Monday, April 13, 2020

May v. Ryan, No. 17-15603 (3-27-20)(Friedlandw/concurrences by Ikuta & Friedland; dissent by Block). The jury hung; the new trial set; the defendant released when the jury sent a note to the court and said they still wanted to deliberate. Defense counsel failed to object. The jury deliberated and returned guilty verdicts on sexual molestation. The defendant received a virtual life sentence. 

In this habeas appeal, petitioner got relief, only to have the panel grant rehearing, and now, in this opinion, relief is denied.

The majority held that the failure to object was not IAC. Counsel could have reasoned that his best shot was on the trial that occurred rather than the retrial. 

Concurring, Ikuta stresses the limited role of federal habeas review. Such limited review is appropriate to the federal judicial system.

Concurring, Friedland is dismayed at the guilty verdict, and chafes at the limited role of federal habeas review, able to grant relief only for the most egregious constitutional violations.

Dissenting, Block argues that the majority fails to apply Strickland’s IAC analysis appropriately. Deference is given to counsel’s informed decisions.  Here, counsel’s failure to object was anything but informed. It was deficient.

Robert McWhirter, a member of the Phoenix CJA panel, was on the petitioner’s brief with others. It is a tough disappointing loss after a valiant effort. 

The decision is here:

2. Berryman v. Wong, No. 10-99004 (3-27-20)(per curium w/McKeown, Christen, and Watford). Under AEDPA deference, the 9th affirms the denial of petitioner’s challenge to his capital sentence. Counsel was not ineffective in failing to present additional family and social mitigation in the penalty phase. Counsel was also not ineffective in failure to present mental experts and psychological and psychiatric evidence to show that the murders were not premeditated.

The decision is here:





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