                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


WILLIAM KIRKPATRICK, JR.,                 No. 14-99001
             Petitioner-Appellant,
                                            D.C. No.
                 v.                      2:96-cv-00351-
                                             WDK
KEVIN CHAPPELL, Warden,
California State Prison at San
Quentin,                                    OPINION
                Respondent-Appellee.


     Appeal from the United States District Court
          for the Central District of California
   William D. Keller, Senior District Judge, Presiding

       Argued and Submitted February 17, 2017
                Pasadena, California

                Filed October 10, 2017

      Before: Stephen Reinhardt, Alex Kozinski,
      and Kim McLane Wardlaw, Circuit Judges.

              Opinion by Judge Reinhardt;
               Dissent by Judge Kozinski
2                   KIRKPATRICK V. CHAPPELL

                            SUMMARY*


                Habeas Corpus / Death Penalty

    The panel vacated the district court’s order dismissing for
lack of exhaustion claims in William Kirkpatrick, Jr’s habeas
corpus petition challenging his murder conviction and death
sentence, and remanded to the district court so that it may
adjudicate those claims on the merits.

    The district court dismissed the claims as unexhausted on
the ground that, although Kirkpatrick presented them to the
California Supreme Court, he subsequently waived them by
means of a handwritten, pro se filing. The California
Supreme Court ruled that the handwritten form constituted a
valid waiver despite the conclusion of the referee it appointed
that there was not enough evidence that the waiver was made
knowingly, voluntarily, and intelligently. The district court
agreed with the California Supreme Court.

    The panel held that there is insufficient evidence in the
record to support a finding that Kirkpatrick’s handwritten
form constituted a valid waiver of his right to proceed and
that the State of California failed to carry its burden to the
contrary. Consequently, the panel held that the district court
erred in dismissing the claims as unexhausted.

    Dissenting, Judge Kozinski wrote that the majority failed
to defer to the California Supreme Court whose findings are
supported by more than enough evidence, and that under de

    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 KIRKPATRICK V. CHAPPELL                      3

novo review Kirkpatrick would fare no better, but that none
of this matters because California has no functional death
penalty.


                         COUNSEL

Patricia A. Young (argued) and Mark R. Drozdowski, Deputy
Federal Public Defenders; Hilary Potashner, Federal Public
Defender; Office of the Federal Public Defender, Los
Angeles, California; for Petitioner-Appellant.

Robert C. Schneider (argued), A. Scott Hayward, and Jaime
L. Fuster, Deputy Attorneys General; Lance E. Winters,
Senior Assistant Attorney General; Gerald A. Engler, Chief
Assistant Attorney General; Office of the Attorney General,
Los Angeles, California; for Respondent-Appellee.


                          OPINION

REINHARDT, Circuit Judge:

    William Kirkpatrick, Jr., was convicted of murder and
sentenced to death in California more than thirty years ago.
His case has followed a long and complicated procedural path
to this court. He now appeals the district court’s dismissal of
certain claims for relief in his federal habeas corpus petition.
He contends that the district court was wrong to dismiss those
claims as unexhausted and should instead have adjudicated
them on the merits – something that has not yet happened in
any court, state or federal.
4                  KIRKPATRICK V. CHAPPELL

    The district court dismissed the claims as unexhausted on
the ground that, although Kirkpatrick presented them to the
California Supreme Court, he subsequently waived them by
means of a handwritten, pro se filing. The California
Supreme Court ruled that the handwritten form constituted a
valid waiver despite the conclusion of the referee it appointed
that there was not enough evidence that the waiver was made
knowingly, voluntarily, and intelligently, as the Constitution
requires. The district court agreed with the California
Supreme Court.

    We conclude that there is insufficient evidence in the
record to support a finding that Kirkpatrick’s handwritten
form constituted a valid waiver of his right to proceed and
that the State failed to carry its burden to the contrary.
Consequently, we hold that the district court erred in
dismissing the claims as unexhausted. We remand the case
to the district court so that it may adjudicate the claims in
question on the merits.1

                        I. BACKGROUND

                                   A.

    In September 1983, two men were murdered at a Taco
Bell in Burbank, California. Both victims, who worked at the
restaurant, were shot in the head point blank. Police soon
arrested and charged Kirkpatrick with the double murder. He
was 23 years old at the time.



    1
       Kirkpatrick also appeals the dismissal of one other claim that was
admittedly exhausted, but for reasons we explain below, we do not reach
that claim here.
                     KIRKPATRICK V. CHAPPELL                   5

    In the three decades in which Kirkpatrick’s case has been
pending in various courts, he has repeatedly tried to represent
himself or to interfere with his defense when represented by
counsel and has repeatedly expressed dissatisfaction with and
distrust of his lawyers. Shortly after the State brought
charges against him, the trial court appointed two lawyers,
two psychiatrists, and an investigator to assist in
Kirkpatrick’s defense. Kirkpatrick, however, requested that
he be appointed as co-counsel for purposes of the trial.2 He
also insisted on proceeding to trial quickly – even after
another possible perpetrator, Eddie Salazar, was arrested in
connection with the same crimes. A few weeks after voir
dire, Kirkpatrick sent a letter to the court criticizing his
attorneys’ performance. The lawyers explained that they
were having problems with their client, whose desires clashed
with their legal advice.

     The State’s theory of the case at trial was that Kirkpatrick
stole a .22 caliber gun from a Union 76 gas station, and used
it to murder the Taco Bell employees several days later, with
the help of Salazar, his co-conspirator. The prosecution also
said that Kirkpatrick told acquaintances about the crime after
it had been committed.

    To support this theory, the prosecution called
42 witnesses. Several testified that they saw Kirkpatrick with
a gun that looked like the murder weapon in the days before
the shooting. One witness testified that he saw Kirkpatrick
and Salazar together shortly before the shootings, and another
witness testified that he saw the two men, with a gun,
immediately afterwards.        The prosecution introduced
evidence of bullets found in Kirkpatrick’s car, and car stereo

    2
        This request was denied.
6                KIRKPATRICK V. CHAPPELL

equipment that had allegedly been stolen from the Union 76
gas station. The prosecution also entered the .22 caliber gun
– the supposed murder weapon – into evidence, although the
firearms examiner could not be sure that that particular
weapon had fired the bullets collected at the crime scene.

    Kirkpatrick testified in his own defense, despite counsel’s
advice that it was not in his best interest to do so. He
discussed his location the night of the crimes, and said that he
had intended to visit a friend in Whittier but was not able to
do so because his car battery died. He said that he purchased
a new car battery in the early morning following the time at
which the shootings occurred and then slept in a motel. The
defense’s three other witnesses corroborated his whereabouts
at several points in time, but did not provide any concrete
alibi. Kirkpatrick’s lawyer conceded that whoever committed
the crimes committed first degree murder, and apologetically
told the jury that lawyers “deal with . . . facts as best they
can.”

     The jury deliberated for five days and, during their
deliberation, asked for a read-back of the testimony of four
witnesses. The jury found Kirkpatrick guilty on all counts
and found true all death-qualifying special circumstances.
During the jury’s deliberations, the court received another
letter from Kirkpatrick complaining about his lawyers; he
said that he no longer considered them his attorneys.

                              B.

   Kirkpatrick asked to represent himself at the penalty
phase of the trial – the proceeding at which the jury would
decide whether to sentence him to life with the possibility of
parole, or to death. The court denied Kirkpatrick’s request on
                KIRKPATRICK V. CHAPPELL                     7

the grounds that his request was untimely and that there was
no overwhelming reason for the court in its discretion to
allow Kirkpatrick to proceed pro se. The court nevertheless
granted him co-counsel status when he threatened not to
appear unless he could proceed pro se. The court asked about
his letter and complaints against his attorneys, and
Kirkpatrick said that at some points the lawyers “went
completely against everything [he] requested,” including
requests to subpoena witnesses that were ignored. His
lawyers did not dispute these claims.

    To support a sentence of death, the prosecution presented
evidence of Kirkpatrick’s troubling past actions as
aggravating circumstances.       The defense’s mitigation
presentation took place the same day, and consisted solely of
Kirkpatrick’s brief testimony, in which he simply reasserted
his innocence and said that he was from New York and
aspired to be a writer.

    Beyond that, the defense essentially prepared no case for
mitigation at the penalty phase. The lawyer and investigator
spoke to only one person, Kirkpatrick’s mother, in
preparation for their presentation of mitigating evidence.
They believed that she would be “very, very helpful to the
defense,” but she was never called to testify. This may have
been at Kirkpatrick’s insistence, as he instructed his lawyers
not to interview or present any family members as witnesses.
Kirkpatrick also stated that he did not want any of his family
members brought to court or even contacted at all, and the
investigator did not interview any of Kirkpatrick’s other
family members or friends. Although his lawyers stated that
Kirkpatrick should be evaluated psychiatrically, Kirkpatrick
said that he did not want to meet with a psychiatrist, and the
court “accept[ed] Mr. Kirkpatrick’s position on that.” In any
8                 KIRKPATRICK V. CHAPPELL

event, no evidence of Kirkpatrick’s difficult upbringing, his
disadvantaged social background, his history of mental health
problems and drug abuse, or his relationships with friends and
family was ever presented to the court or even investigated by
the defense team.

    All that Kirkpatrick said in his closing statement was that
he had not received a fair trial. He said that his attorneys
failed to call certain witnesses and failed to ask specific
questions. He said he was “frightened” and “mad” that
prosecutors were sending an innocent person to jail. He also
told jurors that he did not blame them for finding him guilty
and that he would have done the same thing if he had been in
their position.

    The prosecution replied that Kirkpatrick was “an
anarchist,” and that “[h]is contribution to society has been
pain, suffering, and misery.” It said that “the circumstances
in aggravation far outweigh any circumstances in mitigation,
if any” and that the jury could impose a sentence of life
without parole, rather than a sentence of death, only if it
ignored the aggravating factors.

    Two days after the jury began its penalty selection
deliberations, it returned a death verdict for both murders.
The court proceeded to hold a sentencing hearing at which it
reviewed the aggravating and mitigating circumstances and
found that the only mitigating factors were the defendant’s
lack of prior felony convictions and his young age. It
sentenced Kirkpatrick to death.3


    3
      Kirkpatrick’s supposed co-conspirator, Eddie Salazar, was also
convicted for his participation in the Taco Bell crimes and was later
sentenced to two concurrent terms of 25 years to life.
                 KIRKPATRICK V. CHAPPELL                     9

                              C.

    Kirkpatrick filed a direct appeal in the California Supreme
Court and a state habeas petition claiming penalty phase
ineffective assistance of counsel. The California Supreme
Court affirmed Kirkpatrick’s conviction in a lengthy opinion.
People v. Kirkpatrick, 874 P.2d 248 (1994). It also
summarily denied the habeas petition, although two of the
justices voted to grant relief for penalty phase ineffective
assistance.

    Kirkpatrick later filed a federal habeas petition in the
Central District of California raising numerous claims for
relief. This time, he was represented by Federal Public
Defenders rather than the lawyers appointed by the state
court. The district court found that a number of the claims in
the federal petition had not been exhausted in state court.
Accordingly, it stayed consideration of the petition to permit
Kirkpatrick to return to state court. Kirkpatrick then filed a
petition in the California Supreme Court raising the claims
that the district court had found to be unexhausted; he
presented more than twenty such claims.

     A year and a half later, while his petition was pending in
the California Supreme Court, Kirkpatrick sent that court a
letter and attached a handwritten document entitled “Waiver
Form.” The form stated, in its entirety: “I do not wish to
proceed with my petition for writ of habeas corpus review in
this matter. I wish the sentence and the judgement [sic] of
execution in People v. William Kirkpatrick, Jr. 1459044 to be
carried out at this time.” The document was signed and dated
by Kirkpatrick.
10               KIRKPATRICK V. CHAPPELL

    The California Supreme Court then confronted the
question whether this document constituted a valid waiver of
Kirkpatrick’s petition. The Court appointed a referee, Marin
County Superior Court Judge Stephen Graham, to examine
whether the waiver satisfied the Constitution’s requirements
– that is, whether Kirkpatrick was competent to waive the
petition and whether the waiver was knowing, voluntary, and
intelligent.

    The referee did not recommend that the court find the
waiver valid. He told the court that he was unable to
conclude that the waiver was “knowing” or “intelligent”
because Kirkpatrick “refused to engage in sufficient
discussion with the Referee to permit the Referee to
determine whether the request to withdraw the pending
habeas corpus petition is made knowingly and intelligently.”
The report continued, “The Referee . . . is not able to assess,
with the limitations imposed by Mr. Kirkpatrick, whether the
act is done in the context of sufficient information and
understanding of present circumstances and potential
consequences to be found to be knowing and intelligent.”

    The referee’s investigation was fatally impeded by
Kirkpatrick’s refusal to participate. Initially, Kirkpatrick
cooperated with the referee. He appeared for status
conferences on four occasions, and was evaluated by a court-
appointed psychiatrist for two and a half hours. Following
that examination, however, Kirkpatrick refused to participate
further. He refused to be interviewed by three different
experts retained by the Federal Public Defender. He also
refused to attend the referee’s evidentiary hearing in March
                   KIRKPATRICK V. CHAPPELL                           11

2001.4 At no point in the investigation was he interviewed
under oath or on the record about his understanding of the
waiver’s significance. As a result, the referee concluded that
there was no evidentiary basis on which to determine that
Kirkpatrick’s waiver was valid.

    Notwithstanding the referee’s report, the California
Supreme Court approved the waiver. It reversed the referee’s
recommendation without taking any further evidence, without
giving any reasons for its decision, and without interviewing
Kirkpatrick under oath or otherwise about his intentions or
understanding of the waiver’s legal effect. In a two sentence
order, it simply stated that Kirkpatrick “made a knowing,
intelligent, and voluntary waiver of his right to proceed.”
Having found the waiver valid, the court dismissed
Kirkpatrick’s petition, which if resolved on the merits would
have served to exhaust his claims.

                                   D.

    The case returned to federal court. Following the
California Supreme Court’s dismissal of the petition,
Kirkpatrick’s lawyers filed an amended federal habeas
petition. This petition included the claims presented in his
state court petition – that is, the claims that the state court
decided that Kirkpatrick had waived.


    4
      At that hearing, the court-appointed psychiatrist testified that
Kirkpatrick had no “mental disease, disorder or defect.” Although the
experts supplied by the Federal Public Defender never had the opportunity
to meet with Kirkpatrick themselves, they reviewed the report prepared by
the psychiatrist and “expressed doubt as to the value of [her] opinions”
because they disputed her methodology and believed that she “fail[ed] to
address issues . . . raised by her report.”
12              KIRKPATRICK V. CHAPPELL

    The State then moved in district court to dismiss the
purportedly waived claims. Kirkpatrick objected, arguing
that the California Supreme Court was wrong to find that his
waiver was valid; he asserted that the waiver was not actually
voluntary, knowing, and intelligent. The district court,
however, upheld the state court’s conclusion that the waiver
was valid and dismissed the claims that had been the subject
of the waiver.

     These more than twenty-odd claims have not been
adjudicated on the merits by any court. The claims challenge
numerous aspects of Kirkpatrick’s conviction and sentence.
They include: the claim that law enforcement officials failed
to investigate or provide exculpatory evidence; the claim that
law enforcement officials conducted unconstitutional
interrogations of Kirkpatrick; the claim that the decision to
pursue the death penalty was based on Kirkpatrick’s race; the
claim that the trial court failed to provide Kirkpatrick with
alternate counsel; the claim that the trial court was biased
against Kirkpatrick; the claim that Kirkpatrick was
improperly excluded from courtroom proceedings; the claim
that Kirkpatrick was actually innocent; the claim that the
prosecution improperly joined separate allegations in a single
trial; the claim that Kirkpatrick was not competent to stand
trial; the claim of numerous instances of prosecutorial
misconduct prior to and during the guilt phase; the claim that
the statute under which Kirkpatrick was charged is
unconstitutional; the claim that the guilt phase jury
instructions were unconstitutional; the claim of cumulative
error prior to and during the guilt phase; the claim that the
trial court erroneously allowed the jury to consider lack of
remorse as an aggravating factor; the claim that trial counsel
provided ineffective assistance of counsel by failing to
present mitigating evidence at the penalty phase; the claim
                 KIRKPATRICK V. CHAPPELL                      13

that other mistakes at the penalty phase rendered counsels’
assistance ineffective; the claim that trial counsel abandoned
Kirkpatrick; the claim of numerous instances of prosecutorial
misconduct during the penalty phase; the claim of ineffective
assistance of appellate counsel; the claim of Due Process and
Equal Protection violations in the appellate process; the claim
that the death penalty as applied to Kirkpatrick is
unconstitutional; and the claim that the cumulative impact of
these numerous errors renders Kirkpatrick’s conviction and
sentence unconstitutional.

    In dismissing these claims, the district court applied
deference under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), 28 U.S.C. § 2254, to the California
Supreme Court’s determination that Kirkpatrick’s waiver had
been knowing, voluntary, and intelligent. It stated that
“[u]nder AEDPA, the decision of the California Supreme
Court must be given deference, and cannot . . . be reviewed
de novo by this court.” Applying the highly deferential
standard, the district court concluded that because “there is
[some] evidence to support the conclusory findings of the
California Supreme Court,” its conclusion must be upheld.
“There has been no unreasonable determination of the facts
or a decision contrary to, or involving an unreasonable
application of, clearly established federal law,” it said. The
district court also held, in the alternative, that the California
Supreme Court’s decision that the waiver was valid was
actually correct.

    Kirkpatrick filed a revised amended petition, which
omitted the claims that the district court deemed unexhausted,
but reasserted other claims that had been resolved by the state
court on direct appeal. The district court dismissed those
claims as well, on the ground that none entitled Kirkpatrick
14                 KIRKPATRICK V. CHAPPELL

to relief under AEDPA. The district court granted a
Certificate of Appealability as to one claim only – a
reasserted claim that related solely to a penalty issue – and
Kirkpatrick timely appealed.

                        II. DISCUSSION

    We consider here only the question whether the district
court was wrong to dismiss as unexhausted the twenty-plus
claims that the state court dismissed because of Kirkpatrick’s
purported waiver. Kirkpatrick maintains that the district
court erred in upholding the waiver of those claims because
the waiver was not valid. He asks that we review – and
vacate – the district court’s order dismissing the claims, and
requests that they be remanded to that court for adjudication
on the merits.

    The waiver issue was not mentioned in the Certificate of
Appealability granted by the district court. It was, however,
properly raised by Kirkpatrick in his briefs on appeal. At our
invitation, the State responded to Kirkpatrick’s briefing of the
issue, and Kirkpatrick replied to the State’s response. Thus,
the issue is fully briefed before us. We now expand the
Certificate of Appealability and proceed to consider whether
the district court erred in dismissing Kirkpatrick’s
purportedly unexhausted claims.5 Slack v. McDaniel,
529 U.S. 473, 484–85 (2000).




     5
      Because we expand the Certificate of Appealability to include the
dismissal of the claims that the district court deemed unexhausted, and
resolve that issue in the manner described below, we do not reach the
originally certified issue regarding a penalty question.
                KIRKPATRICK V. CHAPPELL                    15

    We review de novo a district court’s denial of a habeas
petition, or any part of it, as unexhausted. Rhoades v. Henry,
638 F.3d 1027, 1034 (9th Cir. 2011). Similarly, we review de
novo mixed questions of law and fact, such as whether
Kirkpatrick’s waiver of the claims was knowing, voluntary,
and intelligent and therefore constitutionally valid. Moran v.
Godinez, 57 F.3d 690, 698 (9th Cir. 1994) (“Whether a
waiver of constitutional rights was made knowingly and
voluntarily is a mixed question of law and fact which we
review de novo.”); Campbell v. Wood, 18 F.3d 662, 672 (9th
Cir. 1994) (en banc).

                             A.

    A defendant’s waiver of “his right to proceed” must be
“knowing, voluntary, and intelligent.” Whitmore v. Arkansas,
495 U.S. 149, 165 (1990). A court must inquire into whether
a waiver meets these conditions in order “to determine
whether the defendant actually does understand the
significance and consequences of a particular decision and
whether the decision is uncoerced.” Godinez v. Moran,
509 U.S. 389, 401 n.12 (1993).

    There are “two distinct dimensions” to the knowing,
voluntary, and intelligent requirement. Moran v. Burbine,
475 U.S. 412, 421 (1986). “First, the relinquishment of the
right must have been voluntary in the sense that it was the
product of a free and deliberate choice rather than
intimidation, coercion, or deception.” Id.; see also Comer v.
Schriro, 480 F.3d 960, 965 (9th Cir. 2007) (en banc) (per
curiam) (“A waiver of constitutional rights is voluntary if,
under the totality of the circumstances, it was the product of
a free and deliberate choice rather than coercion or improper
inducement.”). “Second, the waiver must have been made
16               KIRKPATRICK V. CHAPPELL

with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon
it.” Burbine, 475 U.S. at 421.

    In its briefs, the State agreed that Kirkpatrick’s waiver is
valid only if it was knowing, voluntary, and intelligent. At
oral argument, however, the State took “inconsistent
positions” on whether the waiver needed to satisfy these
requirements, and eventually, in a post-argument letter,
firmly changed its position and stated that it did not.
Assuming that the state did not waive its right to make this
tardy and inconsistent argument, its solitary citation to
Schneckloth v. Bustamonte, 412 U.S. 218 (1973), does not
compel or even support its newfound position. Schneckloth
observed that the knowing, voluntary, and intelligent
requirement does not necessarily apply “in every situation
where a person has failed to invoke a constitutional
protection” and is most often applied in the context of
constitutional trial rights. Id. at 235–37. The Supreme Court
has made clear, however, and we have long recognized, that
the requirement does apply to a habeas petitioner’s waiver of
his right to proceed further with his case or claim. See
Demosthenes v. Baal, 495 U.S. 731, 732–36 (1990) (applying
the knowing, voluntary, and intelligent requirement to a
habeas petitioner who had “filed a petition for state
postconviction relief, but, prior to the hearing, changed his
mind and withdrew the petition”); Dennis ex rel. Butko v.
Budge, 378 F.3d 880, 882–83 (9th Cir. 2004) (applying the
knowing, voluntary, and intelligent requirement to a habeas
petitioner who wrote a letter to the Nevada Supreme Court
stating, “I no longer wish to pursue any appeals and want my
sentence to be carried out”); Comer v. Stewart, 215 F.3d 910,
912, 917 (9th Cir. 2000) (applying the knowing, voluntary,
                 KIRKPATRICK V. CHAPPELL                    17

and intelligent requirement to a habeas petitioner who
allegedly “[did] not wish to pursue further legal remedies”).

    Accordingly, Kirkpatrick’s waiver “must have been made
with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon
it.” Burbine, 475 U.S. at 421. In short, the waiver is
constitutionally valid only if it was knowing, voluntary, and
intelligent. Whitmore, 495 U.S. at 165.

    In deciding whether a waiver meets this constitutional
requirement, “courts indulge in every reasonable presumption
against waiver.” Brewer v. Williams, 430 U.S. 387, 404
(1977). “[T]he proper standard to be applied in determining
the question of waiver as a matter of federal constitutional
law” is that it is “incumbent upon the State to prove ‘an
intentional relinquishment or abandonment of a known right
or privilege.’” Id. (quoting Johnson v. Zerbst, 304 U.S. 458,
464 (1938), and noting that this “standard has been reiterated
in many cases”). In other words, “the burden of proving the
validity of a waiver of constitutional rights is always on the
government.” Burbine, 475 U.S. at 450.

                              B.

    The California Supreme Court understood that the
knowing, voluntary, and intelligent standard applied.
Contrary to the recommendation of its referee, however, it
decided that Kirkpatrick’s waiver met those requirements and
was therefore constitutionally valid. The district court
believed that it was required to defer to this conclusion under
AEDPA. We turn now to the question of what level of
deference, if any, the district court must apply to the state
court’s determination under that statute.
18               KIRKPATRICK V. CHAPPELL

    When a district court reviews a state court’s decision in a
habeas case, it ordinarily defers to its conclusions and asks
only whether the state court’s adjudication “(1) resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States; or (2) resulted in
a decision that was based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d).

     The district court reviewed the California Supreme
Court’s approval of Kirkpatrick’s waiver under this
deferential regime. It stated that because “there is [some]
evidence to support the conclusory findings of the California
Supreme Court,” its conclusion must be upheld. It further
stated, “There has been no unreasonable determination of the
facts or a decision contrary to, or involving an unreasonable
application of, clearly established federal law.” “Under
AEDPA,” the district court explained, “the decision of the
California Supreme Court must be given deference, and
cannot . . . be reviewed de novo by this court.” It declared
that its “power to review the decision of the California
Supreme Court is extremely limited” (by AEDPA) and that
its approach must be “highly deferential.”

    This is where the district court went wrong. Contrary to
its belief, Section 2254(d) of AEDPA applies only to the
review of claims that have been adjudicated on the merits.
The section reads: “An application for a writ of habeas corpus
on behalf of a person in custody pursuant to the judgment of
a State court shall not be granted with respect to any claim
that was adjudicated on the merits in State court proceedings
unless” the deferential requirements of AEDPA are satisfied.
28 U.S.C. § 2254(d) (emphasis added). The Supreme Court
                 KIRKPATRICK V. CHAPPELL                    19

has defined the word “claim” in the AEDPA statute as “an
asserted federal basis for relief from a state court’s judgment
of conviction.” Gonzalez v. Crosby, 545 U.S. 524, 530
(2005). See also Cristin v. Brennan, 281 F.3d 404, 418 (3d
Cir. 2002) (“By stating that an ‘application for a writ of
habeas corpus’ can be granted ‘with respect to any claim,’ the
sentence clearly implies that Congress used the term ‘claim’
as a substantive request for the writ of habeas corpus.”). By
its terms, therefore, AEDPA only provides for deferential
review of a state court’s adjudication on the merits of a claim
for relief – that is, a claim that could provide a “basis for
relief from a state court’s judgment of conviction.” Crosby,
545 U.S. at 530. With respect to such “claims,” a federal
court may grant the application only if the deferential
requirements of AEDPA are satisfied. A federal court’s
determination is not subject to the deferential framework of
AEDPA, however, when it simply reviews a state court’s
disposition of a question that does not constitute a claim for
relief, does not decide the merits of such a claim, and does
not provide a “basis for relief from a state court’s judgment
of conviction” (or imposition of a sentence). Id. A decision
regarding the validity of a waiver of a defendant’s right to
pursue a claim is by no stretch of the legal imagination a
decision on the merits of the claim itself.

    Kirkpatrick’s assertion that his waiver was not knowing,
voluntary, and intelligent is simply not an affirmative “claim”
for relief. Although Kirkpatrick does contend that the state
court made a legal error, he does not, on the basis of that
error, claim entitlement to the writ of habeas corpus. If we
agree with Kirkpatrick, our agreement would not provide him
with “relief from the state court’s judgment of conviction” or
with a vacatur of his sentence. It would simply enable him to
pursue the claims that the district court ignored – claims that
20                  KIRKPATRICK V. CHAPPELL

might themselves provide the “basis for relief” if they were
decided in Kirkpatrick’s favor “on the merits” (or the basis
for no relief whatsoever if they failed “on the merits”). As a
result, the district court was wrong to apply AEDPA
deference to the state court’s determination of the
constitutional validity of Kirkpatrick’s waiver. It should,
instead, have reviewed the state court’s decision as to the
validity of the waiver by determining de novo whether the
state had carried its burden of proving that the waiver was
knowing, voluntary, and intelligent.6

    The Third Circuit has reached the same conclusion. A
district court, it held, “need not defer under § 2254(d) to the
state court’s determination that [petitioner’s] waiver was
valid.” Fahy v. Horn, 516 F.3d 169, 180 (3d Cir. 2008). The
court reasoned that “a ‘claim’ is that which, if granted,
provides entitlement to relief on the merits. Because

     6
      The dissent contends that the finding of “a knowing, intelligent, and
voluntary waiver” constitutes a finding of fact to which we must accord
deference under 28 U.S.C. 2254(e)(1). However, in United States v.
Cazares, we explained:

         A waiver is an “intentional relinquishment or
         abandonment of a known right or privilege.” Johnson
         v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 82 L.Ed.
         1461 (1938). The finding of a knowing and voluntary
         waiver is a mixed question of law and fact which we
         review de novo. Terrovona v. Kincheloe, 852 F.2d 424,
         427 (9th Cir.1988). The ultimate issue of voluntariness
         is a legal question requiring independent federal
         determination. Arizona v. Fulminante, 499 U.S. 279,
         286, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991).

788 F.3d 956 (9th Cir. 2015) (quoting Campbell, 18.F3d at 672); see
Lambert v. Blodgett, 393 F.3d 943, 976 (9th Cir. 2004) (Section
“2254(e)(1) is restricted to pure questions of historical fact.”).
                 KIRKPATRICK V. CHAPPELL                    21

resolution of the question as to whether [petitioner’s] waiver
was valid will not entitle him to relief on the merits of his
habeas petition, the waiver question is not a ‘claim.’
Therefore, the state court's determination that the waiver was
valid is not entitled to deference under § 2254(d).” Id.
(citation omitted). We agree with our fellow circuit without
the slightest reservation.

                              C.

    When a district court applies the wrong legal standard, as
it did below, we ordinarily remand the case so that it may
apply the correct one in the first instance. Here, however, we
find it unnecessary to do so because the parties agree that the
district court held in the alternative that, putting AEDPA
deference aside, Kirkpatrick’s waiver was actually valid. The
district court stated that it “conducted its own review of the
proceedings underpinning the referee’s report and the
decision of the California Supreme Court to be certain that
there has been no improper result,” and concluded that it
“agrees with the findings of the California Supreme Court.”
We review the district court’s alternate holding de novo,
because the validity of the waiver is, as we have noted above,
a mixed question of fact and law. Godinez, 57 F.3d at 698.

    We hold that the district court’s conclusion that
Kirkpatrick’s waiver was valid lacks a sufficient basis in the
record and accordingly remand for an adjudication of the
merits of the claims at issue.

                              1.

    The record does not supply an adequate basis upon which
to conclude that the waiver was knowing, voluntary, and
22                KIRKPATRICK V. CHAPPELL

intelligent because it contains good reason to believe that
Kirkpatrick did not understand the legal implications of the
waiver. Kirkpatrick’s handwritten filing stated: “I do not
wish to proceed with my petition for writ of habeas corpus
review in this matter. I wish the sentence and the judgement
[sic] of execution . . . to be carried out at this time.” There is
substantial evidence in the record that he believed that the
waiver would not result in his abandonment of his claims
altogether but would, instead, permit him to take over his case
personally and pursue those claims pro se. More specifically,
there is clear evidence that he did not wish to have the State
proceed with his execution forthwith but rather that he
intended to litigate his case further on the merits. This
evidence undermines any finding that the waiver was “made
with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon
it.” Burbine, 475 U.S. at 421.

     As an example, there are Kirkpatrick’s statements to the
referee. Before Kirkpatrick refused to engage further with
him, the two men met for an initial conference at which the
referee explained that he was brought in to assess whether
Kirkpatrick’s waiver had been made knowingly, voluntarily,
and intelligently. The referee explained the purpose and legal
effect of his inquiry as follows: “they [i.e., the court] want to
be sure that before they allow you to effectually relieve your
attorney, who is currently appointed and in place, they want
to be sure that you are competent and that you understand
what’s going on.” Kirkpatrick replied, “I believe it is the
Court’s intent to give me full control of my case. . . . I think
if they’re fair and honest, they will agree with me that I am
entitled to my day in court. . . . I believe it is their intention to
give me that control of the case.” The referee seemed to
agree: “If we end up concluding and they’re satisfied with the
                 KIRKPATRICK V. CHAPPELL                     23

factual conclusion that you are competent and that you
understand what’s going on and that you are making a
knowing and voluntary waiver, then I suspect that they
probably will give you your wish and relieve counsel and let
you go on your way.” This exchange appears clearly to
reveal a desire by Kirkpatrick to proceed further with his
claims, not to withdraw them, and certainly not to have his
death sentence “carried out at this time.”

    Kirkpatrick’s statements to the psychiatrist, who
examined him for two and a half hours at the referee’s
request, support the same conclusion. In her post-
examination report, the psychiatrist stated that Kirkpatrick’s
“ultimate goal” is “a re-trial.” “[H]e makes it plain that he
wants to run his own case, to be in charge of his own defense,
to represent himself.” Later in the report, the referee
reiterated the same conclusion: “He wants to represent
himself, plans to ‘hire Black lawyers,’ who will go to the
media and get a re-trial on the original conviction.”

    As for the waiver form itself, the psychiatrist concluded
that Kirkpatrick did not understand that the waiver would
relinquish his claims. She wrote, “He gives one the clear
impression that his wish to withdraw the Petition does not
indicate that he wants to speed the process toward execution.
In his 7/23/00 request [i.e., the waiver form], he wrote ‘I wish
the sentence and judgment of execution . . . to be carried out
at this time.’ But he tells me that he has no intention of
discontinuing litigation.”

    These statements to the referee and to the psychiatrist are
entirely inconsistent with the state court’s conclusion that the
waiver form demonstrated Kirkpatrick’s knowing and
intelligent decision to abandon the claims entirely. To the
24               KIRKPATRICK V. CHAPPELL

contrary, they show that Kirkpatrick did not fully understand
“the consequences of the decision to abandon” his right to
proceed – in direct contravention of the Constitution’s
requirements. Burbine, 475 U.S. at 421. His own conduct
further supports this conclusion. Kirkpatrick told the court,
“my intention is to stay alive as long as possible, Judge,” thus
communicating a desire that was the precise opposite of what
his waiver would have accomplished. Of equal importance,
Kirkpatrick gave no indication at any point in the proceedings
that he was aware of the contents of his exhaustion petition.
On the basis of the record, therefore, it is clear that the State
failed to carry its burden of demonstrating that Kirkpatrick’s
waiver was knowing, voluntary, and intelligent.

                               2.

    There is another deficiency in the record that also
precludes a finding that Kirkpatrick’s waiver was valid.
Where courts have previously found waivers of habeas claims
to be knowing, voluntary, and intelligent, and therefore valid,
they have done so after a hearing at which the court conducts
a colloquy to assess the petitioner’s intentions and whether he
understands the consequences of the waiver. See, e.g.,
Demosthenes, 495 U.S. at 732–33 (concluding that a state
court waiver was valid only after that court questioned the
petitioner under oath and concluded specifically that the
waiver was intelligently executed); Dennis, 378 F.3d at 884
(accepting a state court waiver as valid because that court
“engaged in a comprehensive colloquy” with the petitioner
during which “[t]he court had [petitioner] re-read his initial
habeas petition . . . and the court reviewed with [petitioner]
the assignments of error alleged in the petition” and the
petitioner in court “asserted his desire to give up his right to
pursue each of these claims”); Fahy, 516 F.3d at 183–85
                 KIRKPATRICK V. CHAPPELL                    25

(holding that even though the state court did engage in a
colloquy with the petitioner, that colloquy was insufficient to
establish that the waiver was knowing and voluntary because
the state court had refused to permit petitioner’s counsel to
ask him questions that would probe the waiver’s validity); see
also St. Pierre v. Cowan, 217 F.3d 939, 947 (7th Cir. 2000)
(finding that a waiver was not valid because no court ever had
a chance to question the petitioner on the record as to his
intentions and understanding).

    Here, the state court never questioned Kirkpatrick on the
record as to whether he understood the consequences of the
waiver or the nature of the claims he was waiving. As a
result, the court had no opportunity to assess Kirkpatrick’s
state of mind or to assure itself that the handwritten “Waiver
Form” reflected his knowing, voluntary, and intelligent
choice. All that the court could possibly have relied on in
finding the waiver valid was the form itself and the record of
the referee’s investigation – which concluded that there was
not enough evidence to find the waiver valid.

     Under the circumstances, it is clear that an independent
review of the record necessarily reveals that the state wholly
failed to carry its burden of showing that Kirkpatrick’s waiver
was knowing, voluntary, and intelligent. We therefore hold
that the district court erred in concluding that the purported
waiver was valid, whether as a result of applying AEDPA
deference to the state court’s determination or as a result of
its independent review of the record before the state court.

    We recognize that it was the petitioner who rendered
difficult or impossible the judicial examination that might
have enabled the court to determine the validity of his waiver.
This is not, however, a case in which a petitioner is being
26               KIRKPATRICK V. CHAPPELL

rewarded for obstructionism at the State’s expense. If
Kirkpatrick’s intention truly were to abandon his claims, his
failure to participate in the orderly judicial process designed
to determine that intent would serve only to frustrate his own
effort; it is he who would suffer most from his
noncooperation. If his intention were not to abandon those
claims but rather to continue to pursue them, a conclusion
that the waiver form was not valid would serve principally to
enable the court to arrive at the right result under the
Constitution. Either way, the State suffers little if any injury
from proceeding to a determination of the merits of
Kirkpatrick’s claims rather than relying on a dubious waiver
of critical constitutional rights that is unsupported by the
record. In any event, Kirkpatrick’s refusal to cooperate with
the referee’s investigation provides another reason to believe
that his intent was not to waive his claims and that his
purported waiver was not fully knowing and intelligent as the
Constitution requires.

                              D.

    In view of the above, we vacate the district court’s order
dismissing the claims that Kirkpatrick purportedly waived,
and remand those claims to the district court for adjudication
on the merits. That court shall consider the claims de novo
on remand. Because the claims were erroneously dismissed
as waived by the California Supreme Court, they were never
adjudicated on the merits in state court. Thus, they must be
considered de novo because there is no state court judgment
to which the federal court might properly defer. Harrington
v. Richter, 562 U.S. 86, 92 (2011); Cone v. Bell, 556 U.S.
449, 472 (2009).
                 KIRKPATRICK V. CHAPPELL                     27

                    III. CONCLUSION

   The district court’s order dismissing the claims in
Kirkpatrick’s petition for lack of exhaustion is VACATED,
and the case is REMANDED to the district court so that it
may adjudicate those claims on the merits.



KOZINSKI, Circuit Judge, dissenting:

   My colleagues err repeatedly but it doesn’t much matter.

                               I

    The majority’s first blunder is failing to defer to the
California Supreme Court, which found unanimously that
Kirkpatrick made a “rational choice with respect to
withdrawing” his habeas petition and “a knowing, intelligent,
and voluntary waiver of his right to proceed.” The
Antiterrorism and Effective Death Penalty Act (“AEDPA”)
requires deference to that finding. Under 18 U.S.C.
§ 2254(e)(1), “a determination of a factual issue made by a
State court” in a state habeas proceeding “shall be presumed
to be correct.” This is true “whether the court be a trial court
or an appellate court.” Sumner v. Mata, 449 U.S. 539, 547
(1981).

    The majority quotes selectively from Lambert v. Blodgett
that “2254(e)(1) is restricted to pure questions of historical
fact.” 393 F.3d 943, 976 (9th Cir. 2004). But we also said
that “an issue that involves inquiry into a state of mind may
be considered a question of fact.” Id. “Knowing, intelligent
28               KIRKPATRICK V. CHAPPELL

and voluntary” are all states of mind. So Blodgett requires us
to defer.

    Plenty of evidence supports the state court’s finding.
After receiving Kirkpatrick’s waiver letter, the California
Supreme Court appointed Judge Stephen Graham to assess its
validity. He, in turn, appointed Dr. Diane McEwen—a
forensic psychiatrist of thirty years experience—to interview
Kirkpatrick. Dr. McEwen found that Kirkpatrick “indeed
made his decision to withdraw the petition in a conscious,
goal-directed manner, free of any intervening mental illness.”
Kirkpatrick appeared “intelligent, self-determined, oriented,
consistent, deliberate and unwavering in his positions.”
Consistent with his medical records, Kirkpatrick showed “no
evidence of mental impairment.”

    Judge Graham questioned Kirkpatrick about what he
intended to accomplish with his waiver. Kirkpatrick
answered: “Competency and vacating of the appeal.” Judge
Graham advised Kirkpatrick that his appeal contained “some
possibility of ultimately preventing [his] execution.” The
government attorney then further explained to Kirkpatrick
that waiving his state appeal could limit his federal claims.
Kirkpatrick said: “I can appreciate that.”

    Judge Graham reported that Kirkpatrick wasn’t “suffering
from any mental disease, disorder or defect which may
substantially affect his capacity to appreciate his position and
to make a rational choice with respect to continuing or
abandoning further litigation.” The California Supreme Court
acknowledged Judge Graham’s report, adopted his findings
as to mental capacity and voluntariness, and further found
that Kirkpatrick acted knowingly and intelligently. It
therefore granted his request to withdraw the petition. My
                KIRKPATRICK V. CHAPPELL                    29

colleagues don’t agree with the California Supreme Court’s
findings but there’s more than enough evidence to support
them.

                             II

     Were I to review de novo, Kirkpatrick would fare no
better. To me, Kirkpatrick seems crazy like a fox. As he told
Judge Graham with a smile, his “intention is to stay alive as
long as possible.” The majority cites this as proof that
Kirkpatrick didn’t grasp the consequences of waiving his
appeals. More likely, Kirkpatrick well understood that
withdrawing his petition would trigger this protracted
litigation. This was a savvy move: It’s been seventeen years
since Kirkpatrick sent his letter to the California Supreme
Court. Now he’ll spend many more years litigating his merits
claims. According to Dr. McEwen, Kirkpatrick is “living
with what he’s got” and “trying to drive everybody else
crazy.” This man is playing us.

                             III

    The majority also invents a colloquy requirement and
faults the state courts for failing to comply. Maj. Op. 24–26.
But courts have “discretion in affording a hearing that is
suitable in the circumstances.” Dennis ex rel. Butko v.
Budge, 378 F.3d 880, 894 (9th Cir. 2004). Courts need this
flexibility to deal with troublemakers like Kirkpatrick who
refuse to attend hearings. Furthermore, we’re bound by the
Supreme Court case law as it stood at the time of the state
court’s decision in 2001. Lockyer v. Andrade, 538 U.S. 63,
71–72 (2003). No such case requires a colloquy.
30               KIRKPATRICK V. CHAPPELL

    The majority points to cases where a colloquy was held
sufficient, but none says a colloquy is necessary.
Demosthenes v. Baal1 noted that the state court found a valid
waiver after defendant was questioned in open court, but
doesn’t say there must be a colloquy. 495 U.S. 731, 735
(1990). Nor does Dennis, where we accepted a waiver that
followed a “comprehensive colloquy” with the petitioner, but
never hinted that the waiver would be invalid without the
colloquy. 378 F.3d at 884. Dennis is, in any event, irrelevant
because it’s not a Supreme Court case. See Lockyer, 538 U.S.
at 71–72.

                               IV

    But none of this matters because California doesn’t have
a death penalty. Sure, there’s a death row in California—the
biggest in the Western Hemisphere. Evelyn Nieves, Rash of
Violence Disrupts San Quentin’s Death Row, N.Y. Times
(May 22, 2001), http://www.nytimes.com/2001/05/22/us/ra
sh-of-violence-disrupts-san-quentin-s-death-row.html. At last
count, it housed 747 inmates. Cal. Dep’t of Corr. & Rehab.,
Death Row Tracking System Condemned Inmate List at 29
(June 2017), available at http://www.cdcr.ca.gov/capital_p
unishment/docs/condemnedinmatelistsecure.pdf. But there
have been only thirteen executions since 1976, the most
recent over ten years ago. Arthur L. Alarcün & Paula M.
Mitchell, Executing the Will of the Voters?: A Roadmap to
Mend or End the California Legislature’s Multi-Billion-
Dollar Death Penalty Debate, 44 Loy. L.A. L. Rev. 41, 51
(2011). Death row inmates in California are far more likely



   1
     I remember that case well. See Alex Kozinski, Tinkering with
Death, New Yorker, Feb. 10, 1997, at 48.
                    KIRKPATRICK V. CHAPPELL                           31

to die from natural causes or suicide than execution. Id. at
53.

    There are plausible reasons to oppose the death penalty.
Some think it barbaric. It’s also exceptionally expensive:
California taxpayers have lavished approximately $5 billion
on their capital punishment system. Jazmine Ulloa, Will
ending the death penalty save California more money than
speeding up executions?, L.A. Times, Nov. 1, 2016,
http://www.latimes.com/politics/la-pol-ca-death-penalty-
costs-snap-20161101-story.html. Then, there’s the risk that
we might be putting innocent people to death. See Glossip v.
Gross, 135 S. Ct. 2726, 2756–59 (2015) (Breyer, J.,
dissenting). Or that race may be a factor in how the death
penalty is imposed.2 And there’s the impulse to follow other
Western democracies that have abandoned this hoary
punishment. See Carol S. Steiker & Jordan M. Steiker,
Courting Death 22 (2016). But it’s “settled that capital
punishment is constitutional.” Glossip, 135 S. Ct. at 2732.
So the people of California are entitled to have a death
penalty if they choose. Vox populi, vox dei.


    2
      See, e.g., GAO, Report to the Senate and House Committees on the
Judiciary: Death Penalty Sentencing 5–6 (1990) (synthesizing studies from
1972 to 1990 and finding that victim race influences death sentencing rate
but defendant’s race may not); Glenn L. Pierce & Michael L. Radelet,
Impact of Legally Inappropriate Factors on Death Sentencing for
California Homicides, 1990–1999, The Empirical Analysis, 46 Santa Clara
L. Rev. 1, 19 (2005) (“[H]omicides [in California] involving non-Hispanic
white victims are 3.7 times as likely to result in a death sentence than
those with non-Hispanic African American victims.”). But see Richard
Berk et al., Statistical Difficulties in Determining the Role of Race in
Capital Cases: A Re-analysis of Data from the State of Maryland, 21 J.
Quantitative Criminology 365, 386 (2005) (finding that race appears to
have little or no impact on capital sentencing rates).
32                  KIRKPATRICK V. CHAPPELL

    The people have made their views plain by voting for the
death penalty ten times in the last forty-five years. In 1972,
the California Supreme Court held that the state constitution
didn’t permit capital punishment. People v. Anderson,
493 P.2d 880, 883 (Cal. 1972). Voters swiftly amended the
constitution to say it does. Prop. 17 (Cal. 1972). After the
United States Supreme Court held that the death penalty is
constitutional in Gregg v. Georgia, 428 U.S. 153, 186–87
(1976), California voters greatly expanded the list of death-
eligible crimes. Prop. 7 (Cal. 1978). Ballot measures in
1990, 1996 and 2000 further added to this list. Prop. 114
(Cal. 1990); Prop. 115 (Cal. 1990); Prop. 195 (Cal. 1996);
Prop. 196 (Cal. 1996); Prop. 18 (Cal. 2000). In 2012, voters
were asked to repeal the death penalty. Prop. 34 (Cal. 2012).
They said no. And last year they rebuffed another repeal
effort and, instead, approved a counter-proposition designed
to speed up the appeals process and presumably bring about
swifter executions.3

    Nonetheless, California has no functional death penalty.
How this came about is no mystery. As part of a nationwide
campaign to have lethal injection declared unconstitutional,
California death row inmates challenged the state’s execution
protocol in 2006. A district court eventually held that
California’s execution method was “broken.” Morales v.
Tilton, 465 F.Supp.2d 972, 974 (N.D. Cal. 2006). That ruling
likely was wrong in light of subsequent Supreme Court cases.
In Baze v. Rees, the Court held that Kentucky’s lethal


     3
      Whether this purpose will be achieved remains to be seen. The
California Supreme Court recently considered the constitutionality of this
proposition. It upheld most of it but declared its five-year time limit on
capital appeals aspirational. Briggs v. Brown, 400 P.3d 29, 57 (Cal.
2017).
                    KIRKPATRICK V. CHAPPELL                             33

injection protocol, which mirrored California’s, was
constitutional. 553 U.S. 35, 49–56 (2008); see also Glossip,
135 S.Ct. at 2737–38. Regardless, the state did not appeal.
Instead, state officials set about revamping California’s
execution protocol. They have been busy with that task since
2006. Other states have managed to amend their protocols
and the Supreme Court has consistently brushed aside
challenges to execution drug cocktails. See Glossip,
135 S.Ct. 2726. But California officials haven’t managed to
come up with a workable protocol.

    Meanwhile, the people of California labor under the
delusion that they live in a death penalty state. They may
want capital punishment to save innocent lives by deterring
murders.4 But executions must actually be carried out if
they’re to have any deterrent effect.5 Maybe death penalty



     4
       See, e.g., Hashem Dezhbakhsh, et al., Does Capital Punishment
Have a Deterrent Effect? New Evidence from Post-moratorium Panel
Data, 5 Am. L. & Econ. Rev. 344 (2003) (estimating that each execution
results in eight to eighteen fewer murders); Cass R. Sunstein & Adrian
Vermeule, Is Capital Punishment Morally Required? Acts, Omissions, and
Life-Life Tradeoffs, 58 Stan. L. Rev. 703, 713 (2005) (“the recent evidence
of a deterrent effect from capital punishment seems impressive”). But see
John J. Donohue & Justin Wolfers, Uses and Abuses of Empirical
Evidence in the Death Penalty Debate, 58 Stan. L. Rev. 791, 794 (2005)
(the death penalty “is applied so rarely that the number of homicides it can
plausibly have caused or deterred cannot be reliably disentangled from the
large year-to-year changes in the homicide rate”).
    5
     Joanna M. Sheperd, Murders of Passion, Execution Delays, and the
Deterrence of Capital Punishment, 33 J. Legal Stud. 283, 313 (2004)
(executions appear to have a larger deterrent effect than do death
sentences); Kenneth C. Land, et al., The Short-term Effects of Executions
on Homicides: Deterrence, Displacement, or Both?, 47 Criminology
34                  KIRKPATRICK V. CHAPPELL

supporters believe in just retribution; that goal, too, is
frustrated if there’s no active execution chamber. Or perhaps
the point is closure for victims’ families, but these are surely
false hopes. Kirkpatrick murdered Rose Falconio’s sixteen-
year-old son more than thirty years ago, and her finality is
nowhere near. If the death penalty is to serve whatever
purpose its proponents envision, it must actually be carried
out. A phantom death penalty is a cruel and expensive hoax.

    Which is why it doesn’t matter what we hold today. One
way or the other, Kirkpatrick will go on to live a long life
“driv[ing] everybody else crazy,” while copious tax dollars
are spent litigating his claims. And my colleagues and I will
continue to waste countless hours disputing obscure points of
law that have no relevance to the heinous crimes for which
Kirkpatrick and his 746 housemates continue to evade their
lawful punishment. It’s as if we’re all performers in a Gilbert
and Sullivan operetta. We make exaggerated gestures and
generate much fanfare. But in the end it amounts to nothing.




1009, 1038 (Oct. 2009) (concluding that “evidence exists of modest, short-
term reductions in the numbers of homicides in Texas in the months of or
after executions”).
