In a prior post last year, I discussed the Ninth Circuit's reversal of the EDCA's denial of habeas relief in Taylor v. Sisto, 5/25/10, based on the state trial court's wacky instruction that the jurors should disregard their life experiences and imagine themselves in a box. Judges Noonan and Berzon were in the majority with Judge Ikuta dissenting. Well, that was last year.
In January of this year, after rehearing briefs were filed, the Ninth withdrew its opinion without explanation. More than eight months later, the Court reversed course, affirming in an unusually fractured, unpublished decision. Taylor v. Sisto, II, 9/9/11. Judge Berzon dissents on a Batson claim and does not reach the jury instruction issue. In his concurrence, Judge Noonan acknowledges the constraints AEDPA puts on federal judges reviewing habeas cases and defers to the "California Court of Appeal's benign interpretation of the trial judge's erroneous instruction stripping the jurors of their use of common sense."