A state court affirms a conviction and sentence. A federal district court grants habeas relief. A divided court of appeals panel affirms. The court of appeals grants rehearing en banc and reverses, reinstating the state court's judgment. Nothing unusual to this point. Here's the twist: this is a Ninth Circuit case.
For a long time, rehearing en banc in Ninth Circuit habeas cases has been exclusively, or almost so, for the purpose of overturning denials of habeas relief. Panel decisions granting habeas, no matter how patently erroneous, have stood. The situation has been considered so hopeless that attorney general's offices in the Far West sometimes haven't even bothered petitioning for rehearing en banc. The Ninth's failure to clean up its own messes in petitioners' favor has resulted in an inordinate portion of the Supreme Court's workload consisting of Ninth Circuit habeas cases.
Yet the decision today in Edwards v. LaMarque indicates that the situation is not hopeless. The fact section of Judge Hawkins' opinion begins with a nice little flourish: "This case involves something of a murder mystery about which there is little mystery." The guy's guilty as sin. In an effort to save the sinking ship, defense counsel put his client on the stand. Among the questions were a couple about what he told his now-estranged wife. That waived the marital communication privilege and allowed her to testify that Edwards said to her, "I'll put it to you like this; you don't have to worry about hearing from [the deceased] again."
The state court decided that this was a tactical decision on defense counsel's part, not below the standard of competence, and not prejudicial. Today's en banc majority correctly applied the broad deference required by Congress in 28 U.S.C. § 2254(d) and denied relief. One can disagree with the state court decision, but it's within the realm of reasonable disagreement.
The case was decided by 15 judges, as the Ninth has expanded the size of its pseudo-en-banc panels from the earlier 11. Judge Hawkins wrote the opinion, joined by Chief Judge Schoeder and Judges Kozinski, Rymer (dissenter on the earlier panel), Kleinfeld, Tallman, Clifton, Bybee, and Bea. Judge Graber concurred in the judgment. Judge Fisher, author of the panel opinion, wrote the dissent, joined by Judges Betty Fletcher, Pregerson, Paez, and Rawlinson. The latter group is pretty much the ones who are so far out they are never going to obey the AEDPA, although Judge Rawlinson's presence among them is a surprise and a disappointment. The fact that this large a sample of the Ninth, over half, could go 10-5 to obey the law is encouraging.