For the second time in eight days, the Ninth Circuit has vacated a death sentence that had been affirmed by the California Supreme Court despite a standard of review that is highly deferential to state court rulings. Like last week’s deicision, the federal appeals court leaves intact the habeas petitioner’s conviction, this one for a 1988 double murder. The petitioner, Colin Dickey, was convicted under a felony-murder theory for aiding and abetting the two murders.

In today’s decision, Dickey v. Davis, the Ninth Circuit opinion says, “This is an exceptional case in which the prosecutor deliberately elicited, and then failed to correct, false and misleading testimony from the State’s star witness,” “went on to exploit [the witness’s] false testimony in his closing argument,” and “failed to produce evidence to the defense team that would have seriously impeached [the witness’s] testimony.”

The Supreme Court unanimously affirmed the conviction 18 years ago, concluding that “the prosecutor did knowingly fail to correct a false impression — indeed, knowingly exploited the false impression in his argument to the jury,” but that “there is no reasonable likelihood the false impression created by [the witness’s] testimony could have affected the judgment of the jury.” (People v. Dickey (2005) 35 Cal.4th 884, 909, 910.) The Ninth Circuit finds the Supreme Court’s harmlessness determination to be “both clearly incorrect and an objectively unreasonable application of clearly established federal law.”

The Supreme Court also summarily denied two Dickey state habeas corpus petitions, in 2005 and 2012. Dickey also has sought relief in state court that presumably would moot any possible death penalty retrial — he claims a right to resentencing under Senate Bill No. 1437, which  narrowed the scope of the felony-murder rule. So far, Dickey has lost on his resentencing claim in the superior court and in unpublished opinion by the Fifth District Court of Appeal, but his petition for review in the Supreme Court is pending.

Today’s and last week’s decisions notwithstanding, the Ninth Circuit usually refuses to overturn Supreme Court death penalty affirmances.


“From the bench, an ‘impotent silence’ ”