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High Court Gives Ninth Circuit a Habeas Head-ScratcherOft-overturned judge delicately broaches possible error with justices.
2013-07-08 12:04:21 PM
SAN FRANCISCO — How do you tell the United States Supreme Court it screwed up?
Very delicately, if you're a subordinate appellate court. Last week, U.S. Court of Appeals for the Ninth Circuit Judges Stephen Reinhardt and Alex Kozinski — jurists who typically don't hesitate to speak their minds — tactfully asked the high court to clarify if it really meant to deny a habeas corpus appeal without either court having considered it on the merits.
"I hope I'm wrong, but can see no other way to read the court's actions," wrote Kozinski, the Ninth Circuit's chief judge. "Deference to the judicial hierarchy leaves room for no other course of action on our part."
The unusual July 3 order stems from Tara Williams' long-running efforts to escape a 1993 murder conviction on the grounds that her trial judge removed a holdout juror during deliberations. The Ninth Circuit ruled in her favor in 2011, saying that because the California court of appeal never explicitly addressed Williams' Sixth Amendment claim, its opinion was not owed much deference.
In February the high court reversed, focusing on the highly deferential standard of review required by the Anti-Terrorism and Effective Death Penalty Act. "Under that standard respondent is not entitled to habeas relief," Justice Samuel Alito added, without further explanation.
That left Reinhardt and Kozinski scratching their heads, because the Ninth Circuit has never considered Williams' claim under the AEDPA standard, and the parties didn't brief the issue to the Supreme Court. "At oral argument, the [Supreme] Court deliberately declined to hear any discussion of the merits of Williams's case," Reinhardt noted. "When the topic arose, Justice [Anthony] Kennedy stated that the court 'probably shouldn't go there.'"
What's more, Alito's decision remanded the case to the Ninth Circuit "for further proceedings consistent with this opinion."
"If, as the introduction states, Williams 'is not entitled to habeas relief,' then, contrary to the direction in the conclusion, there would appear to be no 'further proceedings' possible," Reinhardt wrote.
Reinhardt and the Supreme Court don't always see eye to eye on habeas issues, so it was notable that Kozinski kicked in his own separate opinion. (San Jose U.S. District Judge Ronald Whyte, sitting by designation, also was on the panel.)
The removal of a holdout juror "cuts at the heart of our adversary system," he wrote, and the Ninth Circuit hasn't decided yet whether that would meet the AEDPA standard. "It's thus surprising that the Supreme Court should have done so, particularly when it declined to have the question briefed, and its opinion contains no analysis supporting its conclusion. But, I have no doubt that that's precisely what the court did."
Added Kozinski: "I take comfort in knowing that, if we are wrong, we can be summarily reversed."
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