Curiel
v. Miller, No. 11-56949 (7-25-16)(en banc)(Murguia; Reinhardt concurring and
Bybee concurring). In an en banc
opinion, the 9th found the state petitioner's federal habeas timely under
AEDPA. It was timely because the
California Supreme Court, in denying the petition, cited precedent dealing with
deficient pleading. Thus, it can be
taken as being decided on its merits, and not denied for being untimely.
The concurrences go to the practices of the state supreme
court. In recognition of deference, the
staggering number of state petitions, and the role of state courts, Reinhardt
urges the California State Supreme Court to certify certain classes of cases
that would benefit from federal court review.
In this manner, the federal courts can protect constitutional rights.
Bybee concurs to express frustration at the communication between
the state and federal courts as to the scope of the state court's denial of
petitions. He calls for the state court
to clarify its rulings and what it decides, or doesn't, rather than forcing the
federal courts to read the tea leaves and take hints.
The decision is here:
http://cdn.ca9.uscourts.gov/datastore/opinions/2016/07/25/11-56949.pdf
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