Jones v. Davis, 111215 FED9, 14-56373

Docket Nº:14-56373
Opinion Judge:GRABER, Circuit Judge
Party Name:Ernest DeWayne Jones, Petitioner-Appellee, v. Ron Davis, Warden, Respondent-Appellant.
Attorney:Michael J. Mongan (argued), Deputy Solicitor General; James William Bilderback II and Keith H. Borjon, Supervising Deputy Attorneys General; Kamala D. Harris, Attorney General of California; Edward C. DuMont, Solicitor General; Gerald A. Engler, Chief Assistant Attorney General; Lance E. Winters,...
Judge Panel:Before: Susan P. Graber, Johnnie B. Rawlinson, and Paul J. Watford, Circuit Judges. WATFORD, Circuit Judge, concurring in the judgment:
Case Date:November 12, 2015
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Ernest DeWayne Jones, Petitioner-Appellee,

v.

Ron Davis, Warden, Respondent-Appellant.

No. 14-56373

United States Court of Appeals, Ninth Circuit

November 12, 2015

Argued and Submitted August 31, 2015 Pasadena, California

Appeal from the United States District Court for the Central District of California, D.C. No. 2:09-CV-02158-CJC Cormac J. Carney, District Judge, Presiding

Michael J. Mongan (argued), Deputy Solicitor General; James William Bilderback II and Keith H. Borjon, Supervising Deputy Attorneys General; Kamala D. Harris, Attorney General of California; Edward C. DuMont, Solicitor General; Gerald A. Engler, Chief Assistant Attorney General; Lance E. Winters, Senior Assistant Attorney General; and A. Scott Hayward and Herbert S. Tetef, Deputy Attorneys General, Los Angeles, California, for Respondent-Appellant.

Michael Laurence (argued), Cliona Plunkett, Nisha Shah, and Tara Mikkilineni, Habeas Corpus Resource Center, San Francisco, California, for Petitioner-Appellee.

Kent S. Scheidegger, Sacramento, California, as and for Amicus Curiae Criminal Justice Legal Foundation.

John T. Philipsborn, Law Offices of John T. Philipsborn, San Francisco, California; Christopher W. Adams, Charleston, South Carolina, for Amici Curiae California Attorneys for Criminal Justice, et al., and National Association of Criminal Defense Lawyers.

William Pollak, Andrew Yaphe, and Serge Voronov, Davis Polk & Wardwell LLP, Menlo Park, California; Sharon Katz, Davis Polk & Wardwell, New York, New York, for Amici Curiae Murder Victims' Families for Reconciliation, et al.

Molly Alana Karlin, Quinn Emanuel Urquhart & Sullivan, LLP, Los Angeles, California; Daniel H. Bromberg, Quinn Emanuel Urquhart & Sullivan, LLP, Redwood Shores, California, for Amicus Curiae Death Penalty Focus.

Mark Wine and Christina M. Von der Ahe, Orrick, Herrington & Sutcliffe, Irvine, California; Robert Rosenfeld, Orrick, Herrington & Sutcliffe, San Francisco, California; and Trish Higgins and Suman Tatapudy, Orrick, Herrington & Sutcliffe, Sacramento, California, for Amici Curiae Loni Hancock, et al.

Ethan A. Balogh, Jay A. Nelson, and Evan C. Greenberg, Coleman, Balogh & Scott LLP, San Francisco, California, for Amici Curiae Empirical Scholars Concerning Deterrence and the Death Penalty.

Paula M. Mitchell, Reed Smith LLP, Los Angeles, California, for Amicus Curiae Loyola Law School's Alarcón Advocacy Center and Project for the Innocent.

Christopher B. Craig and Steven J. Olson, O'Melveny & Myers LLP, Los Angeles, California, for Amicus Curiae Correctional Lieutenant Marshall Thompson.

Dr. Robert V. Justice and Emery D. Soos, Jr., Beverly Hills, California, as and for Amici Curiae. David Loftis, New York, New York, as and for Amicus Curiae The Innocence Project, Inc.

Before: Susan P. Graber, Johnnie B. Rawlinson, and Paul J. Watford, Circuit Judges.

SUMMARY[*]

Habeas Corpus / Death Penalty

The panel reversed the district court's judgment granting relief on a capital petitioner's claim that California's post-conviction system of judicial review violates the Eighth Amendment's prohibition against cruel and unusual punishment by creating excessive delay between sentencing and execution, such that only an arbitrary few prisoners are executed.

The panel held that this court has discretion to deny a claim as barred by Teague v. Lane, under which federal courts may not consider novel constitutional theories on habeas review, without considering the parties' arguments concerning exhaustion.

The panel held that the petitioner's claim seeks to apply a novel constitutional rule, and is therefore barred by Teague.

Concurring in the judgment, Judge Watford wrote that the rule announced by the district court is substantive rather than procedural and is therefore not precluded by Teague. He would reverse the judgment on the ground that the petitioner's claim remains unexhausted.

OPINION

GRABER, Circuit Judge

The State of California authorizes the execution of a capital prisoner only after affording a full opportunity to seek review in state and federal courts. Judicial review ensures that executions meet constitutional requirements, but it also takes time-too much time, in Petitioner Ernest DeWayne Jones' view. He argues that California's post-conviction system of judicial review creates such a long period of delay between sentencing and execution that only an "arbitrary" few prisoners actually are executed, in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Under Teague v. Lane, 489 U.S. 288 (1989), federal courts may not consider novel constitutional theories on habeas review. That principle "serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered." Sawyer v. Smith, 497 U.S. 227, 234 (1990). Because we conclude that Petitioner's claim asks us to apply a novel constitutional rule, we must deny the claim as barred by Teague. Accordingly, we reverse the district court's judgment granting relief.

FACTUAL AND PROCEDURAL HISTORY

In 1995, a jury sentenced Petitioner to death for the rape and murder of his girlfriend's mother. The California Supreme Court affirmed the judgment in 2003, People v. Jones, 64 P.3d 762 (Cal. 2003), and the United States Supreme Court denied certiorari that same year, Jones v. California, 540 U.S. 952 (2003). The California Supreme Court denied Petitioner's state habeas petition in 2009.

On direct appeal to the California Supreme Court, Petitioner presented what is commonly known as a "Lackey claim, " so named after a memorandum by Justice Stevens respecting the denial of certiorari in Lackey v. Texas, 514 U.S. 1045 (1997) (mem.). Petitioner argued that the delay between imposition of sentence in 1995 and eventual execution inevitably would be so long that carrying out the sentence would violate the Eighth Amendment's prohibition against cruel and unusual punishment. Relying on its precedent, the California Supreme Court rejected Petitioner's Lackey claim. Jones, 64 P.3d at 787; see People v. Anderson, 22 P.3d 347, 389 (Cal. 2001) ("[W]e have consistently concluded, both before and since Lackey, that delay inherent in the automatic appeal process is not a basis for concluding that either the death penalty itself, or the process leading to its execution, is cruel and unusual punishment.").

Petitioner filed a federal habeas petition in 2010. In claim 27, Petitioner asserted the same Lackey claim that the state court had rejected, arguing that the "excessive delay" after his sentencing violates the Eighth Amendment. In 2014, the district court issued an order expressing the view that California's post-conviction system itself may be unconstitutional. Four days later, the district court directed Petitioner to file an amended petition raising the systemic challenge and required the parties to address "petitioner's new claim" in supplemental briefs. Consistent with the court's order, Petitioner filed an amended federal habeas petition. In amended claim 27, Petitioner alleged that California's post-conviction system itself violates the Eighth Amendment by creating excessive delay between sentencing and execution in capital cases generally.

After receiving briefs and holding a hearing, the district court granted relief to Petitioner on the amended claim, holding that California's post-conviction system for capital prisoners violates the Eighth Amendment's prohibition against cruel and unusual punishment. Jones v. Chappell, 31 F.Supp.3d 1050 (C.D. Cal. 2014) (order). Although more than 900 people have been sentenced to death in California since 1978, only 13 have been executed. Id. at 1053. As of 2014, some Death-Row inmates had died of natural causes, the sentences of some had been vacated, and 748 remained on Death Row. Id. For those who are eventually executed, "the process will likely take 25 years or more." Id. at 1054. "[D]elay is evident at each stage of the post-conviction review process, " id. at 1056, including on direct appeal, state collateral review, and federal collateral review, id. at 1056–60. In the district court's view, "much of the delay in California's post[-]conviction review process is created by the State itself." Id. at 1066.

Relying primarily on the Supreme Court's decision in Furman v. Georgia, 408 U.S. 238 (1972) (per curiam), the district court held that the "systemic delay and dysfunction" in California's post-conviction review process was unconstitutionally "arbitrary, " because a capital prisoner's selection for execution "will depend upon a factor largely outside an inmate's control, and wholly divorced from the penological purposes the State sought to achieve by sentencing him to death in the first instance: how quickly the inmate proceeds through the State's dysfunctional post-conviction review process." Jones, 31 F.Supp.3d at 1061–63. The court concluded that, "where the State permits the post-conviction review process to become so inordinately and unnecessarily delayed that only an arbitrarily selected few of those sentenced to death are executed, the State's process violates the Eighth Amendment. Fundamental principles of due process and just punishment demand that any punishment, let alone the ultimate one of execution, be timely and rationally carried out." Id. at 1067.

The district court also held that the deferential standards of review mandated by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), found in 28 U.S.C. § 2254(d), did not apply because the state courts had never ruled on the systemic claim. Jones, 31...

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