Tuesday, December 27, 2005

Burnett v. Lambert, No. 04-35305 (12-27-05). Unsurprisingly, the 9th finds moot a habeas due process challenge regarding denial of state parole. The Oregon State Parole Board denied petitioner twice previously. While the habeas was pending, petitioner was paroled, and almost immediately violated, landing him back in the pen. This subsequent reoffending after his release moots the challenge that he should have gotten out sooner since any relief is unattainable. The court did not have the issues before it to decrease his sentence nor to decrease his sentence after the parole violation.

Ferrizz v. Giurbino, No. 03-56137 (12-23-05). Petitioner was a roofer, who, when the homeowner was away, burglarized the house and committed grand theft of lost property, when he took owner's wedding ring. This was petitioner's third strike, and he got 35 years. In a habeas challenge, he argued that the two verdicts -- burglary and grand theft of lost property -- were inconsistent and so must be vacated. The 9th held that the two verdicts could be reconciled: petitioner could have burglarized the house, and then found the ring as he left (he argued that he had found the wedding outside the master bedroom window). The 9th stressed that the jury deliberations, and questions, show that the verdicts were both unanimous, and the state courts' decisions were not contrary to federal law.

US v. Pacheco-Navarette, No. 04-10396 (12-23-05). The 9th dismissed appeal for lack of jurisdiction. Defendant had waived his appeal rights when he entered into a stipulated sentence (at a stat max 120 mos) and had other charges dropped. On appeal, defendant argued that subsequent changes (Booker) undercut the voluntariness of the plea and made it involuntary. The 9th rejected this, holding that subsequent changes does not render a plea involuntary, especially in this context with a stipulation for other consideration.

US v. Ladwig, No. 04-30393 (12-27-05). The 9th holds that making a harassing call that is a felony under State of Washington law is a violent felony for federal ACCA purposes. The felony of harassing calls required a "threat of death", and that threat makes the conviction having a threatened use of force. Moreover, the state prior is characterized as a federal violent crime even though state precedent holds that it is nonviolent. The 9th also looks for support in an 11th Circuit case that likewise held harassing calls to be violent priors.


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