Tauno Waidla v. Christopher Pierce, Warden

A Ninth Circuit jurist who participated in the decision-making process below has summarized how the circuit’s variant procedures resulted in a shattering of appellate norms: In this capital habeas appeal, a reconstituted panel of our court withdrew and replaced the original opinion—changing the disposition on grounds not requested by the state in its petition for rehearing. The original opinion affirmed the district court’s grant of habeas relief based on Waidla’s claim that his trial counsel was constitutionally defective at the penalty phase. The amended opinion flipped this result, concluding that Waidla did not suffer prejudice as a result of his counsel’s constitutionally deficient assistance. The basis for this change was not a misapprehension of the facts or law, or the existence of intervening authority. Instead, a new panel member was selected to replace a retired panel member, and the new panel member disagreed with the original panel majority’s application of the law. In other words, a change in the composition of the panel resulted in a change of disposition, after the original opinion was filed. This reversal resulted in the difference between life and death for Waidla. (Pet. App. A–2.) The question presented is: should the withdrawal of a panelist from an appellate court after that court has published a decision open the door, absent any other basis, for the appointment of a new panelist, a readjudication of the appeal, and reversal of the original result?