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Ninth Circuit Habeas


The Ninth Circuit issued a couple of interesting habeas opinions today. We had previously noted here the curious case of Comer v. Schriro and wondered what on earth could possibly be taking them years to decide a case where the petitioner has moved to dismiss and the district court has found that he is sane and knows what he is doing. The answer comes in today's opinion by Judge Ferguson, joined by Judge Pregerson. "By upholding Comer’s waiver, however, we would be permitting the State to execute Comer without any meaningful appellate review of his previously filed federal habeas claims, which would amount to a violation of the Eighth Amendment to the U.S. Constitution." This is a case already reviewed by the state courts and the federal district court. The majority considers the federal court of appeals' role in the process to be so vital that cutting it off is a constitutional violation, even if the inmate himself is doing the cutting. Judge Rymer will have none of this. "I dissent from this raw imposition of judicial power."

In contrast to these fireworks, we have the case of Stephens v. Herrera, a habeas petition by a federal prisoner. In 1948, Congress almost eliminated habeas corpus as a means of collateral attack on federal convictions, substituting the statutory motion to vacate, 28 U.S.C. § 2255. However, it did leave an escape hatch for cases where this procedure is "inadequate or ineffective." It almost never is. Stephens claimed that he qualified for this escape hatch, and thereby could evade the successive petition rule in § 2255, on the ground that he is actually innocent. This argument ran into one minor problem. He's guilty.


If Comer wants to give up his appeals, shouldn't that desire be respected? It seems almost un-American to force an appeal upon him. He may be a murderer, but shouldn't he be treated with less paternalism than this? The Constitution protects a murderer's right to direct his own defense, just not his habeas petition.

Hopefully, Arizona will appeal this one to an en banc panel.

It should be troubling to anyone wanting fair treatment under the law that judges would thumb their noses at established and clear rules that apply to everyone, in favor of an ad hoc outcome tailored to benefit their pet cause. However, liberals would likely applaud the outcome in this case, because they foutunately happen to share the same pet cause with the majority. The ends justify the means only if you're in agreement with the ends. Would a liberal legal organization, supposedly commited to enforcing equal treatment under the law, express due outrage in this case over judges glibly ignoring the law, simply to impose their individual will? The answer is obvious and should stand as an example of the moral, ethical and legal bankruptcy of liberal thought.

This liberal does not rise to defend the 9th Circuit panel's ruling. However, I do have a question. Was this defendant not shackled to a wheelchair, bloody, mostly naked, in view of the jury during his trial? Is this a constitutional violation, in light of the Supreme Court's holding in Deck v. Missouri? If so, what is the fix? Or, because the inmate has waived his appeals, do we simply say, "no harm, no foul?"

Correction: It has been brought to my attention that the defendant was sentenced by a judge, not by a jury. That probably takes away the possible constitutional violation. (I still would like to know why the defendant was in the condition he was in. As one lawyer who looked at the 9th Circuit panel's ruling remarked, the trial record in this case is "really, really sketchy." Nonetheless, I am forced to concede that I don't have a strong legal argument to make, although I do find the notion of a criminal getting to call his own shots as to the execution of his sentence somehow offputting.)

So the protocol for decisionmaking in the judicial branch should be to evenhandedly apply plain statutory law and rules as dictated by stare decisis, unless the decisionmaker finds the petitioner to be pathetic? Unless the decisionmaker finds the outcome to be offputting?

What's even more offputting is that this guy fought the law enforcement officers trying to bring him to court. He refused to put on clothing. He is therefore responsible for his appearance at the sentencing, and therefore, he should not, or more accurately, Ninth Circuit judges should not, be heard to complain about his appearance at sentencing. Courts are busy, and when a sentencing date is set, it is set. The decision in this case ignores that altogether.

It will be interesting to see if SCOTUS grants cert. in the Wilcher case. In Wilcher, a DR inmate sought to have a habeas petition reinstated after withdrawing it.

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