Got a little bit of a backlog with recent Ninth Circuit habeas decisions. Been a bunch. I hate to group them all into a single post, so I plan on doing several relatively short ones.
Back on February 6, 2013, the Ninth Circuit issued its published opinion in Dyer v. Hornbeck. The court affirmed the denial of habeas relief despite a Miranda violation.
When I first saw the decision, I had to do a double take as the author of the opinion was Judge Robert Sack -- of the Second Circuit. Looks like I was not the only one who headed West. Of course, Judge Sack was only sitting by designation. But it was nice to see a familiar name as I did argue a couple of habeas appeals before him. I wanted to say, "Hey, Judge Sack, remember me? You once complimented me and my adversary for doing a good job during an oral argument . . . (voice trailing off)"*
*Sorry to mention this type of ego-related thing, but it was a nice moment. And it happened with both my former boss and my future wife in the audience.
In any event, you may have noticed that I said flatly "despite a Miranda violation." Intentional. The interesting part about the decision was the concurrence. Judge Milan Smith explained that had this been a direct appeal, he would have found a Miranda violation. However, since it was being decided under the deferential standard of review, relief had to be denied. We've all seen this type of thing before.
The frustration of that inspired me to create a new tag line for habeas review:
AEDPA - Tolerating Constitutional Violations Since 1996!
I'll use it when appropriate.