The Ninth Circuit (Graber, with Rawlinson; Watford concurring) has reversed District Court Judge Cormac Carney’s ruling that California’s current post-conviction review process in death penalty cases violates the Eighth Amendment. Jones v. Davis (9th Cir. Nov. 12, 2015). Specifically, Judge Carney found that the post-conviction review process had become so inordinately and unnecessarily delayed that only an arbitrarily selected few of the many sentenced to death would actually be executed.
A majority of the three-judge panel concluded that Jones was asking for a novel constitutional rule in violation of Teague v. Lane, 489 U.S. 288 (1989), which precludes federal courts, with limited exceptions, from announcing new rules in federal habeas proceedings. It rejected Jones’ argument that Furman v. Georgia, 408 U.S. 238 (1972), dictated the relevant rule for his case, i.e., that a state may not arbitrarily inflict the death penalty. The majority explained: “Although Furman condemned one specific form of arbitrariness related to the death penalty, it does not necessarily follow that Furman dictates the result in all other challenges to the death penalty under the banner of ‘arbitrariness.’” The majority was also unpersuaded by Jones’ contention that he met the Teague exception for a substantive rule. Judge Watford disagreed, stating: “[T]he effect of the district court’s ruling is to categorically forbid death as a punishment for anyone convicted of a capital offense in California. A rule ‘placing a certain class of individuals beyond the State’s power to punish by death’ is as substantive as rules come. Penry v. Lynaugh, 492 U.S. 302, 330 (1989).” Nevertheless, Judge Watford agreed that the lower court’s decision should be reversed because, in Judge Watford’s view, the claim was unexhausted and presenting the claim to the California Supreme Court was not necessarily futile.