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Ninth Circuit:
Dissenters Decry Retaining Opinion Adverse to Guerrero
Judge Bennett Authors Dissent to Order Denying En Banc of Review in Case Where Panel Revived Suit Against California Chief Justice and a Superior Court Judge Over 26-Year Wait by Death-Row Inmate for Habeas Counsel
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeal yesterday denied a petition by California Chief Justice Patricia Guerrero and a Superior Court judge seeking an en banc rehearing in a case where a three-judge panel revived an action against them by a death-row inmate alleging due process violations arising from a 26-year delay in appointment of habeas counsel, drawing a dissent by seven appointees of Republican President Donald Trump.
Six appointees of Democratic presidents joined in a statement defending of the withholding of en banc review.
Concurrently, the same panel that on Oct, 20, 2023, reversed the dismissal of an action by inmate Stephen Redd against Guerrero and Orange Superior Court Judge Kimberly Menninger, yesterday granted the state jurists’ request to dismiss the appeal as moot in light of the death of the plaintiff, but denied their request that the opinion—which was published and thus has precedential effect—be vacated.
The 2023 opinion was authored by Senior Circuit Judge Marsha S. Berzon, with Circuit Judge Morgan Christen and Senior Circuit Judge Richard C. Tallman joining in it,
En banc review had been sought for the purpose of the opinion being vacated. A majority of active, nonrecused judges voted against such review.
Redd, a former Los Angeles County deputy sheriff, was convicted of murder and other crimes relating to a string of robberies, during which he fatally shot a supermarket manager. He was sentenced to death by Orange Superior Court Judge Francisco P. Briseno (now deceased) in 1997.
The inmate died on Dec. 21, 2023.
Dissenters’ View
Judge Mark J. Bennett wrote the dissent, signed by Judges Ryan D. Nelson, Daniel P. Collins, Kenneth K. Lee, Daniel A. Bress, Patrick J. Bumatay, and Lawrence VanDyke.
Bennett said:
“We should have taken this case en banc to vacate the panel’s opinion, which is plainly wrong and presents an affront to the principles of federalism. The panel incorrectly decides ‘a question of exceptional importance’: whether the State of California is violating hundreds of indigent capital prisoners’ due process rights by failing to timely appoint capital habeas counsel under California statutes.
“There is no federal constitutional right to habeas counsel….The question presented to the panel was purely one of state law: whether California law guarantees appointment of habeas counsel within a certain time frame. Thus, the panel should have determined how the California Supreme Court would have answered the question. Had it done so, the panel would have been compelled to conclude that California law does not guarantee appointment of habeas counsel within a certain time.”
He continued:
“According to the panel, if California judges fail to appoint habeas counsel within that time frame, they are violating the Federal Constitution, no matter that it is impossible for the California courts to comply with the panel’s holding, and no matter that the California Supreme Court has previously held that similar statutory habeas time limits on the performance of judiciary functions cannot be construed as imposing specific time limits.”
Deleterious Practical Effects
Arguing that “[t]he panel’s opinion will have deleterious practical effects,” Bennett opined:
“The panel’s precedential decision inflicts vast immediate and ongoing harm to federalism by allowing up to 362 indigent capital prisoners in California to use the federal courts to dictate what California state court judges must do under the panel’s view of California law. The panel concluded that simply because California has elected to appoint postconviction counsel for indigent capital prisoners, this court—and every other federal court—can prescribe for the State Officers, including the Chief Justice of the California Supreme Court, how they must interpret state laws, allocate state judicial resources, structure the State’s judicial system, and administer justice. The panel’s holding represents dramatic overreach by a federal court and will have far-reaching effects on California’s criminal justice system.”
He acknowledged that the case is moot but remarked:
“If a panel’s precedential decision is flat-out wrong on the merits in a case that becomes moot while the petition for rehearing en banc is pending, we have an obligation to remove it from our case law by vacating it en banc, if taking the case en banc meets the [“exceptional importance”] standard. For the reasons discussed above, this case meets that standard, as it raises the exceptionally important question whether the State of California is violating hundreds of indigent capital prisoners’ due process rights by failing to timely appoint capital habeas counsel under California statutes.”
Bennett added that the panel “abused its discretion in declining to vacate Redd,” setting forth:
“The analysis for vacatur requires us to look at three equitable considerations: whether the public interest (including value to the legal community) is advanced, whether prejudice to the parties would result, and whether the mootness arose because of voluntary or involuntary conduct.”
The considerations, he said, weigh in favor of vacatur.
Statement Defending Action
Berzon wrote the statement in support of denying en banc review for the purpose of dumping the 2023 opinion. She was joined by Christen and Tallman, as well as by Judge Kim Wardlaw and Senior Judges William A. Fletcher and Richard A. Paez,
All are appointees of Democratic President Bill Clinton except Christen, who was placed on the court by Democratic President Barack Obama.
Berzon said that the dissent “would have had the court take this case en banc for the sole purpose of vacating the panel opinion” but argued that “the court decided against this course of action…for two compelling reasons.”
She continued:
“The only appropriate question for our court to have asked at this juncture was whether the panel abused its discretion in declining to vacate the Redd opinion. The answer to that question is no—the equitable considerations in this case do not justify the ‘extraordinary remedy of vacatur.’…
“[I]n improperly addressing the merits of the Redd panel opinion, my dissenting colleagues mischaracterize the holding of the panel opinion, misread California law, exaggerate the practical consequences of letting the opinion stand, and dramatically recast the panel’s ordinary procedural due process analysis as ‘an affront to the principles of federalism.’ ”
Unsuccessful Federal Efforts
Following an unsuccessful bid for federal habeas relief, which was determined to be premature, the U.S. Supreme Court denied certiorari on Dec. 1, 2014.
Justice Sonia Sotomayor said in a statement, joined in by then-Justice Stephen Breyer, that she voted to “deny the petition for certiorari because it is not clear that Plaintiff has been denied all access to the courts” and that “Plaintiff might seek to bring a 42 U.S.C. §1983 suit contending that the State’s failure to provide him with the counsel to which he is entitled violates the Due Process Clause.”
Redd filed just such a suit in March 2016, on behalf of himself and the other 362 indigent capital prisoners in California whom he alleges have been deprived of the timely appointment of state habeas counsel.
The plaintiff relies on California Government Code §68662, which provides:
“The superior court that imposed the sentence shall offer to appoint counsel to represent a state prisoner subject to a capital sentence for purposes of state postconviction proceedings, and shall enter an order containing one of the following: [¶] (a)The appointment of one or more counsel to represent the prisoner in proceedings pursuant to [the habeas corpus statute] upon a finding that the person is indigent and has accepted the offer to appoint counsel….”
Case Dismissed
Then-District Court Judge Dolly M. Gee (now chief judge) of the Central District of California dismissed the complaint for failure to state a claim.
In her opinion last year reversing the dismissal, Berzon acknowledged that the case implicates issues of federalism and comity but found that Redd had “ha[d] a protected, state-created property interest in state-appointed habeas counsel, and, because of the exceedingly long delay in appointing counsel, he ha[d] been denied that right without due process.”
The case is Redd v. Guerrero, 21-55464.
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