Ninth Circuit panel reverses, on procedural grounds, district court ruling declaring California’s capital system unconstitutional

Today via a procedural ruling in Jones v. Davis, No. 14-56373 (9th Cir. Nov. 12, 2015) (available here), a panel of the Ninth Circuit has reversed this ground-breaking ruling by US District Judge Cormac Carney that California’s system of reviewing capital convictions and sentences ” violates the Eighth Amendment’s prohibition against cruel and unusual punishment.” The circuit panel’s majority opinon in Jones, authored Judge Graber, gets started this way:

The State of California authorizes the execution of a capital prisoner only after affording a full opportunity to seek review in state and federal courts. Judicial review ensures that executions meet constitutional requirements, but it also takes time — too much time, in Petitioner Ernest DeWayne Jones’ view. He argues that California’s post-conviction system of judicial review creates such a long period of delay between sentencing and execution that only an “arbitrary” few prisoners actually are executed, in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. Under Teague v. Lane, 489 U.S. 288 (1989), federal courts may not consider novel constitutional theories on habeas review.  That principle “serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered.” Sawyer v. Smith, 497 U.S. 227, 234 (1990). Because we conclude that Petitioner’s claim asks us to apply a novel constitutional rule, we must deny the claim as barred by Teague. Accordingly, we reverse the district court’s judgment granting relief.

A concurrence by Judge Watford in Jones gets started this way:

My colleagues conclude that relief is precluded by Teague v. Lane, 489 U.S. 288 (1989), which bars federal courts from applying “new rules of constitutional criminal procedure” to cases on collateral review.  Beard v. Banks, 542 U.S. 406, 416 (2004) (emphasis added). The Teague bar does not apply to new rules of substantive law. Schriro v. Summerlin, 542 U.S. 348, 352 n.4 (2004).

The rule announced by the district court, while undoubtedly “new” for Teague purposes, is substantive rather than procedural. The court held that the death penalty as administered in California constitutes cruel and unusual punishment and therefore violates the Eighth Amendment.  In particular, the court concluded that the long delays between imposition of sentence and execution, resulting from systemic dysfunction in the post-conviction review process, combined with the low probability that an inmate sentenced to death will actually be executed, preclude the death penalty from serving any deterrent or retributive purpose. Jones v. Chappell, 31 F. Supp. 3d 1050, 1053, 1062–65 (C.D. Cal. 2014) see Glossip v. Gross, 135 S. Ct. 2726, 2767–70 (2015) (Breyer, J., dissenting).  The Supreme Court has held that capital punishment violates the Eighth Amendment if it does not fulfill those two penological purposes.  Kennedy v. Louisiana, 554 U.S. 407, 441 (2008). Thus, the effect of the district court’s ruling is to categorically forbid death as a punishment for anyone convicted of a capital offense in California.  A rule “placing a certain class of individuals beyond the State’s power to punish by death” is as substantive as rules come.  Penry v. Lynaugh, 492 U.S. 302, 330 (1989).  

I would reverse the district court’s judgment on a different ground.  A federal court may not grant habeas relief unless the petitioner has first exhausted the remedies available in state court.  28 U.S.C. § 2254(b)(1)(A).  Jones concedes he has not done that.  He never presented the claim at issue here to the California Supreme Court to give that court an opportunity to rule on the claim in the first instance.  Jones did present a so-called Lackey claim to the California Supreme Court, which asserted that the long post-conviction delay in Jones’ own case has rendered his death sentence cruel and unusual punishment. See Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial of certiorari).  But the claim on which the district court granted relief rests on a different set of factual allegations and a different legal theory. Presenting the Lackey claim to the California Supreme Court therefore did not satisfy the exhaustion requirement.  See Gray v. Netherland, 518 U.S. 152, 162–63 (1996).  

Jones contends that exhaustion should be excused here. The federal habeas statute provides just two scenarios in which a petitioner’s failure to satisfy the exhaustion requirement may be excused: (1) when “there is an absence of available State corrective process,” or (2) when “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B). Jones’ case does not fit within either of these exceptions. He does not dispute that he can file another habeas petition in the California Supreme Court to exhaust the claim at issue here, so the first exception doesn’t apply.  And the second exception does not apply because Jones can’t show that filing a new habeas petition with the California Supreme Court would be ineffective to protect his rights.

I will have some commentary on this significant and interesting circuit court ruling later today in a follow-up post after I find some time to read the opinions here closely. But even without a full read, I can predict with certainty that the defense team (and their amici) are all-but-certain to seek en banc review before the full Ninth Circuit and/or certiorari review in the Supreme Court. In all likelihood, those further appeals will keep this case going (and provide an excuse for California to not set any execution dates) throughout the rest of 2015 and probably all of 2016.