Crater v. Galaza, 05-17027.

• Decision Date: 06 December 2007
• Docket Number: No. 05-17027.,05-17027.
• Citation: 508 F.3d 1261
• Parties: Andrew Cortez CRATER, Petitioner-Appellant, v. George M. GALAZA, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

508 F.3d 1261

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

No. 05-17027.

United States Court of Appeals, Ninth Circuit.

December 6, 2007.

Victor S. Haltom, Esq., Sacramento, CA, for Petitioner-Appellant.

Brian Means, AGCA-Office of the California Attorney General, Sacramento, CA, for Respondent-Appellee.

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

ORDER

The panel has voted to deny the petition for rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing en banc. A judge of the court requested a vote on whether to rehear the case en banc. However, the en banc call failed to receive a majority of votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.

The petitions for rehearing and rehearing en banc are denied.

REINHARDT, Circuit Judge, with whom Circuit Judges PREGERSON, GOULD, PAEZ, and BERZON join, dissenting from the denial of rehearing en banc:

I would hold that section 104 of the Antiterrorism and Effective Death Penalty Act ("AEDPA"),¹ Pub.L. No. 104-132, 110 Stat. 1214 (codified in relevant part at 28 U.S.C. § 2254(d)(1)), violates the separation of powers doctrine and is unconstitutional. Section 2254(d)(1) constitutes a severe congressional incursion on the federal "judicial power," which Article III of the Constitution vests wholly and exclusively in the federal courts. It does so in two principal ways: first, by prohibiting the federal courts from applying the ordinary principles of stare decisis in deciding habeas cases involving prisoners held in state custody, thereby interfering with the federal courts' normal adjudicatory process; and second, by requiring federal courts to give effect to incorrect state rulings that, in the federal courts' independent judgment, violate the Constitution. Such a congressional breach of the federal judiciary's integrity and independence, of its duty to maintain the supremacy of the Constitution, and, indeed, of the constitutional structure itself, should not go unchecked by this court. For this reason, and because I believe that this is the type of case an en banc court should hear,² I dissent from the court's unfortunate decision to let the panel decision become the law of the circuit.³

I.

Section 2254(d)(1) prescribes an unconstitutional standard of review for federal courts' adjudication of habeas petitions alleging that the petitioner's state custody is "in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). It provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(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;

§ 2254(d)(1).

The statute departs from pre-AEDPA habeas jurisprudence in two key ways. First, whereas previously federal courts could rely on the jurisprudence of the courts of appeals to determine whether the state court decision was in violation of federal law, after AEDPA they are limited to clearly established law "as determined by the Supreme Court." Id.; see Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) ("[Section] 2254(d)(1) restricts the source of clearly established law to this Court's jurisprudence.").⁴ Second, federal courts may no longer grant habeas petitioners relief in cases in which the state court judgment clearly violated federal law unless the state court's erroneous ruling was also "objectively unreasonable." Williams, 529 U.S. at 409, 120 S.Ct. 1495; see also id. at 410, 120 S.Ct. 1495 ("[A]n unreasonable application of federal law is different from an incorrect application of federal law.") (emphasis in original); id. at 411, 120 S.Ct. 1495 (noting that, prior to AEDPA, "a state court's incorrect legal determination ha[d] [never] been allowed to stand because it was reasonable. We have always held that federal courts, even on habeas, have an independent obligation to say what the law is." (quoting Wright v. West, 505 U.S. 277, 305, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (O'Connor, J., concurring))) (emphasis and alteration in original) (internal quotation marks omitted). These changes impose a severe restriction on habeas petitioners' ability to secure federal relief from state detention that violates the Constitution. More important for our purposes, they represent a fundamental breach of the separation of powers — an unconstitutional intrusion by Congress into the federal judiciary's independent and exclusive duty to "say what the law is." Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L.Ed. 60 (1803).

II.

"[T]he doctrine of separation of powers ... is at the heart of our Constitution." Buckley v. Valeo, 424 U.S. 1, 119, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). The Framers considered the division of governmental power into separate departments "a vital check against tyranny," id. at 121, 96 S.Ct. 612, a "self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of the other," id. at 122, 96 S.Ct. 612. While the Constitution contains checks and balances to temper all three branches, the Framers were particularly wary of the tendency of the legislature to usurp the other branches' power — especially that of the judiciary. See Met. Wash. Airports Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252, 273-74, 111 S.Ct. 2298, 115 L.Ed.2d 236 (1991) ("[I]t is against the enterprising ambition of this department, that the people ought to indulge all their jealousy and exhaust all their precautions .... Its constitutional powers being at once more extensive and less susceptible of precise limits, it can with the greater facility, mask under complicated and indirect measures, the encroachments which it makes on the co-ordinate departments." (quoting The Federalist No. 48, at 332-34 (J. Cooke ed.1961)) (internal quotation mark omitted; alteration in original)); see also Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 221, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) ("Th[e] sense of a sharp necessity to separate the legislative from the judicial power[ ] ... triumphed among the Framers of the new Federal Constitution."). As such, the Constitution vests "the judicial power" fully and unconditionally in the judicial department. U.S. Const. Art. III § 1.

Over the course of our nation's history, the Supreme Court has developed the contours of this "judicial power," setting the boundaries between Congress and the judiciary essential to maintaining Article III's "vital check against tyranny." In Marbury v. Madison, the Court forcefully described the primary function of the federal judiciary: "It is emphatically the province and duty of the judicial department to say what the law is." 5 U.S. (1 Cranch) at 177 (emphasis added). That is, the federal courts are charged with interpreting the Constitution and ensuring that the statutory law is consistent with it — a determination that is, in the words of Chief Justice John Marshall, the "very essence of judicial duty." Id. at 178.

Because the duty to "say what the law is" is vested entirely and exclusively in the judicial branch, the Court has made plain that Congress may not interfere with the federal courts' independent process of adjudication and interpretation.⁵ In United States v. Klein, 80 U.S. (13 Wall.) 128, 20 L.Ed. 519 (1871), the Court struck down a federal statute that required it to interpret a presidential pardon as conclusive evidence that the claimant had aided the South during the Civil War and was therefore not entitled to recover for property confiscated by the government during that war. The Court held that this statute "passed the limit which separates the legislative from the judicial power," id. at 147, by prescribing a "rule of decision," id. at 146, which limited the Court's independent adjudication. In doing so, the Court acknowledged that Congress could have denied it jurisdiction over the appeal entirely, pursuant to its authority to make "exceptions" and "regulations" to the Court's appellate jurisdiction. Id. at 145; see also U.S. Const. Art. III § 2. Once it had granted jurisdiction, however, Congress could not then dictate to the Court how to exercise its "judicial power." Klein, 80 U.S. (13 Wall.) at 147.

This crucial distinction — between withholding jurisdiction altogether and granting jurisdiction but restricting its full and independent exercise — has been reiterated time and again since Klein. See, e.g., Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 430, 115 S.Ct. 2227, 132 L.Ed.2d 375 (1995) ("Congress may be free to establish a compensation scheme that operates without court participation.... But that is a matter quite different from instructing a court automatically to enter a judgment pursuant to a decision the court has no authority to evaluate."); Yakus v. United States, 321 U.S. 414, 468, 64 S.Ct. 660, 88 L.Ed. 834 (1944) (Rutledge, J., dissenting) ("It is one thing for Congress to withhold jurisdiction. It is entirely another to confer it and direct that it be exercised in a manner inconsistent with constitutional requirements.... [W]henever the judicial power is called into play, it is responsible directly to the fundamental law and no other authority can intervene to force or authorize the judicial body to disregard it."); Henry P. Monaghan, Marbury and the Administrative State, 83 Colum. L.Rev. 1, 11 (1983) ("There is no halfway position in constitutional cases; so long as it is directed to decide the case, an Article III court cannot be `jurisdictionally' shut off from full...