By JK
Hello again internet universe.
The Ninth Circuit’s fascinating work in its recent en banc cases has inspired me to jump back into the blogosphere and share some news/thoughts about those recent cases.
Let’s start with some news. Last year, I wrote about the en banc decision in Sessoms. Briefly, in a close 6-5 en banc opinion, the Ninth Circuit granted habeas relief on the ground that the petitioner had invoked his right to counsel at the beginning of an interrogation. The Supreme Court GVR’d it based on Salinas v. Texas. I found that surprising as Salinas really had nothing to do with the issue in Sessoms. The biggest wrinkle for Sessoms after the remand was that the author of the 6-5 opinion, the legendary Betty Fletcher, has passed away. She has been replaced with McKeown.
The case has now been scheduled for a new en banc argument. This is going to happen next Tuesday, March 18 at 10:00 a.m. in San Francisco. You can watch it live through the Ninth Circuit’s website.*
*A long, long time ago, I spent a great deal of time comparing the different websites of the circuit courts (I had done it for all of the New York federal district courts). It was actually sort of related to work (at least that’s what I told myself), but mostly I just enjoy wasting time on the internet. The Ninth Circuit had far-and-away-not-even-close the best website. I am not just saying that because I practice in that court now. It’s just really well done – easy to navigate, well-organized, nice to look at, has a ton of great info. It makes me happy to visit it on a daily basis. A nice perk of this job as now I actually get to say it’s work related!
Speaking of Sessoms, I was recently told about a supremely entertaining article about the case called “Sherlock Holmes and the Mystery of the Pointless Remand,” written by Professor James Duane. Click the following link to read it: Download Duane article. Totally worth the time. The entire article is written as a conversation between Holmes and Watson. The premise is that the “pointless” GVR in Sessoms points to a larger truth – the Supreme Court intends to summarily reverse Sessoms once it gets back in front of them.
Sessoms is far from the only en banc habeas action in the Ninth Circuit. Late last year and earlier this year, the Ninth Circuit issued two, count ‘em two, en banc opinions interpreting Martinez v. Ryan. And each one, like Sessoms, has a really unique wrinkle.
The first was Detrich v. Ryan. Detrich was a highly splintered opinion with no true majority opinion. There was a main opinion, two concurring opinions, and a dissenting opinion. What was called the main opinion was written by Judge William Fletcher. Judge Fletcher broke down Martinez and explained what the standard of review should be when reviewing a Martinez claim. Essentially, what does cause and prejudice mean when a petitioner relies upon ineffective assistance of post-conviction counsel to overcome a procedural default? Even for a habeas-lover like me, it’s a pretty gnarly opinion. There’s multiple layers of deficient performance analysis stacked on top of “but for” causations, that it’s a real challenge to follow. And what makes it even harder to follow is that it was not really presented in a true majority opinion. So the wrinkled question after Detrich was, does Judge Fletcher’s opinion, which was not joined by a majority of the en banc panel, now set forth the proper analysis for Martinez claims in the Ninth Circuit?
The Ninth Circuit answered that question last week in a case called Claibourne v. Ryan. Using a novel approach for the Ninth Circuit (which it adopted from other circuits), the court simply counted votes on the relevant issues, including the dissent votes, to see what conclusion got the most number of votes.
It came out like this. Two good results for habeas petitioners, one bad one:
(1) where it is necessary to consider whether a procedural default should be excused under Martinez in a case where the district court’s holding that there had been a procedural default preceded Martinez, and the result is uncertain, we should remand the matter to the district court to let it to conduct such a review in the first instance, if the result is uncertain. Good result.
(2) to demonstrate “cause” – the first part of the showing of “cause and prejudice” required in order to excuse a procedural default under Coleman – the petitioner must show that his post-conviction relief counsel was ineffective under Strickland. This is the bad one and is different from what Fletcher wrote in the main opinion in Detrich. What this one means is that a petitioner must show that post-conviction's counsel was defective and that the outcome of the post-conviction proceedings would have been different.
(3) “prejudice” for purposes of the Coleman “cause and prejudice” analysis in the Martinez context requires only a showing that the trial-level ineffective assistance of counsel claim was “substantial.” Good result.
The other Martinez en banc opinion was Dickens v. Ryan. That case didn’t spend too much time on the Martinez standard, but instead focused on when a petitioner can use Martinez to overcome a procedural default. It boiled down to this: if a petitioner presents new evidence to a federal court to improve a claim that had been previously presented to the state court, does that make the claim in the federal petition an unexhausted “new” claim such that a petitioner can rely upon Martinez to overcome the procedural default that he would inevitably face in state court if he attempted to raise the new claim? The Dickens opinion says yes. It's a great opinion for habeas petitioners.
My favorite part about the opinion was its language about Martinez vs. Pinholster. Long-time readers will know that this has been a favorite issue of mine for awhile. It’s also something that Alex has written about on here. The Ninth Circuit makes quick work of it. And the winner is . . . Martinez! Here’s the relevant discussion:
We reject any argument that Pinholster bars the federal district court's ability to consider Dickens's “new” IAC claim. The state argues that the district court cannot consider new allegations or evidence proffered for the first time to the district court. In Pinholster, the Supreme Court made clear that a federal habeas court may not consider evidence of a claim that was not presented to the state court. 131 S.Ct. at 1398. However, this prohibition applies only to claims previously “adjudicated on the merits in State court proceedings.” Id. at 1401; see also 28 U.S.C. § 2254(d).
Pinholster does not bar Dickens from presenting evidence of his “new” IAC claim, because the claim was not “adjudicated on the merits” by the Arizona courts. While the Arizona courts did previously adjudicate a similar IAC claim, the new allegations and evidence “fundamentally altered” that claim, as discussed above. See, e.g., Aiken, 841 F.2d at 883. Pinholster says nothing about whether a court may consider a “new” claim, based on “new” evidence not previously presented to the state courts. See 131 S.Ct. at 1401 n.10. Indeed, the Pinholster court expressly declined to “decide where to draw the line between new claims and claims adjudicated on the merits.” Id. Thus, Pinholster does not affect earlier cases like Vasquez, Aiken, and Nevius, or a federal habeas court's ability to consider new evidence where the petitioner successfully shows cause to overcome the procedural default.
Short and sweet. And patently logical.
What’s the wrinkle in this case? Well, soon after the opinion was issued, the petitioner died. En banc opinions are beginning to look cursed, huh? As a result of the death, the State moved to vacate the opinion. Earlier this week, the Ninth Circuit denied the motion stating:
[J]udicial precedents “are not merely the property of private litigants,” but are “valuable to the legal community as a whole.” . . . The precedent set by the en banc panel in this case will undoubtedly affect cases now pending before this court. We see no reason to undo this precedent and force future panels to duplicate our efforts by re-deciding issues we have already resolved within the contours of article III.
So Dickens remains good law. And good law it is for habeas petitioners.
The en banc machine got kicked back into gear again this week. The Ninth Circuit agreed to rehear en banc a capital case, McKinney v. Ryan, that raised the following issue: is an Eddings error structural or is it subject to harmless error? An Eddings error occurs when a state court refuses to allow certain mitigating evidence during the penalty phase because that evidence was not causally connected to the crime. Eddings stated that all mitigating evidence must be considered (I hope I am getting this right, I am a non-capital habeas person). For years, Arizona had violated this clearly established law. For years, the Ninth Circuit found the error structural. But recently, a panel found that an Eddings error was harmless. The dissent in McKinney indicated that there was now an intra-circuit split on the issue and it should be heard en banc. Ask and ye shall receive.
Finally, there is one other pending en banc case called Frost v. Van Boenning. It was argued last June. Reviewing the en banc petition, it appears that the issues are very standard-of-review heavy that only a true devotee of habeas will appreciate. Here's the main issue from the petition: "The New 'Super AEDPA Requirement' of Factual Identity with Supreme Court Precedent Conflicts with Supreme Court and Ninth Circuit Decisions and Presents an Issue of Exceptional Importance." That's an issue I have also complained about on here for years (I called it the "troubling trend"). And it's something that one of my former colleague's at Brooklyn Law School, Ursula Bentele, wrote about in depth. Frost is still pending. More info on Frost here.
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