The Supreme Court today granted certiorari in the California death penalty case of Cullen v. Pinholster, No. 09-1088. AP story is here. The Ninth Circuit en banc opinion is here. The first three paragraphs of Chief Judge Kozinski's dissent are after the jump.
The California Supreme Court twice considered Pinholster's claim that his death sentence be set aside because his lawyers performed ineffectively, and twice rejected that claim on the merits. Under AEDPA, those determinations come to us encased in a double layer of deference: first, the substantial deference to which lawyers are entitled under Strickland in making judgments during the course of their representation; and, second, the deference to which the state court is entitled in determining whether the lawyers' performance was ineffective and prejudicial. The first layer of deference may be overcome only if counsel's performance was objectively unreasonable under prevailing norms at the time and place oftrial. The second layer may be overcome only if the state supreme court's determination is contrary to or an unreasonable application of clearly established Supreme Court authority. Pinholster comes nowhere close to flipping this "doubly deferential" presumption. Knowles v. Mirzayance, 129 S. Ct. 1411, 1420 (2009).Unfortunately, the Court denied certiorari today in one of the other erroneous decisions mentioned by CJ Kozinski, Ryan v. Libberton, No. 09-1208.
The majority reaches the contrary conclusion through a series of mistakes that have, unfortunately, become far too common in our circuit. First, the majority relies on evidencenever presented to the state courts and that we may therefore not consider in federal habeas proceedings governed by AEDPA. Contra Williams v. Taylor (Michael Williams), 529 U.S. 420, 437-40 (2000). Second, the majority applies retrospectively a standard for counsel's performance that bears no relationship to that prevailing in California at the time of Pinholster's trial in 1984. Contra Bobby v. Van Hook, ___ S. Ct. ___, No. 09-144, slip op. at 3-8 (2009) (per curiam). Third, and perhaps worst of all, the majority accords no deference to the California Supreme Court's superior expertise in determining what constitutes competent representation among the members of its bar and the likely consequences (or lack thereof) of any deficient performance. Contra Schriro v. Landrigan, 550 U.S. 465, 473-74 (2007).
Few state court judgments can withstand even one such error, see, e.g., Jones v. Ryan, ___ F.3d ___, 2009 WL 3152396 (9th Cir. Oct. 2, 2009); Libberton v. Ryan, ___ F.3d ___, 2009 WL 3152389 (9th Cir. Oct. 2, 2009); Gilley v. Morrow, 246 F. App'x 519 (9th Cir. 2007) (unpublished); Stankewitz v. Woodford, 365 F.3d 706 (9th Cir. 2004); see also cases cited pp. 16115-16, 16151-52 infra, but in combination they are deadly. I had hoped that our en banc court would sweep away these mistakes and bring our caselaw into conformity with AEDPA. Instead, the majority repeats and magnifies the errors in these prior cases so that they will be very difficult, probably impossible, for us to correct. This perpetuates a habeas regime where few death sentences are safe from federal judges who know ever so much better than those ignorant state judges and lawyers how capital trials ought to be conducted. Because I don't believe we are the ultimate font of wisdom on such matters, I must dissent.