9th Circuit reversed, again, on habeas review

2017 IN REVIEW

The U.S. Supreme Court ended the year with yet another 9th U.S. Circuit Court of Appeals reversal. The high court overturned a habeas corpus decision previously rendered by California courts and a federal district court. Kernan v. Cuero, 2017 DJDAR 10550 (Nov. 6, 2017).

Michael Cuero, who was on parole, was charged in state court with drunk driving causing personal injury, driving without a license, driving under the influence of a drug, and possession of a loaded firearm. Under California's three strikes law, these crimes were subject to a sentence of 14 years in prison. Cuero pled guilty to the crimes in state court.

The prosecutor subsequently discovered another "strike" -- thereby invoking the minimum sentence of 25 years under the three strikes law -- and amended the complaint with court permission. Cuero then withdrew his original guilty plea and pled guilty to the amended complaint after stating he understood the explanation by the court as to the consequences of his decision.

The plea and sentence were affirmed on direct appeal. The California Supreme Court denied review, and the federal district court denied habeas relief. The 9th Circuit, over the dissent of seven federal judges (and 11 state court judges), reversed the state court decision based on a subsection of the Antiterrorist and Effective Death Penalty Act. The state then petitioned the U.S. Supreme Court, which reversed the 9th Circuit.

A federal court may grant habeas relief to any claim adjudicated on the merits by a state court if contrary to an "unreasonable Federal law as determined by the Supreme Court of the United States." 28 U.S.C. Section 2254(d)(1). The Supreme Court reversed in a per curiam opinion, citing the absence in the record of any "unreasonable federal law" despite whatever the state law.

The 9th Circuit had cited no U.S. Supreme Court precedent justifying reversal of the state court procedure. The high court said federal courts should determine "reasonableness" of the state law under "clearly established Supreme Court law" in reviewing state court decisions. Any habeas review must not only conform to AEDPA in general, but must identify the unreasonableness of any state decision.

The subjective term "unreasonable" is difficult to serve as rationally based on a history of an incomparable variety of facts and relevant compliance with Supreme Court law. The court in Kernan found no precedent which clearly established that any of its decisions complied with this mandate.

This is the latest example of the 9th Circuit's disrespect to state courts in habeas cases. After trial, appeal in state court, and state habeas review, defendants can file a habeas petition in federal district court. If denied, the petitioner can ask the 9th Circuit to review.

Habeas corpus relief was originally only available in federal courts. The U.S. Supreme Court opened it up to states in Fay v. Noia in 1963. Justice William Brennan Jr. wrote an extensive history of the habeas corpus doctrine in Fay, contending the procedure inherent in English jurisprudence should apply equally to states. The 9th Circuit has invoked the doctrine repeatedly since then to state court decisions.

In a few years, after abuse of this new rule by federal courts, Congress ultimately enacted AEDPA to limit the scope of habeas review. In the 9th Circuit, every effort to evade the statute has been written by some judges despite repeated demands by the Supreme Court to comply with the legislation and Supreme Court precedent. Even 9th Circuit colleagues frequently criticized judicial abandonment of statutory mandates. One judge listed the reprimands of the Supreme Court in a footnote to a case.

The judicially imposed habeas corpus addition allowing federal courts to review state court decisions has created a procedural morass. In California capital cases, a defendant convicted of first degree murder and sentenced to death is statutorily entitled to automatic appeal to the California Supreme Court. If the court affirms the conviction, the defendant can file habeas corpus in the same court or lower court. If the petition is denied, the defendant files in federal district court. If that court denies the petition the defendant files an appeal in the 9th Circuit.

When that court reverses the district court, and there is no appeal, the state court case is remanded to the prosecutor for a new trial, if possible. This happens anywhere from five to 20 years after the actual crime.

In most cases, the state of California files in the U.S. Supreme Court for review of the 9th Circuit decision. More time passes.

After years of trial and appeals, any reversal of the 9th Circuit and subsequent retrial in state court challenges the memories of witnesses if they can be located. Others may have died or become otherwise incapable of testifying. Records are lost. Inmates who testified originally have been released and refuse to testify again. The victims, or others, suffer from the absence of closure and the personal loss incurred in their lives.

Not every legal error in trial is prejudicial, but 9th Circuit panels regularly scour the record searching for any argument to justify a reversal. One familiar quest seeks discovery of the alleged "ineffective counsel" objection. The rule is easy to manipulate because the analysis of trial and investigation work by counsel is subjective and incapable of any formal rule or precedent, although the U.S. Supreme Court has fashioned vague attempts. Review of lawyer conduct and investigation at trial ruled as "ineffective" is capable of wide disagreement among judges. Particularly among judges who have never tried a case.

The trial record of the 9th Circuit, as embarrassing as it is, does not apply to every judge on the 9th Circuit. In a recent immigration case the dissenting judge criticized the other two panelists of not following the "law of common sense." Similar comments in other cases decided by the U.S. Supreme Court are equally curt. Justice Anthony Kennedy, reviewing and reversing a jury selection case written by the 9th Circuit in Rose v. Collins, commented that the decision merely reflected a personal opinion. In other cases, the inference of judicial commentary on 9th Circuit cases by the justices is the equivalent.

Despite the 9th Circuit decisions and their judicially caused human and monetary loss, Congress has shown no interest over the years in removing federal habeas corpus jurisdiction of state court decisions by the 9th Circuit-indeed all federal appellant courts. There is no reason to pay for two jurisdictions, in effect, trying the same case twice and then appealing both. Federal courts have agreed that Congress has jurisdiction to act.