In separate opinions on Friday, the Ninth Circuit affirmed the denial of habeas corpus petitions filed by two prisoners whose death sentences the California Supreme Court upheld almost 30 years ago. The appeals panel in one case split 2-1.

Both opinions applied the standard of review of the federal Antiterrorism and Effective Death Penalty Act, which is highly deferential to state court decisions.

The divided decision was in Fauber v. Davis, which comes after the Supreme Court affirmed the death penalty for a 1986 murder (People v. Fauber (1992) 2 Cal.4th 792) and denied three state habeas petitions (here, here, and here). The Ninth Circuit judges disagreed whether it was prejudicial error to exclude as mitigating evidence at the penalty phase of the trial that the prosecution had offered the defendant a plea deal that would have spared him a death sentence.

Although acknowledging that two prior Ninth Circuit opinions were “supportive of Fauber in some sense,” the majority held the evidence-exclusion claim was not grounds for relief because, under the deferential standard of review, “No clearly established federal constitutional law holds that an unaccepted plea offer qualifies as evidence in mitigation that must be admitted in a capital penalty proceeding.” The majority also concluded the defendant couldn’t show prejudice from the exclusion in any event. The dissent disagreed with both points, saying “the prosecutor argued that death was the only appropriate penalty after successfully excluding evidence that would have rebutted that very claim.”

A different Ninth Circuit panel unanimously rejected habeas claims in Montiel v. Chappell. The Supreme Court had first reversed the defendant’s death penalty for a 1979 murder (People v. Montiel (1985) 39 Cal.3d 910), but then affirmed the capital sentence after a retrial (People v. Montiel (1993) 5 Cal.4th 877, disapproved in People v. Sanchez (2016) 63 Cal.4th 665) and denied a state habeas petition.

When the Supreme Court affirmed Montiel’s death sentence, Justice Stanley Mosk dissented, asserting the penalty should have been reversed because of ineffective assistance of counsel, because “the trial was tainted by pervasive and serious deficiencies on the part of defense counsel related to pervasive and serious misconduct on the part of the prosecutor” and because “defense counsel egregiously failed to prepare his case for life.” (5 Cal.4th at pp. 947, 948.) The Ninth Circuit addressed — and rejected — ineffective assistance claims concerning counsel’s alleged neglect only in respects other than those related to prosecutorial misconduct. The appeals court said “there is merit to [those] claims,” but concluded “the California Supreme Court’s ruling denying relief was not so lacking in justification that it meets th[e] [AEDPA’s] demanding standard.”

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


“From the bench, an ‘impotent silence’ ”