William Kirkpatrick, Jr. v. Kevin Chappell, 2017 U.S. App. LEXIS 19792

Background

In 1983 William Kirkpatrick was convicted of two murders in California and sentenced to death; over ensuing decades he repeatedly sought to represent himself and challenged counsel's performance.
After state conviction and direct appeal, Kirkpatrick filed a state habeas petition raising numerous claims (ineffective assistance at penalty phase and many others). While that petition was pending, he submitted a handwritten document stating he did not wish to proceed and that his sentence "be carried out at this time."
The California Supreme Court appointed a referee (Judge Graham) and a psychiatrist to assess whether the handwritten "Waiver Form" was knowing, voluntary, and intelligent; the referee concluded the record was insufficient to find the waiver valid because Kirkpatrick refused to cooperate fully.
Despite the referee's report, the California Supreme Court summarily found the waiver valid, dismissed the state petition, and the claims were therefore not adjudicated on the merits in state court.
The federal district court treated those claims as unexhausted because of the state-court waiver, applied AEDPA deference to the California Supreme Court's waiver finding, and dismissed the claims; the Ninth Circuit granted review of whether that dismissal was correct.
The Ninth Circuit majority held (1) AEDPA deferential review under 28 U.S.C. § 2254(d) applies only to state-court adjudications on the merits, not to a state-court determination that a petitioner waived the right to pursue claims; and (2) on de novo review the record does not show the State met its burden to prove Kirkpatrick’s waiver was knowing, voluntary, and intelligent, so the district court erred in dismissing the claims as unexhausted.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether AEDPA §2254(d) deference applies to a state-court finding that a petitioner waived habeas claims	Kirkpatrick: waiver validity is not a merits adjudication; AEDPA deference does not apply; federal court should review waiver de novo	State: California Supreme Court’s finding of a valid waiver is entitled to AEDPA deference	Court: AEDPA deference applies only to adjudications on the merits; waiver validity is not a "claim" for relief, so review is de novo
Whether the record shows Kirkpatrick knowingly, voluntarily, and intelligently waived his right to proceed	Kirkpatrick: record fails to show he understood waiver consequences; evidence suggests he intended to pursue claims pro se, not abandon them	State: the waiver form plus referee/psychiatrist process and California Supreme Court order established voluntariness and competence	Court: on de novo review the State did not meet its burden; record lacks evidence (no on-the-record colloquy; contradictory statements; referee found insufficient proof) — waiver invalid
Whether failure to hold a colloquy or to question petitioner on the record invalidates the waiver	Kirkpatrick: absence of an on-the-record colloquy and no sworn statement leaves intent and understanding unproven	State: prior cases do not require a colloquy; courts have discretion and may rely on other investigation	Court: although not strictly categorical, established precedents show courts typically ascertain waiver via on-the-record questioning; here absence of such inquiry contributes to invalidity
Remedy and remand posture: what should occur if waiver invalid	Kirkpatrick: claims should be remanded for merits adjudication because they were never decided on the merits in state court	State: upholding waiver would leave claims unexhausted and dismissed	Court: vacated district court’s dismissal and remanded for de novo consideration of the merits of the claims

Key Cases Cited

Whitmore v. Arkansas, 495 U.S. 149 (1990) (waiver must be knowing, voluntary, and intelligent)
Godinez v. Moran, 509 U.S. 389 (1993) (courts must ensure defendant understands significance and consequences of waiver)
Moran v. Burbine, 475 U.S. 412 (1986) (two dimensions of waiver: voluntariness and awareness of consequences)
Brewer v. Williams, 430 U.S. 387 (1977) (burden on state to prove intentional relinquishment of a known right)
Johnson v. Zerbst, 304 U.S. 458 (1938) (state bears burden to prove validity of waiver)
Demosthenes v. Baal, 495 U.S. 731 (1990) (applies knowing/voluntary/intelligent standard to withdrawal of state post-conviction petition)
Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (certain contexts do not always require knowing-intelligent-volatile standard; cited regarding scope)
Gonzalez v. Crosby, 545 U.S. 524 (2005) (definition of a "claim" under AEDPA)
Harrington v. Richter, 562 U.S. 86 (2011) (federal courts defer to state merits decisions; relevant to when AEDPA applies)
Cone v. Bell, 556 U.S. 449 (2009) (federal courts must consider whether state court adjudicated claim on merits)