Whether the Ninth Circuit contravened Whitmore v. Arkansas in upholding a capital inmate's waiver of the right to proceed absent a colloquy demonstrating the waiver was knowing, intelligent, and voluntary?

QUESTIONS PRESENTED Following Whitmore v. Arkansas, 495 U.S. 149 (1990), in all cases where courts have found a waiver of a capital inmate’s right to proceed, there was a colloquy to ensure the waiver is knowing, intelligent, and voluntary. Except this one. The California Supreme Court found a knowing, intelligent, and voluntary waiver of Petitioner William Kirkpatrick, Jr.’s right to proceed in his state habeas proceedings, despite the appointed fact-finder’s conclusion that the record was inadequate to determine whether the waiver was knowing and intelligent due to the absence of a colloquy with Kirkpatrick. The Ninth Circuit accorded the California Supreme Court’s waiver finding a presumption of correctness under 28 U.S.C. § 2254(e)(1). The questions presented are: Whether the Ninth Circuit contravened Whitmore v. Arkansas in upholding a capital inmate’s waiver of the right to proceed absent a colloquy demonstrating the waiver was knowing, intelligent, and voluntary? Where there are substantial defects in a state court’s fact-finding process regarding whether a capital inmate waived the right to proceed, such as the absence of a colloquy to determine whether the waiver was knowing, intelligent, and voluntary, should a federal court apply 28 U.S.C. § 2254(e)(1)’s presumption of correctness to the state court’s waiver finding? i STATE AND FEDERAL COURT PROCEEDINGS William Kirkpatrick, Jr. was sentenced to death on August 14, 1984 in People v. Kirkpatrick, Los Angeles Superior Court Case No. A590144. The California Supreme Court denied his direct appeal on June 13, 1994 in People v. Kirkpatrick, Case No. 004642. This Court denied his petition for certiorari on March 20, 1995 in Kirkpatrick v. California, No. 94-1114. The California Supreme Court denied Kirkpatrick’s first pro se habeas petition on July 15, 1987 in In re Kirkpatrick, No. 8001181, and his second pro se habeas petition on April 15, 1992 in In re Kirkpatrick, No. 5024696. The California Supreme Court denied Kirkpatrick’s counseled habeas petition on September 29, 1988 in In re Kirkpatrick, No. S005410. This Court denied his certiorari petition on February 27, 1989 in Kirkpatrick v. California, No. 88-6383. The California Supreme Court dismissed his exhaustion habeas petition on September 19, 2001 in In re Kirkpatrick, No. 5075679. The United States District Court for the Central District of California denied Kirkpatrick’s federal habeas petition on December 23, 2013 in Kirkpatrick v. Chappell, Case No. CV 96-0351-WDK. In Kirkpatrick v. Chappell, No. 14-99001, the Ninth Circuit Court of Appeals reversed and remanded on October 10, 2017; withdrew its opinion and entered a new opinion denying relief on June 13, 2019; and amended its opinion on February 13, 2020. ii