October 11, 2017

Divided Ninth Circuit overturns Supreme Court habeas waiver ruling

Sixteen years ago, the Supreme Court dismissed William Kirkpatrick’s habeas corpus petition, having seven years before that affirmed Kirkpatrick’s 1984 death sentence on automatic direct appeal.  The dismissal was based on Kirkpatrick’s request to withdraw his petition, a referee’s report on his mental competence to make the request, and on the court’s finding that he had made “a knowing, intelligent, and voluntary waiver of his right to proceed on this petition.”

Yesterday, a 2-1 Ninth Circuit panel (in Kirkpatrick v. Chappell) disagreed with the “knowing, intelligent, and voluntary” finding, concluding that Kirkpatrick’s habeas claims “were erroneously dismissed as waived by the California Supreme Court.”  The opinion is by Judge Stephen Reinhardt, with Judge Kim McLane Wardlaw concurring.  Judge Alex Kozinski dissents, saying Kirkpatrick “seems crazy like a fox” and “is playing us,” but also claiming — in a blistering critique of the state’s capital punishment system — that “none of this matters because California doesn’t have a death penalty.”  The ruling reverses the district court’s dismissal of Kirkpatrick’s federal habeas claims as unexhausted.

There might not have been any disagreement at the court in 2001 about “knowing and intelligent” waivers of rights, but there is now.

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