Plascencia v. Alameida, No. 05-56458 (11-3-06). The 9th (Trott, Reinhardt, and Robart) affirm a denial of a habaes. the petitioner shot another woman after an ongoing dispute, and did it in front of the victim's kids. She got 50 years to life. In post-conviction, she argued that her counsel was ineffective in his cross-examinations of the state's jailhouse informants. The 9th didn't think so, stressing all the good things the defense counsel did in exposing motive and inconsistencies, and how he argued it. There was no IAC. The 9th also found that there was confrontation violation in the shortening of other cross-examinations, finding that the points were made, and the witnesses pretty much discredited. The conviction can't be pinned on failure of counsel under Strickland.

Nath v. Gonzales, No. 05-16557 (11-3-06). The 9th (Merritt, joined by Hug and Paez) grant the petition. The petitioner had sustained a conviction of possession of a controlled substance. he went back to state court, had it vacated, and entered a new plea to transporting, which is a non-aggravated felony because of the Taylor categorical approach (round criminal conduct that doesn't quite fit into the square hole of an aggravated felony). The BIA and district court had placed the burden on the petitioner to show that the vacation was on the merits or procedure, and not just to avoid immigration. The state court had just written that it was for "good cause." The burden rested with the state to show that the vacation was merely to achieve an immigration result. The 9th also held the new plea had to considered on its own merits and not as subterfuge.

Lyle Denniston of SCOTUSblog provided the following description:

The Supreme Court agreed on Friday to decide whether a criminal sentence that is within the federal guidelines is to be treated as reasonable, and thus valid. It also said it would rule on whether a sentence below the guideline range is reasonable. It accepted for review two cases on an issue that has led to a multitude of rulings in lower courts, producing a conflict at least on key aspects of that question.

The Court will hear Claiborne v. U.S. (06-5618) and Rita v. U.S. (06-5754), with oral argument probably in February. In Claiborne, the Court will examine whether a sentence below the guideline range is reasonable, and whether a sentence that varies substantially from the guidelines can only be imposed in extraordinary situations. In Rita, it will decide whether a sentence within the range is reasonable, whether such a sentence may be presumed to be reasonable, and whether such a sentence may be imposed without full analysis by the judge of factors that might justify a lesser sentence.

The Court has been asked repeatedly, since its U.S. v. Booker decision in 2005 that upheld the federal Sentencing Guidelines as long as they are advisory only, to rule on the meaning of a new appellate review standard that Booker laid out. Prior to that decision, federal law reinforced the mandatory nature of the guidelines by limiting review on appeal. Booker said that, from then on, appeals courts would review sentences for "reasonableness."In rulings since then, six federal appeals courts have ruled that, if a sentence is within the Guideline range, that is presumed to be reasonable on appellate review.

Four other appeals courts have disagreed. The Solicitor General had repeatedly urged the Supreme Court to bypass the issue for the time being, arguing that Booker was so recent that it would be premature to go into the issue promptly.At its private Conference Friday, the Court had before it a long list of cases on the issue. From those, it chose the Claiborne and Rita cases, presenting an array of specific questions on the core issue of reasonableness. The Claiborne case is from the Eighth Circuit, Rita from the Fourth Circuit. The Solicitor General opposed review in both.