SARAUSAD v. PORTER
The Ninth Circuit Court of Appeals today released an opinion in SARAUSAD v. PORTER, No. 05-35062, a habeas corpus appeal. The panel consisted of Stephen Reinhardt, William A. Fletcher, and Jay S. Bybee, Circuit Judges.
W. FLETCHER, Circuit Judge:
Petitioner Cesar Sarausad brings a petition for habeas corpus under 28 U.S.C. § 2254, challenging his second-degree murder and two attempted second-degree murder convictions. We hold that the evidence was sufficient to support the convictions under Jackson v. Virginia, 443 U.S. 307 (1979). However, based on In re Winship, 397 U.S. 358 (1970), Sandstrom v. Montana, 442 U.S. 510 (1979), and Estelle v. McGuire, 502 U.S. 62 (1991), we hold that ambiguous jury instructions on accomplice liability, in combination with other factors, unconstitutionally relieved the State of its burden of proof of an element of the crimes with which he was charged. I. General Background Sarausad is a naturalized citizen who immigrated as a child from the Philippines. At the time of the events in question, Sarausad was a 19-year-old student at the University of Washington in Seattle. He had recently graduated from Ingraham High School in Seattle. While still in high school, Sarausad had tutored other minority students in mathematics. Sarausad had become friends with some of his tutees and had eventually joined their gang, the 23rd Street Diablos (”the Diablos”). . . .
REINHARDT, Circuit Judge, concurring in part and dissenting in part:
I I concur in the majority holding that the ambiguous jury instruction on accomplice liability, when viewed in the context of the entire trial, unconstitutionally relieved the State of its burden of proof. I therefore join the decision to affirm the district court’s grant of habeas relief on that ground. I dissent, however, from the majority’s conclusion that the incredibly “thin” evidence the State presented at trial, maj. op. at 2591, was sufficient to support Sarausad’s convictions under Jackson v. Virginia, 443 U.S. 307 (1979), and AEDPA. In fact, the evidence isn’t thin. It’s non-existent. The state court relied heavily on its determination that Sarausad heard a conversation about a plan to shoot the victim. Yet, there is absolutely no evidence in the record that he did. The majority itself points out that there was “no direct evidence” and “limited circumstantial evidence” of Sarausad’s guilt. Maj. op. at 2591. Unlike the majority, I would take the next step — a step compelled by its own description of the evidence. I would hold, with the district court, that the evidence against Sarausad was insufficient, would, like the district court, grant relief on his Jackson claim, and, finally, would hold that the Double Jeopardy Clause bars the State from retrying him. My disagreement with the majority on the Jackson issue relates both to its analysis and to its result. I strongly disagree with my colleagues’ assertion that “[w]e . . . evaluate a state court’s resolution of a Jackson sufficiency-of-the-evidence claim in all cases under § 2254(d)(1) rather than § 2254(d)(2).” Maj. op. at 2562 (emphasis added). As I will explain, I see nothing in law or logic preventing us from evaluating Jackson claims under § 2254(d)(2), which authorizes us to grant habeas relief when the state court decision we are reviewing is “based on an unreasonable determination of the . . .
Grigas, 443 F.3d 1155, 1158-59 (9th Cir. 2006) (remanding to determine whether petitioner was entitled to relief under § 2254(d)(2) after expressly holding that he was not entitled to relief under § 2254(d)(1)). Both this court and the Supreme Court have granted habeas relief under § 2254(d)(2) without even mentioning (d)(1) or suggesting that its strictures must also be satisfied. See, e.g., Miller-El v. Dretke, 545 U.S. 231 (2005); Kesser, 465 F.3d at 353; see also Kesser, 465 F.3d at 371-72 (Wardlaw, Circuit Judge, concurring) (joining the majority’s opinion granting relief under § 2254(d)(2) and recommending relief “on the alternative ground” of § 2254(d)(1)). The text and structure of AEDPA compel the conclusion that, where the state court decision rejecting a habeas petitioner’s constitutional claim resulted from an unreasonable determination of the facts, the petitioner is entitled to relief if, under the corrected version of the facts, a constitutional violation would be established. The deference due state courts under AEDPA has already been given and is overcome at the time the factual determination is set aside. There is no need for a further exercise of deference, or, as it might be put, for double deference. See, e.g., Rolan v. Vaughn, 445 F.3d 671, 683 (1st Cir. 2006) (affirming habeas relief for petitioner who satisfied § 2254(d)(2) and under the correct facts established a Strickland violation); id. (”Because we conclude that the [state court’s] findings of fact . . . were unreasonable and that, when looked at under the Strickland standard, [petitioner’s] attorney’s failure to investigate . . . fell below an objective standard of reasonableness, and that there is a reasonable probability that but for that failure the result would have been different, we will affirm the grant of the writ of habeas corpus by the District Court.”). Specifically, in the context of sufficiency of the evidence, after making a successful § 2254(d)(2) argument, a petitioner need not also show that if the state court had applied Jackson to the proper facts and reached the same result, its adverse . . .
BYBEE, Circuit Judge, dissenting:
This case comes to us through an unusual set of proceedings. After Washington courts denied direct review of Sarausad’s appeal from his conviction, the Washington Supreme Court issued a “clarifying instruction” in State v. Roberts, 142 Wash. 2d 471, 14 P.3d 713 (2000), which was relevant to Sarausad’s appeal. Sarausad v. State, 109 Wash. App. 824, 829, 39 P.3d 308, 311 (2001). In Sarausad’s second appeal, brought through a personal restraint petition, the Washington Court of Appeals “reexamine[d] the record in light of Roberts,” and confessed that in its prior opinion it “erred.” Id. at 830, 837, 39 P.3d at 312, 315. On reconsideration, in a lengthy opinion, the Washington Court of Appeals held that . . .