Jones v. Davis, No. 14-56373 (Graber with Rawlinson; Watford concurred) --- The Ninth Circuit reversed the grant of penalty-phase relief to a California death-row prisoner. The district court had granted relief based on the systemic delay in moving California's death-row prisoners to the execution chamber, based largely in part on the length of time it takes the California Supreme Court to process capital direct appeals and state habeas applications. The Ninth Circuit reversed on procedural grounds. The majority concluded that the rule that the prisoner was seeking was a new one that didn't apply retroactively under Teague v. Lane, 489 U.S. 288 (1989), because a claim of systemic delay wasn't dictated by the holdings in Furman v. Georgia, 408 U.S. 238 (1972) (per curiam), and Gregg v. Georgia, 428 U.S. 153 (1976). Moreover, this wasn't a substantive claim that was exempt from Teague's non-retroactivity rule, because it attacked the procedure by which California imposed a death sentence. Judge Watford disagreed that the rule was procedural -- it was instead clearly substantive to him under Penry v. Lynaugh, 492 U.S. 302 (1989), because it exempted a class of prisoners from a particular punishment. However, because the petitioner had never presented this particular claim of systemic delay to the California Supreme Court, Judge Watford would have denied the claim as unexhausted. He rejected the petitioner's argument that exhaustion was futile in light of People v. Seumanu, 61 Cal.4th 1293 (2015), in which the California Supreme Court had said that if it were confronted with the same systemic delay claim as the district court here had, it would have rejected the claim. Judge Watford seized on the Seumanu court's statement that the claim should be presented in a state habeas petition, not a direct appeal (the posture in Seumanu).
The decision is here: