Sunday, August 28, 2005

Case o' The Week: AEDPA, SCHMEDPA, Recall the Mandate in Crawford

A little order evokes big memories in United States v. Crawford, __ F.3d __, 2005 WL 2030497 (9th Cir. Aug. 24, 2005), ord, available here. On its surface, the Crawford order is a short little recall of a mandate, allowing a district court judge to resentence after Booker. The "recall the mandate" approach, however, has a colorful history in this Circuit. The last time the Ninth tried this approach it pitted the Circuit against the Supreme Court, and sparked a legendary intellectual battle between Judge Reinhardt (left), and Judge Kozinski (right).

Players: Judges Gould, Brunetti, and McKeown.

Facts: A district court judge expressed regret at the high sentence he had to impose under the (then mandatory) Sentencing Guidelines. Id. at *1. Booker was decided. The defense sought to recall the mandate.

Issue(s): Does a district court’s reservations at sentencing – combined with Blakely and the Booker decision – constitute “extraordinary circumstances” that warrant recalling the mandate, vacating the sentence, and remanding for resentencing?

Held: Yes. “This case involves ‘extraordinary circumstances’ sufficient to justify our recall of the mandate, Calderon v. Thompson, 523 U.S. 538, 550 (1998); see also Nevius v. Sumner, 105 F.3d 453, 460-61 (9th Cir.1996), because: (1) the sentencing judge expressed explicit reservations on the record about the sentence required under the previously mandatory Sentencing Guidelines; and (2) the Supreme Court's decision in Blakely v. Washington, 542 U.S. 296 (2004), foreshadowing its holding in United States v. Booker, 125 S.Ct. 738 (2005), was rendered before the mandate issued. Accordingly, we recall the mandate, vacate the sentence, and remand to the district court for resentencing pursuant to Booker . . . .Id. at *1 (footnotes omitted).

Of Note: As discussed in greater detail below, this very short order involves very big issues regarding a procedural gambit called “recalling the mandate.” Conspicuously absent in the order is i) the time lapse between sentencing and the motion to recall the mandate, and ii) any discussion of habeas relief. Does Crawford stand for the proposition that a defendant can seek relief through recalling the mandate even when there is a habeas timing bar? The order doesn’t say so, but that’s a fair between-the-line reading.

How to Use: This order may signal a habeas loophole for the right case. Has a client blown ADEPA time limits? Doesn’t seem to have bothered the Crawford panel – and the client who will be resentenced doesn’t care if his relief came from habeas review or a recall of the mandate.

For Further Reading: To “recall the mandate” has been a politically-charged approach; an approach that has sparked some of the highest drama in the Ninth in recent memory. The most notorious example of this is Thompson v. Calderon, 120 F.3d 1045 (1997), reversed by Calderon v. Thompson, 523 U.S. 538 (1998). In essence, the Ninth in Thompson avoided a habeas bar and reversed a capital case by recalling the mandate; the Supreme Court then quickly reversed that procedural gambit. After a remand and further proceedings, Thompson was ultimately executed – in spite of a Ninth Circuit decision finding fundamental errors in his state trial.

For an extraordinarily candid view of that process, see a former Fletcher clerk’s blog here. A noteworthy history of the Thompson case was provided by Judge Reinhardt himself, in The Anatomy of an Execution: Fairness vs. “Process,” 74 N.Y.U.L. Rev. 313 (May 1999). The fight over recalling the Thompson mandate strained the boundaries of old friendships in the Ninth. See id. at n. 140 (discussing Judge Reinhardt’s views of Judge Kozinski).

Consider the irony in Crawford; the Ninth cites the Supreme Court’s Thompson reversal for its authority to now recall the mandate . . . .

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at


Anonymous Anonymous said...

The article by Judge Reinhardt is not properly cited: it is at 74 NYUL Rev 313.

Tuesday, August 30, 2005 10:47:00 AM  
Blogger Steve Kalar said...

Thanks anon.; cite corrected.


Tuesday, August 30, 2005 8:12:00 PM  

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