Friday, May 11, 2007

Serrato v. Clark, No. 06-15167 (5-9-07). Boot camp was dumped by the BOP. No comment, no hearing, no notice. A defendant who plead, and who was eligible, and indeed counted on it, brought a habeas challenge. The district court dismissed. The 9th (Bea joined by Farris and Clifton) affirmed, finding that the petitioner had no substantive right to a boot camp program. BOP's action was within its legal discretion because of a lump sum appropriation, and did not require notice and comment. BOP's act furthermore did not violate any sentencing statutes nor was a violation of separation of powers. Finally, petitioner could not rely upon the ex post facto clause nor retroactivity. Thus, boot camp ends by an administrative fiat by BOP, and with deference to that act buy the courts.

US v. Simtob, No. 06-30120 (5-11-07). We consider ourselves fortunate if we get a reversal of any kind; so, how fortunate would it be if the defendant gets reversal of his convictions for jury bias AND a reversal of the SR violation because the court used the underlying conviction to max him out. The defendant here was on SR when he got other drug charges. At trial, a juror complained that the defendant was "eye-balling" her. The judge said, "stop it," but never investigated or questioned the juror for bias. The 9th (Ezra joined by Fisher and Tallman (!)) reversed. The court has to investigate further when such an issue arises. The judge should have inquired of the juror whether she could continue to be fair and to see what the extent of the concern was. The court had given the defendant 240 months (guideline max was 97).

As for the SR violation, the 9th reversed because the court used the underlying conviction as the sole reason for a max of 3 years. In US v. Miqbel, 444 F.3d 1173 (9th Cir. 2006), the court stated that the seriousness of the underlying criminal offense cannot be the main or primary reason for a revocation sentence. The SR statute, 3583, omits, for example, 3553(a)(2)(A). The sentence should focus on the breach of trust aspect, and not on the seriousness of the underlying offense or respect for law. Now, the 9th opines, this does not mean a court cannot consider the underlying criminal conduct, but the consideration has to deal with trust, reintegration into society, and other trust factors. The 9th stresses though that '{a] district court may not impose a revocation sentence solely, or even primarily, based on the severity of the criminal offense underlying the revocation, as the sentence for that offense is left to the sentencing court."

Sure this means that a court accomplish the same goal by dress it up in breach of trust language, but the court has to connect the sentence to breach of trust, and the underlying new conduct. It is that step or nexus that can be reviewed.

This is a reversal of another Montana case (Haddon).

Congrats to David Ness of the Montana Federal Defenders (Great Falls).

Lambright v. Schriro, No. 04-99010 (5-11-07). Granting a petition for IAC at capital sentencing. Petitioner argued IAC at sentencing based on shoddy and insufficient investigation of past mental illness, drug use, deprived and depraved childhood, and PTSD from Vietnam. The panel (per curiam of Ferguson, Reinhardt, and D. Thompson with a concurrence by Ferguson) basically held that the counsel, under Wiggins, had an obligation to investigate and uncover mitigation. Moreover, the court erred in connecting or requiring a nexus between the mitigation and the offense. The mitigation is separate from any defense, or the standards for a defense). Concurring, Ferguson stresses the nature of PTSD and the fact that petitioner's description of tour in Vietnam may not have been accurate does not preclude other bases for PTSD.

Congrats to AFPD Jennifer Garcia of D. Arizona (Phoenix).


Post a Comment

<< Home