Dissent in Ninth Circuit death penalty cases addresses limitations on federal evidentiary hearings

On August 24, 2020, the Ninth Circuit Court of Appeals denied the petitions for rehearing en banc filed by the Director of the Arizona Department of Correction in the cases of Jones v. Shinn, 943 F.3d 1211 (9th Cir. 2019) and Ramirez v. Ryan, 937 F.3d 1230 (9th Cir. 2019).  In the Jones case, a three-judge panel of the Ninth Circuit affirmed a grant of habeas relief on a claim of ineffective assistance of counsel at the guilt-innocence phase of the trial.  Although that claim was procedurally defaulted, the ineffective assistance by state post-conviction counsel was found to have provided cause for excusing the default.  The evidence that was presented to demonstrate post-conviction counsel's ineffectiveness was also considered as to the merits of the trial ineffective assistance claim.  In the Ramirez case, a three-judge panel of the Ninth Circuit ruled that state post-conviction counsel's ineffectiveness provided cause to excuse the procedural default of a claim of ineffective assistance by trial counsel at sentencing.  It further found that the district court had erred in denying Ramirez evidentiarydevelopment of his ineffective assistance of trial counsel claim, and that on remand he was entitled to evidentiary development to litigate the merits of that claim.  Judge Collins, joined by Judges Callahan, Ikuta, R. Nelson, Lee, Bress, Bumatay and VanDyke, dissented from denial of the rehearing petitions.  Jones v. Shinn, 18-99006 (Order Aug. 24, 2020)Ramirez v. Shinn, 10-99023 (Order Aug. 24, 2020).  Judge Collins argues that the two panel decisions "disregard controlling Supreme Court precedent by creating a new judge-made exception to the restrictions imposed by the [AEDPA] on the use of new evidence in habeas corpus proceedings. See 28 U.S.C. § 2254(e)(2)."  Because in § 2254(e)(2), Congress explicitly abrogated the judicially created  "cause and prejudice" standard and replaced it with a much more demanding standard, the Ninth Circuit, according to Judge Collins, has "no authority to rewrite the statute and to engraft a judge-made Martinez exception onto it."