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Sweeping away a Ninth Circuit U.S. Court of Appeals precedent, the Supreme Court on Tuesday made it more difficult for dozens of California death row inmates to avoid their date with the executioner — and more difficult for the Ninth Circuit itself to cancel the appointment. In Woodford v. Garceau, 01-1862, the justices ruled 6-3 that prisoners must have filed a full habeas corpus petition in federal court to qualify for the old, more lenient standards of review that applied before Congress enacted 1996′s Anti-Terrorism and Effective Death Penalty Act. With the decision, about 45 California death row inmates are seeing their chance for a reprieve dwindle. “In sum, we hold that . . . a case does not become ‘pending’ until an actual application for habeas corpus relief is filed in federal court,” Justice Clarence Thomas wrote. “Because respondent’s federal habeas corpus application was not filed until after AEDPA’s effective date, that application is subject to AEDPA’s amendments.” Justice David Souter wrote the dissent. California inmates affected by the ruling now have a tougher road in the federal court system, with many likely having to tear up pending habeas petitions in order to ask federal judges to rule that a state court decision was not just wrong — that was the pre-AEDPA standard — but that it involved “an unreasonable application of clearly established federal law.” The case turned on the definition of the word “pending.” The Ninth Circuit held that a federal habeas petition was pending once the inmate contacted a federal court to ask for a habeas lawyer and his case was assigned a docket number. But the Supreme Court held that a case is only pending once the lawyer files a full petition with the district court. The gap between the two can often be several years. State Public Defender Lynne Coffin, who argued the case before the Supreme Court, discounted the impact of the ruling. Coffin said the California attorney general’s office has decided to appeal even the most minute of procedural decisions to the bitter end, with the result being years of extra litigation. “In the time they spent doing this, they could have retried the case,” Coffin said. “They gained nothing. They wasted time and money.” She added: “If that’s what the taxpayers wanted when they elected the attorney general, that’s what they got.” Deputy Attorney General Dane Gillette said the ruling also affects two other important standards of review. Prisoners are no longer eligible for an evidentiary hearing unless they show diligence in trying to raise the issue in state court. Furthermore, factual determinations by state judges are now to be left alone unless they are wrong by “clear and convincing evidence.” Garceau is something of a temporary ruling. As time goes on, all prisoners on death row will be subject to AEDPA’s provisions. But one immediate effect might be a pending petition for certiorari now before the U.S. Supreme Court. In August, an en banc Ninth Circuit panel ruled that death row inmate William Payton’s trial was compromised by a jury instruction that limited the jury’s consideration of mitigating evidence. Payton is one of the 45 or so inmates who requested counsel prior to AEDPA, but did not file his petition until after AEDPA became law. The Ninth Circuit applied the old standard of review. “My suspicion is that they would grant cert, vacate the opinion and remand to the Ninth Circuit for reconsideration,” Gillette said. The deference that federal courts should give state court decisions has been a recurring theme this Supreme Court term. The first opinions the justices issued included two summary reversals of the Ninth Circuit, reminding the nation’s largest appellate court that under AEDPA it can overturn state judgments only if they involve an unreasonable application of federal law. Those cases kicked off several victories this term for the attorney general’s criminal lawyers, who have often been at odds with the Ninth Circuit. One of those victories was a successful defense of California’s Three Strikes law. Gillette said the Supreme Court’s jurisprudence this term has been “consistent with the positions that we’ve been arguing all along.” There are still numerous prisoners on death row subject to pre-AEDPA standards, but Gillette did not know the precise number. “There are a fair number of cases because there are cases that have been sitting in the district courts for five years or more,” he said.

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