Criminal Appeal

Ninth Circuit Upholds Three Strikes Sentence for Petty Theft

On Friday, the Ninth Circuit upheld a 25-to-life sentence imposed under California’s Three Strikes law on an 82 year-old defendant convicted of stealing $114 of tools from Home Depot.  Nunes v. Ramirez-Palmer, 06-16100 (Gould, Smith, Covello).  The Court rejected Nunes' 8th Amendment argument, citing Nunes' prior criminal history, which included two rape convictions.

For purposes of habeas review under AEDPA, the panel held that the only “clearly established” 8th Amendment law is that “a gross disproportionality principle is applicable to a term of years”  -- adding, however, that the Supreme Court has never defined the principle or described its application.

The confusion arises from the Supreme Court’s 2003 decision, Lockyer v. Andrade, 538 U.S. 63, which upheld under AEDPA review a Three Strikes sentence for the petty theft of several video tapes.  The Court held that grossly disproportionate sentences constitute unconstitutional cruel and unusual punishment but stated that the “precise contours” of the analysis are “unclear.”

The Supreme Court’s expressed lack of clarity is an obvious and considerable obstacle for any habeas petitioner attempting to establish that his lengthy prison term is contrary to “clearly established” 8th Amendment law.

Thankfully, the Ninth Circuit has found at least one “exceedingly rare” case that violates this amorphous standard, granting habeas relief in Ramirez v. Catro, 365 F.3d 755 (9th Cir. 2004).

AEDPA is 11 Years Old

AEDPA was effective on April 24, 1996, 11 years ago today.

Cal. Supreme Court Upholds Trial Court Finding Of Mental Retardation In Capital Case

In a unanimous opinion, the California Supreme Court today upheld a trial court's finding that a capital defendant was mentally retarded and therefore categorically excluded from the death penalty under Atkins.

California Penal Code section 1376 defines "mentally retarded" as "the condition of significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested before the age of 18." At a pre-trial evidentiary hearing held to determine whether the defendant was mentally retarded, the trial court heard testimony from two defense experts and one prosecution expert. The defense experts acknowledged that the defendant's full scale IQ scores - which ranged from 77 to 92 - were greater than 70, which is generally understood to lie at or near the border between low average intelligence and mild mental retardation. Nevertheless, the defense experts relied heavily on the defendant's verbal IQ score - one component of the full scale IQ score - to conclude that appellant was indeed mentally retarded. The trial court was persuaded by the defense evidence and barred the prosecution from seeking the death penalty.

Divsion Six of California's Second District Court of Appeal reversed the trial court on the ground that it was legal error for the trial court not to give primary consideration to the defendant's full scale IQ scores.

The Supreme Court reversed, ruling that the Court of Appeal erred in purporting to resolve a factual question - the best scientific measure of intellectual functioning - as a matter of law. According to the Supreme Court, Penal Code section 1367 does not dictate primary reliance on the full scale IQ score. Of significance to the Supreme Court was the fact that Penal Code section 1367 makes no reference to one or another clinical test of intelligence, any more than it refers to a particular score as a cutoff point for mental retardation.

In eschewing the rigid rule adopted by the Court of Appeal and favored by the prosecution, the Supreme Court made it clear that mental retardation is a question of fact that "must be based on all relevant evidence." With successful challenges to the imposition of the death penalty few and far between, this decision is an important one that should encourage defense attorneys representing capital defendants with marginal IQ scores to reconsider requesting an Atkins hearing.

In addition to the primary substantive holding of this case, the Supreme Court also concluded that a pre-trial finding of mental retardation is an order from which the prosecution may appeal.

The unanimous opinion was authored by Justice Kathryn M. Werdegar.

People v. Superior Court (Vidal), no. S134901 (Cal. Supreme Ct., filed 4/12/07)

Innocence Claim Goes En Banc

Another of Judge Reinhardt’s habeas decisions was recalled for en banc rehearing today.  (Smith v. Baldwin, 466 F.3d 805 (9th Cir. 2006).)  This one involves a case where Judge Reinhardt and Judge Hug apparently believed that the petitioner was wrongfully convicted of murder.  The precise issue is whether the court can hear petitioner’s un-exhausted and therefore procedurally defaulted constitutional claims, including ineffective assistance of counsel and prosecutorial misconduct.  Judges Reinhardt and Hug stopped short of declaring petitioner actually innocent, but they apparently believe that new evidence from a third party, who confessed to the murder, was compelling and entitled the petitioner to an exception from the procedural default rule, under Schlup v. Delo, 513 U.S. 298 (1995).  Reinhardt and Hug concluded that the underlying constitutional claims should be heard on the merits.  Judge Bybee “respectfully, but vigorously” dissented:  “I disagree with nearly every word the majority has written, including ‘and’ and ‘the.’ . . .  [I]n the thousands of habeas cases that have [bypassed the procedural default rule under] Schlup, I have been unable to locate a single case where a petitioner convicted of felony murder was able to establish actual innocence.  Not one.  And there is no basis for making this case the first. . . .  There isn't a jury in the country that wouldn't convict Smith today on a charge of felony murder.” 

Despite the high stakes and heated tempers, there’s room for compromise here.  The en banc court could remand the case for an evidentiary hearing on the veracity of the newly discovered evidence before deciding whether a sufficient showing of innocence has been established to proceed to the merits of the constitutional claims.

This is an important case on its own, but it's also yet another indication that especially in criminal matters the Ninth Circuit is swinging against the progressive wing of the court presided over by Judge Reinhardt.