Seven Judges Slam 9th Circuit’s Habeas Ruling

     (CN) – Prisoners will be “dancing in their cells” once word gets out of a deeply flawed habeas ruling by the 9th Circuit, the appellate court’s chief judge warned Monday.
     Judge Alex Kozinski blasted his colleagues for refusing to grant an en banc rehearing in the case of Kennard Johnson, a California man convicted and sentenced to 11 years in prison for stealing a car by providing false information on a credit application.
     Hoping to witness the birth of his child but awaiting trial behind bars, Johnson signed a plea agreement that granted him a brief furlough but set his sentence at 14 years and four months – what he thought was the maximum. Johnson had a chance to reduce the sentence to six years if he complied with the conditions of his release, but he failed to do so and received an 11-year sentence, which is the actual maximum.
     Johnson blamed his lawyer for oversight in a federal habeas petition challenging his plea agreement.
     Though a federal judge in Riverside agreed and ordered Johnson be sentenced to a legal term, a three-judge panel of the 9th Circuit called this an abuse of discretion in June. Finding that “the ineffective assistance of counsel Johnson received affected the entire plea negotiation stage of the proceedings,” the judges vacated Johnson’s conviction and ordered a new trial.
     A majority of judges voted against rehearing the case, producing a vehement dissent from Kozinski on behalf of six other judges.
     The original panel overstepped its bounds by denying the District Court its due deference in matters of habeas relief, the dissent states.
     “There’s a very good reason appellate panels must defer to the broad discretion of District Courts in fashioning habeas remedies, a reason other than that the Supreme Court has said so: These remedies call for complex, fact-based work with numerous pleadings and balancing of multiple competing interests,” Kozinski wrote. “When an appellate panel second-guesses the District Court’s judgment, it’s liable to get things wrong, sometimes very wrong.”
     Not only did the panel find prejudice where there was none and consider a claim for ineffective assistance that was not proffered, the circuit failed to grant a full rehearing that might “rein in this renegade opinion,” Kozinski added.
     “The District Court wasn’t asked to find, and couldn’t find, that Johnson was prejudiced by whatever poor performance counsel rendered prior to the actual plea,” the dissent states. “It is this missing prejudice finding that causes the uncertainty the panel worries about. Since it was petitioner’s burden to show prejudice, the risk of that uncertainty must fall on him. The panel thus shatters yet another ironclad federal habeas rule by holding that mere suspicion of prejudice requires a habeas remedy. Prisoners will be dancing in their cells once word of this gets out.”
     Judges Diarmuid O’Scannlain, Richard Tallman, Jay ByBee, Consuelo Callahan, Carlos Bea and Sandra Ikuta joined the chief judge in arguing for a rehearing.
     In a separate dissent, Judge Bea said that “the panel makes its own finding that counsel’s ineffectiveness tainted the entire plea bargaining process and thus the District Court’s finding is an abuse of discretion.”
     “But no matter how you look at it, counsel’s ineffectiveness did not cause Johnson to decide to fail to appear,” Bea wrote.

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