Metropolitan News-Enterprise


Tuesday, April 18, 2023


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Ninth Circuit Rejects Call by A.G.’s Office to Decide Appeal From Habeas Grant Despite Mootness


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday rejected the request by the Office of Attorney General that it decide the appeal from the District Court’s granting of a petition for a writ of habeas corpus even though the state retried the defendant in response to the writ and he was again convicted.

Inmate Mario Arciga sought habeas relief based on alleged Batson/Wheeler error. The prosecutor in state court used 10 of the 15 peremptory challenges to keep Hispanics off the jury.

District Court Judge Dale A. Drozd on Nov. 21, 2022, ordered the warden of Pleasant Valley State Prison to release Arciga from custody unless the State of California provided him a new trial within 90 days.

It did. He was convicted.

The Attorney General’s Office nonetheless wanted the Ninth Circuit to reverse the order grating the writ, arguing that the case involves an issue “capable of repetition yet evading review.”

Arciga responded in his brief on appeal:

“Respondent is mistaken. That exception applies only in ‘extraordinary cases’….

“[T]here’s nothing ‘extraordinary’ about this case, except perhaps the flagrancy of the racial discrimination and the state courts’ failure to acknowledge much less remedy it.”

In a precedential per curiam opinion, Ninth Circuit Judges Mark J. Bennett and Roopali H. Desai and Senior Judge Richard R. Clifton said that are “not persuaded” by the contention that the appeal should be decided despite mootness, noting that the issues can be raised in subsequent cases.

They added:

“Because the case became moot during the pendency of the appeal, we conclude that the district court’s orders granting habeas relief should be vacated. We remand the matter to the district court with instructions to dismiss Arciga’s petition.”

The case is Arciga v. Frauenheim, 22-16974.


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