1. Jurado v. Davis, No. 18-99009 (9-10-21)(Thomas w/Graber & Clifton). AEDPA deference results in the 9th affirming this capital petition. This even applies to a double jeopardy claim. The state court dismissed a “special circumstances” charge, and the petitioner immediately pled to the remaining charges. However, the dismissal was reversed, and the petitioner then withdrew his plea. The California Supreme Court found no double jeopardy, and while the 9th thinks it is a close call, under AEDPA, the decision is not unreasonable. Other evidentiary issues, such as admission of a videotaped deposition, were not unreasonable.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/10/18-99009.pdf

2. Ervin v. Davis, No. 16-99010 (9-10-21)(Owens w/Gould & Forrest). This is a Batson remand in a capital case given Flowers v. Mississippi, 139 S. Ct2228 (2019). The record is replete with questionable rulings, and nonsensical reasons for striking jurors. The 9th remanded for the district court to employ a “holistic” approach to various factors, such as statistical evidence, disparate questioning by the prosecutor, side by side juror comparisons, prosecutorial misrepresentation of the record, and other factors.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/09/10/16-99010.pdf