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zombie precedent

September 8, 2012

In 2007, US District Judge Neil Wake coined the phrase “a tale of zombie precedent” to refer to dicta about an amended statute, erroneously repeated throughout many cases. This opinion in the case of Crowell vs. Knowles also refers to it as a “dead rule”.

Gary Ray Crowell, Petitioner,
Joel Knowles, et al., Respondents.

No. CV 97-00913 PHX NVW (LOA)
483 F. Supp. 2d 925
Decided April 12, 2007, filed April 13, 2007.

zombie judge neil wake

Judge Wake writes:

This order addresses whether Petitioner, who was sentenced to life in prison and now seeks federal habeas relief pursuant to 28 U.S.C. § 2254, failed to exhaust state remedies under 28 U.S.C. § 2254(c) by neglecting to file a timely petition for collateral review with the Arizona Supreme Court.

I. Background

Petitioner was convicted in the Arizona Superior Court, Maricopa County, of kidnaping and sexual conduct with a minor and sentenced to two consecutive life terms without possibility of parole until he serves 35 years on each count of conviction. In post-conviction relief proceedings under Arizona Rule of Criminal Procedure 32, Petitioner failed to file a timely petition for review with the Arizona Supreme Court after the Court of Appeals denied review. He alleges that the petition was not timely filed because appellate counsel indicated that the petition was unnecessary for exhaustion.

Reviewing Arizona law, the court finds that the State has plainly removed discretionary supreme court review from the standard review process for individuals sentenced to life in prison, and that Petitioner therefore exhausted even though he did not timely utilize that procedure. Contrary language in prior cases is both dictum and erroneous in its description of relevant Arizona statutes.

The starting point for the exhaustion analysis is State v. Shattuck, 140 Ariz. 582, 684 P.2d 154 (1984), a case that directly addressed a question of professional responsibility but also created the initial analytical framework under which Arizona addressed exhaustion for the purpose of federal habeas.

the 1989 amendments to sections 12-120.21(A)(1) and 13-4031 entirely undermined the basis for citing Shattuck for the proposition that criminal defendants have a right to appeal to the Arizona Supreme Court in cases carrying a life sentence.

The Arizona Court of Appeals initially confused the pre-1989 language of A.R.S. § 12-120.21(A)(1) with the amended statutory language in State v. Poli, 161 Ariz. 151, 153, 776 P.2d 1077, 1079 (Ct. App. July 18, 1989).

Soon after Poli, however, the Arizona Supreme Court recognized the statutory amendments in State v. Sandon, 161 Ariz. 157, 777 P.2d 220 (July 20, 1989), … extend[ing] the reasoning of Shattuck by holding that “[o]nce the defendant has been given the appeal to which he has a right,” “the case in the Arizona courts is over” not only for the purpose of counsel’s professional obligations, but also for federal habeas. Id. at 158, 777 P.2d at 221.

Despite Sandon’s reference to the changed law for life sentences after 1989, the Ninth Circuit and other courts have continued in dictum to reference the old language of A.R.S. §§ 12-120.21(A)(1) and 13-4031 as the operative authority. This trend began with Swoopes v. Sublett, 196 F.3d 1008, 1009 (9th Cir. 1999),

The dictum in Swoopes was nevertheless repeated in dictum in Castillo v. McFadden, 399 F.3d 993 (9th Cir. 2004),

The dictum in Swoopes was also repeated in a series of district court cases. … The cases thus present a tale of zombie precedent. A rule definitively extinguished by statutory amendment in 1989 continues to prowl, repeatedly re-animated by mistaken citation and dicta. None of the cases except Sandon recognized that the sole basis of the rule requiring Arizona Supreme Court review for exhaustion in cases of life imprisonment ceased to exist when sections 12-120.21(A)(1) and 13-4031 were amended. What Swoopes should have identified as an outdated reference to the old statutes was thus repeated in Castillo, only to be repeated again and again in district court cases. The reason the mistakes were never noticed is that the effect of the 1989 amendments never mattered in any of the cases except for Stern.

Now confronted with circumstances in which the statutory amendments actually matter, this court is not bound to further animate the dead rule. See FDIC v. McSweeney, 976 F.2d 532, 535 (9th Cir. 1992)

Therefore, this court does have jurisdiction to hear the habeas petition. However, despite: “Concluding that the language on life sentences in Swoopes and its progeny is dictum does not end the analysis.” The case is still dismissed (not for the jurisdictional reasoning of the dicta but on the merits), “the Report and Recommendation of Magistrate Judge Anderson (Doc. # 66) is rejected to the extent it recommends dismissal for failure to exhaust available state court remedies and accepted to the extent it recommends denial of the petition on its merits.”

This case will be included in my upcoming book Zombie Law: Zombies in the Federal Courts – now on Kickstarter – Please tell your law zombie friends about this blog and the book project! Thanks!

Recall also “zombie litigation” and some other ZombieLaw law references

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  1. Great blog. One of my colleagues wrote a blog entry which would have been right at home at this blog. It can be found here:

    Cheers, and keep up the good work!

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