In Oliver v. Davis, the Ninth Circuit yesterday reversed a district court’s grant of habeas corpus relief to a prisoner whose death sentence the Supreme Court affirmed over 15 years ago for murders committed in 1989 (People v. Lewis and Oliver (2006) 39 Cal.4th 970). The Supreme Court also denied a state habeas petition in 2010.

The district court concluded the Supreme Court had unreasonably upheld the superior court’s rejection of the prisoner’s Batson claim that the prosecutor had a racially discriminatory motive in striking a Black prospective juror. The Ninth Circuit panel disagreed, employing what it said was a “ ‘highly deferential review,’ ” in fact a “ ‘doubly deferential’ ” standard — “ ‘unless the state appellate court was objectively unreasonable in concluding that a trial court’s credibility determination was supported by substantial evidence, we must uphold it.’ ”

This is not the end of the prisoner’s federal habeas petition, however. He made Batson claims as to the removal of four prospective jurors and the district court ruled on only the one that it found meritorious, dismissing the other three claims as moot. The Ninth Circuit directed the district court to now rule on those three in the first instance.

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


“From the bench, an ‘impotent silence’ ”