Eric Ardoin v. Eric Arnold

ORDER

The memorandum disposition filed May 4, 2016 is withdrawn and replaced by the *534 memorandum disposition filed contemporaneously with this order. With the filing of the new memorandum disposition, the panel has voted to deny the petition for panel rehearing and rehearing en banc. The full court has been advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petitions for rehearing and rehearing en banc are DENIED. No further petitions for rehearing or petitions for rehearing en banc will be entertained.

MEMORANDUM *

Petitioner Eric Ardoin appeals the district court’s denial of his petition for a writ of habeas corpus. We reverse the district court’s decision on Ardoin’s Sixth Amendment claim, and therefore do not reach the remaining issues in his habeas petition.

I: Facts:

In 2007, Ardoin was convicted of first, degree murder and sentenced to 85 years-to-life in prison for the death of Rodney Tom, a San Francisco drug dealer. The state charged Ardoin along with Rebecca Burgos and Albert Jacquez, a married couple who lived downstairs from Tom. All three defendants knew the victim…

dissenting

I respectfully dissent. The disposition concludes that the California Court of Appeal “recognized the state court’s error to be of federal constitutional magnitude”— and thus that the court decided the constitutional question in Ardoin’s favor. The Court of Appeal’s analysis does not support this conclusion. Rather, the court acknowledged the constitutional dimensions of the error, but determined that the error did not rise to the level of a constitutional violation under either federal or state law. This decision must be afforded deference under the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2264 , and habeas relief is unavailable unless the Court of Appeal’s determination that there was no constitutional error is “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 , 131 S.Ct. 770 , 178 L.Ed.2d 624 (2011).

Here, fairminded jurists could certainly disagree about the existence of a federal constitutional error. No Supreme Court case clearly establishes that a trial court’s refusal to reopen closing…

FILED

UNITED STATES COURT OF APPEALS

JUN 27 2016

FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

ERIC ARDOIN, No. 13-15854

Petitioner - Appellant, D.C. No. 3:11-cv-05564-EMC Northern District of California, v. San Francisco

ERIC ARNOLD, Acting Warden,

ORDER

Respondent - Appellee.

Before: THOMAS, Chief Judge and REINHARDT and McKEOWN, Circuit Judges.

The memorandum disposition filed May 4, 2016 is withdrawn and replaced

by the memorandum disposition filed contemporaneously with this order. With the

filing of the new memorandum disposition, the panel has voted to deny the petition

for panel rehearing and rehearing en banc. The full court has been advised of the

petition for rehearing en banc, and no judge has requested a vote on whether to

rehear the matter en banc. Fed. R. App. P. 35. The petitions for rehearing and

rehearing en banc are DENIED. No further petitions for rehearing or petitions for

rehearing en banc will be entertained.

FILED

NOT FOR PUBLICATION

JUN 27 2016

UNITED STATES COURT OF APPEALS MOLLY C.…