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Ninth Circuit Will Defer in Capital Cases to State High Court’s Summary Determinations
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday made “explicit” that it will lend deference to the California Supreme Court’s rejection of contentions in death cases even where arguments are spurned summarily.
Judge Lawrence VanDyke authored the opinion for a three-judge panel. He addressed two issues certified to it by District Court Judge Ronald S.W. Lew of the Central District of California and also dealt with two other issues raised by slayer Sergio Ochoa in his appeal from Lew’s denial of his petition for a writ of habeas corpus.
Ochoa’s death sentence, imposed by then-Los Angeles Superior Court Judge Sandy Kreigler (later a Court of Appeal justice, now a college professor), was upheld by the California Supreme Court on Aug. 6, 2001 and habeas relief has twice been denied by that court. The defendant was found guilty on two counts of first-degree degree murder and one count of second-degree robbery, with a gun allegation found to be true.
Statutory Limitations
VanDyke noted that under 28 U.S.C. §2254(d), a part of the Antiterrorism and Effective Death Penalty Act (“AEDPA”), habeas relief may not be granted unless the last reasoned state court decision on the issue presented was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”
In his briefing, Ochoa contended that the California Supreme Court’s rejection of his claim that he had received ineffective assistance of counsel is not entitled to AEDPA deference because that court did not conduct an evidentiary hearing. VanDyke noted that such an argument was accepted by a three-judge panel in the Ninth Circuit’s 2003 decision in Nunes v. Mueller.
The majority opinion in that case says:
“[W]e do not hold (or even hint) that the state court erred because it evaluated the facts differently than we would have or because it arrived at a different result. Instead the state court’s decision was objectively unreasonable because that court made factual findings…when it rather claimed to be determining prima facie sufficiency. By contrast, if the state court had first conducted an evidentiary hearing and had then arrived at the same inferences and credibility determinations, we would not be second-guessing those procedures and results as objectively unreasonable.”
Supreme Court Utterance
However, VanDyke pointed out, the U.S. Supreme Court in 2011 declared in Harrington v. Richter:
“There is no merit to the assertion that compliance with § 2254(d) should be excused when state courts issue summary rulings....”
He wrote:
“Since then, we have consistently rejected—albeit implicitly—similar prima facie arguments….Accordingly, we take this opportunity to make explicit what has to this point been implicit: the California Supreme Court’s summary denial of Ochoa’s claims—both certified and uncertified—is a decision on the merits and thus entitled to AEDPA deference.”
Four Issues
The issues certified by Lew were whether seven jurors were improperly removed for cause and whether counsel was ineffective for not objecting to the prosecutor’s use during voir dire of hypotheticals apt to mislead jurors and not attempting to rehabilitate venirepersons who were challenged for cause. The Ninth Circuit also considered whether the defense lawyer was ineffective based on failing to uncover and present mitigating evidence at the penalty phase and whether execution would be cruel and unusual in light of Ochoa’s cognitive impairments and mental illness.
Applying AEDPA deference, VanDyke declared:
“[W]e affirm the district court’s denial of Ochoa’s habeas corpus petition because he fails to establish that the California Supreme Court’s conclusion as to any of his claims was contrary to or constituted an unreasonable application of clearly established federal law or an unreasonable factual determination.”
The case is Ochoa v. Davis, 18-99007.
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