Criminal Appeal

Another Unusual Habeas Decision from the Ninth Circuit

In a per curiam opinion, the court affirmed a grant of habeas to a California prisoner convicted of murder in 1992.  (Pulido v. Chrones, No. 05-15916 (Goodwin, O’Scannlain, Thomas))  The issue is the standard of harmless error review applied to a jury instruction error.  The California Supreme Court had affirmed the conviction, ruling that the error—which mistakenly allowed the jury to convict on two grounds, one of which was unconstitutional—was harmless beyond reasonable doubt under Chapman v. California.  On  federal habeas, the District Court held that such errors were “structural” and not subject to harmless error review.  The Ninth Circuit panel agreed. 

The unusual part of this case comes from separate concurrences by Judges O’Scannlain and Thomas.  Judge O’Scannlain agreed that the conviction could not stand under controlling Circuit authority, Lara v. Ryan, 455 F.3d 1080 (9th Cir. 2006), but then argued that Lara was wrongly decided and should be reversed en banc.  Judge Thomas also concurred, in order to take issue with Judge O’Scannlain.  Judge Thomas defended Lara as good law and argued further that habeas relief was warranted even if Chapman applied because the error in this case was not harmless beyond reasonable doubt.

But why the per curiam opinion?  Did Judge Goodwin (the third member of the panel) write it anonymously?  I doubt it.  Otherwise, his name would have been on the majority opinion, with concurrences by O’Scannlain and Thomas.  My hunch is that the majority opinion was either (reluctantly) written by Judge O’Scannlain, who was forced to concur with himself when his colleagues refused to let him call for reversal of Lara in a majority opinion.  Or Judge Thomas wrote the majority opinion and felt compelled to answer Judge O’Scannlain’s concurrence separately.  Either way, the peculiar configuration of the judges in this case suggests that this was a hard-fought decision.  Judge Thomas was clearly committed to granting the petition under any standard; and Judge O’Scannlain obviously did not want to grant relief but had no choice.  I'm sure Judge O’Scannlain is marshaling his confederates  on the court for an en banc vote.

Kudos to Brad O’Connell, of FDAP, who successfully argued this case.

Conflict of Interest Claims Do Not Apply to Appellate Counsel

The Ninth Circuit held that, under federal habeas review, conflict of interest claims do not apply to appellate counsel.  Foote v. Del Papa, No. 06-15094 (Wallace, Thomas, Ezra).  The court reasoned that there is no “clearly established” law on the subject:  “No Supreme Court case has held that an ‘irreconcilable conflict’ between a defendant and his appointed appellate counsel violates the Sixth Amendment.”

New and Improved Execution Protocol

From today's L.A. Times:

"Seeking to end judge's ban on executions, officials propose 'pain-free' method."

Click here for the story.

Supreme Court Reverses Ninth Circuit in Capital Case (Again)

The U.S. Supreme Court reversed the Ninth Circuit in an Arizona death penalty case today.  Schriro v. Landrigan, No. 05-1575.  Writing for a five-member majority, Justice Thomas ruled that the defendant instructed his attorney not to present mitigating evidence at his sentencing hearing and that therefore the admitted errors his trial attorney made in failing to develop a mitigation case were harmless.  Thus, the district court did not abuse its discretion in denying an evidentiary hearing on the defendant's federal habeas petition.  An en banc panel of the Ninth Circuit came to the opposite conclusion last year, holding that the defendant’s instructions to his trial attorney were taken out of context and, in any event, any such instructions by the defendant were neither informed nor knowing.  The Ninth Circuit held further that evidence of organic brain damage discovered after defendant’s trial warranted a new sentencing hearing in state court.  Justice Stevens, writing for the dissenting Justices, “emphatically” agreed with the Ninth Circuit en banc court, concluding with the cynical observation that “[i]n the end, the [majority’s] decision can only be explained by its increasingly familiar”—but misguided—“effort to guard the floodgates of litigation.”

Ninth Circuit Reverses Arizona Death Sentence (Again)

For the second time in this case, a Ninth Circuit panel granted habeas relief and reversed the capital sentence of an Arizona man on death row since 1982.  Lambright v. Schriro, No. 04-99010 (Ferguson, Reinhardt, Thompson).  The three-judge panel issued a per curium opinion on Friday, reversing the district court below and ruling that petitioner's trial counsel failed to adequately investigate and present “classic” mitigating evidence at the sentencing phase of the state court trial—including evidence of drug addiction and mental illness.  The petitioner was convicted of raping and murdering a hitchhiker at an Arizona campsite.

This is the second time this three-judge panel reversed Lambright's death sentence.  In 1999, the panel held that Lambright's joint trial, before two juries, with his co-defendant violated due process.  An en banc panel later reinstated the conviction and death sentence.  The case was ultimately remanded to the district court for consideration of the ineffective assistance of counsel claim, which is now the subject of the Ninth Circuit decision released Friday.

Given the history of this case, it's age, the defendant’s obvious guilt in a grizzly rape and murder, and the district court’s ruling below, this will be another interesting test for Judge Reinhardt and his allies on the Ninth Circuit.  The court almost always votes on whether to take a capital case en banc, and I suspect there will be considerable resistance from some on the court to let this decision stand.