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January 9, 2012

Intriguing sparring partners in SCOTUS comments after denial of cert in Ninth Circuit habeas case

Released today with a relatively uneventful Supreme Court order list are two short opinions in Cash v. Maxwell, a habeas case from the Ninth Circuit in which the Court denied cert review.  Justice Scalia issued this dissent, which Justice Alito joined, concluding this way (emphasis in original):

It is a regrettable reality that some federal judges like to second-guess state courts.  The only way this Court can ensure observance of Congress’s abridgement of their habeas power is to perform the unaccustomed task of reviewing utterly fact-bound decisions that present no disputed issues of law.  We have often not shrunk from that task, which we have found particularly needful with regard to decisions of the Ninth Circuit.  See, e.g., Cavazos v. Smith, 565 U. S. 1 (2011) (per curiam) (reinstating California conviction for assault on a child resulting in death); Felkner v. Jackson, 562 U. S. ___ (2011) (per curiam) (reinstating California conviction for sexual attack on a 72-year-old woman); Premo v. Moore, 562 U. S. ___ (2011) (reinstating Oregon conviction for murder of a kidnaped victim); Knowles v. Mirzayance, 556 U. S. 111 (2009) (reinstating California first-degree murder conviction); Rice v. Collins, 546 U. S. 333 (2006) (reinstating California conviction for cocaine possession); Kane v. Garcia Espitia, 546 U. S. 9 (2005) (per curiam) (reinstating California conviction for carjacking and other offenses); Yarborough v. Gentry, 540 U. S. 1 (2003) (per curiam) (reinstating California conviction for assault with a deadly weapon); Woodford v. Visciotti, 537 U. S. 19 (2002) (per curiam) (reinstating capital sentence for California prisoner convicted of first-degree murder, attempted murder, and armed robbery).  Today we have shrunk, letting stand a judgment that once again deprives California courts of that control over the State’s administration of criminal justice which federal law assures.  We should grant the petition for certiorari and summarily reverse the Ninth Circuit’s latest unsupportable §2254 judgment.

Justice Sotomayor responds with this opinion ending this way (footnote omitted):

Here, the Ninth Circuit recognized that 28 U. S. C. §2254(d)(2) imposes a “daunting standard — one that will be satisfied in relatively few cases.”  628 F. 3d, at 500 (internal quotation marks omitted). The court below found that standard met only after describing, in scrupulous detail, the overwhelming evidence supporting the conclusion that Storch falsely testified at Maxwell’s trial — attempting to manipulate the integrity of the judicial system as he did in numerous other cases.  I agree with the Ninth Circuit’s determination. But even to the extent that the dissent sees error in that determination, the Ninth Circuit conducted precisely the inquiry required by §2254(d)(2) and our precedents.  “The principal purpose of this Court’s exercise of its certiorari jurisdiction is to clarify the law.” Caperton v. A.T. Massey Coal Co., 556 U. S. 868, 902 (2009) (SCALIA, J., dissenting). Mere disagreement with the Ninth Circuit’s highly factbound conclusion is, in my opinion, an insufficient basis for granting certiorari.  See this Court’s Rule 10.

This little spitting match over a Ninth Circuit habeas grant is not only intriguing on the merits, but also notable for who keeps their tinder dry.  I am a bit surprised to see that Justice Thomas is not joining in Justice Scalia's opinion; it also seems interesting that Justice Sotomayor is a lone voice defending the work of the Ninth Circuit in this case.

January 9, 2012 at 11:10 AM | Permalink


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"it also seems interesting that Justice Sotomayor is a lone voice defending the work of the Ninth Circuit in this case."

Some Justices are more prone than others to write opinions when they agree with a denial of certiorari. Justice Stevens used to write a lot of them, but he's gone. I wouldn't read much, if anything, into the fact that the other justices agreeing not to take the case neither joined Sotomayor's opinion nor wrote their own.

Justice Thomas's decision not to join the dissent may have some meaning, since he does join or write these dissents occasionally.

I suspect that the fact this case arises from the L.A. jailhouse informant scandal swayed the requisite number of votes to deny certiorari. The Court probably does not want to reinstate a conviction having anything to do with that mess, but they couldn't really affirm either, as Justice Scalia explains, so they just leave it in the 99% cert-denied pile.

Posted by: Kent Scheidegger | Jan 9, 2012 1:40:52 PM

Decades ago (14 November 1956), Mr. Justice Frankfurter, in a memorandum on an Ohio case, wrote [DJB's emphasis]:

"Such a denial of his petition in no wise implies that this Court approves the decision of the Supreme Court of Ohio. It means and means only that for one reason or another this case did not commend itself to at least four members of the Court as falling within those considerations which should lead this Court to exercise its discretion in reviewing a lower court's decision. * * *" Sheppard v. Ohio, 352 U.S. 910, 911, 77 S.Ct. 118, 119, 1 L.Ed.2d 119 (1956).

History addicts can find more at
Famous Trials by [Professor] Douglas O. Linder (2011) - UNIVERSITY OF MISSOURI-KANSAS CITY (UMKC) SCHOOL OF LAW:

Famous Trials
Dr. Sam Sheppard Trials 1954 and 1966

Posted by: Docile Jim Brady | Jan 10, 2012 8:10:35 AM

No member of the three-judge panel in the 9th Circuit dissented from the grant of habeas relief.

And, as noted in the 9th Circuit's decision, the informant who testified against the petitioner in this case was eventually indicted for perjury for testifying falsely about getting a deal for snitching on the petitioner. 628 F.3d at 503. The petitioner's "conviction was based in large measure" on the snitch's testimony. Id. at 498. The snitch "perjured himself multiple times" at the petitioner's trial. Id. at 503.

It does not seem like a wildly irrational grant of habeas relief.

Posted by: Calif. Capital Defense Counsel | Jan 10, 2012 6:03:07 PM

"It does not seem like a wildly irrational grant of habeas relief."

Correct. But it does seem like a lawless one. The Brady claims are BS. As for the perjury claims, well, the problem is burden of proof and the state court's conclusion that Maxwell had not met it. The issue is not, as Sotomayor seems to think, whether on a clean slate one should conclude that Storch committed perjury, but whether the state court unreasonably concluded that Maxwell had not carried his burden of demonstrating falsity.

Basically, this is one of those situations where the habeas court is bending the rules to come at what appears to it to be justice. I guess the reality is that we have to live with that sometimes, and truth to be told, the use of Storch is clearly a problem. But where the rules are bent for the clearly guilty, the Supreme Court has to be willing to drop the hammer in a big way.

Let's hope that (assuming they got the right guy) Maxwell has been rehabilitated and leads a law-abiding life upon his (likely) release.

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