Deck
Deck v. Jenkins
Opinion
Dissenting Opinion
Smith, J.
dissenting:
I respectfully dissent.
The Supreme Court has repeatedly— and often unanimously — reversed our circuit’s decisions granting § 2254 relief. For example, in its four most recent terms, the Supreme Court has reversed us fourteen times in cases involving our application of AEDPA, 28 U.S.C. § 2254 , ten of which reversals have been unanimous. Most recently, the Supreme Court reversed us in Davis v. Ayala, — U.S. —, 135 S.Ct. 2187 , 192 L.Ed.2d 323 (2015), reminding us of the difficult hurdle that petitioners must surmount in order for a federal court to reverse a state court’s determination that a trial error was harmless under Brecht v. Abrahamson, 507 U.S. 619 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 *987 (1993). In my view, this case is yet another candidate for reversal because the majority flouts clear Supreme Court AEDPA precedent in order to justify its holding that a state court’s decision is incorrect. In so doing, the majority commits the same error the Supreme Court has criticized our court for making time after time by “collapsing the distinction between ‘an unreasonable application of federal law and what [the majority] believes to be ‘an incorrect or erroneous…
Lead Opinion
Christen, J.
Dissent to Order by Judge BEA; Opinion by Judge CHRISTEN; Dissent by Judge MILAN D. SMITH, Jr.
ORDER
The opinion filed on September 29, 2014, is amended and the amended majority and dissenting opinions are filed concurrently with this order. With these amendments, a majority of the panel has voted to deny the petition for panel rehearing. The full court has been advised of the petition for rehearing and rehearing en banc. A judge of the court requested a vote on whether to rehear the matter en banc. A majority *958 of the nonrecused active judges did not vote in favor of rehearing en banc. Fed. R.App. P. 35(f). The petition for panel rehearing and the petition for rehearing en banc are DENIED. A dissent from denial of rehearing en banc is filed concurrently with this order. No further petitions for rehearing or rehearing en banc may be filed.
BEA, Circuit Judge, with whom O’SCANNLAIN, TALLMAN, BYBEE, CALLAHAN, M. SMITH, IKUTA, and N.R. SMITH, Circuit Judges, join, dissenting from the denial of rehearing en banc:
The ink is hardly dry on the Supreme Court’s latest reversal of another of our judgments where we disregarded the deference the Antiterrorism and Effective Death…