Rejecting various ineffective assistance of counsel claims in Berryman v. Wong, the Ninth Circuit last week denied habeas corpus relief to a condemned prisoner whose death sentence for a 1987 murder the California Supreme Court affirmed 27 years ago (People v. Berryman (1993) 6 Cal.4th 1048).  The Supreme Court also denied four state habeas petitions, between 1993 and 2002.  Another habeas petition, filed in 2015, is still pending.

Because of a very deferential standard of review, the Ninth Circuit’s decision is not an affirmance of the Supreme Court.  As the federal appellate court explained (using a triple negative?), “we may issue the writ only if ‘there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with [the [U.S.] Supreme] Court’s precedents.’ ”

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


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