Criminal Appeal

Beardslee Gets Execution Date and COA. Donald Beardslee, according to a CDC press release, is scheduled to be killed by the state by lethal injection on January 19. But last week, the Ninth Circuit issued an unusual order, granting a certificate of appealability for Beardslee to brief a new issue. This is quite unusual in that his appeal has already been decided, rehearing denied, and cert. denied. Significantly, however, the mandate had not yet issued.

The grant of the COA, however, may not result in a stay of execution. The Ninth Circuit's December 16 order, directed "the parties to file simultaneous briefs on the merits on or before December 20, 2004, and simultaneous reply briefs on or before December 23, 2004."

The issue? "Beardslee has now requested the issuance of a certificate of appealability (“COA”), arguing that he is entitled to relief pursuant to Sanders v. Woodford, 373 F.3d 1054 (9th Cir. 2004), a decision that was issued by another panel of this Court during the pendency of his petition for a writ of certiorari." Here's the Ninth Circuit's reasoning for granting a COA:

After undertaking “an overview of the claim[]” and “a general assessment of [its],” id., we conclude that Beardslee has satisfied the relatively low standard for the issuance of a COA. In Sanders, we determined that the California Supreme Court, after invalidating two of four special  circumstances, had failed to reweigh the mitigating and aggravating factors or apply the correct harmless error standard. 373 F.3d at 1063. Because we were unable to conclude that the invalid special circumstances did not have a substantial or injurious effect or influence on the jury’s choice of sentence, we granted Sanders relief as to his sentence. Id. In the case before us, the California Supreme Court invalidated three of Beardslee's four special circumstances. See People v. Beardslee, 53 Cal.3d 68, 117 (1991). As in Sanders, the California Supreme Court in Beardslee did not review the special circumstances error under the harmless beyond a reasonable doubt standard. See id.; cf. Sanders, 373 F.3d at 1063; see also People v. Sanders, 51 Cal.3d 471, 521 (1990). Therefore, "[r]easonable jurists could debate whether, 'in light of the record as a whole,' the three invalid special circumstances had a 'substantial and injurious effect or influence' on the jury's death penalty verdict and therefore whether the error was not harmless." See Sanders, 373 F.3d at 1060, 1064-65 (applying Brecht v. Abrahamson, 507 U.S. 619, 638 (1993), harmless-error standard where California Supreme Court failed to conduct an "adequate, independent" review of the effect of an invalid special circumstance). In view of the change in the law caused by Sanders, the issue presented deserves encouragement to proceed further.

Fifth Circuit Too Quick With the COA Denials. For the third time in two years, the U.S. Supreme Court---in a published opinion---reversed the Fifth Circuit's denial of a state prisoner's request for a certificate of appealability. Tennard v. Dretke, no. 02-10038. The other two cases are Miller-El v. Cockrell, 537 U.S. 322 (2003) and Banks v. Dretke, No. 02–8286.

SCOTUSBlog, once again, has a helpful summary of today's decision in Tennard.

The Court's schooling of the Fifth Circuit on COA's perhaps balances out its slapping down of the Ninth Circuit on its interpretation of the AEDPA (2254(d)) habeas standard of review. See e.g. Middleton v. McNeil.

Washington State's Transfer of Prisoner from State Prison in Washington to Privately Run Facility in Colorado Not Contrary to, or Unreasonable Application of, U.S. Supreme Court Authority, i.e. No Habeas Relief Here. White v. Lambert, no. 02-35550 (9th Cir., June 10, 2004).

Interestingly, the Court held that the challenge to the prison was cognizable under 2254 (not 2241) and no COA was required to appeal because the claim did not arise out of a state court process.

For Federal Habeas Mavens Only.
Case: Phelps v. Alameda, no. 02-15821.
Proceeding: Appeal from order denying rule 60(b) motion on the merits and alternatively denying the application as a successive habeas petition.

Holdings: (1) Joining the majority of other circuits that have considered the question (2d, 7th & 10th), the Ninth Circuit held that a merits panel may decide an appeal on the merits, even if a Certificate of Appealability was improvidently granted. (The 3d Circuit went the other way on this question.) Note: This may be dictum. (2) Although a court of appeals is not required to vacate a COA which was improvidently granted, it has the power to do so. (3) The COA was improvidently granted in this case because the petitioner appealed only the construction of the motion as a successive petition and did not appeal the denial of the 60(b) motion on the merits. Because no relief could be granted, the COA was improvidently granted.

Panel: Cynthia Holcomb Hall, Diarmuid F. O’Scannlain, and Edward Leavy.