For the second time this year, the Ninth Circuit on rehearing before a two-thirds different panel has denied habeas corpus relief to a death row inmate after first having granted that relief. Both cases involved death penalty judgments that the California Supreme Court had affirmed.
The latest reversal is Thursday’s unanimous opinion in Kirkpatrick v. Chappell, before Judges Kim McLane Wardlaw, Carlos T. Bea, and Morgan Christen. The first opinion, in 2017, holding that the inmate’s state habeas claims “were erroneously dismissed as waived by the California Supreme Court,” was before a different and divided panel — Judges Stephen Reinhardt and Wardlaw in the majority and Judge Alex Kozinski dissenting. The panel for the case was re-constituted after Judge Reinhardt’s death and Judge Kozinski’s retirement.
