Tuesday, February 09, 2016

Two opinions in noncapital habeas appeals.  In the first, the en banc panel settles a question about what "clearly established federal law" governs a claim, and rules in favor of a California state prisoner.  In the second, a divided panel reverses the denial of habeas relief for another California state prisoner, with an appended dissental about the panel majority's failure to heed the Supreme Court's warnings about AEDPA.

1.  Daire v. Lattimore, No. 12-55667 (per curiam en banc opinion; panel was Thomas, Reinhardt, McKeown, Tallman, Rawlinson, Bybee, Callahan, Bea, NR Smith, Murguia, and Watford) --- An en banc panel affirmed that the usual test for ineffective assistance of counsel found in Strickland v. Washington, 466 U.S. 668 (1984), is the "clearly established federal law" that governs claims of ineffective assistance of counsel in noncapital sentencing proceedings for purposes of 28 U.S.C. § 2254(d)(1).

The petitioner was convicted of first-degree burglary and sentenced pursuant to California's three-strikes law.  Her habeas claim centers on a kind of escape hatch, under which California sentencing judges are allowed to sentence outside the three-strikes scheme in the face of appropriate mitigating evidence.  Her claim is that sentencing counsel was ineffective for failing to present mitigating evidence -- a claim that is subject to AEDPA's limitation on relief to state-court decisions that run afoul of "clearly established federal law, as determined by the Supreme Court of the United States."  28 U.S.C. § 2254(d)(1).  After surveying the Supreme Court's decisions, and especially Lafler v. Cooper, 132 S. Ct. 1376 (2012), the en banc panel concluded that Strickland applies to this claim.  It then returned the case to the three-judge panel for further proceedings.

The decision is here:

2.  Deck v. Jenkins, No. 13-55130 (Christen with Thomas; dissent by M Smith; dissental from Bea) --- In amended opinions following the denial of rehearing en banc, the Ninth Circuit reversed the denial of a California state prisoner's habeas petition challenging his conviction for attempted child molestation, holding that the prosecutor committed prejudicial misconduct in closing argument through argument that negated the mens rea element of the crime.

The petitioner, who was himself a police officer, was caught when a volunteer posing as a 13-year-old girl and working with the police chatted him up on the internet.  In a scene reminiscent of Dateline NBC, he was caught when he arrived at an apartment complex where he thought the "girl" would be waiting for him at a picnic table.  He was charged with attempt to commit a lewd act on a child under 14, and under California law attempt requires more than "mere preparation" to commit the crime.  The prosecutor told the jury that it had to find that the petitioner was going to "meet her and break the ice" and follow through on his effort to have sex with the "girl" "the next day, the next week, maybe in two weekends," or "just some point in the future."  The California Court of Appeal found that these statements misstated California law of attempt, but that the jury instructions cured any error in the prosecutor's closing argument -- even though the jury asked for clarification of what they were required to find. 

Clearly established federal law provides that a prosecutor's closing argument gives rise to a due process violation if it makes the trial "fundamentally unfair."  The fact that the court of appeal found the error harmless meant that it implicitly found no federal due-process violation.  But this was an unreasonable application of the fundamental-fairness standard.  For one thing, the prosecutor's comments were not isolated or inadvertent.  They undermined the petitioner's theory of defense, which was consistent with California law -- that he did not intend to have sex with the "girl" on the night he met her at the apartment complex.  "We need not engage in speculative Monday morning quarterbacking to know the rebuttal argument may have seriously misled the jury; the jury's note to the trial court after the start of deliberations went straight to this contested point of law" about when the petitioner intended to have sex with the "girl."  And for another thing, the trial judge never correctly instructed the jury, so the court of appeal's reasoning on that score was flawed.  Finally, there was not overwhelming other evidence that the petitioner intended to have sex with the "girl" on the night he went to meet her.  All of this left the majority with "grave doubt" about whether the error affected the verdict, and so it reversed the denial of the petition with instructions to grant the writ and retry the petitioner within a reasonable time.

Judges M. Smith and Bea complained that the Supreme Court constantly reverses the Ninth Circuit for granting habeas relief to state prisoners, and so the majority's decision should not stand.

The decision is here:


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