“To make matters worse, having stretched the facts, theNinth Circuit also stretched the Constitution”

January 9th, 2012

Nino benchslaps CA9 in a dissental (dissent from denial of cert, that is), joined by Justice Alito, in Cash v. Maxwell.

To make matters worse, having stretched the facts, theNinth Circuit also stretched the Constitution, holding thatthe use of Storch’s false testimony violated the Fourteenth Amendment’s Due Process Clause, whether or not the prosecution knew of its falsity. See 628 F. 3d, at 506–507. We have never held that, and are unlikely ever to do so.All we have held is that “a conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment.” Napue v. Illinois, 360 U. S. 264, 269 (1959) (emphasis added). This extension of due process by the Ninth Circuitshould not be left standing.

And he keeps saying 9th Circuit, over and over and over again. Never lower-court or something more benign. He is calling out CA9 FTL.

It is a regrettable reality that some federal judges like to second-guess state courts. The only way this Court can ensure observance of Congress’s abridgement of their habeas power is to perform the unaccustomed task of reviewing utterly fact-bound decisions that present nodisputed issues of law. We have often not shrunk from that task, which we have found particularly needful withregard to decisions of the Ninth Circuit. See, e.g., Cavazos v. Smith, 565 U. S. 1 (2011) (per curiam) (reinstatingCalifornia conviction for assault on a child resulting indeath); Felkner v. Jackson, 562 U. S. ___ (2011) (per curiam) (reinstating California conviction for sexual attack ona 72-year-old woman); Premo v. Moore, 562 U. S. ___ (2011) (reinstating Oregon conviction for murder of a kidnaped victim); Knowles v. Mirzayance, 556 U. S. 111 (2009) (reinstating California first-degree murder conviction); Rice v. Collins, 546 U. S. 333 (2006) (reinstating California conviction for cocaine possession); Kane v. Garcia Espitia, 546 U. S. 9 (2005) (per curiam) (reinstating California conviction for carjacking and other offenses); Yarborough v. Gentry, 540 U. S. 1 (2003) (per curiam)(reinstating California conviction for assault with a deadly weapon); Woodford v. Visciotti, 537 U. S. 19 (2002) (per curiam) (reinstating capital sentence for California prisoner convicted of first-degree murder, attempted murder,and armed robbery). Today we have shrunk, letting stand a judgment that once again deprives California courts ofthat control over the State’s administration of criminal justice which federal law assures. We should grant thepetition for certiorari and summarily reverse the NinthCircuit’s latest unsupportable §2254 judgment.

Sotomayor has a statement respecting denial of cert (statal?).

Because the Ninth Circuit meticulously set forth an avalanche of evidencedemonstrating that the state court’s factual finding was unreasonable, see Maxwell v. Roe, 628 F. 3d 486, 498–506 (2010), I agree with the Court’s decision to deny certiorari.


I agree withthe Ninth Circuit’s determination. But even to the extent that the dissent sees error in that determination, the Ninth Circuit conducted precisely the inquiry required by §2254(d)(2) and our precedents. “The principal purpose ofthis Court’s exercise of its certiorari jurisdiction is toclarify the law.” Caperton v. A.T. Massey Coal Co., 556
U. S. 868, 902 (2009) (SCALIA, J., dissenting). Mere disagreement with the Ninth Circuit’s highly factbound conclusion is, in my opinion, an insufficient basis for grantingcertiorari. See this Court’s Rule 10.

Point, Scalia.