Howard v. Clark, 608 F.3d 631 (9th Cir. 2010)

Stories about prisoners released from custody on the ground of alleged “factual innocence” are always heart-warming and sensitive. But establishing release from custody on grounds of “ineffective assistance of counsel” is a favorite alternative method of the 9th Circuit.  And “innocence” is not always established.   A twelve person jury found Howard guilty, but the 9th Circuit panel, having heard none of the testimony at trial, retried the case. The Howard case is another example of injustice to the public. As usual.

Howard was charged with murder of one man named Freeman and assault against another man named Ragland. This case was gang related, and those prosecutions are almost always difficult to prove for obvious reasons. But a liquor store employee (not a gang member), observed the shooting of the two men and unqualifiedly testified Howard as the culprit. The girlfriend of the murdered man also witnessed the shooting but was equivocal in her testimony. The defendant testified he was somewhere else.

The jurors, after hearing all the conflicting evidence, listening to the witnesses, and following the judge’s instruction, found Howard “guilty beyond a reasonable doubt.” The trial judge agreed and denied a motion for new trial. Howard appealed the verdict, and a three- judge state Court of Appeal affirmed the conviction, and rejected Howard’s assertion his attorney failed to call Ragland as a witness i.e, “ineffective assistance of counsel.”

The state supreme court denied review of the case. That should have been the end. Howard filed a petition for habeas corpus in Superior Court; denied. He filed the same petition in the Court of Appeal; denied. He failed file a petition for review in the Supreme Court foreclosing his opportunity to file certiorari in the U.S. Supreme Court. He filed a petition for habeas corpus in U.S. district court on the same ground of “ineffective assistance of counsel”; denied by a magistrate judge. The district court refused to give Howard a certificate of appealability, a document mandatorily required before seeking appeal. The 9th Circuit panel filed their own certificate, permitted the appeal, and ordered the district court to conduct an evidentiary hearing on the same ground of ineffective assistance of counsel.

A magistrate judge produced a record at the hearing to establish that a defense investigator and the DA office both tried to find Ragland but were unsuccessful. Despite this record, the magistrate judge found Ragland should have testified and counsel was ineffective in not locating him. The Magistrate judge recommended reversal and the district court judge agreed and reversed the conviction because Ragland had agreed that Howard had not shot him. The AG appealed to the 9th Circuit who accepted the magistrate’s findings.ount the number or people (jurors and judges) who heard this case before the 9th Circuit decision. This panel wondered why trial counsel (now deceased) did not use Ragland to testify.
The reasons: Ragland had 6 prior felony convictions and was on parole. A gang banger whose testimony at a trial would have been useless. Do you want that witness, who allegedly wrote a letter two years later denying Howard shot him, to testify ? Had it occurred to the 9th Circuit panel or the Magistrate judge, none of whom heard any of the evidence at trial, that Ragland’s testimony would have been told to his parole review board to demonstrate his excellent responsibility as a citizen?
No defense lawyer would have called a witness w ho would have been a joke to the jury. In identification cases the lawyers focus on the witness who inculpates the defendant. In this case, the liquor store employee would be intensely cross examined. And counsel would argue misidentification to the jury, particularly when the prosecution witness testified uncertainly.

Apparently the prosecutor did not think much of the defense when the case was returned from the 9th Circuit., and offered Howard retrial. Prosecutors know how difficult it is to retry a criminal case after 10 years. What they should have been done is seek review of the 9th Circuit decision in the Supreme Court.
Whether Howard is guilty is not the issue. Three federal judges on collateral review overturn the jurors, the trial judge, the California Court of Appeal, and the California Supreme Court on direct appeal of the verdict in state court. On habeas decisions, the 9th Circuit reverses the Superior Court, the three California Court of Appeal Justices (again) and the seven California Supreme Court Justices (again).

Cannedy v. Adams, 706 F.3d 1148 (9th Cir. 2013)

The most difficult cases for prosecutors and defense counsel are child molestation;  allegations of misconduct imposed on women in the workplace; and  domestic violence. Trials are often “he said-she said,” and the jury hears no corroboration and views no documentation. Jurors must rely exclusively on the testimony of witnesses.  In Cannedy v. Adams that scenario played out, and the jury found the defendant guilty of molesting his teen age stepdaughter.

The verdict and judgment were affirmed on appeal by the California Court of Appeals, and the Justices subsequently denied petitioner’s writ of habeas corpus.  The U.S. district court granted the writ and the 9th Circuit panel affirmed 2-1 on appeal.  The district court wrote its opinion prior to two Supreme Court opinions:  Cullen v. Pinholster, 131 S.Ct. 1388 (2011) and Harrington v. Richter, 131 S.Ct. 770 (2011). The 9th Circuit majority panel, however, cited but ignored both cases on grounds of  “ineffective assistance of counsel,” and the panel resorted to its favorite method of evading AEDPA.

The prosecution witness, a female teenager, testified to the molestation.The jury agreed and found the defendant guilty; the California Court of Appeal affirmed.  Seeking discretionary review in the California Supreme Court, the petitioner presented evidence for the first time that the victim had recanted her testimony. He submitted corroborative testimony from the victim’s friend, a prospective witness, and the victim’s mother who had seen the recantation on the victim’s computer screen. No print- out existed.

At trial the victim had testified she wanted to get away from her stepfather but on the alleged computer screen she denied it.  The problem: no email to corroborate; no witness to to testify; no ability to document the emails.  According to petitioner on habeas corpus in the state court, another witness and the victim’s mother had seen the recantation on the screen but neither one testified in court.  No problem, said the 9th Circuit panel and proceeded to explain how an inconsistent statement could be introduced in evidence without a written document  or production of the witness to validate. The real problem: there is no evidence the victim ever told defense counsel about her friend and her mother having seen the screen.

The majority panel launched into its favorite reversal history: “ineffective assistance of counsel.”  Of course inconsistent statements are admissible, but the first mention of this evidence occurred in state court and resolved against the petitioner on grounds the trial lawyer had never been told about it. The California Supreme Court denied discretionary  review. The California Supreme Court decision is final on  the merits and no petitioner can present evidence to the federal court that was not presented to the state trial court. Cullen and Harrington both rebuked the 9th Circuit for their past practice of allowing a federal petitioner to submit supplement evidence not revealed to the state court. As the dissenting 9th Circuit judge in Cannedy points out, if no one tells the trial lawyer about the names of witnesses or evidence available for trial, counsel is certainly not “ineffective.”

Footnote: The Supreme Court in Cullen clearly and unambiguously ordered federal courts not to consider evidence on habeas corpus unless presented in in state courts. Cannedy is a direct contradiction of this order.

Johnson v. Uribe, 685 F.3d 1238 (9th Cir. 2012)

Defendant Johnson was represented by counsel in a California Superior Court. Counsel failed to explain the consequences of a guilty plea to the defendant pursuant to the decision in Peo.v. Vargas, 223 Cal.App.3d 1107 (1990) but the prosecutor miscalculated the sentence to be imposed.  Citing Vargas, the trial court released the defendant and told him if he returned to court the sentence would be reduced.  The defendant failed to return, and when arrested the court imposed the original sentence.

Defendant appealed, contending ineffective assistance of counsel in not raising the erroneous calculation for sentence.  The California Court of Appeal denied his appeal and the California Supreme Court denied a hearing  Defendant sought habeas corpus in federal court. The Magistrate Judge held a heaing, found counsel ineffective, but also determined the defendant would have accepted the Vargas bargain regardless of defense counsel’s failure to calculate the sentence.  The district court judge agreed, granted habeas corpus and remanded to the superior court to re sentence the defendant. The defendant appealed to the 9th Circuit.

That should have been the end of it.  The 9th Circuit in an opinion that ignores AEDPA and the decisions of the U.S. Supreme Court on plea bargains, dismisses the findings of the Magistrate Judge, overrules the California Court of Appeal and California Supreme Court. The 9th Circuit panel grants habeas corpus, orders the sentence vacated and returned to the Superior Court to proceed at the pre plea stage of the proceeedings.

This case has no precedential value at all and should be reversed en banc.  As a practical matter, on remand to the Superior Court the prosecutor will either no longer offer the same plea and go to trial.  If possible, the prosecution will amend the Information to add additional counts or enhancements. If found guilty, the defendant will probably receive the same or higher sentence.


Horel v. Valdovinos, 131 S.Ct. 1042 (2011)

The trial in Peo. v. Valdovinos was extremely difficult for the prosecution. Witnesses were uncertain and in some cases contradictory in identifying the defendant.  Despite the conflicting evidence, the jury convicted Valdovinos, and the state court ssummarily denied his appeal.  The U. S. District Court denied the petition for habeas corpus.  Valdovious appealed to the 9th Circuit.

Reversed. The 9th Circuit reviewed all the conflicting evidence, and discovered the police had failed to disclose a pre trial photo lineup.  The court also found counsel “ineffective under Sixth Amendment precedent.”

The Supreme Court reversed the 9th Circuit and remanded for “further consideration in light of Harrington v. Richter, 562 U.S._(2011).”  See, Blog.

Valdovinos is the sixth case the Supreme Court has reversed the Ninth Circuit during the current term of the Court.

Premo v.Moore, 131 S.Ct. 733 (2011) Part II

On the same day the Supreme Court wrote Harrington v. Richter, 2011 WL 148587 (C.A. 9) Justice Kennedy authored another opinion severely criticizing the 9th Circuit for disregard of the federal statute regulating federal habeas corpus (AEDPA; 28 U.S.C. 2254) and Supreme Court precedent.  The unanimous decision of the Supreme Court suggests a wilful disregard of the statute and Supreme Court case law by the Ninth Circuit.
In Premo, defense counsel entered into negotiations with the prosecutor to plead his client to an offense not requiring the death penalty.  The prosecution had a strong case including a confession by the defendant and two other civilian witnesses.
After the state court imposed Moore’s sentence (for an extremely violent and brutal crime) he appealed on grounds of “ineffective counsel” citing the Supreme Court 1986 case of Strickland v. Washington 466 U.S. 669 (1986).  Moore alleged his counsel should have moved to suppress the confession to police.  The state court denied his  appeal; denied a post trial evidentiary hearing in state court; was denied a petition for habeas corpus in U.S. District Court; state court decision reversed in the Ninth Circuit.
Justice Kennedy gave the Ninth Circuit a lesson in trial advocacy and plea bargaining in addition to explaining the proper test for appellate review of state court decisions in federal courts.  He wrote: “. . . strict adherence to the Strickland standard [is] all the more essential when reviewing the choices an attorney made at the plea bargain stage. Failure to respect the latitude Strickland requires can create at least two problems in the plea context. First, the potential for the distortions and imbalance that can inhere in a hindsight perspective may become all too real. The art of negotiation is at least as nuanced as the art of trial advocacy and it presents questions farther removed from immediate judicial supervision. There are, moreover, special difficulties in evaluating the basis for counsel’s judgment: An attorney often has insights borne of past dealings with the same prosecutor or court, and the record at the pretrial stage is never as full as it is after a trial. In determining how searching and exacting their review must be, habeas courts must respect their limited role in determining whether there was manifest deficiency in light of information then available to counsel. AEDPA compounds the imperative of judicial caution.”
Kennedy concludes by stating: “When 2254 applies, the question is not whether counsel’s acrions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Stickland’s deferential standard.”

Comment:  The Ninth Circuit has a long history of reversing state court decisions by employing the Strickland case. Harrington v. Richter and Premo v. Moore may end a litany of wrong decisions written by the Ninth Circuit, most recently in Knowles v. Mirzayance,  and Wong v. Belmontes.

Premo v. Moore, 131 S.Ct. 733 (2001): (Part I)

On the same day the Supreme Court reversed the Ninth Circuit in Harrington v. Richter, 2011 WL 148254 C.A.9) the Justices also reversed Premo v. Moore.  In a plea bargain, Moore had pled guilty to a charge of second degree murder in an Oregon state court. Denied post conviction relief in state court on grounds of “ineffective  counsel,” Moore  petitioned the U.S. District Court to issue a writ of habeas corpus. Moore again alleged “ineffective counsel” occurred prior to his plea based on failure of his lawyer to object to his confession to police officers.  On appeal from the district court ruling, the Ninth Circuit panel extensively wrote on the importance of confessions in criminal cases, and failure of counsel to object constituted “ineffective counsel.”
The dissenting judge in the Ninth Circuit decision skewers this principle.  No one doubts the importance of a confession, but under Ninth Circuit reasoning defense counsel must file every motion, frivolous or not, prior to any plea.  The prosecution is unlikely to engage in any plea bargaining under those circumstances. Oregon sought review of the Ninth Circuit decision in the Supreme Court.
Reversed. The Supreme Court verbally lashed the Ninth Circuit again, explaining the role of plea bargaining in criminal cases and the irrelevance of the need for counsel to file a every motion to exclude evidence prior to trial in order to avoid criticism of “ineffectiveness.”  As the Court notes, an appellate court on a cold record cannot intuit the nuances of “plea bargaining, i.e., whether the prosecution has a strong case or not; whether witnesses other than a police officer can testify to a confession; the strength of an alibi; the testimony of accomplices; the trial/ sentencing judge; the likely composition of a jury.  The list of problems for prosecution and defense is endless…
And the most important factor for defense counsel: the death penalty.  Moore had attacked the victim, bound him with tape, threw him in the trunk of a car and eventually killed him.  These facts are sufficient to warrant the death penalty after a trial.  Defense counsel received a reasonable offer from the prosecution for reasons unknown on the record.  But if the defendant refused the offer, the prosecution would continue investigation in an attempt to strengthen the case, and the potential of seeking the death penalty loomed.
Again the Supreme Court explains the role of the Anti-Terrorism statute (AEDPA; 28. U.S.C. 2254) and reproaches the Ninth Circuit for mis interpreting the statute and Supreme Court case law.   
Supreme Court case law. See, discussion of AEDPA in Harrington v. Richter.
The most important part of the case is the Supreme Court explanation of the role of federal courts in reviewing allegations of its leading cases on ineffective counsel; Strickland v. Washington, 466 U.S. 668 (1984).  Federal appellate courts reviewing state court decisions on habeas corpus cannot undertake its own interpretation of Strickland and the effectiveness of counsel.  The court must concede to a state court ruling. and issue the writ only if the state court interpretation is unreasonable, and not interpret Stickland de novo.

Harrington v. Richter, 131 S.Ct. 770 (2011)

In an emphatic and harsh review of the case in Harrington v. Richter, the Supreme Court again reprimanded the Ninth Circuit for its failure to abide by Congressional rules enacted in the Anti Terrorism & Effective Death Penalty Act restricting federal collateral review of state court decisions in criminal cases (AEDPA; 28 U.S.C. 2254). In a unanimous decision written by Justice Kennedy, he criticized the Ninth Circuit’s refusal to apply the Act and the appellate court’s failure to apply Supreme Court precedent.

Justice Kennedy intially dismisses the Ninth Circuit decision holding that on habeas corpus review of state court decisions the federal court applies a de novo standard in the absence of any written opinion issued by the state court.  AEDPA neither requires written opinions nor does Supreme Court precedent, and every other Circuit Court has rejected the Ninth Circuit interpretation. AEDPA permits  a federal court to reverse a state court decision on habeas corpus only if it finds an unreasonable application of Supreme Court law or an unreasonable interpretation of facts whether the state court writes a decision or not.

At its core, Harrington is an “ineffective counsel” case.  The Ninth Circuit had criticized the defense lawyer who had not submitted evidence of a blood sample found at the scene of the crime but otherwise effectively cross examined witnesses and presented a reasonable defense to the crime of murder.  Justice Kennedy administers another lesson to the Ninth Circuit on trial advocacy. 

The seminal case of “ineffective counsel” is Strickland v. Washington, 466 U.S. 668 (1984 ) a case invoked repeatedly by the Ninth Circuit in previous cases when the court is unable to find any other reason for reversal.  Kennedy skewers the Ninth Circuit application of Strickland, and writes “the pivotal question in determining whether counsel was ineffective] is whether the state court’s application of the Strickland standard was unreasonable [under AEDPA.] This is different from asking whether defense counsel’s performance fell below Strickland’s standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of 28 U.S.C. 2254(d) ‘an unreasonable application of federal law is different from an incorrect application of federal law’ (citation omitted). A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself.”

Bradley v. Henry, 518 F.3d 657 (9th Cir. 2008)

In another display of naivetand inexperience in criminal trial practice, an en banc panel of the Ninth Circuit has reversed the 1999 conviction of Nicole Bradley; Bradley v. Henry, 510 F.3d 1093 (9th Cir. 2008). By granting her petition for habeas corpus on a case previously upheld on direct appeal by the California Court of Appeal, the majority opinion omits relevant facts, or discounts their importance, and misinterprets the record. The court divided into five judges in the majority; four judges concurred only in the result; two judges dissented. In March 1999 a jury convicted Bradley of first degree murder, attempted car jacking and possession of a shortbarreled shotgun. The California Court of Appeal affirmed the conviction in Peo. v. Bradley, 2002 WL 596362 (unpublished) and the California Supreme Court denied review. In June, 2003 Bradley filed a petition for habeas corpus subsequently denied in U.S. District Court. In December, 2007, the Ninth Circuit reversed the District Court, and, unless the Supreme Court reverses the Ninth Circuit, the decision will compel another trial nine years after conviction. Unless the District Attorney can present the same evidence introduced at the original trial-unlikely from the trial record based on the probable unavailability of witnesses-a serious injustice will occur. To grant habeas corpus petitions the Ninth Circuit is bound by Supreme Court rulings that state court decisions in criminal trials must be objectively unreasonable in applying federal or U.S. Constitutional law, and federal courts must assign deference to state court fact findings; Carey v. Musladin; 127 S.Ct. 649 (2006);Lockyer v. Andrade, 538 U.S. 63 (2003). The Ninth Circuit majority ignores the California Court of Appeal decision, but Bradley is not about the law as much as the process of trial. In her petition filed in the Ninth Circuit, Bradley contended the trial court jeopardized her Sixth Amendment right to counsel. The Ninth Circuit court majority in citing the trial court record omits any reference to three lawyers originally retained-and discharged-prior to Bradley retaining lawyer Cynthia Dunlevy. The eighteen year old Bradleys father was paying her legal expenses but, in time, Dunlevy filed a motion asking the trial court for an in camera [closed] hearing to withdraw as counsel on grounds she had not been paid. In the hearing held outside the presence of Bradley, the court sealed the transcript of the proceedings for purposes of appellate review, granted the motion to withdraw and substituted attorney Chris Andrian, present during the hearing, to represent Bradley at public expense. The prosecution joined in requesting a closed hearing, asserting Bradleys father had retained an investigator to surveill and collect information about the prosecutor. The Ninth Circuit majority, ignoring the trial record that Dunlevy sought the closed hearing, and belittling the prosecution request for a closed hearing, deplores the absence of Bradley as violating her right to counsel. Quoting the majority opinion: . . . combining the substitution of counsel with airing the danger felt by the prosecutor was not explained except by the prosecutors sense that Bradleys father, who was paying for the expenses of trial, would go at lengths to delay trial. Not a word about the potential danger to the prosecutor or criticism of counsel for requesting a closed hearing. Months later, Bradley moved to replace Andrian, alleging she had filed a complaint against him with the State Bar and threatened litigation against him personally. The trial court refused to grant the motion and recommended Andrian seek indemnity from the County. After further delay to confirm indemnification, the County agreed but six weeks before trial another attorney (Jonathan Jordan) requested the court to represent Bradley. The court denied the motion on grounds a substitution of lawyers at this late date would likely result in yet another continuance. Contrast this truncated summary of the trial record with the dissenting judges documentation of the pre trial attempts by Bradley to obtain counsel. In March, 1996 attorney Montgomery represented Bradley whom the court subsequently disqualified. The majority opinion fails to note Montgomery was disqualified having previously interviewed a co-defendant and could not represent him and Bradley. Attorney Miller replaced Montgomery in June, and in October attorney Sacks replaced Miller (Nothing of this in the majority opinion). Bradleys father stopped paying Sacks who ceased representing Bradley. In November, 1997 attorney Dunlevy was retained and in March, 1998 she withdrew. At the closed hearing, attorney Andrian attended and the court appointed him at public expanse to represent Bradley. In October, 1998 Bradley moved to replace Andrian. The court denied the motion and specifically noted Andrian was effectively representing Bradley. In January, 1999 attorney Jordan requested the court to represent Bradley. The Ninth Circuit dissenting judges wrote: Jordan assured [the judge] he would be ready by the date appointed for trial (forty five days away) and was satisfied as to the arrangement for his compensation. . . [he saw] no reason not to be ready for trial and [didnt] see that changing at this point He similarly qualified his assurances about his financial arrangements with the client, noting that it [was] not a concern at this point. The trial court asked Bradley about her financial arrangements to pay Jordan and she replied, I dont know. The California Court of Appeal similarly wrote this comment about attorney Jordan and their earlier decision affirming the conviction: Given the magnitude of the accumulated materials, [twelve volumes] the paucity of Jordans preparations and the fact that the special circumstances [death penalty] allegation had not yet been dismissed, Jordans equivocal assurances of readiness were clearly inadequate. According to the Ninth Circuit majority, the closed hearing with attorney Dunlevy denied Bradley her Sixth Amendment right to attend at a critical stage of the proceedings. As a general rule, a defendant in a criminal case is entitled to be present at all times during the trial, with some unrelated exceptions. But attorney Dunlevy had filed a motion to withdraw. How could the presence of Bradley at the closed hearing affect any Sixth Amendment rights? If counsel moves to withdraw, the court cannot deny the motion unless it is unsupported by a declaration of non-payment of fees or filed on the eve of trial. Bradley had no part to play in the decision, the court substituted in another lawyer to represent her at public expense, and at no time during trial or subsequent to her conviction did she request an evidentiary hearing to rebut the content of matters discussed at the hearing. The prosecutor asked to participate at the in camera hearing based on evidence that Bradleys father had hired an investigator to surveil him and collect information. What role does Bradley play in that scenario? The prosecutor was not accusing her of complicity, and the failure to include her in the hearing was probably to avoid appellate criticism of the prosecutor. At no time did Andrian object to the closed hearing nor did the prosecution elicit evidence on paternal intimidation at trial. Bradley went through seven lawyers and the Ninth Circuit majority affixed blame on the trial court for sanctioning her non appearance at the closed hearing and the failure to appoint Jordan, her seventh attorney. The majority panel commenced its decision by noting it was not determining guilt or innocence. Yet the chances of successfully retrying Bradley are remote. Two of the witness who testified were accomplices and undoubtedly given reduced sentences. Either both remain in custody, in which case they can refuse to testify, or if at large the prosecutor may be unable to locate them. The tipoff to the majority reasoning is the language at the beginning of their decision: Bradley . . . was involved in an apparent car jacking . . . The shooting appeared to be unintentional . . . but the witnesses blamed [the killing] (emphasis added) on Bradley . . . she received a sentence of thirty five years to life. Characterizing the shooting as unintentional when someone carries a short barreled shotgun during an attempted car jacking is ludicrous. Because Bradley did not testify in her own defense, this judicial recital is gratuitous and subjective. The California Court of Appeals unanimously affirmed the conviction on identical grounds the Ninth Circuit reversed; the California Supreme Court denied review of that decision; the U.S. District Judge denied the petition for habeas corpus; a three judge Ninth Circuit panel who originally reviewed the case split 2-1; on appeal from that decision in the Ninth Circuit, three judges concurred in the result but only on grounds Bradley was denied her right to representation by attorney Jordan. With all these conflicts in the federal courts, the Ninth Circuit majority concludes the California Court of Appeal rendered an objectively unreasonable decision. Peo. v. Bradley, 2002 WL 596362 Bradley v. Henry, 413 F.3d 961 (2005) Bradley v. Henry, 428 F.3d 811 ( 2005) Bradley v. Henry, 432 F.3d 938 (2005) Bradley v. Henry, 2007 WL 4410355

Smith v. Arizona, 128 S.Ct. 2997 (2007)

Joe Clarence Smith was sentenced to death in 1977. After the Arizona Supreme Court set aside sentencing error, the court again imposed the death penalty. In 1999 the Ninth Circuit reversed the sentence on grounds of “ineffective counsel.” The majority of the judges on the panel used the familiar technique of second guessing counsel and imposing their own view of how to try the case-although none had ever been a trial judge. Due to Constititutional changes imposed by the Supreme Court, the defendant’s sentencing was delayed and he was sentenced to death again in 2004. Defendant pertioned for certiorari in 2007- thirty years after his original sentence. The Supreme Court denied cert. except for Justice Breyer who in dissent thought the delay (caused by the courts ) was “unusual” and he wondered if it is “cruel” to keep an individual for decades on death row.” He mused that the delay might raise a “serious constitutional question.”