Sunday, July 8, 2012

Sawyers v. Holder, 399 F.Appx. 313 (2010); Reversed: 132 S.Ct. 7 (2012)

Because the volume of immigration cases in the 9th Circuit is so heavy, and most cases fact intensive, we do not review them. But a recent case entitled Sawyers v. Holder illustrates the damage to the court system by the 9th Circuit deplorable record of reversals.  People forget that 9th Circuit cases reversed by the Supreme Court occur after the conclusion of years of litigation.  In the interim, all cases relying on 9th Circuit opinions as precedent continue to rely on the original decision.  When the Supreme Court reverses a 9th Circuit case years later, all its erroneously decided cases remain unaffected (although non citeable) on the books and a party escapes responsibility.

Sawyers illustrates this.  In 2005 the 9th Circuit sanctioned imputing the residence of the mother to the child for purposes of challenging deportation; Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir. 2005).  In 2009 the 9th Circuit cited Cuevas-Gaspar as precedent in applying its rule to Mercado-Zazueta v. Holder, 580 F.3d 1102 (9th Cir. 2009).  And in Sawyers v. Holder, 399 F.Appx. 313 (2010) the 9th Circuit cited  these two cases again and approved the doctrine of imputing residence of the mother to the child in the context of a deportation proceeding.

In 2012  the Supreme Court decided  Holder v. Martinez Guttierrez,132 S.Ct. 71 (2012)  reversing the 9th Circuit decision and its holding in Sawyers v. Holder. During the 7 year interim between 2005 and 2012 the BIA in the 9th Circuit was governed by three cases wrongfully decided. The 9th Circuit erroneous "imputation" rule applied to anyone within that category for 7 years.  On remand from the Supreme Court in Sawyers v. Holder the 9th Circuit admitted its two earlier cases were also wrongly decided; Sawyers v. Holder, 2012 WL2507513 (C.A. 9).

Extrapolate that rationale to Supreme Court death penalty cases reversing the 9th Circuit. While a 9th Circuit case and its decision slowly winds its way through the court system, the court cites it as precedent to other cases in later opinions. /Assume the Supreme Court ultimately reverses the original decision in a later case that, in effect, reverses a trail of 9th Circuit cases. All these cases were wrongly decided but unreviewable now.  In the current term of the Supreme Court the Justices reversed three death penalty cases wrongly decided by the 9th Circuit.  Aside from all the delay incurred, these cases were precedent for other cases wrongly decided by the 9th Circuit.   

Thursday, June 28, 2012

Knox v. Service Employees Int. Union, Local 1000, 132 S.Ct. 2277 (2012)

The record of the 9th Circuit in labor law cases parallels its record in criminal law.  Favoritism toward unions was obvious as expressed in Knox v. California Service Employees, 628 F.3d 1115 (9th Cir. 2010). The court in Knox saw no unfairness to non union members when the union announced an increase in dues, in addition to annual dues, to contest anti labor Initiatives.  Under well established U.S. Supreme Court law, a union cannot compel its members who object to political issues to contribute by mandatory payment of union dues. In 1986 the Supreme Court ordered unions to discontinue using dues to support political positions opposed by some of its members, and outlined procedural steps the union must take to assure compliance; Teachers v. Hudson, 475 U.S. 292 (1986); Davenport v. Washington Ed. Assn., 551 U.S. 177 (2007).

In Knox, the 9th Circuit held the court must undertake a balancing test of competing interests, and allowed the union to compel its members to contribute to an increased assessment for political purposes.  The Supreme Court disposed of this absurd argument summarily and reversed the 9th Circuit with instructions for the union - and the 9th Circuit - to follow the law.

Although not a criminal case or one involving Constitutional issues, Knox is another illustration of the ideological bias of the 9th Circuit and adds to the growing number of its reversals.  The currrent term of the Supreme Court will set another record for reversals of the 9th Circuit.  The cost of 9th Circuit reversals, including the death penalty, is enormous, and the volume of 9th Circuit cases so heavy several cases that should have been reversed escaped Supreme Court review.  

Wednesday, June 27, 2012

Delia v. City of Rialto, 2012 WL 2308619 C.A. 9) on remand

Although this case is relatively unimportant in most contexts, Delia v. City of Rialto illustrates another reversal of the 9th Circuit.  But from a cursory glance, if you read the citation above, you would never know the Supreme Court reversed the 9th Circuit.

The plaintiff Delia originally filed a 1983 claim  against the City of Rialto, its employees, and private contractor Steve Filarsky hired by the City. The district court ruled all the City employees and private employee Filarsky were entitled to immunity.  On appeal the 9th Circuit applied immunity to all governmental employees except Filarsky. The Supreme Court reversed, holding Filarsky was also entitled to immunity.

The original name of the case in the district court, and in the 9th Circuit, was Delia v. City of Rialto, et. al including defendant Filarsky, but in the Supreme Court the case was only named Filarsky v. Delia 2012 WL 1288731.  After the Supreme Court reversed and remanded, the 9th Circuit issued an order on June 19, 2012: "In light of the United States Supreme Court's decision in Filarsky v. Delia (cite) the judgment of the district court is affirmed.  The mandate shall issue forthwith.  Remanded;" Delia v. City of Rialto, et al., 2012 WL 2308916." The record is correct-and misleading.

In its June 19 order remanding to the district court, the 9th Circuit only mentioned the name of the Supreme Court decision entitled Filarsky v. Delia, and not the previously dismissed case in the district court under the title of Delia v. City of Reno. The 9th Circuit on remand to the district court says nothing about its own reversal by the Supreme Court, and the reader would never identify the reversed names on the opinion. In other words, the  June 19 order remanding to the district court, the 9th Circuit indirectly affirmed the district court case previously applying immunity to all parties without noting its own reversal.

Add this case to the record number of reversals in the 9th Circuit.

See Supreme Court decision in Filarsky v. Delia, below,

Briggs v, Grounds, 2012 WL 2161370 (C.A. 9)


When the Supreme Court in Batson v. Kentucky, 476 U.S.79 (1986) decided that prosecutors could not excuse jurors from serving on a criminal case if the ground for a peremptory challenge was race based, the Justices opened up another opportunity for the 9th Circuit to savage forests. In the first place, the appellate court must now read the entire voir dire transcript, in addition to the trial record, to determine if the prosecutor excused a juror on pretextual grounds.  Because the appellate court reads a cold record, and several 9th Circuit judges have never tried a criminal case, the transcript loses the entire "chemistry" of criminal cases in general and voir dire in particular.  The record will not show juror body language, the tone of answers, the indecisive answer, or a host of other character traits evident not only to the prosecutor but the trial judge who must rule on a defense motion alleging a prosecution peremptory challenge based on race.The Supreme Court has repeatedly reversed the 9th Circuit in these cases and reminded the appellate court that the trial judge is in the best position to evaluate the juror, and the questioning by the prosecutor.
 One of the legal tests formulated for determining prosecutorial bias requires the court to undertake a "comparative analysis" of questions asked of all the jurors on voir dire.  Of course this test is highly subjective and subject to the idelogical perspective of the reader. In addition, some jurors are obviously more acceptable and do not need the same kind of questions asked of others.

No better case illustrates this point than the dissent in Briggs v. Grounds. The majority of the three judge 9th Circuit panel upheld the state court trial judge who denied the defense motion alleging the prosecutor excused a juror on racial grounds. The dissenting judge, selectively reading the voir dire transcript, concluded - on habeas corpus - that the state court trial judge, the California Court of Appeal and the district court were wrong in not finding prosecutor bias.  Reluctantly rendering lip service to AEDPA deference (questionably applicable to "comparable analysis" in the 9th Circuit), the dissenting judge on appeal simply read the transcript, ignored the obvious reasons for excusing the juror, and invented an explanation of bias. In essence, the dissenting judge applied de novo review of the state court and ignored the rule of deference under AEDPA.  This practice is routine in the 9th Circuit.

This case illustrates again the federal interference with state courts regardless of repeated Supreme Court decisions reprimanding decisions comparable to the dissent. Fortunately the 9th Circuit majority decision understood the rationale of the prosecutor, the approval of the trial judge, the district court judge, and California Court of Appeal. Petition denied. 

Monday, June 4, 2012

Phillips v. Ornoski, 673 F3d 1168 (9th Cir. 2012)

Comparable to many cases deserving of the death penalty, the facts are chilling.  The defendant Phillips explained a financial scheme to two men enabling them to defraud other people of their money.  In order to facilitate the fraud, Phillips secured cash from both men who agreed to the scheme.  At some point, the two men delayed paying money allegedly owed to Phillips but they agreed to meet and talk about it.

Phillips and a female companion drove to a remote location and met the two men who were seated in their car.  After a few words were exchanged among them, Phillips pulled out a handgun and shot both men several times.  He then poured gasoline on them and lit their clothes on fire. One man fled in burning clothes, but Phillips ran him over in his car. Phillips searched both men and took their wallets. Miraculously, one victim lived but the other man died.

Phillips and his companion fled the state, were arrested and charged with murder of one man, attempted murder of the other man, and robbery. In addition to testimony by the victim, the prosecution offered testimony by the female accomplice but without disclosing a promise of leniency to her.  Evidence also was submitted that Phillips had arranged for a "hit man" to kill the witnesses, and had admitted killing one of the victims. Phillips testified to an alibi but admitted he lied. The robbery charge to the jury was required for the special circumstance of felony murder warranting the death penalty.  The jury voted guilty on all counts, confirmed the special circumstance, and approved the death penalty.

On appeal of the conviction to the California Supreme Court Court, Phillips alleged the prosecutor had failed to disclose benefits promised to his female companion in exchange for her testimony.  The state court affirmed. Phillips filed habeas corpus in district court.  Denied.  On appeal, the 9th Circuit reversed on grounds of ineffective counsel and returned the case for an evidentiary hearing; Phillips v. Woodford, 267 F.3d 966 (9th Cir.2001). The Supreme Court reversed the 9th Circuit.  The 9th Circuit decision was so absurd that the reversal was obvious.

Phillips appealed the original district court decision denying his petition of habeas corpus to the 9th Circuit.  The 9th Circuit panel 2-1 majority affirmed on the merits of the counts alleged (compelled to do so by the Supreme Court decision) but reversed the death penalty.  The grounds alleged for reversal of the death penalty were the same as alleged in state court: failure of the prosecutor to disclose benefits to a prosecution witness in exchange for her testimony as an accomplice.

In one of the most inexplicable decisions ever written, the panel affirmed the merits of the case despite prosecution failure to disclose commitments to the witness, but invoked  the same reason for reversing the death penalty.   Here is the exercise in verbal prestidigitation: Under California law, felony murder is proven only if the death of the victim was committed to facilitate the robbery. Ordinary murder, committed by conduct unrelated to theft, does not constitute felony murder; Peo. v. Green, 27  Cal.3d 1 (1980).

The 9th Circuit majority used the Green case to hold that the murder and attempted murder by Phillips was not to facilitate robbery.  Just pure murder.  Therefore, the special circumstance instruction requiring felony murder had not been proven in the absence of evidence that Phillips robbed the two men.  Of course Phillips rummaged through the clothes of his victims and took their wallets.  Apparently that doesn't count.

The dissenting judge disagreed with the majority of the panel.  Remarkably, no other judge sought rehearing.  This case is another instance of a federal court overruling the California Supreme Court, the jury, and a federal district court judge.  The decision, in a trial of overwhelming evidence, invokes an arcane legal distinction to invalidate a death penalty.  According to the panel, failure to disclose a pre trial commitment to a witness does not affect the merits but it does affect the penalty. As the dissenting judge skillfully writes: "The question the majority addresses seems to be 'is there any conceivable, speculative possibility we can think of that would make Phillips guilty but without the special circumstance?'" 

This case was tried in 1977.  Affirmed by the California Supreme Court and a U.S. District Court judge;  wrongly reversed initially by the 9th Circuit panel whose decision was reversed by the Supreme Court; and in 2012 the panel unearthed an insignificant  and meaningless legal distinction to vacate the death penalty . Even if correct, and the prosecutor faulted, the overwhelming evidence justified the jury decision.

Friday, June 1, 2012

Coleman v. Johnson, 132 S.Ct. 2060 (2012)

Not a good week for the 9th Circuit.  The Supreme Court summarily reversed four 9th Circuit cases on immigration.  The 9th Circuit record on immigration parallels its record on criminal cases.  The volume is so excessive the Supreme Court cannot review all 9th Circuit mistakes.

Coleman v. Johnson is not a 9th Circuit case but it sends a message to that court.  On collateral review, the 3d Circuit had reversed a Pennsylvania state court appellate decision confirming a jury trial verdict.  Defendant alleged that the evidence at trial was insufficient to convict him of murder, citing the Supreme Court case of Jackson v. Virginia, 443 U.S. 307 (1979).  This venerable case reversed a conviction obtained by no supporting evidence and, according to the Supreme Court, violated due process.  The Jackson test for reversal on federal habeas corpus is nebulous at best: "only if a rational trier of fact could not have agreed with the jury." And: "whether [the finding of the jury] was so insupportable as to fall below the threshold of rationality." The 9th Circuit can easily evade that language.

In applying that test the Supreme Court in Coleman ordered federal courts on collateral review to consider the jury verdict and the state appellate court decision in addition to AEDPA.  The Court particularly cites a 9th Circuit case it reversed three times on grounds the appellate court found insufficiency of evidence as an example of an erroneous application of the Jackson test; Cavazos v. Smith, 565 U.S. 1 (2011)

Although the Jackson test is conceptual and subjective, the Supreme Court is sending a message to all circuit courts, and the 9th Circuit in particular, to strictly apply the facts of the case and the Jackson rule with deference to state courts, juries, and AEDPA.

As an added note: after the Supreme Court reversed the 9th Circuit in Smith for the third time, the appellate court engineered clemency for the defendant through the office of Governor Jerry Brown.  Within three weeks after the third reversal was remanded to the 9th Circuit.  

Thursday, May 31, 2012

Moss v. U.S. Secret Service, 675 F.3d 1213 (9th Cir. 2012)

In a case noteworthy for its irrelevance and the absence of useful precedent, this case stands for nothing more than another intrusive federal court decision of no value to anyone.  The plaintiffs alleged police and Secret Service agents violated their First Amendment rights because they treated their anti- President Bush crowd differently than the pro- Bush crowd during a presidential appearance in Florida.  According to the Complaint, police kept anti- Bush demonstrators further away from Bush than demonstrators who supported him.  Denying the defendant's motion for summary judgment, this case is actually going to go to trial. And the court held the Secret Service agents are not entitled to immunity at this stage.  Of course the 9th Circuit panel knows more about protecting the President than the Secret Service.

The court first summarizes cases on viewpoint discrimination and concludes the protesters were discriminated against on a public street.  They were ordered to stand further away than Bush supporters.  That's the entire case.

Of course this 9th Circuit panel ignores the assassination of  Ronald Reagan.  It may come as a surprise to this panel that people who are opposed to people of their policy are more likely to cause trouble than  those  who do not.

What does this case establish?  Nothing.  Every political demonstration is different, and the job of the Secret Service is to protect the President.  What are they supposed to do in any other case at any other time and under entirely different circumstances?   Measure the distance between demonstrators? How is this case  relevant to anything is a good question.    

Sunday, May 27, 2012

Myers v. Holder, 661 F.3d 1178 (9th Cir. 2011)

Meyers v. Holder is an immigration case decided eight months ago in a 2-1 9th Circuit panel decision, and written by the same judge who sought clemency for Shirley Smith despite three Supreme Court reversals. The decision represents a serious departure from integrity and a questionable disrespect for the law.

Meyers originally sought delay of his deportation in federal court and his request was denied. His petition for cert. in the Supreme Court was denied  Returning to the 9th Circuit, he sought mandate to delay deportation until the BIA heard his motion to rehear the case.  The majority opinion cites nothing but a string of cases based on procedural law and ignores the absence of any request to the BIA for reopening the hearing.  No analysis, no reasoning. Motion to stay mandate granted.

The dissenting judge cities the BIA statutory and Agency rule applicable in considering a motion to reopen. Meyers never submitted his request for a stay to the BIA.  The court majority overrides the statute, ignores BIA rules and regulations,  and grants the stay without  any explanation.

Saturday, May 26, 2012

9th Circuit Reversals in PI and Immigration Cases

Not discussed here because one is a civil case and the other an immigration case.  Both are added to the increasing case load of 9th Circuit reversals in the Supreme Court:

Taniguchi v. Kan Pacific Saipan Ltd, 2012 WL 181016 (U.S.) 

Holder v. Gutierrez, 2012 1810218  (U.S)

Thomas v. Chappell, 678 F.3d 1086 ((9th Cir 2012)

Reversing another death penalty case (2-1), the 9th Circuit panel majority reviews an "ineffective counsel" claim in a case the prosecution will never be able to retry.  The witnesses all were homeless wanderers, unreliable and inconsistent in their testimony. Nonetheless, the jury found the defendant guilty.

On direct appeal from the conviction the California Supreme Court ordered a hearing on the "ineffective counsel" claim, and was critical but did not reverse the verdict.  On habeas corpus in the 9th Circuit the panel first reminded readers the petition had been filed before the effective date of AEDPA.  This case was tried in 1985.

The ragtag witnesses, never identified the defendant as the killer, just testified to various facts linking him to the crime. The defense consisted of attempting to establish a third person committed the crime, also through  various witnesses.  One of the witnesses testified to facts implicating a third person (whose identity was never established) but who subsequently recanted all her testimony.  According to the majority, they didn't need to consider this fact.

This is another typical 9th Circuit case criticizing counsel.  It is part of a pattern established a decade ago and continues even today.  The majority opinion does nothing more that argue about the relevance of three witnesses, none of whom had important information on direct or rebuttal.  The jury listened to this grabbag of witnesses, saw the evidence and not only found the defendant guilty but imposed the death penalty.

As the dissent points out, the California Supreme Court ordered an evidentiary hearing.  The referee heard the evidence and found the facts did not warrnt reversing the conviction.The California Supreme Court agreed.  But two federal judges disagreed in a case tried in 1985.

The judges on the 9th Circuit have repeatedly overruled the California Supreme Court on "ineffective counsel" claims.  These  judges have no understanding of criminal law trial practice and basically second guess the defense. In this case they chastise counsel for not locating a witness who no one knew existed.  Counsel had the same problem with incoherent witnesses as did the prosecution.  

Rodgers v. Marshall, 2012 WL 1739703 (C.A. 9)

Ignoring Supreme Court decisions requiring deference to state courts under AEDPA, the 9th Circuit   overrules another California Court of Appeals case.

After filing an appeal from his conviction and numerous petitions for habeas corpus in state court, all denied, defendant filed a petition for habeas corpus in federal court.   Denied. He appealed to the 9th Circuit.

The trial record establishes the defendant wavered back and forth in determining whether to represent himself. The trial court judge repeatedly warned him against self representation. Ultimately the defendant did represent himself, and the jury found him guilty.  Without asserting any grounds, the defendant asked the court to appoint counsel to file a motion for new trial.  The trial court denied his request. In a petition to the 9th Circuit, the defendant asked for reversal on grounds the trial court should have granted his motion.

The 9th Circuit panel, reversing all California Court of Appeals decisions, petitions for habeas corpus, and the decision of the district court, first concluded a motion for new trial is a "critical stage" in criminal proceedings and a defendant is entitled to counsel.  But the panel could find no Supreme Court case holding that a defendant who elects self representation, and represents himself at trial, is entitled to representation at a post trial motion.  California courts correctly held that once a defendant decides to representation himself, he waives his right to counsel and revocation of the waiver is not permitted. 

Not in the 9th Circuit. Citing no Supreme Court case to this effect, the panel turns to 9th Circuit precedent  to assist in determining whether a defendant can revoke his waiver of counsel.  Completely ignoring Carey v Musladin, 549 U.S. 70 (2006), a Supreme Court case holding the absence of Supreme Court precedent on an issue disallows invoking circuit court precedent under the standards of AEDPA. Carey, another 9th Circuit reversal, prevents  the circuit court from citing its own precedent for "guidance, " as the panel states.

Aside from a wrong decision on the legal issue, this is another case of a defendant "gaming the system," citing no ground for the court to appoint counsel after deciding to self represent. Incidentally the defendant represented himself at sentencing without asking for counsel.

Saturday, May 12, 2012

Nedds v. Calderon, 2012 WL 1560992 (C.A. 9)

In 1997 Nedds was convicted in state court of possession of illegal drugs supplemented by a record of four prior robbery convictions.  He started the usual course of appeal in state court, all denied; filed repeated habeas corpus petitions in Superior Court, Court of Appeal and California Supreme Court; all denied; then in U.S. District Court; denied.  Appealed to the 9th Circuit and, unsurprisingly, granted.

The Supreme Court has reversed 9th Circuit precedent so often that an inmate can assert "equitable tolling" of the one year limitation imposed by AEDPA for filing habeas corpus in federal court after exhausting state post trial relief.  Changes in the law caused by the Supreme Court overturning decisions of the 9th Circuit equitably tolls the filing date in federal court-according to 9th Circuit precedent;  Harris v. Carter, 515 F.3d 1051 (9th Cir. 2008).

 Prior to 2002 the 9th Circuit had so liberally extended the one year AEDPA deadline filing that almost anyone could escape its limitations; Nino v. Gonzales, 183 F.3d 1003 (9th Cir. 1999). Finally, in Carey v. Saffold, 536 U.S. 214 (2002) the Supreme Court intervened and wrote: "The Ninth Circuit's rule [on tolling] consequently threatens to undermine the statutory purpose of encouraging prompt filings in federal court in order to  protect the federal system from being forced to hear stale claims." And these are not the harshest words  used by the Supreme Court in its decision.

Nine years later, in Lakey v. Hickman, 633 F.3d 782 (9th Cir. 2011), the 9th Circuit held the petitioner made no affirmative showing of reliance on discredited 9th Circuit precedent in seeking "equitable tolling," and denied his petition for habeas corpus. But in Nedds the court wrote "showing of actual reliance may be presumed from the circumstances but [Lakey] does not announce a new affirmative showing of actual reliance." This statement shreds Lakey.

Nedds alleged nothing in his petition relying on overturned 9th Circuit precedent.  But the court in a footnote exercises manipulation of the "circumstances" in the record warranting the "presumption "of reliance:  "The government argues that Nedds is  precluded from arguing that he is entitled to equitable tolling because of his reliance on now-overruled Ninth Circuit precedent because this specific equitable tolling argument is an uncertified claim not included in the Certificate of Appealability. The Certificate of Appealability was granted with respect to the following issue:s 'whether the district court properly dismissed appellant's petition as untimely, including (1) whether appellant is entitled to statutory ‘gap’ tolling, and (2) whether appellant is entitled to equitable tolling based on his lack of access to his legal materials and/or his delayed notice that the California Court of Appeal had denied his state habeas petition.' This language is probably broad enough to encompass the variant of the equitable tolling argument we address."

This is an outright misreading of the record.  The petition contains not one word of reliance on overturned 9th Circuit precedent.  Nor is there any such request in any of the petitions filed in state or federal court.     

Thursday, April 26, 2012

Martel v. Clair, 132 S.Ct. 1276 (2012)

Clair was convicted in 1984 and immediately started "gaming the system."  He repeatedly refused to accept legal assistance from appointed counsel, but the court did substitute lawyers for him on more than one occasion. Clair filed a motion to substitute counsel and a petition for habeas corpus. The District Court consolidated and denied both motions. Clair also submitted petitions in state court seeking post conviction relief

Clair appealed both District Court motions.  The the 9th Circuit panel  (in a non published memorndum opinion) reversed on grounds the trial judge had abused his discretion because had  not stated the  reasons for his decisions; 403 Fed Appx.3d. 276.

The Supreme Court reversed the 9th Circuit again.  The legal issue is not "ineffective counsel," but "substitution  of counsel." Inmates are rarely satisfied with court appointed lawyers and use this stalling tactic to delay-particularly in death penalty cases.  The Supreme Court held that substitution of counsel can occur on the grounds of "interest of justice."  The 9th Circuit used this vague and subjective test in its decision and, of course,  found it should reverse. The Supreme Court agreed this conceptual test is appropriate but the 9th Circuit applied it wrongly.  Reversed.

If "interest of justice" is the test for whether the court should substitute counsel, the 9th Circuit can use it repeatedly.  The Supreme Court held the test must be closely guarded but of course cannot set any standard because the test is subjective and fact intensive.   

Diaz v. Brewer, 676 F.3d 823 (9th Cir. (2012)

Again rejecting voters and state legislatures, a 9th Circuit panel has continued its imposition of public policy  instead of legal analysis.  In addition, the court has constitutionalized Initiatives and legislation by applying the unbounded limits of "equal protection," "liberty interests" and "due process" foreclosing the opportunity for any further democratic input or correction. Only a short time ago a 9th Circuit panel rejected California voters, and the California Supreme Court in Perry v. Brown, 2012 WL 372713 (C.A. 9 2012), by disallowing state law prohibiting same sex marriage in an opinion emphasizing sociology rather than law. The 9th Circuit panel in Diaz v. Brewer prohibited Arizona from implementing savings to its budget crisis by ruling its legislation discriminates against same sex couples; Diaz v. Brewer, 656 F.3d 1000 (9th Cir. 2012. Rehearing denied. En banc denied.

The only issue in the case: legislation reducing health care benefits to all state employees whether married or unmarried.  All employees, without exception, took a deduction in health benefits in an attempt by the state legislature to produce a balanced budget.  According to the 9th Circuit panel, this legislation included unmarried domestic partners, therefore the legislation discriminated against them-despite the fact only a tiny percentage would be affected.  Why?  Because under Arizona law, same sex marriage is disallowed. 

The dissenting judges in Diaz, lamenting the failure of 9th Circuit judges to order an en banc hearing, comment on the omission of the three judge panel to use the equal protection analysis necessary to invalidate state law, i.e., a specific intent to discriminate.  Aside from the fact that Arizona legislation manifests no intent to discriminate in a budget, and there is no rational basis for challenging the law, and impliedly rejecting the constitutional basis for opposite sex marriage, the opinion is another sociology lesson.


The 9th Circuit has already achieved another record of reversals during the current Supreme Court term, and this case should be added to the list.

Saturday, April 21, 2012

Filarsky v. Delia, 132 S.Ct. 1657 (2012)

The 9th Circuit notches another reversal on the issue of qualified immunity.

The City of Rialto retained an experienced and qualified lawyer to assist in the investigaton of an employee suspected of falsifying his work injury record and allegedly was constructing a house.  After unuccessful attempts by City employees to convince the employee to confirm his disability, the attorney asked the employee to bring out building materials he had purchased for his house. The employee retained counsel who refused cooperation, threatened litigation, and subsequently sued City employees and the private lawyer for Fourth Amendment violations. The U.S. District Court held the attorney and City employees immune from litigation. The employee appealed.

The 9th Circuit on appeal from the district court decision held a private lawyer retained by a public agency, which employed no one with the experience to investigate work fraud, did bit not qualify for immunity. Although the City employees could exercise immunity, the lawyer retained by the City could not.

The Supreme Court reviewed the doctrine of immunity extensively, and held the lawyer essentially did the work of a public employee in the absence of a trained person on the City staff.  Reversed.

Although not a breathtaking case, the Supreme Court discussion of immunity is an excellent summary of a  doctrine (soverign immunity) initiated as far back as the early days in the United States.  A 9-0 ruling.

See 9th Circuit on remand to the district court  (above, June 27, 2012)

Gonzales v. State of Arizona, 677 F.3d 383 (9th Cir. 2012)

Attempting to stem the tide of illegal aliens and their potential to cast votes in federal and state elections, the State of Arizona enacted modest statutory restrictions requiring evidence of citizenship from anyone in registering to vote and at the polling place itself.  The 9th Circuit (en banc) upheld the identification requirment at the polling place but not in completing the registration form.  Only the Supreme Court decision in Crawford v. Marion County Elections Board, 553 U.S. 181 (2008) compelled the court to allow evidnece of citizenship at the polling place.

Gonzales (en banc) is a split decision with a variety of results.  The majority of the court cited the Elections Clause of the Constitution, Art.I section 4, cl.1, as the governing authority.  This Clause permits the states to govern the mechanics of an election but reserves the right of the federal government to alter those conditions. Pursuant to the Election Clause, Congress enacted the Voting Rights Act (42 U.S.1973) authorizing the federal government to issue a "federal form" for voter registration, mandatorily imposed on the states, although each state could use its own form in compliance with the federal form.  According to the majority, presenting evidence of citizenship was not included in the federal form.

This conclusion of statutory construction of the VRA defies understanding for the average American.  To buy groceries, enter buildings, or purchase products, a person must display a drivers licence or similar identification. But in registering to vote it is unnecessary to require identification.

Whatever the result, the Gonzales case in another example of 9th Circuit duplicity. This case has been  before the 9th Circuit previously (and noted in this blog).  At one point, two 9th Circuit judges assigned to motion practice set aside a decision of the district court denying plaintiffs' challenge to the Arizona statute without requiring any briefing or explanation; Gonzales v. Arizona, 485 F.3d 1041 (9th Cir. 2007.)  Reversed by the Supreme Court; Purcell v. Gonzales, 549 U.S.1 (2007). On remand, a 9th Circuit panel upheld the Arizona registration law and polling place statute. Another panel reversed the original 9th Circut panel decision and ignored the "rule of the case" disallowing reversal of one panel by a subsequent panel. In addition, the 9th Circuit panel ruled that the requirement for identification at registration violated the Election Clause and VRA; Gonzales . Arizona, 624 F.3d 1162 (9th Cir. 2010).

The instant case is a rehearing of that decision. The majority in a footnote rejects the 9th Circuit panel who wrote an exception to the "law of the case rule" in its decision. The en banc court continued to accept a different understanding of the rule in the footnote equally ambiguous.

















































Sunday, March 25, 2012

Phillips v. Ornoski, 673 F.3d 1168 (9th Cir. 2012)

Phillips was convicted in 1977. After the California Supreme Court affirmed his conviction, he filed habeas corpus in federal court.  Denied by the District Court judge, the 9th Cricut reversed and ordered an evidentiary hearing. The District Court held a hearing and filed a 61 page order denying the petition.  On appeal, a 2-1 panel majority of the 9th Circuit reversed on the most unjust, speculative and specious grounds possible.

The evidence established Phillips lured two men to a deserted location, incapacitated both, and set them on fire.  When Phillips discovered one man still alive, he shot him five times and ran over him with his car.
One Coleman,  a female aacquaintance of Phillips, and present at the scene, testified to the events in addition to the victim who had been set on fire.  The victim, an eyewitness, testified dramatically to the event and was corroborated by the female accomplice.

The accomplice received the benefit of prosecutorial largess but the prosecutor did not reveal the secret deal he had arranged with her counsel.  According to the majority, this failure of potential impeachment spared the defendant from a finding of murder with special circumstances related to robbery, and set aside the death penalty thirty five years after the verdict.

The dissenting judge skewers this outrageous opinion.  He reminds the majority this case is a collateral proceeding entitled to a state court presumption of correction in its decision.  The California Supreme Court affirmed the verdict specifically rejecting the ground of the majority opinion.   As did the District Court.
The jury heard the eyewitness testimony of the victim shot five times, set on fire and run over by a car.  The defendant lured both men into a deserted location, urging them to bring money.  The victim testified the defendant took his wallet.  That is enough for felony murder.

The majority focuses on the failure of the prosecution to disclose it had arranged sentencing benefits for the  woman, although she testified she expected "consideration" for her testimony, but no one had informed her of any grant of immunity or leniency.  Assuming the prosecutor did not disclose potentially impeaching evidence, the defense counsel at trial argued she must have some kind of reason for testifying as a witness rather than a co - defendant.  The judge instructed the jury to assume "distrust of an accomplice." And the defendant testified to to an alibi that was proved to be a lie.

This case is another illustration of a judge manipulating the testimony, engaging in speculation, and assuimng the jury is composed of idiots.  The evidence is overwhelming but somehow this judge must defer, or prevent, the death penalty.   The dissenting judge  barely restrains his anger at this indefensible decision by the two judge majority.  This case will go en banc.

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Wednesday, March 7, 2012

James v. Ryan, 2012 WL 639292 (C.A. 9)

In an opinion decided by judges Berzon and Fletcher, the "usual suspects" in criminal cases, the 9th Circuit panel set aside a death penalty case on the usual grounds of "ineffective counsel."  The defendant was convicted in 1981 based on overwhelming evidence of a gruesome and vicious murder.  In 2012, twenty-three years later, and despite the repeated demands by the Supreme Court to conform to the Congressional act of AEDPA, this panel found ineffective counsel.
Apparently this defense did not occur to anyone else until this petition for habeas corpus was filed almost a quarter century after the trial.  James filed repeated duplicate petitions in Arizona state court and in federal court arguing innumerable grounds-all denied. Until the case arrived in the 9th Circuit.
Unless the State of Arizona seeks review in the Supreme Court, the ability to present evidence necessary to sentence James is almost impossible.  In the first place, one of the witnesses who testified against James was a juvenile, and sentenced to imprisonment until he turned eighteen.  The prospect of finding him, assuming  Arizona is able to subpoena him, and convincing him to testify, is slim.
The facts of this case warrant the death penalty regardless of James' childhood, his drug use and the usual psychiatric testimony. James was not under the influence of any drug at the time of the murder; denied any opportunity to relent from his decision to murder the victim, and showed no evidence of remorse.

The 9th Circuit record of death penalty cases reversed on collateral review continues.  With one exception (a case recently decided after the Supreme Court had thoroughly lashed the 9th Circuit for applying the wrong law for the last decde), the 9th Circuit has not affirmed a single death sentence in a decade. 

Saturday, March 3, 2012

Messerschmidt v. Millender, 132 S.Ct.1288 ( 2012)

Another reversal of the 9th Circuit puts it on track for breaking all previous records.
Shelly Kelly decided to revoke her relationship with one Jerry Brown.  As she was leaving their apartment, he screamed at her, grabbed by the hair, and bit her. She escaped and ran to her car only to find Brown standing in front of the vehicle holding a shotgun. She ducked down, accelerated and escaped again, but only after Brown fired five shots at her.  She reported the assault to law enforcement.
A deputy sheriff did an exhaustive search of records; found Brown to have been convicted of violent felonies; had used firearms; was a gang member.  The deputy filled out a comprehensive affidavit and search warrant of the house where he believed Brown was hiding and requested a search warrant for the gun and other weapons; showed the warrant to his supervisor who approved; approved by a deputy DA, and a magistrate issued the warrant.   Although other occupants were inside the house, the search did reveal either Brown or the shotgun.  He was arrested two days later.
Plaintiff (esate householder) filed a 1983 motion alleging Fourth Amendment violations on grounds the warrant was too broad.  The district court agreed denied qualified immunity to the officers; reversed by the 9th Circuit panel; reversed en banc on grounds the deputy should have known the warrant was too broad in seeking firearms in general, not just the one used by Brown in his assault.
Reversed by the Supreme Court.  The officer submitted a warrant consistent with his information that Brown was a gang member and a user of firearms. Ms. Kelly told him the address where he resided. The officer's supervisor approved the warrant, as did  a deputy DA. A magistrate issued the  warrant.

The lawsuit is frivolous to begin with.  No one was injured prior to, during, or after the search.  No damage occurred inside the property.The officers had the correct address and were authorized by a magistrate to search the apartment. The Fourth Amendment does not require officers to have a law degree.  The affidavit contained abundant information and warranted probable cause to search the apartment. And, said the Supreme Court, a magistrate issued the warrant.  Nothing to show any illegal or negligent conduct during the search.

Apparently the 9th Circuit thinks it should deny qualified immunity to the officers despite the approval of superior officers, a deputy DA and a magistrate.  The officers did nothing unreasonable from the drafting of the affidavit and warrant to the entry and search.  Fortunately the Supreme Court understood this.  

Sunday, February 19, 2012

Watison v. Carter, 668 F.3d 1108 (9th Cir. 2012)

No court extends more solicitude to state prisoners than the 9th Circuit.  A district court judge appointed a receiver to manage the state prison; for years the district court managed the Orange County Jail; in a series of cases upholding "prisoner rights" the court ordered the Dept. of Corrections & Rehabilitation  to allow an inmate to wear long hair as a religious issue under the First Amendment. Long hair also conceals drugs. 

Watison v. Carter is a 2-1 decison allowing an obvious vexatious inmate to maintain a First Amendment right of retaliation.  But in a partial dissent,written by a judge who previoulsy wrote an earlier unrelated opinion eqaully absurd, would allow an inmate to continue an 8th Amendment claim of cruel and unusual punishment for this: ". . . a corrections officer entered a cell searching for drugs while an inmate sat on the toilet.  According to the Complaint, the officer brushed against the inmate's naked leg."

According to this dissenting judge, that conduct qualifies as an 8th Amendment violation. In his words, "a prisoner sitting in his own cell on his toilet was allegedly rubbed on his thigh by a prison guard who had entered the cell. The sexual implications of this stroking plus the interference with the prisoner's discharge of his bladder amounted to the infliction of psychological pain. Given the privacy allegedly invaded, this kind of pain was sufficiently serious to constitute constitutionally prohibited cruelty."  Unbelieveable.

The ultimate absurdity: the dissenting judge quotes Justice John Marshall who obviously wrote on a different subject.
 

Monday, January 30, 2012

Ryburn v. Huff, 132 S.Ct. 987 (U.S.)

In a case so uncomplicated the Supreme Court issued a per curiam opinion reversing the 9th Circuit. Again.

A school superintendent called police and informed them a student had issued a death threat by firearm. Officers went to the student's home and received no response after knocking on the door. They called on the phone and received no answer.  Moments later, a woman (the student's mother) opened the door and the officers informed her they had received information about a threat and asked to talk to the student.  They asked her if any firearms were in the house and the woman ran inside.  Officers, unaware of her conduct, ran inside to assure their safety. No searches were conducted and no person mistreated.

As it turned out, the threat was only a rumor.  So the parents of the student sued for violation of Fourth Amendment rights.  Although the district court judge found the conduct of the officers reasonable, the 9th Circuit reversed. According to a 2-1 majority, the police conduct was unreasonable.  The dissenting judge criticised the majority for "sanitizing the facts."

Apparently the 9th Circuit assumed the officers should just stand in the doorway and wait until the woman  either returned with a firearm or shot at them from a concealed location.  That, in  essence, is what the Supreme Court wrote.  Given all the threats and killing on school premises, the officers were concerned for the safety of the students.  Their conduct was perfectly reasonable under the circumstances.

Another case of 9th Circuit naivete. Only that court would allow this silly lawsuit to go forward.  The police responded to a complaint from a legitimate source.  Attempts to contact the inhabitants peacefully  by knocking on the door and using the telephone were unsuccessful.  A woman perfectly capable of answering the door or phone comes to the door, the officers explain their presence, ask for assurance that no firearms are on the premises, and the woman  runs inside the house without any explanation.  And this is what the Fourth Amendment prohibits? Ryburn is a perfect example of a court second guessing police responsibly during their job.

The 9th Circuit is destined to receive another record of reversals in the Supreme Court.

Monday, January 23, 2012

Hydrick v. Hunter, 669 F.3d 937 (9th Cir. 2012)

In 2007 the 9th Circuit wrote another verbose decision allowing patients at a California State Institution for Sexually Violent Predators to file claims against hospital employees alleging violation of Constitutional rights.  In a 2-1 opinion the majority allowed the plaintiffs to proceed on some of their claims, including damages against individual employees and denying them qualified immunity;  Hydrick v. Hunter, 500 F.3d 978 (9th Cir. 2007). The Supreme Court reversed, in one sentence, citing its Iqbal case of inadequate pleading; Ashcroft v. Iqbal, 129 S.Ct. 137 (2009).

On remand to the 9th Circuit, the court in 2012 rewrote its original opinion and denied damages to individual employees on grounds of inadequate pleading, but emphasized plaintiffs could proceed on declaratory relief and injunction claims. And, said the court, the plaintiffs can proceed on a deliberate indifference theory.

The court also relied on its Starr v. Baca opinion, 652 F.3d 1202 ( 9th Cir. 2011)-eight judges dissenting from a denial of rehearing. 659 F.3d 650 (9th Cir. 2011).

Merolillo v. Yates (Warden), 663 F.3d 444 (9th Cir. 2012)

A case tried in 1997; defendant convicted; affirmed on appeal; California Supreme Court  denied a hearing; U.S. District Court denied petition  for habeas corpus.  The 9th Circuit reversed. Again. Another case ripe for en banc or Supreme Court review.

The defendant forcibly entered a car occupied by an elderly couple, threw the male occupant out, but the female occupant became caught  in the seatbelt  and partially fell out of the car. The defendant drove the car about a quarter of a mile dragging the woman on the street where her head struck the pavement and the curb.  A police chase ensued and the defendant arrested.  Approximately one month later the woman died.

The coroner testified at the preliminary hearing and explained that the head injury caused her death but conceded he was not an expert witness head damage.  Unavailable for trial, the prosecution used his report to cross examine the defense experts who testified the woman died from her serious heart history. At trial the defendant offered expert witnesses who testified the death of the woman occurred as a result of her extensive heart history.

Incredibly, the 9th Circuit panel reversed on grounds the prosecution used the coroner's report to cross examine the defense expert.  The report was not introduced in evidence, and two doctors testified on behalf of the prosecution.  Assuming the absence of the coroner at trial and the use of his report inadmissible, this would arguably cause a Sixth Amendment violation, but the error harmless.  Not according to the 9th Circuit  because AEDPA does not apply to harmless error, and the court used its own opinion.  What is wrong with cross examining a witness with questions read from a report never introduced at trial and no testimony to support it?

The 9th Circuit does nothing more than repeat the defense attorney argument at trial, and the jury rejected it.  The 9th Circuit did not hear the witnesses, did not judge their credibility, and the absence of the coroner had no influence on the jury. Another travesty.  

Thursday, January 19, 2012

Gonzalez v. Wong, 667 F.3d 965 (9th Cir. 2012)

Another 9th Circuit reversal of a death penalty case by a 2-1 majority panel. The case was tried in 1979.

Despite the harsh language of the Supreme Court in a recent series of cases reversing the 9th Circuit, the rebukes go ignored in Gonzalez and the case serves as another request for an en banc hearing and, if denied, a petition for cert. to the Supreme Court. The 9th Circuit majority panel cites AEDPA, U.S.C. 2254, concedes the Supreme Court cases have insisted on federal courts discontinuing second guessing state courts, and then ignores the statute and the Court precedents.

Sheriff's deputies served a search warrant on a house occupied by Gonzalez.  When he refused to open the door, the officers forcibly entered and confronted Gonzales who held a shotgun.  He fired and killed one officer.  At trial, Gonzalez conceded shooting the officer but contended he thought a gang member was attempting  entrance.  The only issue at trial and on appeal was whether he knew he had shot an officer.

The California Supreme Court upheld the conviction but ordered a reference to determine certain facts, i.e. whether the prosecutor concealed evidence of impeachment.  Ultimately the court denied his claim;
the U.S. District Court denied the petition for habeas corpus. Gonzalez contended one of the prosecution witnesses who testified against him had a  physcological history not disclosed to the defense.  At trial, the witness conceded he had been convicted of murder, had lied and had manipulated the prison system.  Even the majority opinion conceded he had been thoroughly  impeached in front of the jury.  Nevertheless, despite the state supreme court opinion,  the discovery reference ordered by that court, and the denial of the petition by the district court judge, the 2-1 majority held the phsycological history not disclosed by the prosecution violated the Brady rule (prosecutors must disclose exculpatory or impeaching evidence to the defendant prior to trial) and warranted reversal.

In support of its decision the majority cited a dissenting hypothetical opinion in Cullen v. Pinholster, 131 S.Ct., 388 (2011)  in arguing Gonzalez only discovered the evidence after the state court had ruled in his case.

This decision is a travesty.  Apparently the 2 judge majority never tried a criminal case and ignored the jury allocation of evidence.  The jury knew the witness was convicted of  murder, lied and manipulated the prison system.  In effect, thoroughly  impeached.  What did additional psychological evidence establish? The concurring opinion is an exercise in verbal hash, endlessly trying to justify its decision.

This is a simple case.  Did the defendant know the forcible entry was initiated by officers or gang members?  The jury heard all the  witnesses, understood the defense and convicted the defendant.  The majority cites almost no other evidence in the trial other than the testimony of the tainted witness. This case is another "second  guessing"of state courts.   

As usual, the majority cited AEDPA and ignored it.

Wednesday, January 18, 2012

Cash v. Maxwell, 132 U.S. 611 (2012)

For the last decade the 9th Circuit has systematically stymied state supreme court death penalty cases by invoking federal habeas corpus.  The Supreme Court has just as repeatedly reversed the 9th Circuit in harsh and censorious language.  In some cases the Court has alleged the 9th Circuit wilfully misread the record; in others, ignored Supreme Court precedents; in others, invoked the wrong legal test.

But not until Cash v. Maxwell has the Court, in the person of Justice Scalia, identified this disreputable record.  After citing the extensive record of 9th Circuit reversals, he decries the 9th Circuit  repeated evasion of AEDPA, ". . .uquestionably [ignoring] these [statutory] commands . . . and invalidated a 26 year old murder conviction  likely making it impossible to retry. . . To make matters worse, having stretched the facts [in Maxwell], the Ninth Circuit also stretched the Constitution . . . It is a regrettable reality that some federal judges like to second guess state courts . . .  The only way this Court can ensure observance of Congress's abridgement of their habeas power is to perform the unaccustomed task of reviewing utterly fact-bound decisions that present no disputed issues of law. We have often not shrunk from that task, which we have found particularly needful with regard to decisions of the Ninth Circuit."
N,B. This criticism also applies to Gonzalez v. Wong, reported above.

Tuesday, January 10, 2012

Arizona v. U.S, 132 U.S. 845 (U.S.)

The Supreme Court has granted cert. in the 9th Circuit decision, U.S. v. Arizona, 641 F.3d 339 (9th Cir. 2011), a 2-1.  Arizona had enacted a comprehensive series of statutes attempting to identify illegal aliens within its borders.The majority decision exercises rhetorical exegesis to grant the U.S. plaintiff an injunction against enforcement  of the statute.  The dissent skewers this incomprehensible statutory analysis.

Reciting the statutory provisions of an Arizona statute enforcing immigration law, the 9th Circuit panel majority invoked preemption of federal law to grant the U.S. motion to enjoin, on a facial basis, enforcement of the statute.  Arguably the parties can argue the language of the statute but the majority completely ignores the dissent analysis that  Congress intended the states to  cooperate in its enforcement of immigration law.  The argument that immigration law is a federal matter is undermined by the specific language of the statute enlisting the states to support the federal government in enforcing immigration law.

The Supreme Court should easily find Congress specifically intended cooperation of the states to assist the U.S. Atty. in enforcing immigration law.  The lawsuit by the U.S. against a state is more likely a political ploy than a serious attempt to enjoin enforcing the statute. Had the U.S. Attorney objected to the Arizona statute it could have negotiated a compromise on some of its terms.  Instead, it elected to eliminate the entire statute.

The competing arguments and the language of the statute are not included in this blog. The case is no longer law and has been decided by the Supreme Court.