Rainwater Law Group

Effective Criminal Defense

Mena v. Long, No. 14-55102 [February 17, 2016]

Mena v. Long

The district court dismissed the petition on the assumption that it lacked authority to grant the petitioner’s request for a Rhines stay. The court held that “the Rhines stay-and-abeyance procedure is not limited to mixed petitions, and a district court may stay a petition that raises only unexhausted claims.” The court remanded to the district court “to decide in the first instance whether Mena is entitled to such a stay.”

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Ayala v. Davis, No. 09-99005 [February 11, 2016]

Ayala v. Davis

On remand from the Supreme Court. In this opinion, the Court addressed Ayala’s Vienna Convention claim after its previous decision in Ayala v. Wong granting a Batson Claim was reversed by the Supreme Court. The state court denied his Vienna Convention claim because, among other reasons, he did not establish prejudice and the Ninth Circuit in denying relief found that “the state court’s no prejudice finding was not ‘objectively unreasonable.’” Ayala’s claim that Mexico might have persuaded the district attorney not to seek the death penalty was not prejudicial because he failed to establish that Mexico would have “succeeded in this case, particularly in light of the facts of the crime at issue.” Based on Breard v. Greene, 523 U.S. 371 (1998), while Ayala’s argument was stronger that Breard’s, it was not unreasonable for the California Supreme Court to conclude that he had not shown sufficient prejudice.

See Davis v. Ayala, 135 S. CT. 2187 (2015) (overruling the granting of a Batson claim in this same case): It held that “[t]he Ninth Circuit’s decision was based on the misapplication of basic rules regarding harmless error. Assuming without deciding that a federal constitutional error occurred, the error was harmless under Brecht” and the AEDPA. The court, contrary to the Ninth Circuit opinion, found that “[w]hile a federal habeas court need not ‘formal[ly] apply both Brecht and ‘AEDPA/Chapman,’ AEDPA nevertheless ‘sets forth a precondition to the grant of habeas relief.” “In sum, a prisoner who seeks federal habeas corpus relief must satisfy Brecht, and if the state court adjudicated his claim on the merits, the Brecht test subsumes the limitations imposed by the AEDPA.” See yesterday's Ninth Circuit opinion in Deck v. Jenkins, summarized below, in which the Ninth Circuit interpreted the holding of Davis v. Ayala.


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Deck v. Jenkins, No. 13-55130 [February 9, 2016]

Deck v. Jenkins

Amended opinion after denial of rehearing en banc, with a dissent from the denial of rehearing en banc finding the opinion inconsistent with the Supreme Court’s holding in Davis v. Ayala, 135 S. Ct. 2187 (2015). Deck who was convicted of attempted lewd act on a child claimed that the prosecutor committed misconduct during final argument by misstating the law of attempt thereby depriving Deck of a fair trial. The California Court of Appeal agreed the prosecutor’s argument was improper but found it harmless. The Ninth Circuit found the state court’s determination of harmless error was “an unreasonable application of clearly established federal law.” Here, “[b]ecause the prosecutor’s misstatements were not inadvertent or isolated; because the jury was never correctly instructed that, in order to convict, it had to find Deck had moved beyond preparation and would have engaged in a lewd act with Amy the night he was arrested; and because the evidence concerning the temporal aspect of Deck’s intent was not overwhelming” the state court decision, that there was no constitution error, was objectively unreasonable. The court applied the Brecht test, finding that it “‘subsumes’ the AEDPA/Chapman standard for review of a state court determination of the harmless of a constitutional violation” and, therefore, a federal court need only apply the Brecht test. “A separate AEDPA/Chapman determination is not required.” The Court concluded that “no fairminded jurist could agree with the CCA’s harmlessness determination, and that the prosecutor’s misstatements resulted in ‘actual prejudice.’”


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Daire v. Lattimore, No. 12-55667 [February 9, 2016]

Daire v. Lattimore

En banc decision holding that in Glover v. United States, 531 U.S. 198 (2001), and Lafler v. Cooper, 132 S. Ct. 1376 (2012), the Supreme Court has clearly established that Strickland governs claims for ineffective assistance of counsel in noncapital sentencing proceeding. The Court overruled its own decisions that are to the contrary and return the case to the original three-judge panel for further proceedings.

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Smith v. Schriro, No. 96-99025/96-99026/10/99011 [February 4, 2016]

Smith v. Schriro

Pre-AEDPA case returned to the Ninth after remand to Arizona Supreme Court for an Atkins evidentiary hearing, wherein Mr. Smith’s claims were denied and his death sentence was affirmed. Atkins held that the execution of intellectually disabled criminals constitutes “cruel and unusual punishment” prohibited by the Eight Amendment. The presumption of correctness under the previous statute was overcome by finding that the state court’s “factual determination is not fairly supported by the record” and it was “based on the application of constitutionally impermissible legal principles.” [Although, the last ground does not constitute the opinion of the Court, as only Judge Reinhardt relied on this grounds. He found that the “certainty standard applied by the state trial court was plainly contrary to the clear and convincing standard required by Arizona statue and adopted by its supreme court” and, therefore, unconstitutional under Atkins] The court refused to follow the state court findings as it looked behind the expert’s conclusions and found that the great majority of the evidence strongly reinforces the defense expert’s opinion and that the prosecution’s expert’s opinion “lacks even fair evidentiary support.” The court held that “a defendant comes within the protection of Atkins if he can demonstrate that was intellectually disabled during” the time the crime was committed and/or the ensuing trial. Here, after a long discussion of the evidence the court concludes that the “evidence overwhelmingly demonstrates that Smith experienced significantly subaverage general intellectual functioning” and in adaptive behavior at the dispositive time. “Viewing the record as a whole, we find that Smith has demonstrated by clear and convincing evidence that significantly subaverage general intellectual functioning existed concurrently with significant impairment in adaptive behavior, and that both conditions were manifested prior to age eighteen and at the time Smith committed the capital offense.”

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