Summerlin v. Schriro, No. 98-99002 (10-17-05)(en banc). The 9th finds the petition gets a resentencing hearing because of IAC at sentencing. Sentencing counsel failed to adequately investigate mitigation, especially mental condition, and to formulate a sentencing mitigation plan. The 9th finds that the state's allegation that the petitioner asked not to present mitigation was not supported on the record, and undercut by the lack of a comprehensive and adequate mitigation investigation.

Congrats to AFPDs Ken Murray and Letty Marquez of Arizona.

Carty v. Nelson, No. 03-56766 (10-17-05). This petition contesting a civil commitment as a Sexually Violent Predator under California commitment procedures raises two interesting points: mootness and confrontation. The petitioner, while this petition was pending, was found by a jury not to be a SVP when the state was seeking to keep him in for a third 2 year term. The 9th finds that this does not moot the petition, because the petitioner still suffers from restraints on his liberty and must abide by certain registration conditions that could lead to a violation. In terms of confrontation, and Crawford, the 9th holds that Crawford is a trial right, and that this is a civil commitment, although recognizes the loss of liberty. The 9th does not extend Crawford given the civil nature.

US v. Allen, No. 04-50205 (10-18-05). Defendant played a role in an armed bank robbery that saw him convicted of various counts (conspiracy, robbery and 924(c)), and get a 319 mos. sentence. Defendant argues that the evidence doesn't support a foreseeable use of a firearm and that he should have received a Rule 29 acquittal. The 9th disagrees, pointing to various meetings and discussions with co-conspirators where the plan was hatched. The 9th also found that there were no Crawford violations because, aside from not raising such an objection (hence plain error review), conversations of co-conspirators were no testimonial. A statement of one conspirator to another to "bring the crew in" was not Crawford-ized. A statement to an officer however was, but there was no objections, and the co-conspirator (turned CI) was available to testify. The 9th did remand for resentencing under Ameline and because the original sentencing judge is no longer available, the remand is for a full resentencing.

Plumlee v. Papa, No. 04-15101 (10-18-05). Would one find it suspicious if: (1) the deputy in the public defender's office had a relationship with a codefendant in a murder case and was heard talking about the case; (2) if the appointed public defender on the case accepted a position in the district attorney's office and lied to the defendant about it; and (3) if the defendant insisted there were orders and bail conditions but the public defender denied it, and suggested he was mentally ill, only to have the district attorney produce them. Hmmmm. This doesn't sound like a good atty-client relationship. When the defendant asked for new counsel, the state court denied the motion. Thirteen years later, the 9th (B. Fletcher) grants relief, finding that the atty-client relationship was objectively strained and violative of the sixth amendment. In dissent, Bea argues that the 9th ignores AEDPA's rulings, credits the personal pique of a petitioner, and basically makes life harder for poor public defenders. (Ed note: interesting that the plight of public defenders is usually taken up by dissenters from majority opinions GRANTING relief). Bea writes quite spiritedly. For example, instead of just ending the dissent with the usual "respectfully dissenting", he writes ""I cannot agree with such an unsupported decision. Accordingly, with respect to my colleagues, but with the utmost regret for their misguided opinion, I dissent."

Congrats to AFPD Jason Carr of the D. Nev.

Merced v. McGrath, No. 04-15560 (10-18-05). This is an interesting opinion that wrestles with a juror's belief in jury nullification. On appeal from a denial of a petition, the 9th affirms the district court. The state courts were correct in holding that a court acted within its discretion in dismissing a juror who expressed a belief in the right to nullify a verdict because he possessed views that might impair or impede his service on a jury. The 9th recognized the power of a jury to nullify (citing many very old cases, back to Bushell's case) but the jury didn't have a right to. In this matter, the juror, when asked if he could follow the law, restated that he believed in nullification and that it was reasonable that he would not follow the law. The 9th discusses the power of personal qualms and belief in the context of Witherspoon and Witt (death penalty/juror cases) and concluded that personal beliefs have to give sway to the law's dictates.