Wednesday, August 21, 2019

Avena v. Chappell, No. 14-99004 (8-9-19)(Thomas w/Graber & M. Smith). The 9th reverses the denial of a capital penalty IAC claim. The 9th found that the complete failure of counsel to present any mitigation was IAC. Investigation could have presented character evidence, evidence of childhood abuse, habitual PCP use, and the need for self-defense in a prison setting.  None of this was done. There was prejudice. The evidence was exactly the type that could have persuaded a juror to show mercy.

Congrats to Sean Kennedy, Michael Lightfoot, and Deputy FPD Mark Krozdowski, FPD Cal Central (Los Angeles)

The decision is here:


Tuesday, August 20, 2019

1. US v. Begay, No. 14-10080 (8-19-19)(Nelson w/Clifton; dissent by N. Smith). Note: This is an Az FPD Case. Is second-degree murder a categorical “crime of violence”? The 9th holds it is not. As such, although the murder conviction is affirmed the 924(c) is reversed, and so is mandatory restitution. 

The majority’s holding that second degree murder is not a COV rests on a categorical analysis. The focus is on recklessness. The 9th concludes that recklessness, even gross recklessness, is not intentional. The example is firing into a house or car. The majority finds the Supreme Court’s recent decision in Voisine (misdemeanor recklessness) specifically refers to only that offense and explicitly does not foreclose other circuits’ approaches to other offenses.

The conviction is affirmed. Under plain error, the 9th found no error in not requiring the prosecution to prove not acting in the heat of passion” beyond a reasonable doubt. The defense was “someone else shot.” 

Dissenting, N. Smith is incredulous that second degree murder is not a COV (“I feel like I am taking crazy pills.” p. 18). Calling it an “unbelievable result,” contrary to Supreme Court precedent, and the 9th’s own analysis — no categorical flights of fancy—the dissent finds the opinion defies “reality and logic.”  All of this occurs in the first two paragraphs. This is followed by 13 pages of how wrong the majority must be. The dissent’s point ultimately is that malice aforethought acts as the intent for murder, and that a depraved heart with its degree of recklessness makes this a COV. 

Congrats to Edie Cunningham, AFPD, FPD Az (Tucson) on a hard fought and hard argued win.

The decision is here:

2. US v. Shayota, No. 17-10270 (8-19-19)(O’Scannlain w/Schroeder & Rawlinson. Concurrence by O’Scannlain). This is a confrontation clause issue. The 9th allows introduction of a witness’s prior civil deposition testimony after the witness subsequently invokes 5th amendment rights against self-incrimination. The defendant argued that his right to confront was violated because the government, which introduced the civil testimony (attended by defendant’s lawyers) could have granted immunity to the witness and thus making him available. The 9th finds a tension in the confrontation issue and a lack of clarity in precedent.  However, the 9th sidesteps a definitive ruling, holding that in this case, a fraud conviction, any possible error is harmless. 

O’Scannlain wants to call attention to the sidestepping and pens a concurrence. The concurrence is a call, bordering on a chastisement, for the circuit courts to examine the historical context of privileges, availability, and the confrontation clause. He believes that various precedents need to be harmonized, or re-examined; that unavailability possibly could be narrowed; or redefined.

The decision is here:

3.  US v. Cuevas-Lopez, No. 17-10438 (8-19-19)(Friedland w/Clifton; Ikuta dissenting). The 9th applies the “single sentence” rules of USSG 4A1.2(a)(2) to 2L1.2(b)(2) and (b)(3). Simply put, two 3.5 year sentences, imposed to run consecutively, handed down at the same proceeding, counts under the new 1326 offense enhancement guidelines as a 7 year sentence (an enhancement is imposed if a sentence is greater than 5 years). The 9th so finds through various allusions, omissions, justifications, and assuming what the Commission intended. The 9th is loath, and states as much, to foster a Circuit split with the 5th, which recently found a single sentence.

Dissenting, Ikuta would find that the plain language requires the convictions to be considered under 5 years. She employs a simple but powerful analysis: the offense guideline refers to “a conviction” and not “the sentence.” Chapter 4 refers to “the sentence.” The Commission in amending the Guidelines could have made this plain but did not.

The decision is here:

1. US v. Crum, No. 17-30261 (8-16-19)(Per curiam w/Fletcher & Bybee; dissent by Watford). The 9th vacated and remanded for resentencing in an Oregon case where the district court had found that delivery of meth was not a controlled substance offense under 2K2.1(a)(4)(A). The issue is whether “solicitation” makes the state statute overbroad. Majority finds itself bound by prior precedent, Shumate, 329 F.3d 1026 (9th Cir. 2003), which had construed   “delivery” as including solicitation. The reliance by the district court on Sandoval v. Sessions, 866 F.3d 986 (9th Cir. 2017), was misplaced. Sandoval concerned drug trafficking under the Controlled Substances Act and not the Guidelines.  There are problems with the analysis in Shumate and also Vea-Gonzales, 999 F.2d 1326 (9th Cir. 1993). The panel seems to suggest en banc review.

Watford, dissenting, would find the Oregon statute still overbroad. It criminalizes a mere offer to sell as a delivery.  A mere offer to sell is also not solicitation.

Tough loss for AFPDs Ted Blank and Robert Schwarz of the Federal Defender Services of Idaho (Boise).

The decision is here:

2. US v. Cano, No. 17-50151 (8-16-19)(Bybee w/Graber & Harpool).  This is a significant cell phone/border search case.  The defendant was arrested for carrying cocaine through San Ysidro’s POE. Following the arrest, a Customs Agent seized the cell phone and searched it: first manually and then using software that accesses all texts, logs, media, and application data.  The defendant’s motion to suppress was denied.

The 9th reversed the denial of the motion and vacated the conviction. The 9th held that searches may be conducted by border officials without reasonable suspicion but that forensic cell phone searches require reasonable suspicion. The 9th clarifies US v. Cotterman, 709 F.3d 952 (9th Cir. 2013)(en banc)  by holding that “reasonable suspicion” it means that officials must reasonably suspect that the cell phone contains digital contraband. The 9th stresses that cell phone searches at the border, whether manual or forensic, must be limited in scope to a search for digital contraband.

Congrats to Harini Raghupathi of the Federal Defenders of San Diego, for this important win.

The decision is here:

Pizzuto v. Blades, No. 16-36082 (8-14-19)(Per curiam w/Fisher, Gould, & Rawlinson). This is an Atkins capital petition. The 9th affirms the district court’s denial of habeas relief. The Idaho Supreme Court denied Atkins relief because petitioner’s IQ test was above 70. This was before the Supreme Court’s decisions in Hall, Brumfield, and Moore, which found that a strict IQ score above 70 should not preclude intellectual disability consideration. AEDPA deference compelled the 9th to find that the Idaho Supreme Court, in 2008, did not unreasonably apply Supreme Court precedent. 

The 9th did specifically stress that the state Supreme Court could reconsider these Atkins questions in light of Supreme Court subsequent decisions, and with the benefit of an evidentiary hearing, and evolving psychiatric clinical standards. The 9th noted that the court could address whether these standards now would violate the 8th amendment. 

Tough case for Joan Fisher, AFPD, Cal E (Sacramento).

The decision is here:
Two hard fought appeals from the FPD Oregon:

1. US v. Nejad, No. 18-30082 (8-13-19)(Watford w/N. Smith & R. Nelson). The 9th affirmed a “personal money judgment” in the criminal forfeiture context. The 9th did so based on prior precedent, finding that Honeycutt v. US, 137 S.Ct 1626 (2017) did not overrule it. The gov’t need not identify specific property, but can collect a sum of the forfeited value. However, the government must follow the provisions and constraints of 21 USC 853(p) and return to seek enforcement.

The decision is here:

2.  US v. Hernandez-Martinez, No. 15-30309 (8-13-19)(Berzon w/Graber & Robreno). 18 USC 3582(c)(2) allows a court to reduce a previously imposed sentence based on a guidelines reduction. However, the reduction is not allowed if the original sentence was below the new amended guideline range. This would not include substantial assistance departures.  See US v. Padilla-Diaz, 862 F.3d 856 (9th Cir. 2017).  Hughes v. US, 138 S. Ct 1765 (2018) did not overrule Padilla-Diaz. Hughes held that C pleas (stipulated) can be reduced under 3582c2 if the sentence had used the guidelines as a factor.

The decision is here:
US v. Sainz, No. 17-10310 (8-12-19)(Piersol w/Tashima & M. Smith). In an issue of first impression, the 9th holds that a district court cannot sua sponte raise a defendant’s waiver of the right to seek relief under 3582(c)(2) and then deny relief on that ground.

Here, the defendant was being sentenced on a drug charge. He had cooperated. At sentencing, the court and the defendant discussed a lowering of the guideline range that was proposed, but was not yet in effect. The defendant was then sentenced.  In his plea, he had expressly waived the right to file a 3582(c)(2) motion.  Subsequently, though, he filed such a motion.

The district court (a new judge) then sua sponte raised waiver and denied the motion. The 9th deemed this an abuse of discretion. Failure to raise an issue is deemed waived, and the gov’t failed to raise waiver in the district court. The court raising it sua sponte risked becoming an advocate. The dismissal was reversed and the case remanded.

Congrats to Carmen Smarandoiu, AFPD, Cal N (San Francisco).

The decision is here:


Riley v. Filson, No. 17-15335 (8-9-19)(McKeown w/M. Smith & Hurwitz). The 9th held that the district court did not abuse its discretion in denying the State’s 60(b)(6) motion seeking relief from a grant of habeas relief.  This case is about state law interpretation, especially relating to first-degree murder and the elements.  In 1991, the 9th interpreted Nevada state law as regards to first-degree murder in 1991 in Riley I, 786 F.3d 719 (9th Cir. 2015). The 9th found three separate elements.  The State now argues that the state supreme court changed its interpretation post-Riley and thus undermines Riley I. The 9th disagrees.  While the definitions for a period – 1992 to 2000 – were merged, the “window” of this merger occurs after the petitioner’s conviction was final. The 9th acknowledges that the state supreme court may disagree with whether these elements need to be defined separately; there is no disagreement with the three separate elements.

Congrats to David Anthony and Ben McGee, AFPDs with the Nevada FPD (Las Vegas).

The decision is here:

Sunday, August 18, 2019

Case o' The Week: Neutral Calls For Strikes and Balls - Sainz and Judicial Assertion of Defense Waivers

  The bench makes the calls, notes the Ninth: let the players play the game.
United States v. Sainz, 2019 WL 3770817 (9th Cir. Aug. 12, 2019), decision available here.

Players: Decision by visiting District Judge Piersol, joined by Judges Tashima and M. Smith.
  Big win on national issue of first impression for N.D. Cal FPD Chief of Appeals Carmen Smarandoiu.

Facts: Sainz pleaded guilty to drug crimes and was sentenced to 188 months. Id. at *1. Id.
  In a post-sentence cooperation agreement, Sainz waived his right to seek post-sentence reductions of his sentence under 18 U.S.C. § 3582(c)(2). Id. At the cooperation re-sentencing hearing, the court went down to 120 months. Id.
   Roughly a year later, Sainz moved for another reduction of his sentence under § 3582(c)(2) – specifically, for a reduction under Amendment 782, which had lowered his guideline range by thirty months or so. Id. at *2. Although neither party raised the earlier waiver of such claims, the district court denied Sainz’s motion based on the § 3582(c)(2) waiver in his cooperation-agreement. Id.
  Sainz appealed.

Issue(s): “We begin our analysis by nothing that no circuit has directly addressed whether it is appropriate for a district court to invoke sua sponte a defendant’s waiver in an agreement with the government of the right to file a § 3582(c)(2) motion.” Id. at *2.
  “In this case of first impression, we consider whether a district judge may sua sponte raise a defendant’s waiver of the right to seek relief under 18 U.S.C. § 3582(c)(2) and deny the defendant’s motion for resentencing on that ground.” Id. at *1.

Held: “We hold that it may not. . . . [and] reverse the . . . denial of Sainz’s motion for a sentence reduction.” Id.

Of Note: Our job is to take swipes at the government, but the wise exercise of prosecutorial discretion also merits a nod.
  Sainz’s counsel was ND Cal FPD Appellate Chief Carmen Smarandoiu. Ms. Smarandoiu reported to the Ninth that the N.D. Cal. U.S. Attorney’s Office generally did not assert § 3582(c)(2) waivers in the many cases where they existed. The Sainz decision cites this unrebutted assertion, id. at *6 n.3, which goes on to report that the majority of the district’s Drug Resentencing cases were resolved by stipulations between the FPD and USAO (despite the existence of waivers for many of our clients).
  Many of NorCal’s drug clients received real resentencing relief, and are now serving far fewer years in prison, because the USAO quietly, and deliberately, refrained from invoking § 3582(c)(2) waivers during the administrations of U.S. Attorneys Haag, Stretch and Tse.
  Nothing more becomes the federal government than self-imposed restraint.

How to Use: Sainz has a complicated procedural history, but a clean new rule: district courts cannot sua sponte invoke waivers that are not asserted by the government.
  The Ninth makes it clear that this rule applies to the Circuit as well: “Although we have not addressed whether a district court may raise a defendant’s waiver, we have concluded that, on appeal, courts should not raise waiver sua sponte.” Id. at *2.
  The Court declines “to hold that the government’s silence about a defendant’s waiver of the right to file a § 3582(c)(2) motion allows the district court to sua sponte raise the waiver.” Id. at *4. “In other words, the government must do more than remain silent: it must expressly invoke the waiver to avoid waiving it.” Id. Sainz is well-written and thorough in its discussion of the “waiver of waiver” problem.
  Turn to Sainz when your district (or appellate) judge edges out of their role as a neutral ump, and starts swinging at waivers not raised by the AUSA.
For Further Reading: Our problem with crime, A.G. Barr just explained, arises from District Attorneys who “style themselves as ‘social justice’ reformers, who spend their time undercutting the police, letting criminals off the hook, and refusing to enforce the law.” See DOJ Press Release here
  In a similar vein, E.D. PA U.S. Attorney McSwain just blamed a tragic shooting in Philadelphia on a “culture of disrespect for law enforcement” “promoted and championed” by D.A. Larry Krasner. See E.D. PA USAO Press Release here   Closer to home, 73 were just arrested in San Francisco's Tenderloin a single day, in an effort clearly coordinated with the NorCal USAO’s Helping HandFIT” project. See article here

  This is how Federalists respect states’ rights, and honor local control of local criminal justice issues? See essay by Edwin Meese, here

Steven Kalar, Federal Public Defender N.D. Cal. Website at



Sunday, August 11, 2019

Case o' The Week: Ninth Has Patience of Jobe for (Long) Delayed Search Warrant - Jobe, Herring, and Search Delays

 (Rotten Herring).
United States v. Royce Jobe, 2019 WL 3757596 (9th Cir. Aug. 9, 2019), decision available here.

Players: Decision by visiting DJ Korman, joined by Judges Wardlaw and Hurwitz. 
  Hard-fought appeal by AFPD Margaret Farrand, CD Cal FPD.

Facts: DHS Special Agent Paul Cotcher got a state warrant for Jobe’s residence, on suspicion of a marijuana distribution. Id. Among other things, the search produced a laptop that was seized, but not searched. Id.
   Cotcher then convinced the Feds to take the case. Nearly three weeks later, he got a federal search warrant for the laptop. Id. Twenty days after it was seized, the laptop was finally searched. Id. That search produced evidence leading to federal charges. Id.
  The district judge granted Jobe’s suppression motion, finding unreasonable delay before the federal warrant was secured and laptop was searched. Id. at *2. 
  The government appealed. Id.

Issue(s): “Jobe argues that even if the seizure of the laptop under the state warrant does not provide a basis for exclusion, the twenty-day delay between that seizure and the subsequent execution of the federal search warrant justifies suppression.” Id. at *2.

Held: 1. P.C. in State Warrant, and Herring: “We accept that there was insufficient probable cause to seize the laptop. The state judge lacked a substantial basis for concluding that probable cause existed to seize the laptop because Cotcher’s affidavit did not mention a computer or any electronic devices, much less state any facts suggesting that Jobe’s laptop would likely contain evidence of a marijuana growing operation. . . . Nevertheless, Cotcher’s affidavit supporting the state warrant contained sufficient information to render his reliance on the warrant reasonable.” Id. at *2.
  2. Delay: “Even assuming that the delay was unreasonable, we disagree.” Id. at *2. “[United States v. Cha, 597 F.3d 995, 1003 (9th Cir. 2010)] is our only prior decision addressing the issue posed in Herring in the context of delays.” Id. at *3. “Cha and Herring . . . explain that suppression is warranted to deter deliberate, reckless, or grossly negligent conduct.Id.

Of Note: Special Agent Paul Cotcher illegally seized a laptop, despite an acknowledged lack of probable cause in the state search warrant. The Ninth, however, finds reliance on the state warrant “reasonable.” Id. at *2. 
  SA Cotcher then held the illegally-seized laptop for nearly three weeks, before finally getting a warrant authorizing a search. The district court (appropriately) suppressed. Although the Ninth grudgingly concedes that “Cotcher could have been more efficient in preparing an application” for the federal search, the Circuit still reverses the district court’s grant of the suppression motion, again citing Herring
  As predicted a decade ago, Herring is methodically hollowing-out Fourth Amendment remedies – and by extension, Fourth Amendment protections.

How to Use: Three weeks! That’s an awfully long time for SA Cotcher to sit on an (illegally) seized laptop, before he and the USAO finally get around to getting a second warrant. District Judge Korman spends much of the opinion trying to distinguish Judge Beezer’s decision in Cha – a case where a one day delay merited suppression. 
  Delayed-warrant search cases in the Ninth are now going to have to wrestle with the awkward spectrum of Jobe and Cha: start with this unwieldy pair of opinions when the dust is thick on your client’s seized evidence.
For Further Reading: A decade ago, NorCal U.S. Attorney Russoniello infamously focused prosecutions on S.F.’s Tenderloin. His initiative federalized low-level drug sales, using the threat of drug mand-mins to coerce quick pleas to high federal sentences. The controversial effort even drew criticism from former AUSAs. See article here. Many of the harsh drug sentences from that era have been reduced over the years, thanks to Johnson, Crack Resentencing, Drug Resentencing, and the First Step Act. 
  Two years ago, NorCal’s U.S. Attorney’s Office charged 37 (all black) defendants in a Tenderloin “Safe Schools” initiative. After litigation, the USAO dismissed the cases in the face of a racial-profiling discovery motion by the FPD’s office (and an order compelling discovery production by the Honorable Judge Edward Chen). See “For Further Reading,” at blog entry here
  Five days ago, U.S. Attorney David Anderson announced “F.I.T.”: a new “Federal Initiative for the Tenderloin.” See N.D. Cal. USAO Press Release here. Thirty-two defendants have been charged federally thus far, though notably, another 73 were arrested by S.F. cops in the Tenderloin last week.

Steven Kalar, Federal Public Defender, N.D. Cal. FPD. Website at 


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Sunday, August 04, 2019

Case o' The Week: When in Doubt, File it Out - Fabian-Baltazar and Duty to File Notice of Appeal

  Hard to savor waiver favor.
United States v. Fabian-Baltazar, 2019 WL 3418449 (9th Cir. July 30, 2019), decision available here.

Players: Per curiam decision with Judges Rawlinson, Bea, and Hurwitz. Win for ED Cal AFPD Peggy Sasso.    

Facts: Fabian-Baltazar pleaded guilty to possession for distribution of over 50 grams of meth. Id. at *1. His plea agreement had waivers of the right to appeal and collateral attack. Id. 
   After sentencing, he nonetheless filed a § 2255. The habeas motion alleged (among other things) that his trial counsel committed IAC by failing to file a notice of appeal. Id. The district court’s dismissal, based on the plea agreement waivers, was affirmed by the Ninth. Id.
   The Supreme Court granted cert., vacated, and remanded, in light of Garza v. Idaho, 139 S. Ct. 738 (2019). 
  The government declined to enforce the collateral attack waiver on remand, to the Ninth, so the Circuit analyzed the case “as involving only an appeal waiver.” Id. at *2.

Issue(s): “The parties agree that a remand is required in light of Garza but disagree about the scope of the remand. Fabian-Baltazar argues that we should simply reverse the district court’s order and direct it to address the merits . . . . The government argues that, before proceeding to the merits, the district court must first determine whether Fabian-Baltazar requested his attorney to file a notice of appeal.” Id. at *2.

Held: “Fabian-Baltazar’s § 2255 motion contends that he expressly instructed his attorney to file a notice of appeal. But, the government has never had the opportunity to challenge that assertion, because . . . . prior rulings held that the collateral attack waiver nonetheless barred the § 2255 motion. The district court therefore should determine on remand whether such an instruction was given, and if not, whether counsel failed to consult, and if so, whether that failure constituted deficient performance.” Id. at *2.

Of Note: On their surface Garza and Fabian-Baltazar are nice outcomes: the defendants may get to file appeals, despite appellate waivers. 
  Counsel in the trenches, however, worry about breach: will the government start backing out of deals when a defendant demands an appeal despite an appellate waiver? See generally Garza, 139 S. Ct. at 756 (Thomas, J., dissenting) (discussing potential life sentence – instead of imposed ten-year term -- if Garza breached plea agreements by filing an appeal).
  The facts of Fabian-Baltazar illustrate the cost-benefit conundrum. Mr. Fabian-Baltazar was caught with 2,636 grams of meth. See D.Ct. Ord. Denying Habeas Mot., 2015 WL 1497537, *5. The government kept its side of the plea-agreement bargain, and recommended five offense levels off for Acceptance and Safety Valve. The district court varied down an additional 15 months from the guideline range, to a ten-year term. See id. 
  Fabian-Baltazar’s habeas, however, complains that he didn’t get below the mand-min of ten years (a promise not made in the plea agreement). Id. at *4.
  Will Mr. Fabian-Baltazar's long quest to file an appeal ultimately end in an Anders brief and breach exposure?
  Garza may vindicate appellate rights, but it adds real challenges to defense counsel charged with advising and protecting indigent clients.   

How to Use: Beware of Fabian-Baltazar’s lessons:

1. It is per se IAC to not file an appeal when expressly requested by our clients – even if there is an appellate waiver;

2. If you “consult” with the client after sentencing (consult means, “advising the defendant about the advantages and disadvantages of taking an appeal, and making a reasonable effort to discover the defendant’s wishes,”), it is only IAC to not file notice of an appeal if we are expressly told to file by our client;

3) If you do not “consult” with your client about filing an appeal (even if there is an appellate waiver), it may be IAC.
  Id. at *2.

The punchline? Consult with clients about filing an appeal, even if there is an appellate waiver (and wise to document that discussion in a letter or memo).
For Further Reading: Rather than fuzzy law on our duties, IAC claims over alleged failures to notice appeals, and messing with habeas evidentiary hearings, wouldn’t it be simpler just to eliminate appellate waivers altogether?
  Don’t scoff: there seems to be a growing judicial skepticism to the things. In 2018, for example, the Second Circuit refused to enforce a waiver where no consideration was apparent in the plea agreement. See Second Circuit blog here

Steven Kalar, Federal Public Defender N.D. Cal. Website at 


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Friday, August 02, 2019

Page v. King, No. 17-16364 (8-2-19)(Feinerman w/Paez & Berzon). The 9th vacated a dismissal based on Younger abstention. The petitioner is facing state recommitment under the California Sexually Violent Predator. He has been awaiting trial for 13 years. In his federal habeas, he argued that (1) the delay was an extraordinary circumstance; and (2) that he was facing irreparable harm being held on an outdated and even invalid scientifically probable cause determination. 

The 9th found the delay, by itself, is not an extraordinary circumstance. However, he is facing possible irreparable harm. The pretrial determination cannot be vindicated and cannot impact the actual trial. The Younger abstention is vacated on the irreparable harm issue.

The decision is here:

Wednesday, July 31, 2019

US v. Fabian-Baltazar, No. 15-16115 (7-30-19)(Per curiam w/Rawlinson, Bea, & Hurwitz). If a client tells the lawyer to file a notice of appeal, it is IAC if the lawyer fails to do so, even if there is an appellate waiver in the plea. The Supreme Court held this in Garza v. Idaho, 139 S. Ct. 738 (2019).  Here, the petitioner filed a 2255 alleging IAC for his lawyer’s failure to file the notice of appeal.  The 9th had affirmed the denial of the IAC, but upon remand from the Supreme Court in light of Garza, it now vacates the denial and remands to determine if the petitioner had in fact instructed his lawyer to file.  This opinion raises the issue of whether it would be IAC if the lawyer fails to consult with the client to ascertain his intent, and seems to indicate, again following Garza, that it would be. On remand here, the court needs to determine whether an instruction was given; and if not, whether the lawyer failed to consult.

This per curiam opinion thus seems to set out how counsel should proceed, even in light of an appellate and 2255 waiver.

Congrats to AFPD Peggy Sasso, FPD Cal E. (Fresno).

The decision is here:

US v. Ochoa, No. 19-10383 (7-29-19)(Morris w/Ikuta & Christen). An interesting “win” on supervised release (SR) conditions. Such wins are not “frequent,” which is the issue of this appeal.

The defendant was under SR conditions for a sexual offense. One was a “special condition” that he could not “frequent” places that sell, provide, have access to  sexual explicit material. 

At a polygraph, the defendant admitted that he saw an adult film at an adult theater. He admitted one time. This was the basis for the SR revocation.

The 9th reversed. Cracking open the dictionary, the 9th reads that “frequent” is defined as “often” or several and so forth. It was more than once. The 9th rejects the government’s position that the defendant was informed about this prohibition in two meetings. The 9th looked at what was written.

The 9th rejects the defendant’s challenge to the condition as unconstitutionally vague. The 9th looks to prior precedent, US v. Gnirke, 775 F.3d 1155 (9th Cir. 2015), which held that the condition itself was not vague; it addresses the concerns as to treatment and prevention.

The decision is here:

Dixon v. Ryan, No. 16-99006 (7-26-19)(Thomas w/Graber & Ikuta). Note: This is an Az CHU case.  The 9th affirmed denial of a capital petition.  Applying AEDPA deference, the 9th found no IAC when trial counsel elected not to challenge defendant’s competency to represent himself, despite the knowledge that he had a significant history of mental issues. The trial court had been aware of the mental history. The 9th gives deference to the state supreme court’s conclusion of no IAC. There was also no due process violation from the trial court’s failure to sua sponte have a competency hearing. The 9th affirmed the district court’s denial of the claim that a continuance should have been granted to develop mitigation (four years was enough); wearing a stun belt and leg braces (no requisite showing but no proof the jury saw the restraints and even if they did, it was harmless).

The decision is here:
1. US v. Corrals-Vazquez, No. 18-50206 (7-24-19)(Bybee w/Wardlaw; concurrence by Bybee; dissent by Fernandez).  In reversing a 1325(a)(2) conviction  — eluding examination or inspection by immigration officials —the 9th holds that the government must prove that the eluding occurred at an open POE. Otherwise, the conduct is illegal entry under 1325(a)(1). The majority examines the statutory text, looks at other conduct (i.e. (a)(1)), cracks open the dictionary (eluding), and reaches the conclusion that (a)(2) can only occur at a POE.  The majority does not state what type of slinking or avoidance is required for eluding.

Concurring, Bybee expresses sympathy for the prosecution. He decries the “mess” of 1325 jurisprudence. He uses the concurrence to go through “official restraint” and “attempts” and some strange scenarios. Here though the statute is what it is.

To Fernandez, dissenting, the statute is what it is, too. However, it is not that confusing nor ambiguous. He argues that it is not uncommon for Congress to double book or be redundant. He finds no requirement that the eluding take place at a POE.

Congrats to Doug Keller, Federal Defenders of San Diego, for this tremendous and far reaching victory. 

This calls into question many Operation Streamline convictions. It also raises questions of past convictions for future prosecutions. Interesting times ahead.

The link to the case is here:

2. Djerf v. Ryan, No. 08-99027 (McKeown w/Gould & Ikuta). Note: This is an Az CHU case. The 9th affirms dismissal of this capital 2254 petition. The 9th found no IAC. The issue was that the petitioner represented himself in guilt/innocence. The 9th found no IAC in counsels’ representation that “forced” such representation; nor was there error in allowing it. Counsel represented petitioner at sentencing, and there was no IAC in presenting mitigation. Any error by the Az Supreme Court in requiring a nexus for mitigation was harmless. This was a tough heart wrenching case, with multiple family deaths.

The decision is here: