Supreme Court reverses 9th Circuit again, and again

During the last days in the 2013-2014 term in July, the U.S. Supreme Court reversed four 9th U.S. Circuit Court of Appeals cases. Just before the current term of the Supreme Court had even begun, the justices reversed the 9th Circuit. Scialabba v. Cuellar de Osorio, 12-930. Then, when the current term opened Oct. 6, the court again reversed the 9th Circuit in a unanimous per curiam opinion. Lopez v. Smith, 13-946. Further, as a portent of things to come in 9th Circuit criminal law cases, absent a rehearing en banc in Deck v. Jenkins, 13-55130 (filed Sept. 29, 2014), a 2-1 panel decision will be reversed on certiorari. And on Monday, the Supreme Court granted certiorari in Chappell v. Ayala, 13-1428, a 9th Circuit decision that reversed the district court and the state Supreme Court, and granted a death row inmate a new trial.

The overwhelming evidence in the Lopez case cast no doubt the defendant had killed his wife in their house. Police found DNA evidence on the body of the dead victim, on the lethal weapon, and on jewelry removed from the house where the murder occurred concealed in the trunk of the defendant's car. A criminal evidence expert testified the ransacked house was a staged robbery. The jury rendered a guilty verdict.

At the conclusion of the prosecution's case, the prosecutor had obtained a trial court-approved jury instruction defining the crime of aiding and abetting in addition to first degree murder instructions already submitted. Defense counsel objected, arguing he had no notice of the change in prosecution theory. All California appellate courts have rejected this argument, as did the trial court and Court of Appeal in this case, on grounds anyone who aids and abets is as guilty as the principle. The 9th Circuit panel on habeas review disagreed.

In Lopez, and the other cases cited above, the 9th Circuit has repeatedly evaded the restrictions imposed on federal habeas corpus jurisdiction mandated by the Anti-Terrorism and Effective Death Penalty Act (AEDPA). Federal law allows habeas relief only "if the state court decision was contrary to, or involved, an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. Section 2254(d)(1); Parker v. Mathews, 132 S. Ct. 2148 (2012).

The act also requires federal courts "deference" to state appellate courts in habeas proceedings. The 9th Circuit panel in Lopez cited only their own precedents, and overruled the conviction on grounds the state appellate court opinion "unreasonable." The Supreme Court reversed, concluding the 9th Circuit had "time and again" misinterpreted the facts and Supreme Court law under AEDPA and ignored deference to state courts.

The Lopez opinion is a heavily cited per curiam opinion without footnotes, but the dissenting opinion in Deck lists an embarrassing number of Supreme Court cases reversing the 9th Circuit for failing to comply with AEDPA. In one Supreme Court case, a justice singled out the 9th Circuit for repeated violations of AEDPA committed by panels' misapplication of habeas corpus precedent. In addition, the 9th Circuit has ignored or evaded almost every state court death penalty case for the last decade on habeas corpus grounds despite California Supreme Court affirmation on the merits and the penalty.

Frustration by 9th Circuit reversals is not a recent event for the Supreme Court. Several years ago, the 9th Circuit reversed a California case involving a search and seizure involving the Fourth Amendment. Stone v. Powell, 428 U.S. 465 (1976). Police arrested and searched Powell under a local vagrancy law and found a weapon involved in his commission of a previous murder. Convicted and his sentence confirmed on appeal, and his petition for habeas corpus denied by the district court, Stone appealed to the 9th Circuit. The panel overruled the conviction on grounds of an unconstitutional vagrancy law.

Not only did the Supreme Court reverse the 9th Circuit, the justices prevented the court from hearing any future state cases on Fourth Amendment issues. Undeterred, the 9th Circuit has found a circuitous route around this ruling in the civil rights statute. 42 U.S.C. Section 1983 permits standing to anyone who alleges a civil rights violation to file litigation seeking damages against the individual law enforcement officer and the employer. Because the Supreme Court has held that unlawful use of force on a person in an arrest is an unreasonable seizure under the Fourth Amendment, an individual can file a complaint in federal court for damages under Section 1983, evading the limitations imposed by AEDPA.

Stone is not the only state court case the Supreme Court has reversed and concurrently prohibited the 9th Circuit from hearing future cases. In California, 9th Circuit panels were reversing parole decisions written by state appellate courts. In an unusual exception to restrained judicial language in court decisions, the justices in a per curiam opinion told the 9th Circuit that state parole is "no part of [their] business," and to discontinue deciding parole cases. Swarthout v. Cooke, 562 U.S. 216 (2011).

The 9th Circuit has discovered another method of evading AEDPA. In Jackson v. Barnes et al., 749 F.3d 755 (2014), a state court trial, Jackson was convicted of first degree murder based, in part, on evidence of his statement he made in custody to a deputy sheriff. On federal habeas review the 9th Circuit reversed the conviction on Fifth Amendment Miranda grounds, but the state retried Jackson without introducing the confession. Convicted of first degree murder again, Jackson sued the officer and the county under Section 1983 asking for damages he endured absent Miranda warnings in the first trial. Although the Supreme Court has barred such an absurd allegation, the 9th Circuit denied the defense motion for summary judgment.

Of all the 9th Circuit reversals the Supreme Court has issued, none is a more severe reprimand than in Ryan v. Schad, 133 S. Ct. 2548 (2013). The justices had affirmed denial by a 9th Circuit panel habeas corpus petition, and immediately issued the mandate requiring compliance with its opinion under federal court rules. Instead of complying, the panel ignored the Supreme Court decision and remanded the case to the district court for further proceedings. Upon discovery of this misinterpretation of the record, an angry Supreme Court responded with a finding of 9th Circuit "appellate abuse of discretion."

Few courts of the United States can find as many excuses to avoid capital punishment as the 9th Circuit. In Wood v. Ryan, 759 F.3d 1076 (2014), the 9th Circuit 2-1 panel could find no legal error justifying stay of a pending execution in a state court, but decided the inmate had a First Amendment right to know what kind of drugs the state intended to use. The majority panel issued a stay - vacated in 24 hours by the Supreme Court. Ryan v. Wood, 14A82 (July 22, 2014).