Tuesday, August 01, 2017

The Ninth Circuit denied relief to two death-row prisoners in the circuit. 

1. Clabourne v. Ryan, No. 09-99022 (Berzon, Clifton, Ikuta) --- The Ninth Circuit denied a petition for rehearing filed by an Arizona death-row prisoner in light of the grant of relief in McKinney v. Ryan, 813 F.3d 798 (9th Cir. 2015) (en banc). Judges Clifton and Ikuta did not see a reason to change the outcome of the case in light of McKinney; Judge Berzon would have granted penalty-phase relief under McKinney and remanded the case to the state courts for further proceedings. 

The opinions are here: 

2. Andrews v. Davis, Nos. 09-99012, -99013 (Ikuta with NR Smith; dissent by Murguia) --- Addressing a petition for rehearing, the panel replaced an opinion and reversed the grant of penalty-phase relief to a California death-row prisoner who alleged that he received ineffective assistance of counsel at sentencing.  

In state habeas proceedings, the California Supreme Court ordered an evidentiary hearing on the petitioner's penalty-phase IAC claim. That hearing took place over the course of six years. Ultimately, the California Supreme Court concluded that the petitioner received constitutionally adequate assistance of counsel at sentencing and that any inadequacy did not prejudice him. See In re Andrews, 52 P.3d 656 (Cal. 2002). Under AEDPA and Harrington v. Richter, 562 U.S. 86 (2011), the majority upheld the California Supreme Court's denial of relief. Judge Murguia dissented, pointing out that "the jurors who sentenced Andrews to death never knew that he was subjected for two years as a young teenager to brutal, inhumane, and degrading abuse by his state custodians at Mt. Meigs, a segregated reform school for 'Negro children' in Alabama. Had counsel presented this readily available mitigating evidence, there is a reasonable probability that at least one juror would have been moved to exercise mercy and spare Andrews's life." She decried the application of the AEDPA limitation on relief as "unconscionable." Dueling footnnotes throughout both opinions chastize the other side's application of the AEDPA limitation on relief. 

The decision is here: 



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