Morris
Morris v. Woodford
Opinion
Concurring Opinion
Ferguson, J.
concurring:
I concur. However, I question whether defendant’s counsel was constitutionally competent at the guilt and penalty phases of the trial. The state trial judge’s statements regarding the number of death penalty reversals issued by the California Supreme Court under then Chief Justice Rose Bird were improper, especially considering that three Justices of the Court had been recently recalled due to their decisions on death penalty cases. There is no question that the state trial judge made a drastic error by injecting politics and speculation into a capital case.
However, the defendant has not contended in his federal habeas corpus petition that trial counsel was incompetent by failing to move for a mistrial and demand a new jury not prejudiced by the political statements of the judge. If there was such an allegation, I would have argued that counsel was constitutionally deficient and applied the rule of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), to both phases of the trial — guilt and penalty.
Nevertheless, because there has been no such contention made before us nor the district court, I am procedurally barred. In death penalty…
Lead Opinion
Graber, J.
Petition for Writ of Mandamus
More than a year ago, we granted a certificate of appealability (COA) on several issues raised by Petitioner Bruce Wayne Morris in this 28 U.S.C. § 2254 action but, in the interest of judicial economy, we remanded the case for an evidentiary hearing on certain of his claims. Morris v. Woodford, 229 F.3d 775, 781 (9th Cir.2000), cert. denied, - U.S. -, 121 S.Ct. 2238 , 150 L.Ed.2d 227 (2001). For a variety of reasons, no hearing has yet taken place. The judicial economy that we sought to achieve has not materialized. Petitioner’s lawyers have filed a writ of mandamus to compel a stay of proceedings in the district court. The writ is granted. In the interest of justice, we have recalled the mandate and issue this opinion on the merits.
We affirm the district court’s grant of summary judgment with respect to the guilt-phase issues that are ripe for our review. We leave undecided those guilt-phase issues that are not yet ripe. With respect to the penalty phase, we reverse and remand with instructions to vacate Petitioner’s sentence of death and order a new penalty-phase trial.