In October 2023, a Ninth Circuit panel ruled that Stephen Redd, an indigent prisoner who had been convicted and sentenced to death, was entitled to pursue his claim that his 26-year wait for appointed counsel to litigate his state habeas corpus petition violates the Due Process Clause of the Fourteenth Amendment. Archliberal Marsha Berzon wrote the panel opinion (Redd v. Guerrero). The panel acknowledged that California had no federal constitutional duty to provide habeas counsel to Redd. But it held that because California had “guaranteed the appointment of such counsel by statute,” it had “deprived [Redd] of a valuable property interest for over a quarter century.”

Redd died in December 2023, while California’s petition for rehearing en banc was pending. California then requested that the panel vacate its ruling on the ground that Redd’s death rendered the matter moot.

In an order two days ago, the panel dismissed Redd’s appeal as moot but refused to vacate its October 2023 opinion. In that same order, the Ninth Circuit denied the state’s petition for rehearing on the ground of mootness.

Seven Ninth Circuit judges—in a 25-page dissent by Judge Mark Bennett, joined by Ryan Nelson, Daniel Collins, Kenneth Lee, Daniel Bress, Patrick Bumatay, and Lawrence VanDyke—vigorously objected to the court’s failure to take the case en banc in order to vacate the panel opinion. Bennett argues that the panel opinion “is plainly wrong and presents an affront to the principles of federalism” by “effectively mandat[ing] … [that] California state court judges must appoint capital habeas counsel ‘within a reasonable time’ or ‘expeditiously’ to avoid due process violations”:

According to the panel, if California judges fail to appoint habeas counsel within that time frame, they are violating the Federal Constitution, no matter that it is impossible for the California courts to comply with the panel’s holding, and no matter that the California Supreme Court has previously held that similar statutory habeas time limits on the performance of judiciary functions cannot be construed as imposing specific time limits.

“The question presented to the panel,” he argues, “was purely one of state law: whether California law guarantees appointment of habeas counsel within a certain time frame.” On this question, “the panel should have determined how the California Supreme Court would have answered the question,” and “[h]ad it done so, the panel would have been compelled to conclude that California law does not guarantee appointment of habeas counsel within a certain time.”

Bennett explains that the panel opinion “will have deleterious practical effects” by straining California’s overtaxed judicial resources, as “[a]ll or some of the 362 prisoners similarly situated to [Redd] will likely file claims similar or identical to Redd’s.”

Berzon, joined by five of her colleagues (three of whom, like herself, are in senior status) defends the panel’s refusal to vacate the opinion and even contends—bonkers alert!— that it would somehow be “constitutionally forbidden” to the en banc court to do so.

I hope that California asks the Supreme Court to summarily vacate the panel opinion.