Crater v. Galaza

• Citation: 491 F.3d 1119
• Decision Date: 09 July 2007
• Docket Number: No. 05-17027.,05-17027.
• Parties: Andrew Cortez CRATER, Petitioner-Appellant, v. George M. GALAZA, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

491 F.3d 1119

Andrew Cortez CRATER, Petitioner-Appellant, v. George M. GALAZA, Respondent-Appellee.

No. 05-17027.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 17, 2006.

Filed July 9, 2007.

Victor S. Haltom, Sacramento, CA, Attorney at Law, argued the cause for petitioner-appellant Andrew Cortez Crater and filed briefs.

Brian R. Means, Sacramento, CA, Supervising Deputy Attorney General of the State of California, argued the cause for respondent-appellee George M. Galaza; Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General of the State of California, and Mary Jo Graves, Senior Assistant Attorney General of the State of California, were on the brief.

Appeal from the United States District Court for the Eastern District of California; Morrison C. England, District Judge, Presiding. D.C. No. CV-01-01893-MCE/GGH.

Before: MELVIN BRUNETTI, DIARMUID F. O'SCANNLAIN, and STEPHEN S. TROTT, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We are asked, once again, whether the Anti-terrorism and Effective Death Penalty Act is unconstitutional, this time by another habeas corpus petitioner convicted of murder in a California state court.

I

On June 8, 1995, Andrew Cortez Crater and Thomas Crater Robinson went on an armed crime spree in Sacramento, California. In the course of a few hours, the two men robbed a college student, a man and his sister-in-law, and a group outside a café. During the third robbery, Robinson fatally shot James Pantages. The Sacramento community expressed sorrow and dismay. James Pantages had been a beloved local musician. Numerous news reports were written on the crime.

Crater and Robinson were tried for robbery, attempted robbery, and murder. The charges included a special circumstance allegation for murder committed during a robbery. The prosecutor pursued the death penalty only for Robinson. Crater sought a change of venue and severance of his trial from that of Robinson, and the judge granted the latter.

Tried first, Robinson was convicted on all counts. The jury hung with regard to the death penalty, and the prosecutor did not pursue it further. Before Crater's trial began, the prosecution proposed the following bargain: If Crater would plead guilty, the District Attorney's office would drop the special circumstance allegation. After learning that Crater was reluctant to accept this deal, the judge gathered the attorneys and the defendant in camera and explained that he considered the plea proposal to be a "major concession" by the prosecution. Despite the judge's encouragement to accept the agreement, however, Crater did not plead guilty. Instead, he moved to "peremptorily excuse" the judge under Cal.Civ.Proc.Code § 170.6, based on the judge's in camera advice. The judge denied Crater's motion, explaining that "in terms of my ability to try the case, regardless of whether you can peremptorily excuse me, if I felt that I could not give your client a fair trial, I would excuse myself."

The day before his trial began, Crater moved for a continuance and a change of venue. The judge declined both motions. Seventeen days later, the jury found Crater guilty on all counts and found the special circumstance to be true. Accordingly, the judge sentenced Crater to life in prison without the possibility of parole.

On direct appeal, Crater claimed that the denial of his motions for recusal and change of venue violated due process and that the jury instructions regarding the special circumstance prescribed too low a burden of proof. The California Court of Appeal consolidated his appeal with Robinson's and rejected it in an unpublished decision. The California Supreme Court denied his petition for review without comment.

Crater then turned to the federal courts. He reiterated his claims regarding recusal and venue in a habeas petition to the Eastern District of California. A magistrate judge recommended granting the petition based upon evidence of judicial bias, but the district judge disagreed, finding no evidence that the state judge harbored "prejudicial bias and should have recused himself." Applying the standard of review set forth in the Anti-terrorism and Effective Death Penalty Act ("AEDPA"), Pub.L. 104-132, 110 Stat. 1214, the district court concluded that "the state court's application of Supreme Court precedent was objectively reasonable" and denied Crater's habeas petition on September 30, 2005.

Crater timely appealed.

II

A

Crater first raises a frontal attack on the constitutionality of AEDPA. He claims that 28 U.S.C. § 2254(d)(1), a provision of AEDPA limiting the grounds for federal habeas relief for prisoners convicted in state court, violates the Suspension Clause and interferes with the independence of federal courts under Article III. In his intertwined constitutional arguments, Crater invokes the writ of habeas corpus both as an individual right¹ and as a power of the federal courts.

Our analysis begins with the statutory text. We agree with Crater that § 2254(d) as a whole markedly reduces the availability of federal habeas relief for prisoners contesting their detention after state adjudication on the merits. Before AEDPA was enacted, federal courts could grant relief if the state adjudication did not meet the standards of federal law. See Williams v. Taylor, 529 U.S. 362, 400, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O'Connor, J., concurring) (noting that under prior law "a federal court should grant a state prisoner's petition for habeas relief if that court were to conclude in its independent judgment that the relevant state court had erred on a question of constitutional law or on a mixed constitutional question"). After AEDPA, however, courts may not grant relief unless a state adjudication either

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).²

The Supreme Court has underscored the magnitude by which § 2254(d)(1) has altered prior standards and procedures for granting habeas relief: "the only question that matters [now] under § 2254(d)(1) [is] whether a state court decision is contrary to, or involved an unreasonable application of, clearly established federal law." Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); see also Early v. Packer, 537 U.S. 3, 11, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (noting that a "merely erroneous" state decision does not warrant relief unless it is also "`an unreasonable application' of clearly established federal law" (emphasis in original)).

The Court has recognized that § 2254(d)(1) "places a new constraint on the power of a federal habeas court" and "restricts the source of clearly established law to this Court's jurisprudence." Williams, 529 U.S. at 412, 120 S.Ct. 1495; see also id. at 403, 120 S.Ct. 1495 (rejecting the view that "§ 2254(d)(1) does not alter the previously settled rule of independent review" and "does no more than express a mood that the Federal Judiciary must respect" (citation and internal quotation marks omitted)). Recently, the Court explained that if habeas relief depends upon the resolution of "an open question in [Supreme Court] jurisprudence," § 2254(d)(1) precludes relief. Carey v. Musladin, ___ U.S. ___, 127 S.Ct. 649, 653, 654, 166 L.Ed.2d 482 (2006). Applying this standard in Musladin, the Court denied relief because "[g]iven the lack of holdings from this Court . . . it c[ould] not be said that the state court `unreasonabl[y] appli[ed] clearly established Federal law.'" Id. at 654 (citing § 2254(d)(1)). The Court's decision in Musladin underscores that § 2254(d)(1) tightly circumscribes the granting of habeas relief.

In evaluating the validity of these constraints upon the writ, we must look, of course, to the text and structure of the Constitution. Article III states that "[t]he judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority." U.S. Const. art. III, § 2, cl. 1. In defining the judicial power, Article III provides for one Supreme Court with original jurisdiction over an enumerated category of cases affecting state parties and certain public officials. Id. In "all the other cases," the Supreme Court has only "appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make." U.S. Const. art. III, § 2, cl. 2 (emphasis added).

The Constitution does not expressly create inferior federal courts or prescribe their original or appellate jurisdiction. Indeed, the Constitution permits Congress to choose not to establish inferior federal courts at all: "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." U.S. Const. art. III § 1, cl. 1 (emphasis added). Some have argued that the legislative authority to create the lower courts necessarily includes the "lesser" power to control such courts. But such legislative power would appear to contradict the separation of powers integral to the Constitution. See U.S. Const. arts. I-III (separating and distinguishing the powers of the executive, legislative, and judicial branches). Thus, the Supreme Court has found it necessary to set bounds upon congressional control of the courts. See City of Boerne v. Flores, 521 U.S. 507, 536, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997) (striking down the Religious Freedom Restoration Act, because the statute "contradicted vital principles necessary to maintain separation of powers and the federal...