Venson Lane Myers v. Eddie S. Ylst, Warden

897 F.2d 417 Venson Lane MYERS, Petitioner-Appellant, v. Eddie S. YLST, Warden, Respondent-Appellee. No. 88-6334. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 4, 1989. Decided Feb. 28, 1990. Harvey R. Zall and Fern M. Laethem, State Public Defenders, Donald L.A. Kerson, Michael Pescetta, Deputy State Public Defenders, San Francisco, Cal., for petitioner-appellant. Thomas L. Willhite, Deputy Atty. Gen., State of Cal., John R. Gorey, Supervising Deputy Atty. Gen., Los Angeles, Cal., for respondent-appellee. Appeal from the United States District Court for the Central District of California. Before FLETCHER and KOZINSKI, Circuit Judges, and MUECKE, * District Judge. FLETCHER, Circuit Judge: 1 Myers, a prisoner serving a life sentence, petitioned for a writ of habeas corpus in the district court arguing that the California Supreme Court's disparate treatment of his case and an essentially identical case denied him the equal protection of the laws. The district court denied the writ. We reverse. 2 * In 1979, a jury found Myers guilty of first degree murder, assault, and robbery. Myers argues that the California Supreme Court's refusal to order a new jury…

dissenting:

According to the majority, the California Supreme Court’s remand order in In re Rhymes, 215 Cal.Rptr. 852 , 701 P.2d 1170 (1985), instructing the court of appeal to refile its opinion, constituted a retroactive application of People v. Harris, 36 Cal.3d 36 , 201 Cal.Rptr. 782 , 679 P.2d 433 (1984). Having applied Harris retroactively in Rhymes , the majority reasons, the supreme court was thereafter precluded from denying Venson Myers, or anyone else in his position, the benefit of Harris .

The majority reaches the wrong conclusion because it starts with a faulty premise. The one sentence order in Rhymes was not an application of anything; it was a simple housekeeping order, sending back to the court of appeal a case that the supreme court no longer wished to hear. At the same time, the supreme court expressly reserved the retroactivity question for resolution in People v. Myers, 43 Cal.3d 250 , 233 Cal.Rptr. 264 , 729 P.2d 698 (1987). The California Supreme Court chose to resolve the issue of the retroactivity of Harris in one case rather than in another. This was within its authority to do. There is nothing inequitable in that decision, and it provides no excuse…

Myers, a prisoner serving a life sentence, petitioned for a writ of habeas corpus in the district court arguing that the California Supreme Court’s disparate treatment of his case and an essentially identical case denied him the equal protection of the laws. The district court denied the writ. We reverse.

I

In 1979, a jury found Myers guilty of first degree murder, assault, and robbery. Myers argues that the California Supreme Court’s refusal to order a new jury trial in his case was unconstitutional. In Myers’ view, the California Supreme Court violated the equal protection clause when it declined to apply a decision regarding the right to an impartial jury retroactively in his case even though it had done so in an essentially identical case.

This appeal turns on the Supreme Court of California’s handling of three cases —In re Rhymes, 215 Cal.Rptr. 852 , 701 P.2d 1170 (1985), 1 People v. Myers, 43 Cal.3d 250 , 729 P.2d 698 , 233 Cal.Rptr. 264 (1987), and People v. Harris, 36 Cal.3d 36 , 679 P.2d 433 , 201 Cal.Rptr. 782 (1984). Rhymes and Myers were pending on appeal before the supreme court when the court decided Harris .

The relevant facts and issues in Rhymes and Myers were…