I was hoping that my first Ninth Circuit post was going to be more substantive. Actually, I have been working on a broad-based substantive post, but it's not finished yet.
In the meantime, I wanted to briefly discuss an en banc decision from the Ninth Circuit the other day denying habeas relief in a death penalty habeas case, Carrera v. Ayers. It's an odd decision that will pretty much have no impact whatsoever on the future of habeas law. How can that be the case? Well, for one thing, it is a pre-AEDPA case. Not many of those left out there, I reckon. But it's not just a pre-AEDPA case, it's a pre-Batson case. And the issue in the case is whether counsel was ineffective for failing to challenge the prosecution's use of peremptory challenges in a racially discriminatory manner. Due to its age, the Ninth Circuit had to analyze the case under the pre-Batson standards that existed in California. So the case is only relevant to pre-AEDPA petitions raising pre-Batson racial discrimination claims out of California. I would be surprised to learn that any of those still existed in habeasland.
If you are interested in learning why a case in such a procedural posture still exists, the district court's decision provides the procedural history (it's available at 2008 WL 681842). I was hoping that it was going to be somewhat interesting, but it really isn't. Just a lot of back and forth between federal and state court and what is best described as a piecemeal resolution of the habeas petition. On the positive side, it does appear that the district court granted partial habeas relief back in 2004 and vacated the death sentence. The only issues on appeal were guilt-phase claims.
Not much more to say about this other than I have found that there is something neat in the way that the Ninth Circuit publishes its opinions. A published opinion often has a "Summary" at the beginning that, according to a footnote in the summary, "constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader." That's new to me. Obviously, when you go look at published opinions, they have the introductory paragraph that's not a part of the opinion. But this is something a little different; it's more substantive. It's more like the syllabus at the beginning of a Supreme Court opinion. Not as long and detailed as those, but it's definitely more than the typical introductory paragraphs I have seen out of the Second Circuit. I'll post the summary below the fold so you can see what I am talking about. I'll also include an introductory paragraph from a recent Second Circuit opinion to show the difference.
The en banc court affirmed the district court’s denial of a 28 U.S.C. § 2254 habeas corpus petition in a pre-AEDPA case, raising a challenge under Batson v. Kentucky, 476 U.S. 79 (1986), for lack of prejudice. The panel held that Carrera could not establish prejudice at trial because he could not make a strong likelihood that prospective Hispanic jurors were challenged because of any specific bias. See People v. Wheeler, 583 P.2d 748 (Cal. 1978). The panel also held that Carrera could not establish prejudice by showing that a Wheeler objection would have succeeded on direct appeal, based on the law as it existed when his conviction became final on direct appeal. The panel explained that, despite significant changes in the law while Carrera’s case was pending on appeal, the California Supreme Court would have applied the Wheeler standard instead of the Batson standard.
Judge Pregerson dissented. He disagreed with the majority which, although it did not dispute that Carrera’s attorney erred, found that the ineffective assistance claim would not have had a “reasonable probability” of succeeding. Under his view, the majority reached its conclusion by misreading the record and the law. Judge Pregerson would hold that Carrera did not receive a fair trial because the prosecutor purposefully excluded Hispanic jurors and Carrera’s attorney did nothing to challenge him.
Second Circuit Introduction:
Appeal from a judgment of the United States District Court for the Southern District of New York (Batts, J.), convicting Defendant-Appellant Raghubir K. Gupta of one count of immigration fraud and sentencing him principally to 51 months’ imprisonment. We hold that under the particular circumstances of this case, the district court’s intentional exclusion of the public from the courtroom during the entirety of voir dire, without prior consideration of the factors identified in Waller v. Georgia, 467 U.S. 39, 48 (1984), violated Gupta’s Sixth Amendment right to a public trial. We therefore vacate his conviction and remand for further proceedings.