California's Death Penalty: Dysfunctional Review Dysfunctionally Reviewed

[5] Furman v. Georgia, 408 U.S. 238 (1972).

[6] See Ninth Circuit Rejects Challenge to Calif. Death Penalty, The Recorder; California's Death Row Revived by 9th Circuit, Findlaw; Federal Appeals Panel Overturns Anti-Death Penalty Ruling in California, New York Times; Federal appeals court upholds California's death penalty reviews, Los Angeles Times.

[7] Jones, at 10, 14: "[Under AEDPA w]e hold that Congress intended a 'deni[al] on the merits' of '[a]n application for a writ of habeas corpus' to encompass the Teague [retroactivity] inquiry. . . . We acknowledge that ' . . . the Teague [retroactivity] inquiry requires a detailed analysis of federal constitutional law.' [Citation.]" See Teague v. Lane , 489 U.S. 288 (1989).

[8] "Crimes and criminals simply do not admit of a distinction that can be drawn so finely as to explain . . . the execution of such a tiny sample of those eligible." Furman, at 294; Brennan concurrence. See Judge Carney v. The Death Penalty subsection 5(ii) for quotes from each of the five majority justices.

[9] For full detail re these suppressions, see Judge Carney v. The Death Penalty, subsections 7(ii),(iii).

[10] Amicus briefs were filed, by: the Innocence Project (pro); Correctional Lieutenant M Thompson (pro); Loyola Law School (pro); Loni Hancock, et al. (state legislators, pro); Murder Victims' Families, et al. (pro); Empirical Scholars, et al. (pro); Death Penalty Focus (pro); California Attorneys for Criminal Justice, et al. (pro); Habeas Corpus Scholars and Professors (pro); and the Criminal Justice Legal Foundation (con).

[11] Presumably welcoming delay, Jones apparently now wants to return to the state court, despite the inevitability of losing on the merits of Carney's new claim, without the baggage or bar of a summary res judicata nonretroactive ("Teague") ruling. Calls to Jones' counsel for an explanation of the about-face re futility and/or any other comments have not been returned.

[12] Some Concerns About Sua Sponte , 73 Ohio St. L. J. Furthermore 27 (2012). See especially "The Discretionary Nature Of Sua Sponte Decisionmaking," at 31-36.

[13] Exhaustion of remedies is a procedural prerequisite to jurisdiction, while retroactivity operates as a subject-matter limitation. Whether these jurisdictional bars apply to sua sponte issues is the question. The answer is certainly not, as argued below.

[14] Amanda Frost, The Limits Of Advocacy , Duke Law Journal Vol. 59, No. 3 446, 463 (2009).

[15] The California Department of Corrections publishes a current list of condemned inmates here.

[16] See, e.g., the recommendations of Amanda Frost re district courts ( The Limits Of Advocacy , at 512):

[A]s a practical matter, district courts are in the best position to raise new issues because they need not be as concerned about finality, or the possibility of prejudice, as an appellate court considering whether to raise a new issue sua sponte. At the pretrial stage, the parties can explore factual questions essential to the new legal issue, and there is far less disruption to settled expectations than when an issue is injected by a court further down the line. Thus, while district courts have slightly less compelling reasons to raise new issues than appellate courts, doing so comes with fewer costs to the litigants. Furthermore, by raising overlooked issues early on, district court judges can avoid putting appellate courts into the difficult position of choosing whether to insert a new legal question into litigation at the eleventh hour.

[17] Jeffers v. Lewis, 38 F.3d 411, 425-428 (9 ^th Cir. en banc, 1994).

[18] People v. Seumanu, S093803 (Aug. 24, 2015), at 91-102.

[19] Carney's Order (at 14) states only that:

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