Dissenting judge says 9th Circuit took habeas dysfunction to new level with 'hypothetical dicta'
Lawrence VanDyke at his Senate Judiciary Committee nomination hearing in 2019.
A federal circuit judge’s acidic dissent last week used cookies and lemonade analogies to make a point about a binding dicta rule and its potentials for misuse.
Judge Lawrence VanDyke complained that a panel of the San Francisco-based 9th U.S. Circuit Court of Appeals took “habeas dysfunction to a new level” by discussing a hypothetical case in “hypothetical dicta” that could be cited by future litigants.
Courthouse News Service describes VanDyke’s Aug. 18 opinion as “blistering” while Law360 said he “slammed” his colleagues in the dissent, which disagreed with the appeals court’s refusal to hear the case en banc.
VanDyke said a 9th Circuit panel majority had at first granted habeas relief to a California prisoner convicted of murder in a decision that failed to show proper deference to state court rulings as required by the Antiterrorism and Effective Death Penalty Act of 1996.
When confronted with a petition for en banc review, the panel reversed itself—properly so—but misapplied the AEDPA in “utterly irrelevant dicta” in its new decision denying habeas relief, VanDyke said.
Under the 9th Circuit’s “binding dicta” rule, “well-reasoned” dicta is considered binding.
“Alas, like a sullen kid who spits in the cookie jar after being caught red-handed, the panel majority decided that if they couldn’t get away with directly defying AEDPA in this case, they could at least opine in their revised opinion about how they would refuse to defer to a purely hypothetical state court ruling not presented in this case at all,” VanDyke wrote.
“This appears to be an entirely new phenomenon,” VanDyke continued. “Our court has a well-documented habit of not properly deferring to actual state court rulings in AEDPA cases, including a long list of summary reversals from the Supreme Court. But I’m not sure I’ve ever seen our court make up a pretend state court ruling just so it could refuse to apply AEDPA deference to it while pummeling a strawman of its own making. Weird.”
In the second opinion, the 9th Circuit panel condemned a prosecutor’s remarks about the presumption of evidence as an improper statement of the law. If a California appeals court had upheld the remarks as proper, it would have unreasonably applied the law, the 9th Circuit said.
But the California appeals court didn’t do that. Rather, it assumed the prosecutor had misstated the law, while finding that there was no prejudice to the defendant, VanDyke said.
“After being forced to withdraw its original, deeply flawed opinion, the panel majority is seeking to wring some drop of lemonade from what it now perceives to be a lemon of a case by squeezing a completely advisory rule into its revised opinion,” VanDyke said.
“In doing so, the majority is trying to lay the groundwork for future AEDPA cases by proffering dicta that it hopes will simply be accepted as binding by future parties and panels of our court.”
VanDyke said the panel’s “maneuvering” highlights the potential for abuse of the “binding dicta” rule.
“Panels of our court can sneak utterly irrelevant and erroneous dicta into published opinions, with little threat of challenge (or even close review) given its minimal impact on that case’s outcome, yet potentially create new law in our circuit,” VanDyke said. “This case presents a particularly egregious and completely indefensible example of the rule’s potential abuse.”
The case is Ford v. Perry.
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