Back in June, I highlighted Ninth Circuit judge William Fletcher’s surprising and welcome reversal of position in a habeas case (Ford v. Peery). Given that Fletcher ended up denying habeas relief, it’s not surprising that the Ninth Circuit today denied en banc rehearing in the case. But the dissent by Judge Lawrence VanDyke is nonetheless worth a read. Here’s its introduction (citation omitted):
Our circuit’s cases misapplying AEDPA deference are legion, and the resultant game of whack-a-mole the Supreme Court has been forced to play with our habeas decisions is so well known at this point as to need no supporting citation. [Footnote call 1.] But this case takes our habeas dysfunction to a new level. Initially, the panel majority here refused to provide AEDPA deference, granting habeas relief to Petitioner Keith Ford in a split opinion. Confronted with an en banc petition, the panel was forced to reverse itself, issuing an amended opinion that, this time, begrudgingly deferred to the state court’s conclusions on the part of Ford’s case that mattered, and so appropriately denied habeas relief. As Judge Nelson observed in his partial dissent from the panel’s amended opinion, this was a commendable move that likely saved the panel majority from being reversed either by our own court en banc or by the Supreme Court.
If that had been all that the panel majority did, there would be cause for celebration in the West and hope that perhaps our court was really turning over a new leaf. But 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.
This appears to be an entirely new phenomenon. 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.
Have things gotten so bad for my AEDPA-disdaining colleagues that they are forced to invent stuff that they can then hypothetically refuse to defer to, secure in the knowledge that at least those advisory rulings won’t get reversed? It’s possible. But I tend to think they’re likely trying to do something more nefarious. Instead of starting down a new path of issuing advisory AEDPA fumbles, our court should have taken the panel’s amended opinion en banc to nip this new practice in the bud. And in doing so, we could have taken this opportunity to clarify our badly amorphous “binding dicta” rule, making clear that attempts like the panel majority’s here won’t work. Because we didn’t, I respectfully dissent from the denial of rehearing en banc.
And here’s footnote 1:
To give credit where credit is due: my diligent clerk did prepare a very nice string-cite spanning multiple pages. But including it felt awkward—like trying to shame a career offender with his rap sheet.