Reining in 9th Circuit's habeas record

The U.S. Supreme Court has arguably reined in the 9th U.S. Circuit Court of Appeals and divested that court of jurisdiction to hear federal habeas corpus petitions on collateral review of state court capital case judgments. Although the justices never mentioned the 9th Circuit in reversing an opinion written by the 6th Circuit, Woods v. Donald, 135 S. Ct. 1372 (2015), the message is clear. Woods has now indirectly prevented the 9th Circuit from continuing to circumvent state courts in habeas corpus cases.

The facts in Woods are typically horrific and unquestionably warrant a verdict of guilty and a penalty of death, but it is the court's critical language in the opinion that denies a challenge by a habeas corpus petitioner who alleged ineffective assistance of his counsel in the state court trial. Under the familiar 28 U.S.C. Section 2254 statute (the AntiTerrorism and Effective Death Penalty Act, or AEDPA), a federal court can only order habeas corpus if a state court decision on the merits is "contrary to, or involved an unreasonable application of, federal law as determined by the Supreme Court."

9th Circuit panels usually begin their habeas corpus reversal of state court decisions with the statutory language of AEDPA and then distinguish it with an alleged exception, misapplication or subjective determination of "unreasonable application of." Here is the language in Woods ending that evasion: "AEDPA's standard is intentionally 'difficult to meet.' ... [The principles of AEDPA] serve[] important interests of federalism and comity. AEDPA's requirements reflect a 'presumption that state courts know and follow the law.'" (Internal citations omitted).

The court holds: "When reviewing state court criminal convictions on collateral review, federal judges are required to afford state courts due respect by overturning their decisions only when there could be no reasonable dispute that they were wrong. Federal habeas review thus exists as 'a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction through appeal. Harrington v. Richter, 131 S. Ct. 770 (2011) [reversing the 9th Circuit].' This is especially true for claims of ineffective assistance of counsel, where AEDPA review must be 'doubly deferential' in order to afford 'both the state court and the defense attorney the benefit of the doubt.' Burt v. Titlow, 134 S. Ct. 10, 13 (2013) (quoting Cullen v. Pinholster, 131 S. Ct.1388 (2011)" [reversing the 9th Circuit]."

As stated by the Supreme Court, in cases alleging ineffective assistance of counsel, the appellate ruling is "doubly deferential," as in Woods. The federal appellate court must first apply the rule in Strickland v. Washington, 104 S. Ct.2052 (1984), a Supreme Court decision holding the Sixth Amendment right to counsel is violated by evidence of ineffective assistance of counsel in the state court trial or appeal. And, the error must also be prejudicial. "Double deference" requires the 9th Circuit panel to initially defer to the state trial court decision on the Strickland issue.

If the state court finds no ineffective assistance warranting reversal, the federal court must secondarily defer to the state court unless the record is consistent with evidence of "extreme malfunction of the state criminal justice system," a test almost impossible to establish.

Woods should end collateral review of state court decisions including an absurd California federal district court ruling, now on appeal to the 9th Circuit, contending the California courts are malfunctioning and causing delay. The delay is attributable to the 9th Circuit, confirmed by its embarrassing record of reversals in the Supreme Court.

9th Circuit panels not only scour the record for ineffective assistance of counsel, they also review voir dire under the guise of Batson v. Kentucky, 106 S. Ct.1712 (1986), forbidding counsel from excluding specific racial or ethnic groups of jurors by invoking peremptory challenges. The reason for counsel to exercise peremptory challenges is intangible and can consist of a variety of factors aside from race. Personal background, family or single status, demeanor, attitude, incoherence, mistakes, verbal facility, voice, and an unlimited number of other personal characteristics can cause counsel - usually the prosecutor in criminal cases - to conclude the juror is excusable. Many of these traits do not appear on the trial record.

Batson requires the trial court to conduct an evidentiary hearing to determine whether the prosecutor excused a specific juror solely on the basis of race, or engaged in a pretextual peremptory challenge. Supreme Court decisions have repeatedly reminded all parties the trial judge is in the best position of making that decision, and not an appellate court reading a cold record.

9th Circuit habeas panels have seized on Batson, despite a prior state court decision on appeal or state habeas corpus denying the allegation of a juror peremptorily challenged on racial grounds, and requiring time-delaying preparation of huge records. The panel reads the record of counsel examining jurors during voir dire under a "comparative analysis" of all questions. No one can define this format because the prosecution questions all potential jurors, and its trial strategy differs for everyone regardless of race. Under the new Supreme Court ruling in Woods, the decision of state court trial judges, and affirmed by a state appellate court, is the last word. No evidence of "an extreme malfunction of the state justice system" would apply to 9th Circuit reexamination of voir dire. The prior judicial theory of habeas corpus is now history.

Not all 9th Circuit judges ignore Supreme Court precedent or write policy decisions, particularly those involving the death penalty. But in the last decade of innumerable death penalty cases tried by jurors and their decisions confirmed by state supreme courts, the 9th Circuit has reversed almost every one on habeas corpus. Not one cited an extreme malfunction of the state criminal justice system.