No Religious Preference Clause of the California Constitution (Art. I. Sec. 4; Art. XVI. Sect. 5) a lesbian couple and an agnostic sued the City of San Diego for leasing a portion of a public park to the Boy Scouts. According to their Complaint, both plaintiffs had visited the park and were offended by the City lease. They observed no religious symbols, the Boy Scouts opened their facility to anyone who wanted to use the land, and did not deny the use of the facilities to plaintiffs. The district court had dismissed the Complaint, the plaintiffs appealed and in the original Ninth Circuit opinion, the three judge panel affirmed the dismissal on grounds the plaintiffs suffered no injury in fact required for standing other than psychological discomfort with the Boy Scout policy excluding homosexuals; Barnes-Wallace v. City of San Diego, 471 F.3d 1038 (9th Cir. 2006). Despite that decision, the three judge panel decided to reconsider its opinion and completely changed the result ibid, 530 F.3d 776 (9th Cir. 2008). The grounds: if the plaintiffs would have visited the property (which they never did) that could arguably consist of some form of injury. Other than that, their injury consisted of an ideological disagreement, never a judicial ground for standing, i.e., the basis for filing a lawsuit requires an injury in fact. The Ninth Circuit refused to rehear the case (en banc) despite the inconsistent decisions, and refused to change the ruling. Quoting the dissent in criticizing failure of the full court to rehear the case: . . . [O]n rehearing, the majority reversed itself and adopted the theory it had initially rejected. It concluded that the Breens and Barnes-Wallace have avoided [the Boy Scouts] Camp Balboa and the Aquatic Center because they object to the Boy Scouts' presence on, and control of, the land. They do not want to view signs posted by the Boy Scouts or interact with the Boy Scouts' representatives in order to gain access to the facilities. The Article III injury-in-fact, according to the majority, was the Breens' and the Barnes-Wallace [offense] at the Boy Scouts' exclusion, and publicly expressed disapproval, of lesbians, atheists and agnostics, their aversion to the facilities, and their feelings of [unwelcomeness] there because of the Boy Scouts' policies that discriminated against people like them. Having satisfied itself that it had jurisdiction, the panel then certified the California Constitutional law questions on the merits to the California Supreme Court. Aside from the issue of standing, the three judge panel only satisfied itself of jurisdiction but certified the issue on the merits to the California Supreme Court to decide the case under California law. Unless the City petitions the Supreme Court for certiorari, this case becomes precedent for standing and opens the door to anyone who is offended by the policies of a particular group. No other federal circuit court has adopted the rationale of the three judge panel in Barnes-Wallace.

Friday, January 2, 2009

Sentencing: Three Strikes Case: Ninth Circuit Reverses; Gonzales v. Duncan, 551 F.3d 875 (9th Cir. 2009)

Gonzales v. Duncan, (Warden), 551 F.3d 875 (2009) The Constitution provides for two separate court systems, state and federal. The Ninth Circuit regards its role as another rung in the ladder of appellate review to oversee California courts. Despite Congressional attempts to strip it of jurisdiction, and frequent reprimands from the Supreme Court, the Ninth Circuit continues its habeas corpus power in reviewing California court decisions and simultaneously jeopardizing society. Consider the Ninth Circuit decision in Gonzales v. Duncan. Assume the following facts: Cecilio Gonzales was convicted in state court of failing to update his annual address as a registered sex offender. Because of his prior record of felony convictions of serious crimes, this conviction qualified him for sentencing under the California Three Strikes Rule, and the trial court sentenced him to twenty eight years in prison. Here is his record as reflected in the California Court of Appeal decision in Peo. v. Gonzales, 2003 WL 178631 (Non.Pub. Non. Cite). "Gonzalez was convicted in 1988 of possession for sale of a controlled substance. Also in 1988 he was convicted of felony joyriding. Less than two months after he was paroled in 1989, he was arrested and later convicted of attempted rape and committing a lewd act on a child under the age of 14. He was paroled in 1992 and, less than a year later, was arrested and convicted of robbery. Once paroled, he committed at least three violations, including battery and spousal abuse, for which he returned to prison in 1997, 1998 and 1999. Gonzalez's failure to annually update his sex offender registration, the offense for which he was convicted here, occurred after his birthday in February 2001, less than one year following his discharge from parole. The probation report identifies three aggravating and no mitigating factors: (1) Gonzalez has engaged in a pattern of violent conduct which indicates a serious danger to society; (2) his prior convictions as an adult . . . are numerous or of increasing seriousness; and (3) his prior performance on probation or parole was unsatisfactory. Based on this evidence, the trial court acted well within its discretion by finding Gonzalez could not be deemed outside the [Three Strikes] scheme's spirit, in whole or in part. "Gonzalez also asserts his sentence violates the federal prohibition against cruel or unusual punishment but provides no separate Eighth Amendment analysis, contending the analysis is the same under both state and federal law. We would not reach a different result under the federal Constitution. [T]he principles developed by our court [regarding cruel or unusual punishment] are similar to those developed by the United States Supreme Court [citation] ... [and] the federal high court's reminder that appellate courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes[.] [Citation.] (Peo. v. Barrera (1993) 14 Cal.App.4th 1555, 1566, fn. 7, 18 Cal.Rptr.2d 395). After losing on appeal of his conviction, and denial of his habeas corpus petitions in state court, and denial of a petition for habeas corpus in the U.S. district court, Gonzales contended on appeal to the Ninth Circuit his punishment violated the Eighth Amendment prohibiting Cruel and Unusual Punishment. According to the Ninth Circuit, failure to annually register his change of address is a regulatory process of minimal importance and bears no relationship to Gonzales previous criminal history. Ignoring the record of criminal behavior as relevant, the panel grants the petition for habeas corpus despite the absence of any objection to the sentence at the trial court and an issue never raised in the California Court of Appeal. This case is another example of federal arrogance. The Ninth Circuit panel shows no deference to the state court as required under AEDPA and simply injects its own opinion. The Supreme Court has reversed the Ninth Circuit for its two previous opinions invalidating the Three Strikes law; Andrade v. Lockyer, 528 U.S. 77 (2003); Ewing v. California, 538 U.S. 11 (2003). The California Attorney General will decide whether to seek review of the Gonzales case. The result in Gonzlales is typical of the Ninth Circuit which began reversing the California Three Strikes rules as early as 2002; Brown v. Mayle, 283 F.3d 1019 (9th Cir. 2002). In Brown, the Supreme Court reversed the Ninth Circuit and remanded the case under its previous decision in Lockyer v. Andrade; Mayle v. Brown, 538 U.S. 901 (2003). The Ninth Circuit affimed the original district court rule-as ordered by the Supreme Court- denying the petition for habeas corpus; Brown v. Mayle, 66 Fed.Appx. 136. The jurisdictional dimension in Gonzales is repeated regularly by the Ninth Circuit in this familiar scenario: A habeas corpus petitioner files a writ in district court seeking review of multiple issues previously resolved against him in state court. The district court denies the petition and petitioner appeals to the Ninth Circuit on multiple grounds. The panel resolves a single dispositive issue in petitioner's' favor, ignoring the other issues. The State seeks review of the Ninth Circuit decision in the Supreme Court, which rules on the single issue asserted, as it did in Mayle v. Brown, reverses the Ninth Circuit, and remands to the Ninth Circuit to decide other issues not raised by the petition. The Ninth Circuit now addresses all the other issues previously asserted. And another round of appeals starts. An example of this misuse of judicial power: Belmontes v. Ayers, 2008 WL 5398912 (C.A. 9). Although in Mayle the Ninth Circuit on remand from the Supreme Court denies a ruling in favor of the petitioner on his other claims, in other cases they rule in favor of the petitioner; 66 Fed.Appx. 136. Which causes another appeal.