As we have noted on this blog multiple times, the Supreme Court has often (and correctly) rebuked the Court of Appeals for the Ninth Circuit for failure to follow the standard for reviewing state criminal judgments prescribed by Congress and elaborated by the Supreme Court. A growing minority of judges of the Ninth Circuit itself are rebuking their colleagues on the same point, and the dispute is getting increasingly strident. Here is the opening of the dissent from denial of rehearing en banc in the Arizona capital case of Kayer v. Ryan, No. 09-99027:
Like clockwork, practically on a yearly basis since the Millennium, we have forced the Supreme Court to correct our inability to apply the proper legal standards under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). [Footnote listing reversals.] A divided panel in this case took that tradition one step further, though, by re-writing AEDPA entirely: to institute the federal habeas court as a mere second state appellate court of state law error review.* * *From our position, the issue is not what we think the state PCR court should have done to conform to Arizona law. The issue is whether what the state PCR court in fact did (its decision, not how it arrived at its decision) was objectively unreasonable under the standard articulated in Harrington. The Supreme Court has told us--specifically us--not to "ignore[]" that this is literally "the only question that matters." Id. at 102 (quoting Lockyer v. Andrade, 538 U.S. 63, 71 (2003)). How the panel majority's opinion could outright ignore (and replace) this standard is incomprehensible. We should have taken this case en banc to correct the panel majority's opinion's errors before the Supreme Court (again) does it for us
The panel replies with an unusually extended defense of its decision, ending: "Contrary to the contention of our dissenting colleagues, we are acutely aware of the deference required under AEDPA."
The split is mostly along appointing-party lines, but not quite. Judge John Owens, appointed by President Obama, dissented from the panel decision and joins Judge Bea's dissent from denial of rehearing en banc. Judge Eric Miller, appointed by President Trump, is not listed as joining. That does not necessarily mean he agrees with the panel opinion, though. He might have been recused, or he might have just not wanted to join this controversial form of dissent. The newest member of the court, Judge Hunsaker, is also not listed as joining, but she probably came on board too late to participate in this case.
The Ninth Circuit is authorized 29 active circuit judges. There are presently 16 appointed by Presidents Clinton or Obama and 13 appointed by Presidents Bush or Trump, with no vacancies.
The repeated failure of the Ninth to go en banc to correct rogue panel decisions when they favor criminal defendants and prison inmates is the primary shortcoming of the court at present. Though we are tantalizingly close to the point where that could be corrected, we are not there yet. I do not expect to see it soon, but next year's election could make all the difference.
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