On Friday, the Ninth Circuit ruled on habeas corpus relief for two different prisoners whose death sentences had been affirmed by the California Supreme Court.  In one case, the federal appeals court upheld the denial of a habeas petition.  In the other, a different panel vacated a denial and remanded to the district court for reevaluation.

The Ninth Circuit in Jurado v. Davis held the petitioner did not clear the high bar that was necessary for a federal court to overturn the Supreme Court’s decisions affirming his death sentence (People v. Jurado (2006) 38 Cal.4th 72) and denying two state habeas petitions (here and here).  None of the Supreme Court’s rulings — on issues including double jeopardy and ineffective assistance of counsel — were found to be unreasonable applications of clearly established U.S. Supreme Court law.  Quoting the high Court, the panel said, “ ‘If this standard is difficult to meet, that is because it was meant to be.’ ”

In Ervin v. Davis, the Ninth Circuit directed the district court to review the petitioner’s Batson claim of racially discriminatory jury selection under new U.S. Supreme Court case law — Flowers v. Mississippi (2019) 139 S. Ct. 2228.  The state Supreme Court rejected the claim when it affirmed Ervin’s death sentence over two decades ago.  (People v. Ervin (2000) 22 Cal.4th 48, 74-77.)  The court also denied a state habeas petition, with Justice Kathryn Werdegar dissenting as to one claim.

An Ervin case footnote (figuratively, not literally) that is tangentially related to the Supreme Court:  the district court judge on the case is Lucy Koh, who, besides having just been nominated for promotion to the Ninth Circuit, is married to Supreme Court Justice Mariano-Florentino Cuéllar.

The Ninth Circuit usually, but not always, refuses to overturn California Supreme Court death penalty decisions.


“From the bench, an ‘impotent silence’.”