Sarausad v. Porter

• Citation: 503 F.3d 822
• Decision Date: 10 September 2007
• Docket Number: No. 05-35062.,05-35062.
• Parties: Cesar SARAUSAD, Petitioner-Appellee, v. Carol PORTER, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

503 F.3d 822

Cesar SARAUSAD, Petitioner-Appellee, v. Carol PORTER, Respondent-Appellant.

No. 05-35062.

United States Court of Appeals, Ninth Circuit.

September 10, 2007.

Patricia S. Novotny, Esq., David B. Zuckerman, Esq., Law Offices of David B. Zuckerman, Seattle, WA, for Petitioner-Appellee.

John J. Samson, Esq., AGWA — Office of the Washington, Attorney General, Criminal Justice Division, Olympia, WA, for Respondent-Appellant.

Appeal from the United States District Court for the Western District of Washington, Seattle. D.C. No. CV-02-02547-JCC.

Before: STEPHEN REINHARDT, W. FLETCHER, and JAY S. BYBEE, Circuit Judges.

Order; Dissent by Judge CALLAHAN.

Judge Reinhardt and Judge W. Fletcher voted to deny the petition for rehearing en banc. Judge Bybee voted to grant the petition for rehearing en banc.

A judge of the court called for a vote on the petition for rehearing en banc. A vote was taken, and a majority of the non-recused active judges of the court failed to vote for en banc rehearing. Fed. R.App. P. 35(f).

The petition for rehearing en banc, filed March 19, 2007, is DENIED.

The initial order concerning Petitioner Sarausad's custody is VACATED, and the district court is instructed on remand to decide whether Sarausad should remain in custody pending the state's decision to retry him.

CALLAHAN, Circuit Judge, with whom O'SCANNLAIN, GOULD, BYBEE, and BEA, Circuit Judges, join, dissenting from the denial of rehearing en banc:

I respectfully dissent from the denial of rehearing en banc because the panel majority fails to give the proper deference to the Washington Supreme Court's interpretation of Washington's accomplice liability statute. This is fundamentally a case about Washington state's right to define the parameters of accomplice liability under its own state law. The panel majority not only misinterprets Washington law but also refuses to accord the Washington courts the required deference required by well established precedent and basic principles of federalism. By doing so, the panel majority elevates what it considers to be a Washington state court's mistake in interpreting Washington state law into a constitutional violation. As a result of our lack of deference, our court takes the unprecedented step of rejecting a standardized state jury instruction that the Washington Supreme Court has expressly approved as correctly stating the limits of accomplice liability under state law.

The required deference to state court interpretations of state law was reinforced and supplemented by 28 U.S.C. § 2254(d)(1) after passage of the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The majority opinion simply ignores the Supreme Court's specific instructions in Williams v. Taylor, 529 U.S. 362, 410-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), on how to apply the highly deferential "contrary to" and "unreasonable application of" Supreme Court precedent standards from AEDPA. By avoiding analysis of why — in the face of Washington Supreme Court and Washington appellate court decisions affirming the jury instructions at issue and the principles concerning the limits of accomplice liability under Washington law — the state court decisions were objectively unreasonable applications of a specific Supreme Court holding, the panel majority fails to properly apply AEDPA.

I. The jury instruction was taken directly from the Washington complicity statute.

Central to our analysis is the language of Washington's complicity statute and the actual language of the jury instruction given in Sarausad's case. The Revised Code of Washington ("RCW") § 9A.08.020 codifies liability for complicity under Washington law. Section 9A.08.020, subsections (2) and (3) define accomplice liability, stating in relevant part:

(2) A person is legally accountable for the conduct of another person when:

. . .

(c) He is an accomplice of such other person in the commission of the crime.

(3) A person is an accomplice of another person in the commission of a crime if:

(a) With knowledge that it will promote or facilitate the commission of the crime, he

(i) solicits, commands, encourages, or requests such other person to commit it; or

(ii) aids or agrees to aid such other person in planning or committing it; or

(b) His conduct is expressly declared by law to establish his complicity.

During Sarausad's trial, the trial court gave Instructions 45 and 46 to explain accomplice liability. Instruction 45 stated:

You are instructed that a person is guilty of a crime if it is committed by the conduct of another person for which he is legally accountable. A person is legally accountable for the conduct of another person when he is an accomplice of such other person in the commission of the crime.

Sarausad v. Porter, 479 F.3d 671, 685 (9th Cir.2007). Instruction 46 defined accomplice liability for the jury as follows:

A person is an accomplice in the commission of a crime if, with knowledge that it will promote or facilitate the commission of the crime, he or she either:

(1) solicits, commands, encourages, or requests another person to commit the crime or

(2) aids or agrees to aid another person in planning or committing the crime.

The word "aid" means all assistance whether given by words, acts, encouragement, support or presence. A person who is present at the scene and ready to assist by his or her presence is aiding in the commission of the crime. However, more than mere presence and knowledge of the criminal activity of another must be shown to establish that a person present is an accomplice.

Id. at 685 n. 1 (emphasis added). There is no difference between the statute and the jury instruction, with the exception that the phrase "the crime" replaces the word "it" in the jury instruction.

II. The panel majority does not follow binding Washington Supreme Court precedent and fails to give the proper deference to the Washington Court of Appeals, resulting in a misinterpretation of Washington accomplice liability law.

As federal courts, we must accept that Washington's state courts correctly applied Washington laws. Bell v. Cone, 543 U.S. 447, 455, 125 S.Ct. 847, 160 L.Ed.2d 881 (2005). The panel majority fails to follow the fundamental principle of our federal system "that a state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus." Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005); see also West v. AT & T, 311 U.S. 223, 236, 61 S.Ct. 179, 85 L.Ed. 139 (1940) ("[T]he highest court of the state is the final arbiter of what is state law. When it has spoken, its pronouncement is to be accepted by federal courts as defining state law . . . ."). This principle applied to federal habeas review of state convictions long before AEDPA. See Mullaney v. Wilbur, 421 U.S. 684, 691, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) ("state courts are the ultimate expositors of state law"). A federal circuit court errs if it interprets a state legal doctrine in a manner that directly conflicts with the state supreme court's interpretation of the law. See Bradshaw, 546 U.S. at 76-78, 126 S.Ct. 602 ("Because the Sixth Circuit disregarded the Ohio Supreme Court's authoritative interpretation of Ohio law, its ruling on sufficiency of the evidence was erroneous."). It does not matter that the state supreme court's statement of the law was dictum if it is perfectly clear and unambiguous. Id. at 76, 126 S.Ct. 602.

A determination of state law by a state appellate court is also binding in a federal habeas action. See Hicks v. Feiock, 485 U.S. 624, 629-30, 630 n. 3, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988) (noting state appellate court's determination of state law is binding and must be given deference). This is especially true where the highest court in the state has denied review of the lower court's decision. Id.; see also West, 311 U.S. at 237, 61 S.Ct. 179 ("This is the more so where, as in this case, the highest court has refused to review the lower court's decision rendered in one phase of the very litigation which is now prosecuted by the same parties before the federal court.").

This case illustrates exactly why these long-standing principles of deference and comity between the federal courts and the state courts exist — because interpreting state law is not a core function of the federal courts we lack the expertise to interpret state laws. More importantly, we lack authority to rewrite or reinterpret state law. "[O]nly state courts may authoritatively construe state statutes." BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 577, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996); see also Wainwright v. Goode, 464 U.S. 78, 84, 104 S.Ct. 378, 78 L.Ed.2d 187 (1983) (per curiam) ("[T]he views of the state's highest court with respect to state law are binding on the federal courts."). It is axiomatic that "our Constitution establishes a system of dual sovereignty between the States and the Federal Government." Gregory v. Ashcroft, 501 U.S. 452, 457, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991). The states possess inherent law-making authority — both with respect to statutory and common law. See New York v. United States, 505 U.S. 144, 161, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992) (holding that Congress may not commandeer the legislative processes of the States). When a state statute or common law conflicts with the United States Constitution, we will declare the state law to be null and void, but we have no authority to alter or reinterpret state law.

By ignoring the deference normally given to state court decisions concerning state law, we misinterpret Washington's accomplice liability statute and find a federal due process violation based on a phantom conflict between Washington Supreme Court and appellate court cases. A closer review of Washington case law reveals that the state appellate court's opinion in this case is consistent with a...