D.C. No. CV-89-00736-DFL Eastern District of the California.
Before: Stephen Reinhardt, Diarmuid F. O'Scannlain and Richard A. Paez, Circuit Judges.
Order; Concurrence by Judge Reinhardt; Dissent by Judge Callahan.
Judges Reinhardt and Paez voted to deny the Respondent-Appellee's petition for rehearing and rehearing en banc. Judge O'Scannlain voted to grant the petition for rehearing and rehearing en banc.
The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. FED. R. APP. P. 35.
The petition for rehearing en banc is denied.
REINHARDT, Circuit Judge, concurring in the denial of the petition for rehearing en banc, joined by Judge PAEZ.
There is no greater burden that falls on a member of the judiciary than to sit in judgment on whether an individual shall live or die, and no greater responsibility than to make certain that every capital defendant receives the full protection to which he is entitled under our Constitution and our laws. When judges consider a case such as this, that not only presents serious questions of constitutional law but that may result in the most serious of human consequences, it is their duty to consider and weigh each constitutional claim made by the defendant with the utmost care. The failure to do so would be a failure to fulfill an obligation not only to the defendant, but to the public and to our legal system itself. Equally, it is the responsibility of a judge who disagrees with the court's decision to explain her disagreement fairly and objectively and to refrain from seeking to bias or mislead the reader with respect to the serious constitutional questions involved.
We write this brief concurring opinion to make one point clear.*fn1 Judge Callahan opens her dissent from the denial of the petition for rehearing en banc with the statement that "[t]his is the third time that a panel of this court has set aside Belmontes's death sentence." Dissent at 16811-12. Read in context, the implication, carefully phrased though it may be in its final iteration, is that we have flouted the will of the Supreme Court, and attempted to set aside Belmontes's death sentence on three separate occasions, or for three separate reasons. The sentence can serve only to bias the reader who reaches the merits of the constitutional question later in the dissent. More- over, the sentence is accompanied by a footnote that makes it appear that the Supreme Court has twice reversed our prior decisions.
As Judge Callahan well knows, the panel which has considered Belmontes's death sentence for well over six years has at all times diligently sought to implement the Constitution and to fulfill its function of ensuring that individuals are not executed without due process of law. In that time, the majority of the panel that issued what is now the opinion of the court has found two serious and prejudicial violations of Belmontes's constitutional rights. A closely divided Supreme Court disagreed with one of those conclusions by a vote of 5-4. It has expressed no view on the second one - the violation that we consider here.
The single constitutional issue we resolved in Belmontes's favor prior to the current decision was the validity of a highly questionable jury instruction, which California had already changed because of its ambiguity if not its unfairness.*fn2 Unfortunately for Belmontes, the change came too late to help him. In the meantime, while our initial decision reversing the capital sentence based on the original instruction was pending, the Supreme Court upheld the instruction in a case governed by AEDPA, Brown v. Payton, 544 U.S. 133 (2005). It did so, however, not on the merits, but on the ground that any error did not meet the AEDPA requirements - requirements that were not applicable to Belmontes's case.*fn3 Instead of review- ing our opinion invalidating the instruction in a pre-AEDPA case, the Court issued its customary GVR*fn4 so that we could determine whether its decision affected our ruling. Brown v. Belmontes, 544 U.S. 945 (2005). When we concluded that it did not, and that our pre-AEDPA ruling on the merits was not affected by the Court's post-AEDPA ruling, the Court for the first time agreed to consider on the merits the question of the constitutionality of the jury instruction. As noted, it ultimately upheld the instruction by a 5-4 vote. Ayers v. Belmontes, 127 S.Ct. 469 (2006). As is apparent from a comparison of the majority opinion and the dissent, as well as from the nature of the division in the Court, it was an extremely close question.
At the time we decided the jury instruction issue, we were aware that a second, equally serious, constitutional question had been raised regarding ineffective assistance of counsel. We decided, without objection, to resolve only the former issue in our first decision, for what appeared to us to be compelling reasons. Where the resolution of one constitutional issue will dispose of a case, thus obviating the need to reach a second, it is the general jurisprudential practice not to decide both questions simply in order to provide an alternative basis for the court's decision. Although it may be within our discretion to resolve more than one constitutional issue when it is unnecessary to do so, courts do not ordinarily act contrary to the well-established rule that we avoid deciding constitutional questions if we can arrive at the same result without reaching them.
In our present opinion, then, we are simply doing what the law requires of us - confronting an extremely serious, unquestionably legitimate constitutional issue that we found no reason to reach the first time the case was before us. That issue is whether defendant's counsel provided ineffective assistance at the penalty phase. Upon exhaustive review of the law and the facts before us, we agreed with Belmontes and concluded that he had received and been prejudiced by constitutionally deficient representation.
Judge Callahan's introduction subtly distorts what has transpired in the pertinent judicial proceedings and leaves the reader with a false impression of what this court has done in the past and what it is doing now. More important, it frames the ensuing discussion so as to prejudice the uninformed read-er's view of the merits of the constitutional case. Putting our fellow human beings to death is far too serious a business for a resort to such tactics - or for judges to allow themselves to be swayed by them. Here, our colleagues have rightly denied the petition to rehear the case en banc, and the vast majority of this court's active judges have declined to sign their names to Judge Callahan's dissent. With the assurance that we have faithfully upheld the Constitution, and that we have done nothing less than give the most deliberate consideration to each claim presented to us, we regretfully find it necessary to file this concurrence in the denial of the petition for rehearing en banc.
CALLAHAN, Circuit Judge, with whom O'SCANNLAIN, KLEINFELD, GOULD, TALLMAN, BYBEE, BEA, and N.R. SMITH, Circuit Judges, join, dissenting from the denial of rehearing en banc:
I again must respectfully dissent from denial of rehearing en banc. This is the third time that a panel of this court has set aside Belmontes's death sentence.*fn5 However, even if this were our first exposure to the case, the panel's majority opinion has created a standard for effective assistance of counsel in a death penalty case that, in effect, guarantees a defendant a second penalty stage trial. The majority's interpretation of the facts in this case eviscerates the prejudice prong of the test for ineffective assistance of counsel set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984).*fn6 In doing so, the majority ignores both the achievements of Belmontes's counsel as well as Belmontes's own approach to his case.
The majority asserts that counsel should have presented mitigating evidence that Belmontes as a child functioned well in a deplorable environment until the onset of rheumatic fever when he was 14 years old "left him isolated from his peers and depressed," and "led him to engage in regular drug use beginning when he was in his early teens." Belmontes v. Ayers, 529 F.3d 834, 865 (9th Cir. 2008). It notes that the jury "never heard testimony about the traumas that Belmontes faced as a youth; it never heard that he possessed many positive attributes, and it never heard that he had struggled with substance abuse since his early teens."*fn7 Id. at 866. The majority asserts that if this evidence had been presented "there is a reasonable probability that the jury would have come to a different conclusion about Belmontes's sentence." Id.
This is a myopic reading of the record and ignores what would have been the devastating consequences of any attempt to relate Belmontes's childhood experiences to his murder of Steacy McConnell. The majority is able to develop its analysis only by ignoring or minimizing the fact that Belmontes's attorney, John Schick, had managed to exclude from the jury's consideration all evidence that Belmontes had not only previously committed a cold-blooded, execution-style murder, but had also told several people that he had done so. Any further effort to promote Belmontes's childhood experiences as a mitigating factor would have resulted in the jury learning that Belmontes had committed a prior murder and had basically gotten away with it. Because the available evidence of Belmontes's prior murder is damning, counsel's failure to explore the mitigating evidence was not prejudicial.
What sets this case apart from other cases - what distinguishes it from Mayfield v. Woodford, 270 F.3d 915 (9th Cir. 2001) (en banc), and Douglas v. Woodford, 316 F.3d 1079 (9th Cir. 2003), on which the majority relies - is the extraordinary evidence that Belmontes had previously committed a cold-blooded, execution-style murder. This was the elephant in the courtroom. Belmontes knew of the evidence, the prosecutor knew of the evidence, ...